All My Rights. (at Law)

Article excerpt

Diane Pretty was an Englishwoman in her early 40s who had been married nearly a quarter of a century. In November 1999, she learned she had amyotrophic lateral sclerosis--in Britain, motor neurone disease. Her condition deteriorated rapidly, and soon she was "essentially paralysed from the neck downwards." (1) She had "virtually no decipherable speech" and was fed by a tube. She was expected to live only a few months or even weeks. As a court later explained, however, "her intellect and capacity to make decisions are unimpaired. 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."

Suicide is not a crime in Britain, but assisting suicide is. On 27 July 2001, Mrs. Pretty's solicitor wrote the Director of Public Prosecutions asking for an assurance that her husband would not be prosecuted if he helped his wife commit suicide. The DPP refused because it would not "grant immunities that condone, require, or purport to authorise or permit the future commission of any criminal offence, no matter how exceptional the circumstances."

On 20 August, Pretty sought judicial review of the DPP's decision. She conceded she had no claim under "the common law of England," but she argued that a 1961 assisted suicide statute violated the European Convention on Human Rights. On 29 November 2001, the House of Lords affirmed a lower court's refusal to countermand the DPP's decision. The leading judgment in the House of Lords analyzed the Convention's provisions at length and commented that its decision was "in accordance with a very broad international consensus. Assisted suicide and consensual killing are unlawful in all Convention countries except the Netherlands, but even if [Dutch law] were operative in this country it would not relieve Mr Pretty of liability ... if he were to assist Mrs Pretty to take her own life." Mrs. Pretty had argued that she was not challenging the statute generally, but saying only it should not apply in "the particular facts of her case: that of a mentally competent adult who knows her own mind, is free from any pressure and has made a fully-informed and voluntary decision." The judgment invoked Dr. Johnson: "First, `Laws are not made for particular cases but for men in general.' Second, `To permit a law to be modified at discretion is to leave the community without law. It is to withdraw the direction of that public wisdom by which the deficiencies of private understanding are to be supplied'."

On 21 December 2001, Pretty took her case to the European Court of Human Rights. On 29 April, it rejected her claim. Four of her arguments the court readily dismissed. First was her argument that the 1961 act violated Article 2 of the Convention: "Everyone's right to life shall be protected by law." Mrs. Pretty thought that article "protected the right to life and not life itself." The court concluded, however, that Article 2 could not "without a distortion of language, be interpreted as conferring the diametrically opposite right, namely a right to die." On the contrary, Article 2 was "first and foremost a prohibition on the use of lethal force or other conduct which might lead to the death of a human being."

The court made similarly short shrift of Mrs. Pretty's argument that the 1961 act violated Article 3: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." Mrs. Pretty alleged that the statute "discloses inhuman and degrading treatment for which the State is responsible as it will thereby be failing to protect her from the suffering which awaits her as her illness reaches its ultimate stages." But the court said that Article 3 was most commonly applied to "intentionally inflicted" acts of a state and that Mrs. …