5 International human rights issues and considerations
Australia is a party to seven key human rights treaties. The most relevant obligations when discussing voluntary euthanasia are contained in the International Covenant on Civil and Political Rights (ICCPR).[204] The following rights in the ICCPR may be engaged by the practice of voluntary euthanasia:
right to life (article 6)
freedom from cruel, inhuman or degrading treatment (article 7)
right to respect for private life (article 17)
freedom of thought, conscience and religion (article 18).
The Convention on the Rights of Persons with Disabilities contains specific obligations in relation to people with disability that are also relevant to a discussion of voluntary euthanasia, and therefore will also be considered below.[205]
5.1 Right to life
Article 6(1) of the ICCPR provides:
Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
The right to life has been characterised as the ‘supreme human right’, as ‘without effective guarantee of this right, all other rights of the human being would be devoid of meaning’.[206] It is the only right in the ICCPR that is expressly described as ‘inherent’.[207]
The second sentence of article 6(1) imposes a positive obligation on States to provide legal protection of the right to life. However, the subsequent reference to life not being ‘arbitrarily deprived’ operates to limit the scope of the right (and therefore States’ duty to ensure the right).[208]
Comments from the UN Human Rights Committee suggest that laws allowing for voluntary euthanasia are not necessarily incompatible with States’ obligation to protect the right to life.[209] As one leading commentator on the ICCPR has concluded:
If a national legislature limits criminal responsibility here after carefully weighing all the affected rights and takes adequate precautions against potential abuse, this is within the scope of the legislature’s discretion in carrying out its duty to ensure the right…the State’s obligation to ensure does not go so far as to require that life and health be protected against the express wishes of those affected.[210]
The UN Human Rights Committee has emphasised that laws allowing for euthanasia must provide effective procedural safeguards against abuse if they are to be compatible with the State’s obligation to protect the right to life. In 2002 the UN Committee considered the euthanasia law introduced in The Netherlands. The Committee stated that:
where a State party seeks to relax legal protection with respect to an act deliberately intended to put an end to human life, the Committee believes that the Covenant obliges it to apply the most rigorous scrutiny to determine whether the State party’s obligations to ensure the right to life are being complied with (articles 2 and 6 of the Covenant).[211]
The UN Human Rights Committee expressed concern about whether the wording of the conditions under the Dutch law for legally terminating a life provided adequate safeguards.[212] The Committee commented that the large numbers of cases referred to the Dutch review committee in 2000 (and the very low proportion of negative assessments by that committee) ‘raise doubts whether the present system is only being used in extreme cases in which all the substantive conditions are scrupulously maintained.’[213]
The UN Committee recommended to the Netherlands that it:
re-examine its law on euthanasia and assisted suicide in the light of these observations. It must ensure that the procedures employed offer adequate safeguards against abuse or misuse, including undue influence by third parties.[214]
When the Netherlands came up for review again by the Human Rights Committee in 2009, the Committee again expressed concern about its euthanasia law, noting:
Under the law on the Termination of Life on Request and Assisted Suicide, although a second physician must give an opinion, a physician can terminate a patient’s life without any independent review by a judge or magistrate to guarantee that this decision was not the subject of undue influence or misapprehension (art. 6).[215]
The Committee ‘reiterate[d] its previous recommendations in this regard and urge[d] that this legislation be reviewed in light of the Covenant’s recognition of the right to life’.[216]
The European Court of Human Rights (ECtHR) has adopted a similar position to the UN Human Rights Committee when considering euthanasia laws and the right to life in article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention).[217] According to the ECtHR, the right to life in article 2 cannot be interpreted as conferring a right to die, or a right to self-determination in terms of choosing death rather than life.[218]
However, the ECtHR has held that a State’s obligation to protect life under that article does not preclude it from legalising voluntary euthanasia, provided adequate safeguards are put in place and adhered to. In Hass v Switzerland the ECtHR explained that the article 2:
creates for the authorities a duty to protect vulnerable persons, even against actions by which they endanger their own lives… this latter Article obliges the national authorities to prevent an individual from taking his or her own life if the decision has not been taken freely and with full understanding of what is involved.[219]
Accordingly, the ECtHR concluded that:
the right to life guaranteed by Article 2 of the Convention obliges States to establish a procedure capable of ensuring that a decision to end one’s life does indeed correspond to the free will of the individual concerned.[220]
In its most recent decision regarding end of life issues, Lambert and Others v France,[221] the ECtHR considered whether the decision to withdraw artificial nutrition and hydration of Vincent Lambert violated the right to life in article 2.
Vincent Lambert was involved in a serious road-traffic accident, which left him tetraplegic, and with permanent brain damage. He was assessed in expert medical reports as being in a chronic vegetative state, and required artificial nutrition and hydration administered via a gastric tube.
Mr Lambert’s medical team initiated the collective procedure provided for under the relevant French law in relation to patient’s rights and end-of-life issues. This process ultimately resulted in the Judicial Assembly of the Conseil d’Etat authorizing the withdrawal of the artificial nutrition and hydration of Mr Lambert.
Mr Lambert’s parents applied to the ECtHR alleging that the decision to withdraw his artificial nutrition and hydration breached, inter alia, the State’s obligations under article 2 of the European Convention.
The ECtHR highlighted that article 2 imposes on States both a negative obligation (to refrain from the ‘intentional’ taking of life) and a positive obligation (to ‘take appropriate steps to safeguard the lives of those within its jurisdiction’).[222] The Court held that the decision of a doctor to discontinue life-sustaining treatment (or ‘therapeutic abstention’) did not involve the State’s negative obligation under article 2, and therefore the only question for the Court under article 2 was whether it was consistent with the State’s positive obligation.[223]
The ECtHR emphasized that ‘the Convention has to be read as a whole’, and therefore:
in a case such as the present one reference should be made, in examining a possible violation of Article 2, to Article 8 of the Convention and to the right to respect for private life and the notion of personal autonomy which it encompasses.[224]
The Court noted that there was a consensus among European member States ‘as to the paramount importance of the patient’s wishes in the decision-making process, however those wishes are expressed’.[225] It identified that in dealing with end of life situations, States have some discretion in terms of striking a balance ‘between the protection of patients’ right to life and the protection of their right to respect for their private life and their personal autonomy’.[226]
The Court considered that the provisions of the Act of 22 April 2005, as interpreted by the Conseil d’Etat, constituted a legal framework which was sufficiently clear to regulate with precision the decisions taken by doctors in situations such as in Mr Lambert’s case. The Court found the legislative framework laid down by domestic law, as interpreted by the Conseil d’État, and the decision-making process, which had been conducted in meticulous fashion, to be compatible with the requirements of the State’s positive obligation under article 2.
5.2 Right to freedom from cruel, inhuman or degrading treatment
The purpose behind the prohibition on torture or cruel, inhuman or degrading treatment or punishment in article 7 of the ICCPR is ‘to protect both the dignity and the physical and mental integrity of the individual.’[227] This article imposes a duty on State Parties:
to afford everyone protection through legislative and other measures as may be necessary against the acts prohibited by article 7, whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity.[228]
Article 7 therefore imposes a positive obligation on States to protect persons in its jurisdiction from ill-treatment reaching the requisite threshold. There are two ways in which it may be argued that a State denying a person the option of voluntary euthanasia may have the result of forcing them to endure cruel, inhuman or degrading treatment.
The first is that a prohibition on voluntary euthanasia may force people to live with extreme and chronic pain, against their express wishes. It is debatable however whether the State’s positive obligation under article 7 of the ICCPR requires it to allow active voluntary euthanasia where the only options for a person are to endure what they consider to be unbearable suffering, or to choose to end their life.
In the ECtHR case of Pretty v the United Kingdom, the applicant suffered from Motor Neurone Disease. She was paralysed from the neck down, had ‘virtually no decipherable speech’ and was being fed through a tube. Her life expectancy was a matter of only months or even weeks. However, she had full mental capacity. The ECtHR noted that:
The final stages of the disease are exceedingly distressing and undignified. As she is frightened and distressed at the suffering and indignity that she will endure if the disease runs its course, she very strongly wishes to be able to control how and when she dies and thereby be spared that suffering and indignity.’[229]
Because of her disease, the applicant was unable to end her own life. She sought an undertaking from the Director of Public Prosecutions not to prosecute her husband if he assisted her to commit suicide, as the latter was a criminal offence under English law. The Director refused. The applicant alleged, among other things, a violation of article 3 of the European Convention.
The ECtHR recognised that article 3 (combined with article 1) of the European Convention imposes a positive obligation, in that it ‘requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman and degrading treatment or punishment, including such treatment administered by private individuals’.[230] However, the ECtHR concluded that this positive obligation did not extend to require that the State ‘sanction actions intended to terminate life’ by legalising (or at least decriminalising) assisting suicide.[231]
A State prohibition on passive voluntary euthanasia (i.e. consensual withdrawal of life-sustaining treatment) may potentially raise issues under article 7 of the ICCPR if it requires doctors to administer treatment against the wishes of the patient. The physical integrity of a person (which article 7 is designed to protect) may be compromised if they are subjected to medical treatment without their consent.
However, article 7 does not protect against all interferences with physical integrity, and therefore ‘medical treatment, even if given without consent, will have to reach a certain level of severity before violating article 7’.[232]
Interferences with personal (including physical) integrity which are not so severe as to fall within article 7 may however violate the right to privacy in article 17, as will be discussed immediately below.[233]
5.3 Right to privacy
Article 17 of the ICCPR provides:
- No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
- Everyone has the right to the protection of the law against such interference or attacks.
A leading commentator on the ICCPR has explained that ‘the right to privacy protects that particular area of individual existence and autonomy that does not touch upon the sphere of liberty and privacy of others’.[234]
In terms of protecting individual existence, this includes a person’s physical (and mental) integrity.[235] Accordingly ‘medical treatment without consent or against the will of the patient is to be deemed interference with privacy, as this term also covers the inviolability of one’s own body’.[236] Such interference with personal integrity is therefore permissible only when it is both lawful and non-arbitrary, i.e. ‘when it serves a legitimate purpose and observes the principle of proportionality’.[237]
Article 17 also encompasses protection of ‘that area of individual autonomy in which human beings strive to achieve self-realisation by way of actions that do not interfere with the liberty of others’.[238] The right to privacy ‘gives rise to a right to one’s own body’, and therefore protection of individual autonomy includes actions which may be injurious to a person’s own health.[239] Refusals to allow passive euthanasia or assisted suicide despite the express wishes of the patient therefore represent interferences with the right to privacy.[240]
Under article 17 any interference with privacy, even if lawful ‘should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances.’[241]
The question is whether legislation which prohibits voluntary euthanasia meets these requirements for a justifiable interference with the right to privacy.
The ECtHR has considered the relevance of the right to privacy in article 8 of the European Convention in the context of requests for access to voluntary euthanasia. While the wording of that article is not identical to article 17 of the ICCPR, the substance and scope of the right protected by both articles is sufficiently similar that comments made by the ECtHR about article 8 can offer useful guidance on the possible application of article 17 of the ICCPR.[242]
In Pretty v the United Kingdom, the ECtHR stated that ‘[t]he very essence of the Convention is respect for human dignity and human freedom’. [243] The Court held that ‘it is under Article 8 that notions of the quality of life take on significance’.[244]
The ECtHR recognised that the concept of ‘private life’ in article 8 of the European Convention ‘covers the physical and psychological integrity of a person’.[245] It also held that ‘the notion of personal autonomy is an important principle underlying the interpretation of [Article 8’s] guarantees’.[246]
In relation to personal autonomy, the Court noted that:
the ability to conduct one’s life in a manner of one’s own choosing may…include the opportunity to pursue activities perceived to be of a physically or morally harmful or dangerous nature for the individual concerned…even where the conduct poses a danger to health or, arguably, where it is of a life-threatening nature, the case-law of the Convention institutions has regarded the State’s imposition of compulsory or criminal measures as impinging on the private life of the applicant within the meaning of Article 8 § 1 and requiring justification in terms of the second paragraph’.[247]
In relation to a person’s choice to refuse medical treatment, the ECtHR stated that:
the refusal to accept a particular treatment might, inevitably, lead to a fatal outcome, yet the imposition of medical treatment, without the consent of a mentally competent adult patient, would interfere with a person’s physical integrity in a manner capable of engaging the rights protected under Article 8 § 1 of the Convention…a person may claim to exercise a choice to die by declining to consent to treatment which might have the effect of prolonging his life’.[248]
The ECtHR held in Pretty that the fact that the applicant was ‘prevented by law from exercising her choice to avoid what she considers will be an undignified and distressing end to her life’ constituted an interference with her right to respect for private life in article 8.[249] However, the Court concluded in that case that the blanket ban on assisted suicide was justified as ‘necessary in a democratic society’ for the protection of the rights of others, and therefore was a permissible limitation of the right.[250]
In subsequent cases the ECtHR has confirmed that the right to respect for private life includes:
‘an individual’s right to decide by what means and at what point his or her life will end, provided he or she is capable of freely reaching a decision on this question and acting in consequence’,[251] and
‘the right of each individual to decline to consent to treatment which might have the effect of prolonging his or her life’.[252]
5.4 Rights of people with disability
As is evident from the facts in the cases of Lambert and Pretty (discussed above), an analysis of the issues raised by voluntary euthanasia includes consideration of the rights of people with disability. Australia is a party to the Convention on the Rights of Persons with Disabilities (the Disability Convention), and therefore is under an obligation to ensure that people with disability enjoy all their human rights without discrimination of any kind on the basis of disability.[253]
The Disability Convention does not provide a comprehensive definition of disability, but provides that ‘persons with disabilities’ include those who have long-term mental impairments and intellectual impairments. When a person’s impairment interacts with various barriers that restrict a person’s effective participation in society on an equal basis to others, they are considered to have disability.[254]
Key principles which underpin the Disability Convention include non-discrimination and ‘[r]espect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons’.[255]
The Disability Convention makes clear that all people with disability have an inherent right to life, and places an obligation on States to take all necessary measures to ensure that people with disability enjoy this right on an equal basis with others.[256] The Convention requires States parties to provide people with disability equal protection under the law as those without disability.[257]
These obligations would, for example, prohibit States from passing laws which allow for involuntary euthanasia of people with disability because of their disability. Article 25 of the Disability Convention specifically prohibits the ‘discriminatory denial of health care or health services or food and fluids on the basis of disability’.[258]
However, in the case of voluntary euthanasia, the same balancing of the right to life with the right to personal autonomy that occurs for people without disability applies under the Disability Convention for those with disability. The Convention makes clear that people with disability, like those without disability, have a right to respect for their physical and mental integrity, and privacy.[259] People with disability are entitled to make choices as to their own welfare, and to be supported to do so where necessary. They enjoy legal capacity on an equal basis with those without disability, and are entitled to support in exercising that capacity.[260] Any safeguards which are put in place in relation to people with disability exercising their legal capacity, to protect against undue influence and/or abuse, must respect the rights, will and preferences of the person.[261]
Respect for the right of people with disability to make decisions includes deciding whether to agree to medical treatment. Article 25 of the Disability Convention places an obligation on States Parties to require health professionals to ‘provide care of the same quality to persons with disabilities as to others, including on the basis of free and informed consent’.[262] The UN Committee on the Rights of Persons with Disabilities has made clear that:
The right to enjoyment of the highest attainable standard of health (art. 25) includes the right to health care on the basis of free and informed consent. States parties have an obligation to require all health and medical professionals (including psychiatric professionals) to obtain the free and informed consent of persons with disabilities prior to any treatment.[263]
The UN Committee on the Rights of Persons with Disabilities has further stated that treating people with disability without their consent may violate a number of rights in the Disability Convention, as:
forced treatment by psychiatric and other health and medical professionals is a violation of the right to equal recognition before the law and an infringement of the rights to personal integrity (art. 17); freedom from torture (art. 15); and freedom from violence, exploitation and abuse (art. 16). This practice denies the legal capacity of a person to choose medical treatment and is therefore a violation of article 12 of the Convention. States parties must, instead, respect the legal capacity of persons with disabilities to make decisions at all times, including in crisis situations; must ensure that accurate and accessible information is provided about service options…and must provide access to independent support…The Committee recommends that States parties ensure that decisions relating to a person’s physical or mental integrity can only be taken with the free and informed consent of the person concerned.[264]
5.5 Freedom of thought, conscience and religion
Article 18 of the ICCPR requires protection of freedom of thought, conscience and religion, and provides that:
Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others…
Article 18 of the ICCPR distinguishes between the freedom to hold or adopt a particular belief, and the freedom to manifest that belief in conduct. It is clear from the different focuses of paragraphs (2) and (3) of article 18 that the freedom to hold a belief is broader than the freedom to act upon it.
The right to hold a belief is absolute – the State is not permitted to interfere with a person’s right to autonomously develop thoughts and a conscience.[265] However, once a belief is manifested (that is, implemented) in action, it leaves the sphere of absolute protection and may be the subject of legitimate limitations, because the manifestation of a religious belief may have an impact on others. The right to freedom of belief therefore ‘does not always guarantee the right to behave in public in a manner governed by that belief’.[266]
Discussions about the legalisation of voluntary euthanasia will often touch on matters of personal belief, whether it is belief in the ‘sanctity of life’ or belief in ‘personal autonomy’ and an individual’s right to choose a ‘good death’. The extent to which article 18 would require the State to permit actions based on these beliefs will depend on all the circumstances.
A law legalising voluntary euthanasia may need to make allowances for those whose beliefs in the sanctity of life would preclude them from being able to participate in end-of-life processes, in order to be compatible with article 18. This could take the form, for example, of a ‘conscientious objection’ provision for doctors whose beliefs are incompatible with involvement in euthanasia.
In the case of the belief in personal autonomy and a person’s right to choose a ‘good death’, the extent to which this might found an argument that the State is required to decriminalise voluntary euthanasia was considered by the ECtHR in Pretty v the United Kingdom. In that case the Court considered the right to freedom of thought, conscience and religion in article 9 of the European Convention. The ECtHR held that:
The Court does not doubt the firmness of the applicant’s views concerning assisted suicide but would observe that not all opinions or convictions constitute beliefs in the sense protected by Article 9 § 1 of the Convention. Her claims do not involve a form of manifestation of a religion or belief, through worship, teaching, practice or observance as described in the second sentence of the first paragraph. As found by the Commission, the term “practice” as employed in Article 9 § 1 does not cover each act which is motivated or influenced by a religion or belief…To the extent that the applicant’s views reflect her commitment to the principle of personal autonomy, her claim is a restatement of the complaint raised under Article 8 of the Convention.[267]
The ECtHR accordingly concluded that the fact that assisted suicide was criminal in the applicant’s case did not result in a violation of her right to freedom of thought, conscience and religion under article 9.[268]