Article 3 - prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 3 is an absolute right, allowing no derogations but it can be interpreted in various ways. Whether an act constitutes inhuman or degrading treatment depends upon a range of factors and the individual circumstances of each case. Withholding proper medical care in a case where someone is suffering from a serious illness could, in certain circumstances, amount to treatment contrary to Article 3. Equally, however, providing invasive treatment contrary to the patient's expressed wish or his or her best interests - where, for example, the burdens outweigh the benefits - could also violate that patient's Article 3 rights.
This latter interpretation was reinforced by a 1997 case before the , in which it was held that Article 3 includes the right to be allowed to die with dignity. Therefore either giving or withholding treatment could breach the patient's Article 3 rights, depending upon the individual circumstances. D arrived in the UK in 1993; he was found to be in possession of a substantial quantity of cocaine and was sentenced to six years' imprisonment. While in prison D was found to be HIV positive and developed AIDS for which he was receiving medical treatment.
On his release from prison on licence, D applied to remain in the UK on compassionate grounds so that he could continue to receive the level of medical care he needed. This request was turned down and D took his case to the European Court of Human Rights.
D's solicitor argued that removal to St Kitts would entail the loss of the medical treatment D was currently receiving, thereby shortening his life expectancy. Furthermore such action would condemn him to spend the rest of his remaining days in pain and suffering in conditions of isolation, squalor and destitution.
The Court held that, although it could not be said that the conditions which would confront him in the receiving country were themselves a breach of the standards of Article 3, D's removal to St Kitts would expose him to a real risk of dying under most distressing circumstances and would thus amount to inhuman treatment in violation of Article 3.
In addition to differing interpretations of individual rights, there are also some cases in which different rights appear to conflict. In some cases, for example, Articles 2 and 3 will come into conflict if withholding treatment would lead to the death of the patient but providing it could be classed as inhuman or degrading treatment. In the case of "I”, Mr Justice Cazalet decided that, given the individual circumstances of that case, the best interests of "I" was that his right to be allowed to die with dignity should be upheld. In this case, Article 3 took precedence over Article 2. The has established that medical treatment without consent could, in extreme circumstances, be considered inhuman or degrading treatment. Where, as UK law permits, treatment is provided to an incompetent patient in his or her best interests, Article 3 is not violated. If, on the other hand, the treatment has been refused by a competent patient, or it was known that the patient would not have given consent to the treatment, or the patient had refused the treatment through an advance directive and the effect on the patient is sufficiently serious, providing treatment could be deemed to breach the patient's Article 3 rights. The threshold set by the courts, however, is very high and it would need to be shown that the effect of the decision was sufficiently serious to fall within the scope of Article 3. Treatment without valid consent could also be deemed to breach Article 8.
Human Rights Issue in R(Pretty) v Director of Public Prosecutions [2002]
Mrs Dianne Pretty, the appellant suffers from motor neurone disease, a progressive degenerative illness from which she has no hope of recovery. She has only a short time to live and faces the prospect of a humiliating and distressing death. She is mentally alert and would like to be able to take steps to bring her life to a peaceful end at a time of her choosing. But her physical incapacity is now such that she can no longer, without help, take her own life. With the support of her family, she wishes to enlist the help of her husband to that end. He himself is willing to give such help, but only if he can be sure that he will not be prosecuted under section 2(1) of the Suicide Act 1961 for aiding and abetting her suicide. Asked to undertake that he would not under section 2(4) of the Act consent to the prosecution of Mr Pretty under section 2(1) if Mr Pretty were to assist his wife to commit suicide, the Director of Public Prosecutions has refused to give such an undertaking. P submitted that: (i) s.2(1) of 1961 Act was incompatible with the European Convention on Human Rights; (ii) Art.2 of the Convention, when read with Protocol 6 Art.1 and Protocol 6 Art.2 of the Convention, guaranteed that an individual could choose whether or not to live; (iii) the DPP's refusal subjected P to inhuman or degrading treatment in breach of Art.3 of the Convention; (iv) Art.8 of the Convention embraced a right to self-determination, which included a right to choose when and how to die; (v) Art.9 of the Convention guaranteed P's right to believe in the virtue of assisted suicide; (vi) the United Kingdom's blanket refusal to allow assistance with suicides was disproportionate in view of P being in full command of her mental faculties, the absence of harm to anyone else, the imminence of her death and her willingness to commit suicide herself were she able to; and (vii) Art.14 of the Convention had been breached because, following, the DPP's refusal effectively discriminated against her as a disabled person.
Is Diane Prettys’ argument convincing
There was a unanimous judgement by five Law Lords that there is no right to be helped to die. In a poll reported in The Independent on 26/08/01, 85% of Britons said that people should have the right to die when they choose. In the Netherlands, decisions by legal authorities have led to the widespread killing of patients on a voluntary and non-voluntary basis. Mrs Pretty’s case could critically undermine the right to life of disabled and elderly people with degenerative diseases.
A book written by Dr. Dave Moor and published a year after his death, “Allowing Dignity in Death” discusses the controversial euthanasia case involving him and its traumatic effect on his family. He was acquitted in May 1999 of charges that he murdered 85-year-old George Liddell by administering a lethal injection, but died in October 2000 of a suspected heart attack at age 53.
Kevorkian, a Doctor in America famous for his assisted-suicide pioneer techniques is believed to have supervised more than a hundred suicides. An analysis of 69 of the cases by a team at the University of South Florida concluded that three-quarters were not terminally ill and five showed no evidence of any physical disease.
There is clearly a need for a legal mechanism that would allow people in Diane Pretty’s situation to request help in dying if they are too physically impaired to do it themselves. Having said that, it is hard to comprehend that voluntary euthanasia organisations and individuals dedicated to helping other people, often complete strangers, shuffle off this mortal coil.
These groups often have macabre names like Exit and the Hemlock Society. There is a rash of websites where you can find instructions on how to commit suicide, one offers a neat little "right to die" badge that can be ordered online. Another provides a list of “do-it-yourself” books on hastening death, they are intended to guide terminally ill individuals whose quality of life has shrunk to nothing, the site declares. “They are not intended to help depressed people commit suicide”. But there is no way of making sure that unhappy teenagers or depressed adults take notice of this pious warning. These tasteless organisations do not invalidate the arguments for legalising voluntary euthanasia, but it highlights the need for the most stringent safeguards. The task of assisting the terminally ill to commit suicide should not fall on friends and relatives, whose emotional involvement makes it too much of a burden. While there is always a risk of unscrupulous people putting undue pressure on someone who is elderly or depressed, any system of voluntary euthanasia needs to be in the hands of health professionals, supervised by the courts, and a million miles away from the weird campaigners it seems to attract.
European Court on Human Rights – What can Diane Pretty Argue?
This case has now gone to the European Court Of Human Rights. Pretty is arguing that in British Law there is no crime against suicide from oneself, yet there is no provision for people who are unable to commit suicide to enable others to assist. There are serious concerns that the case could undermine the lives of vulnerable people and lead to the practice of euthanasia. The submissions based on Art.2 and Art.3 of the Convention articles are there to protect life and not to take life. In the Netherlands, for instance, the Bill on Euthanasia, which comes into effect on 1st April 2002, legalises assisted suicide and accepts that it is incompatible with Art.2 of the Convention but has very strict guidelines. In Germany a case concerning, the right to self-determination is implicit in Article 2(1) of the Grundgesetz, or Basic Law, which protects the right to dignity. This led to a landmark judgment on 13 September 1994 by the Bundesverfassungsgericht (German Federal Court), which re-emphasised a patient's right of self determination, a right to be respected even in the case of a dangerously ill individual. The German Court made clear that withdrawal of treatment or care which leads to death may be done consistently with patient's rights: indeed may be a vindication of them even where there is a constitutionally protected "right to life". Assisting suicide is not a crime in Germany provided that the person about to commit suicide is competent. In Hackethal (BGH 1988) the Bundesgerichtshof (Supreme Court) considered a case where the doctor provided a lethal drug to a patient who seriously suffered so that she could kill herself. The Court declared that the duty of a doctor to save the life of a patient might be limited in a specific case where the patient himself only experiences his life as a burden and wants to be freed from it.
Mrs Pretty can also rely on Art.8, because without autonomy of choice, the right to privacy, home and a family life are all illusory and worthless. There is nothing in Art.8 limiting the right to choice over the fate of one's own body, Art.8 which has more implied rights and non-expressed logical extensions attached to it than any of the other rights in the Convention.
Right to life (Article 2) ,Prohibition of torture, inhuman or degrading treatment or punishment (Art 3)
Prohibition of slavery and forced labour (Article 4) ,Right to liberty and security (Article 5)
Right to a fair trial (Article 6) ,No punishment without law (Article 7) ,Right to respect for private and family life (Article 8) ,Freedom of thought, conscience and religion (Article 9), Freedom of expression (Article 10) , Freedom of assembly and association (Article 11) , Right to marry (Article 12)
Prohibition of discrimination (Article 14) , Restrictions on political activity of aliens (Article 16)
Prohibition of abuse of rights (Article 17) , Limitation on use of restrictions on rights (Article 18)
“Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom”
Osman v Uk 1998 29 EHRR 245
A National Health Service Trust v D & Ors 2000
PvS The Guardian 7/10/2000
D-v-UK [1997] 24 EHRR 423
Herczegfalvy-v-Austria (1992) 15 EHRR 437
X-v-FRG (1984) 7 EHRR CD 152
http://www.parliament.the-stationery-office.co.uk/pa/ld200102/ldjudgmt/jd011129/pretty-5.htm
http://www.lawtel.co.uk/cgi-bin/W3Vlawsrch?MO=9&UI=32242239324058646968&DB=LAWTEL&ST=CL&RI=C0102048
http://home.vicnet.net.au/~vesv/DrMoor1.html
http://www.willamette.edu/wucl/pas/pasupdateoctober2001.html
http://www.pbs.org/wgbh/pages/frontline/kevorkian/
DR. JACK KEVORKIAN operates on a simple philosophy: People have a right to avoid a lingering, miserable death by ending their own lives with help from a physician who can ensure that they die peacefully.
http://www.amazon.com/exec/obidos/ASIN/0440507855/freecomputersoft/103-8379613-9755069
http://www.hemlock.org/default.asp
http://press.coe.int/cp/2002/043a(2002).htm
http://www.minjust.nl:8080/c_actual/persber/pb0846.htm
http://www.iuscomp.org/gla/statutes/GG.htm#2
http://www.rights.org/deathnet/research.html
http://www.angelfire.com/retro/germany/november.htm