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Assisted dying, has long been a subject of major contention, sparking emotions and debate. This area deals with one of the most intimate part of a persons life, death. In recent times the courts have acknowledge the engagement of The Human Rights Act 1998 in this area. In United Kingdom (UK) it is not illegal to commit suicide however, assisting is[Footnote]. This piece will exam the law in the (UK), and communicate any rights based challenges to that law. Likewise, a comparison will be drawn to the United States of America (USA), where in the States of Oregon and Washington, Assisted Dying has been legalised.

Assisted dying is one aspect of euthanasia  which was defined by the House of Lords as ”a deliberate intervention undertaken with the express intention of ending a life, to relieve intractable suffering”. Yet, euthanasia can be categorised. Passive (stopping medical treatment)[Footnote]. Active, (death from a direct action), Physician assisted, (Doctor administers  life ending drugs). Another area is Involuntary, and this area would appears to be settled in Law, (turning off life sustaining equipment of a person in a vegetative state).

Bland, injured in the  Hillsborough disaster, was being kept alive by intravenous feeding in a persistent vegetative state. His Family and  Doctors sought a declaration from the court, which was granted and demonstrates that treatment in such circumstances can be withdrawn if it is not in the best interest of patient to keep them alive[Footnote]. This is not categorised as an offence because, the retention of treatment does not bring about the death. However, other areas of Euthanasia are contentious.

Lord Joffe’s introduced a bill “Assisted Dying for the Terminally Ill ”, into the House of Lords which sort to legalise “assisted dying”. The model was based on the Oregon model,which will be addressed later.  It was defeated on its second reading in  by a margin of 48 votes. More recent debate has raged however, in response to criticism in Re Purdy[Footnote], the (DPP) has issued an interim policy.

The Policy, is a test deciding whether or not to prosecute an offender Under the Suicide Act Sec 2 (SAS2). The full code test has two stages; firstly the evidence and secondly, the public interest stage[Footnote]. The test is to in-depth to explain within the limits of this piece, yet reference will be drawn to specific elements. However, on closer inspection the the guidelines may be open to challenge from the The Human Rights Act 1998, (HRA).

On the face of it Article 2 (Everyone has a right to life and that right will be protected by law),[Footnote]  and Article 3, (No one shall be subjected to torture inhuman or degrading treatment)[Footnote] (HRA) would seem settled. Pretty v United Kingdom the (ECHR) refused to extrapolate from Article 2 that a “right to life” is a “right to die”. It was ruled that Article 2 did not create a self determination right for an individual to choose death over life. Article 3, would seem secondary, in so far that it can be infringed in pursuance of Article 2, no mention of Article 3 was made in the separate ruling of Purdy. 

Perhaps the most problematic is Article is 8. This was considered by the (HL) in Pretty v DPP, where, it was ruled Article 8 was not engaged regarding a right to die. Lord Bingham held the Majority view that, Article 8 made no reference to a “choice to live no longer”. Conversely, Lord Hope commented that such a distinction “was not Tenable”. He further stated “the closing moments of live is part of the act of living and she has a right that this be respected”. It was this ruling that found favour in the (ECHR) whom also refused Pretty s appeal. However, they did acknowledge that article 8 was engaged regarding a right to self determination yet, they fell short of declaring incompatible with Sec 2 of The Suicide Act. Yet, all the above discussion is based on the rights of the person wishing to die.   

A challenge to the Law may arise under Article 7, on behalf of the person that has assisted another in suicide. Criticisms of gross negligence manslaughter is comparable to assisted suicide. R v Misra, argument was stated that the test set forth in R v Adomako[Footnote] provided to much discretion to the jury. It was contended that any offence that lacks determinacy; any liability appraisal will be founded on principals that were developed ex post facto[Footnote]. The Court of appeal ruled that  there was sufficient clarity within the law for the “hypothetical citizen seeking to know his position[Footnote]”, to know his position. In addition it was stated that “the scope of article 7 is to prohibit offences by statue or the incremental development of common law with a retrospective application[Footnote]”. Furthermore, CR v United Kingdom, it was ruled that a person “ should be given guidance by the Criminal law”. Additional stated “an individual must have an indication of the legal rules in a given case[Footnote]”.

The failure of Re Misra on grounds that the law provided sufficient clarity seems relevent to the intrem policy guidelines relating to assisted suicide. However, it is in the application of prosecution discretion that a challenge under Article 7 may arise, this is because the guidelines seemingly contradict (SAS2). 

With a known 109 offenders going unprosecuted, it seems that in practice the actual interpretation of (SAS2) is removed from the true meaning. This may lead to the hypothetical citizen finding it hard to know his position. It has also been surgested that if a statue becomes dorment an offender can reasonable except not to be prosecuted. Therefore, if a prosecution was submitted this could arguable be in contradition to article 7. It must be noted that article 7 has been held to apply where a change in the law is reasonably forseeable. Consequently, if an offender is indeed prosecuted under the guildlines set forth within the intrem policy an defence may be tendered that de facto decriminalisation has taken place. 

However, assited suicide has been legalised in the United States of America (US), namley the state of Oregon

The Issue of a constitutional right to die was addressed in the United States in 1976. Re Curzen was in a (PVS) with no chance of recovery. Curan's parents made an application which was finally decided in the Supreme Court. Although the Court fell short of ruling that a terminally ill person has a constitutional right to die. Furthermore, it was ruled in a separate case that there was no constitutional right to die[Footnote]. 

Legal medically assisted dying was voted upon in The state of Oregon in a Citizens Initiated Referendum in November 1994. The outcome was that fifty one percent of voters where in favour. In essence the  DWDA permits terminally-ill adults    to "make a written request for medication to end their life in a humane and dignified manner[Footnote]". The written request must be witnessed by two persons who certify  "the patient is capable, acting voluntarily, and is not being coerced to sign the request[Footnote]". One of these witnesses must not be a relative or any person who may be financially affected by the patient's death[Footnote]. 

In order to stop an civil liability infringement , any Doctor does not have to honour the patient's request. If they do refuse they only need to transfer records to a new health care provider[Footnote]. Even if they do choose to accommodate the request, and  proceed to write the prescription for a lethal over dose the Doctor avoids civil and criminal liability. This is done by flowing the safeguards set for the in Section 3 of the act[Footnote].

Included in the safeguards are, initial determination by the Doctor that the patient is termanally-ill, is capable, and has made the request voluntarily[Footnote], attending Doctor to disclose to patient the medical diagnosis, prognosis, risks, probable result, and feasible alternatives[Footnote]. This must be confirmed by a second physician of the diagnosis.

The DWDA has not been without challenge, the main thrust came from The fourteenth amendment equal protection clause. This prevents states from “denying it citizens equal protection of its laws."

However, the application under Amendment 14  was based on the presumption that the (DWDA) failed to protect certain elements of society, namely the depressed and mentally-ill, creating a “suspect class”, (a presumptively  unconstitutional distinction made between individuals)[Footnote]. Further constitutional opposition was lodged founded on Amendment one of the (US) constitution regarding religious beliefs. 

This challenge in respect of the amendment 14 was at first upheld[Footnote], yet, on appeal it was over-ruled. The 9th Circuit of the United States Court ruled that the Federal Court did not have article 3 jurisdiction.

However, in the event of applying in case law the appeal would also have succeeded. The Rational-basic-test (applied by the court in action under amendment 14 to ascertain the governmental action is reasonable), if applied conjoined with the legal reasoning from Hellor  v Doe, “statutory classification that does not infringe upon fundamental rights or affect a suspect class is accorded a strong presumption of validity[Footnote], would seem prevalent.

There are no fudamentle rights effected within the (US) constitution. Further, the mentally ill are not considered a “suspect class[Footnote]”. 

In respect of the challenge based on Amendment one. This challenge presumes that the (DWDA) will require "complicity" in a assisted suicide and it may be opposed on religious grounds. However, participation in a assisted suicide is purely optional. No health professionals are forced to participate.   

It worth noting that the Oregon Model has been brought into law within the state of Washington as well. 

In conclusion, challenges to the intrem policy as described above  have yet to be brought. Yet there is the remit for this on two grounds, Article 7 and 8 of the (HRA).  Although, the only challenge to the Oregon model under any Human rights Laws  was decided on a technicality,  this piace has showed that any likley challenge under the (US) constitution would fail.  If the Oregon model was intruduced in the (UK) it also would appear to be hard to challenge. The Oregon law does not violet any Human rights law, as it safegurds those involed and make the whole prosess completely voluntry and off free will.