Assisted suicide - the Dianne Pretty judgement
An edited extract from;
THE QUEEN ON THE APPLICATION OF DIANNE PRETTY and DIRECTOR OF PUBLIC PROSECUTIONS and SECRETARY OF STATE FOR THE HOME DEPARTMENT and INTERVENORS including the MEDICAL ETHICS ALLIANCE.
JUDGMENT OF 17th October 2001
The Right Honorable Lord Justice Tucky, The Right Honorable Lady Justice Hale, The Honorable Mr. Justice Silber
Introduction.
(at par 1) "Mrs ... Dianne Pretty, is terminally ill. She wants to take her own life with the help of her husband... But section 2 of the Suicide Act 1961 makes it a criminal offence for a person to aid, abet, counsel or procure the suicide of another.... The DPP has been asked to undertake that he would not consent to Mr. Pretty's prosecution if he helped his wife to commit suicide. ... Mrs. Pretty contends that Articles 2,3,8,9 and /14 of the European Court of Human Rights require the DPP to give the undertaking . . .(or).. . Section 2 (1) of the 1961 Act is incompatible with the Convention.
Extracts from the judgement:
(at 5) Her QC told the court: "She requires and wishes the active assistance of a third party in carrying out some of the steps leading to her death although the last acts that leads directly to her death will be carried out by herself.."
(at 6)"This is the only evidence before the court as to what is proposed...
(at 7) (The DPP in a written reply to a request for immunity from prosecution had said) "..,Successive Directors -and Attorney General - have explained that they will not grant immunities that condone, require or purport to authorize or permit future commissions of any criminal offense, no matter how exceptional the circumstances..,"
(at 9) Thc DPP contends that he has no statutory or other power to give any undertaking relating to future or proposed criminal conduct..,"
(at 20) .. ."There are two stages in the decision to prosecute. First under the evidential test Crown Prosecutors must he satisfied that there is enough evidence to provide a realistic prospect of conviction against a defendant. At the second stage , Crown Prosecutors have to consider the public interest test...."
(at 21) The Director of Public Prosecutions and the CPS will only institute or continue with a prosecution when a case has passed both tests. The Code relates to how these decisions should be made by clear implication after, but not before, the offenses have been committed.
(at 22) . . ."Neither CPS nor its head the DPP has any investigative functions or the resources to carry out investigations..."
(at 23) "It is of critical importance that each of these powers or duties conferred by Parliament, including significantly that in Section 2(4) of the 1961 Suicide Act, is concerned with the position after a criminal offence has been committed. In other words, prior to the commission of an offence, the DPP has no role that he is authorized to perform... So Mr Pretty says that what the DPP was in reality being asked to do in this case by Mrs Pretty's solicitors was to give Mrs Pretty's husband a pardon before the offence of assisting suicide had been committed and while pardons can expunge past offenses, they cannot he used to grant immunity from criminal responsibility for an offence yet to be committed and in the absence of known facts....."
(at 33) As the DPP has no power to give the undertaking sought, we cannot give Mrs Pretty the remedy for which she has asked. Whatever the strength of the human rights arguments advanced, they could not properly be used to compel him to act in this way. There is, however, an alternative way in which Mrs Pretty might have put her case before us which would have not been open to the same objections. She and her husband could have applied for a declaration that what they propose to do would be lawful For that to be considered, a fully worked out plan has to be placed before the court and subject to proper scrutiny by a proper contradictor..."
(at 37) "This case concerns the conflict between two of the fundamental rights possessed by all human beings: the right to life and the right to decide what will and will not be done with one's own body. English law gives greater priority to the first as does the Convention. English law curtails a persons right to bodily autonomy in the interests of protecting that person's life even against her own wishes
(at 40) "(Mr. Havers for Mrs Pretty) argued that article 2 protects, not life itself but the individual's life from attacks by third parties, including the State.
(at 41) "we agree the Convention does not require the State to take positive steps to force life upon the unwilling. It does require the State to take positive steps to prevent people being deprived of life. For a third party to take active steps to deprive another of life, even with the consent of that person thus deprived, is forbidden by the article.... Taking steps which enable a person to take her own life may not amount to depriving her of life. For the act is hers and hers alone, it might therefore be open to the State, compatible with the convention, to relax the absolute rule in section 2(1) and permit assisted suicide in some cases."
(at 42) "But Mr. Havers has to go further than that. He has to argue that the State is obliged to do so. The right to life includes the right to die and the right to die at a time and a manner of one's own choosing...He cites no Convention Jurisprudence in support of these propositions, for there are none. We cannot agree with them..."
(at 46) "Mr. Havers argues that article 3 confers the right to die with dignity. The suffering and indignity endured .... is the result of the progress of a terminal disease..."
(at 47) "We would like to think that the State has a positive obligation to do what it can to prevent or alleviate the sufferings endured by people with terminal disease..."
(at 48) "In our view the right to human dignity which is enshrined in Article 3 is not the right to die with dignity, but to live with as much dignity as can possibly he afforded, until that life reaches its natural end..."
(at 49) "These views are reflected in the Recommendations of the Parliamentary Assembly of the Council of Europe 1999 on the protection of the human rights and dignity of the terminally ill and dying"
(at 51) "We conclude that, far from having the effect contended for by Mr. Havcrs, Article 2 and 3 between them are aimed at the protection and preservation of the life and the dignity of life, because of its fundamental value, not only to the individual but also to the community as a whole. It is to stand the whole purpose of these articles on its head to say that they are aimed at protecting a persons right to procure their own death"
(at 61) .."All the indications are that democratic opinion (on assisted suicide) in this country is not ready for change The matter was extensively considered by the House of Lords Select Committee on Medical Ethics in 1994.... They concluded that "the right to refuse medical treatment is far removed from the right to request assistance in dying. They did not believe that the arguments were sufficient reason to weaken society's prohibition of intentional killing. They could identify no circumstances in which assisted suicide should be permitted, nor did they see any reason to distinguish the act of a doctor or any other person in this connection..."
(at 62) "Although Mr. Havers has argued that this should be seen as a case about assisted suicide and not about voluntary euthanasia. Like the Select Committee on Medical Ethics, we are not persuaded that a distinction should be drawn between them.."
Conclusion
"For the reasons given in this judgment Mrs Pretty's claim for judicial review must be dismissed. Before the Convention became part of English law there is no doubt that her claim would have failed. We do not think the position has changed since its incorporation. Like everyone else who has read about and seen Mrs Pretty we feel desperately sorry for her and her husband and family but we think the decision we have reached is inescapable"
A more detailed extract of the judgement can be found on the Medical Ethics Alliance website by clicking here