Do Terminally Ill Patients have a Right to Die Under Article 3 of European Convention on Human Rights?

By Ashley Martin

The Spanish Congress will be evaluating a new bill that would permit euthanasia and assisted suicide.[1] This bill proposes assisted suicide for “adults with terminal illness and those with serious and chronic disabilities.”[2] Spain’s bill would be in place before the year 2020.[3] Other eligible patients would include “[p]atients who can no longer make decisions but had previously instructed that they wanted to die by euthanasia.”[4] Under the current status of the bill, patients must make two requests for death.[5] These requests must be made fifteen days apart.[6] Additionally, approval for the drugs must be received from two doctors.[7] Assisted suicide would be available in both private and public hospitals, and in a patient’s home.[8]

Currently, Spain’s penal code prohibits assisted suicide.[9] If a person assists a terminally ill patient or a patient whose illness results in “permanent suffering that is hard to bear,” is subject to punishment.[10] The new bill would amend Article 143 by lifting this prohibition.[11] The European Convention guarantees a right to life and a prohibition against torture.[12] Should Spain’s new law fail, would there be a human rights violation by prohibiting assisted suicide[13] violate the Conventions prohibition on torture and inhuman or degrading treatment?

Does prohibiting assisted suicide for patients with a terminal illness or person with an illness that would cause permanent suffering constitute torture under the European Convention on Human Rights? Article 3 specifically states “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment.”[14] Torture is a term of art that requires three elements: “[(1)] the infliction of severe mental or physical pain or suffering; [(2)] the intentional or deliberate infliction of pain; [(3)] the pursuit of a specific purpose, such as gaining information, punishment or intimidation.”[15] Torture is also a “deliberate form of inhuman treatment.”[16]

Given this definition of torture, it is unlikely that prohibiting assisted suicide would constitute a violation of Article 3. Torture requires an intentional act designed to cause pain and suffering, which is not present in a denial of assisted suicide.[17] Additionally, in most circumstances a patient is not denied a right of death in order to obtain information or to punish the patient.[18] Of course, there are situations where the denial of assisted suicide is done in violation of Article 3.[19]

Article 3 also prohibits inhuman or degrading treatment.[20] What the European Court of Human Rights has defined inhuman and degrading treatment as is broad enough to include the denial of assisted suicide.[21] Outside of detention, inhuman treatment includes deliberate, cruel acts that cause extreme distress.[22] Degrading treatment is:

said to arouse in its victims feelings of fear, anguish and inferiority, capable of humiliating and debasing them. This has also been described as involving treatment such would lead to breaking down the physical or moral resistance of the victim, or as driving the victim to act against his will or conscience.[23]

The intent of the actor is not the only mental state that the Court considers in determining if treatment is degrading.[24] If in the victim’s own opinion, he or she feels humiliated that is sufficient to find degrading treatment in violation of Article 3 has occurred.[25] Because the subjective opinion of the victim impacts the finding of degrading treatment, the denial of assisted suicide could violate Article 3.[26]

For a patient who is suffering from a terminal illness, where treatment is no longer affective, and the current goal is pain management, the patient may feel indignity and loss of independence[27] or embarrassment that their loved ones must see them suffer until the very end. In circumstances like this, forcing a patient to live out their days, while suffering immense pain is degrading treatment.[28] Living with pain and depending on others can create a feeling of inferiority—which would meet the definition of degrading treatment under Article 3.[29] Whether a patient must accept a specific course of medical treatment, is something the Court will have to consider as more countries consider assisted suicide laws.[30]

In 2002, the Court had the opportunity to consider whether denying a patient assisted suicide violated Article 3.[31] In Pretty v. United Kingdom, the Court found no Article 3 violation occurred because “the positive obligation on the part of the State which had been invoked would require that the State sanction actions intended to terminate life, an obligation that could not be derived from Article 3.”[32] However, what the Court did not consider was the subjective perception of the victim—whether she felt inferior or if she suffered a break down in her physical or moral resistance.[33] The Court only considered what actions the State had taken to inflict such suffering.[34] However, the Court should revisit this issue given that the subjective opinion of the victim was considered by the Court in a case in 2012—ten years after the Pretty case.[35]

The Spanish bill on euthanasia still has some time before we will know of either its success or failure.[36] Because of the breadth of what is included as degrading treatment, and that the Court will consider the subjective view of the victim, terminally ill patients may have a compelling case that the denial of assisted suicide is a violation of the European Convention on Human Rights if the bill does not pass.[37] While the Court in Pretty considered the obligation of the State, the distinction between that case and law Spain is contemplating is that the new Spanish law would allow public hospitals to administer or deny assisted suicide to patients.[38] Given this distinction, and what the bill contemplates, patients who are denied assisted suicide could also have a valid claim that an Article 3 violation occurred, especially if they were a patient at a public hospital. Future litigation need not wait for the outcome of the bill, terminally ill patients could have a compelling case in either scenario.

[1] Miquel Alberola, Spain takes step closer to euthanasia law as Congress agrees to debate bill, El Pais (June 27, 2018, 4:42 AM), https://elpais.com/elpais/2018/06/27/inenglish/1530085050_067473.html.

[2] Id.

[3] Id.

[4] Spanish Congress agrees to examine euthanasia bill, Catholic News Agency, (June 28, 2018, 12:26 AM) https://www.catholicnewsagency.com/news/spanish-congress-agrees-to-examine-euthanasia-bill-75490.

[5] Id.

[6] Id.

[7] Id.

[8] Alberola supra note 1.

[9] Codigo Penal (Criminal Code), Article 143.

[10] Id.

[11] Alice Tidey, Spanish lawmakers vote to debate euthanasia, euronews (May 10, 2018) http://www.euronews.com/2018/05/10/spanish-lawmakers-vote-to-debate-euthanasia.

[12] European Convention on Human Rights art. 2, 3, Dec. 10, 1948.

[13] Codigo Penal (Criminal Code), Article 143.

[14] Supra note 12, art. 3. 

[15] Aisling Reidy, The prohibition of torture: A guide to the implementation of Article 3 of the European Convention on Human Rights, 12 (2002) https://rm.coe.int/168007ff4c.

[16] Id. at 13.

[17] See id. at 12–13.

[18] Id.

[19] These situations are outside of the scope of this article.

[20] Supra note 12, art. 3. 

[21] See Reidy supra note 15, at 16.

[22] Id.

[23] Id. (footnote omitted).

[24] Id. at 17.

[25] See id.

[26] See generally id.

[27] John M. Grohol, Denying Someone a Peaceful Death Can Be Unethical, The N.Y. Times (Oct. 7, 2014, 5L06 PM) https://www.nytimes.com/roomfordebate/2014/10/06/expanding-the-right-to-die/denying-someone-a-peaceful-death-can-be-unethical.

[28] See generally Reidy supra note 15, at 16.

[29] Id.

[30] Id. at 18.

[31] End of life and the European Convention on Human Rights, European Court of Human Rights (Jan. 2018) https://www.echr.coe.int/Documents/FS_Euthanasia_ENG.pdf.

[32] Id.

[33] Pretty v. United Kingdom, 2002 Eur. Ct. H.R. https://hudoc.echr.coe.int/eng-press#{%22itemid%22:[%22003-542432-544154%22]}.

[34] Id.

[35] Reidy supra note 15, at 17 note 31.

[36] Alberola supra note 1.

[37] See generally Reidy supra note 15.

[38] Alberola supra note 1.