This is Part II in a series on the Voluntary Assisted Dying Act 2017 (Vic). Read Part I here: An Overview of the Voluntary Assisted Dying Act 2017 (Vic)
What VAD means for s 2 of the Suicide Act 1961 (UK)
Much like Australia, the UK has had its fair share of debate, both in Parliament and before the courts, regarding the scope and human rights implications of assisted dying. The starting position in the UK is the blanket ban on assisted suicide enshrined in s 2 of the Suicide Act 1961 (‘Suicide Act’). Since the seminal decision of the UK Supreme Court in R (On the Application of Nicklinson and Anor) v Ministry of Justice  UKSC 38 (‘Nicklinson’), several bills (e.g. here and here) proposing amendments to the Suicide Act to permit various forms of assisted dying have been debated before both the House of Commons and the House of Lords. None, however, have passed through to enactment and the blanket ban persists: it is an offence, punishable by up to 14 years’ imprisonment, to encourage or assist (or attempt thereto) the suicide of another, whether the individual actually dies or not.
It is not necessary for instant purposes to consider in detail the findings of the Supreme Court in Nicklinson. Rather, it is sufficient to observe that the right to private life, protected by ECHR art 8 and translated into a domestic right by way of the Human Rights Act 1998, protects the right to choose the manner and timing of one’s death (see, e.g., Pretty v United Kingdom (2002) 35 EHRR 1 (‘Pretty’)). There is no question, then, that the blanket ban on assisted suicide interferes with that right.
The question that has been considered and answered in the affirmative by both the European Court of Human Rights (‘ECtHR’) and the domestic courts in England and Wales is whether that interference is justified so as to be compatible with ECHR art 8. Central to the courts’ erstwhile rejection of claims that the ban is incompatible with the right to private life has been concern regarding the effectiveness of safeguards in any permissive scheme. In particular, the courts have repeatedly accepted the State’s contention that a blanket ban (i.e. one that does not permit exceptions) is necessary to protect the lives of vulnerable individuals who may succumb to pressure to take their lives if assistance were lawfully permitted. In the context of the ECHR, this is framed as protecting the right to life of vulnerable individuals under art 2.
It is in this respect that the Victorian experience is of particular utility to future debates, whether that be during Noel Conway’s upcoming appeal or Omid T’s litigation, both of which involve challenges to the compatibility of the ban with, inter alia, the right to private life (although from different angles as Noel Conway is terminally ill and Omid T is suffering from a life-limiting illness but his life expectancy is measured in years, not months), or if another amending bill were debated by Parliament. More specifically, certain sections of the Victorian Charter and ECHR art 8 protect the same principles and, during the debate on the Voluntary Assisted Dying Bill 2017 (‘Bill’), compliance with the Charter, including the right to life of vulnerable individuals, was carefully considered.
Assisted dying, autonomy, dignity, and protecting the right to life of the vulnerable
As observed in the Statement of Compatibility to the Bill, the regime contained therein:
… is carefully and appropriately confined through stringent eligibility criteria, a multi-stage request and assessment process, and other strong safeguards to protect against potential abuse. Further, by enabling people’s decisions at the end of their life to be given effect, the bill also recognises and promotes other important rights, such as the individual rights to liberty and security, and to dignity and autonomy (which form part of the charter’s privacy right).
As the Minister for Health further recognised, the right to privacy protected by s 13 of the Charter protects, inter alia, the autonomy and dignity of the person. The Bill ‘promoted the right to privacy by allowing Victorians who are suffering at the end of their life, in very limited circumstances, to choose to end their life according to their own preferences’. The Bill’s terminal illness and life-expectancy requirements were ‘consistent with the fact that the person has not made a decision to end their life prematurely; rather, they have made a decision about the manner of their death’.
The ECtHR has identified the ‘very essence’ of the ECHR as dignity and interpreted the right to private life to incorporate the ‘principle of personal autonomy in the sense of the right to make choices about one’s own body’. The Minister of Health’s observations therefore support the complaints made most recently by Noel Conway and Omid T that the blanket nature of the ban in s 2 of the Suicide Act fails to strike the appropriate balance between the competing interests and is, thus, unjustifiable under ECHR art 8(2).
The conclusions reached by both the Victorian Standing Committee on Legal and Social Issues and the Voluntary Assisted Dying Ministerial Advisory Panel (‘Panel’) following their respective examinations of the permissive jurisdictions’ experiences further support the contention that the blanket ban is unnecessary. They demonstrate that it is possible to permit limited forms of assisted dying while also protecting vulnerable individuals: according to the Panel, ‘[h]aving strict eligibility criteria that must all be met sets clear parameters around who may access voluntary assisted dying and provides a safeguard that limits access to the people for whom voluntary assisted dying is intended.’ The requirements that the individual themselves make the request, that they have decision-making capacity, and that the co-ordinating and consulting medical practitioners be satisfied that the request is voluntary will ensure, according to the Panel, that any individuals seeking assistance to die under duress or other pressure would be ineligible. Further, the Panel majority considered that the evidence from the permissive jurisdictions did not indicate an unacceptable risk of abuse or pressure. Finally, and importantly, the assessment process which a request for assistance activates provides ‘an opportunity for people [who may be vulnerable to pressure] to openly discuss their concerns with two medical practitioners and will give these medical practitioners an opportunity to connect people to supportive care arrangements that will alleviate these concerns’.
The Victorian experience leading up to and including the enactment of the VAD demonstrates that it is indeed possible to establish an assisted dying scheme that is rather expansive insofar as it permits both assisted suicide and euthanasia, while also complying with a Charter which protects the right to life of vulnerable individuals. The reports and conclusions of the Committee and the Panel, and the debates surrounding the VAD, provide invaluable content for the courts in England and Wales presently considering Noel Conway’s and Omid T’s challenges to the compatibility of the blanket ban on assisted suicide in that jurisdiction with the right to choose the manner and timing of one’s death (as protected by ECHR art 8). More specifically, the VAD demonstrates that the blanket ban is not necessary to protect vulnerable individuals, as a limited assisted dying scheme is available which strikes a fair balance between the rights of certain individuals to control the manner and timing of their death, and the right to life of vulnerable individuals who may be feel pressured into taking their lives with assistance.
As the Panel observed:
Providing for unfettered autonomy in end-of-life decision-making would leave many people at risk of abuse and would fail to redress social disadvantages that render some people less able to exercise their autonomy. In contrast, focusing solely on providing appropriate safeguards to protect people who are at risk of abuse would result in a failure to acknowledge and respect that people can make their own decisions about their life in accordance with their values.
Section 2 of the Suicide Act, in focusing solely on protecting vulnerable individuals, fails to strike the appropriate balance between the rights of individuals to choose the manner and timing of their death, and the need to protect the right to life of vulnerable individuals. The Victorian experience thus demonstrates that the blanket ban on assisted suicide in England and Wales constitutes a disproportionate interference with ECHR art 8(1). While the VAD permits assisted dying for the terminally ill, such as Noel Conway, it is still relevant to the challenge presently made by Omid T (who, as noted, is suffering from a life-limiting but not terminal illness) as it demonstrates that a less restrictive regime is possible which better balances the rights of individuals to control the manner and timing of their death against the rights of vulnerable individuals. The ban is, thus, intrinsically disproportionate and, thus, incompatible with ECHR art 8. Whether Parliament ultimately determines to amend s 2 and, if so, what forms of assisted dying it permits and for whom is a separate issue and beyond the scope of this article.
The background to, and ultimate enactment of, the VAD has implications both domestically and internationally. It demonstrates that it is, in fact, possible to create a system which respects the autonomous right of certain capacitous individuals to exercise a degree of control over their death while also protecting vulnerable individuals. This will be of particular relevance to the ongoing debate in New South Wales where similar amendments failed to pass (19:20 votes against) the Upper House late last year; in New Zealand, where similar amendments are currently the subject of a Select Committee Inquiry; and in Guernsey, where a debate and vote on the introduction of an assisted dying scheme is due to take place sometime in May. As has also been discussed, that it was possible to introduce a system that respects the human rights of capacitous terminally ill patients to control the manner and timing of their death while protecting individuals vulnerable to pressure is directly relevant to the challenges to the blanket ban presently making their way through the courts in England and Wales.
More specifically, the VAD fundamentally undermines the claim that the blanket ban is necessary in order to protect vulnerable individuals. While the experience of foreign jurisdictions is not determinative, Victoria is the latest in a growing number of jurisdictions which have introduced (and are debating the introduction of) assisted dying schemes. The fact that jurisdictions, including those like Victoria which have human rights instruments, continue to lessen restrictions on assisted dying strongly suggests that blanket bans such as that contained in s 2 of the Suicide Act, are not the least restrictive means of protecting vulnerable individuals.