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Suicide and Europe: The Legal Duty to Prevent A Lawful Act

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About The Author

Samuel Cuthbert (Private Law Manager)

Sam read Philosophy at Durham University, followed by the GDL funded by the Lord Brougham Scholarship and a Hardwicke Scholarship from Lincoln's Inn. Sam is now spending a year, prior to undertaking the BPTC, to develop his legal interests in a paralegal capacity. His legal career is starting in a M&A paralegal role at a large Viennese firm. He is a passionate speaker and has his sights set firmly on a career at the bar.

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It would be no crime to divert the Nile or Danube from its course, were I able to effect such purposes. Where then is the crime of turning a few ounces of blood from their natural channels!

David Hume, On Suicide

The modern legal answer to Hume’s question is nowhere, as of S1 Suicide Act 1961 which states that ‘the rule of law whereby it is a crime for a person to commit suicide is hereby abrogated.’ A more pertinent question to ask now is whether there is a legal duty to prevent that suicide, a question with scarcely so lucid an answer. The response is lodged between a semantic discussion of the distinction between acts and omissions that has played out through UK and European case law and the provisions of Article 2 European Convention on Human Rights (ECHR).

That being so, this article will look to frame the issues regarding legal responsibility for public authorities to prevent suicide, in the light of the fraught act/omission distinction, and a reluctance to legislate on more progressive terms. In the context of Airedale NHS Trust v Bland, and R(Nicklinson) v Ministry of Justice, it will conclude that there is a legal responsibility for public authorities to prevent suicide but the legality of such a responsibility is couched in semantics, loosely interpreted by judges. It is to be noted that Ryan Turner’s excellent article for this journal on the right to die provides a useful backdrop for this debate.

Whilst s1 of the 1961 Act confers immunity from the criminal process for those who commit, or attempt to commit suicide, by s2 of the Suicide Act 1961 it remains an offence to aid and abet. Further, by s2(4) of the Suicide Act it is clear that ‘no proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions.’ The clear implication from this section is Parliament accepting that cases will arise in which it would be inappropriate to prosecute for assisting suicide. The inference here is that if there are cases in which it is inappropriate to prosecute for assisting suicide, there is nothing to suggest that there is an absolute legal responsibility to prevent it; this inference from the black letter law is not consistent with its direct provisions.

The Article 2 Duty    

However the case of Osman v UK directs differently. This case lays out the criteria under which a legal responsibility arises for health authorities to positively enforce the provisions of Article 2. The case involved a stalking teacher, made known to the authorities, who went on to shoot his student and fatally injure the father of his student. Following Osman, there will have been a breach of Article 2 when an applicant can show that ‘…the authorities did not do all that could reasonably be expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge.’ This focuses on the circumstances of an individual case such that when the legal responsibility to prevent suicide arises, is predicated by an intrinsic sense of proportionality.

This notion was reinforced in Keenan v UK, and subsequently Savage v South Essex Partnership NHS Foundation Trust in which Lord Rodger contended that ‘Article 2 imposes on the hospital authorities and their staff an obligation to adopt a framework of general measures to protect detained patients from the risk of suicide.’ Rabone and another v Pennine Care NHS Trust went further, ruling that the duty applied to prevent mental patients, who had not been formally detained under the Mental Health Act 1983, from committing suicide. This duty, following Rabone (cf. Kirsten Sjovoll’s article), is engaged at a higher threshold than the common law tort of negligence such that clinical negligence cases typically will not feature breaches of European Law.

Acts, Omissions, and Irreconcilable Dichotomies

However, in establishing the detail and extent of the legal duty to uphold Article 2 provisions via a prevention of suicide, we breeze past the difficulties in establishing quite what suicide consists in, and consequently, the impact of the poorly founded act/omissions distinction on the responsibility.

Suicide requires a positive act, given that it is an intentional act of self killing, and therefore the duty to prevent it arises alongside that positive act. However, there is dangerously little which marks an act as either positive or an omission; committal of the latter seeing no suicide realised and no ensuing duty to act for its prevention.

James Rachels’ article is helpful in this discussion. He provides two thought experiments that demonstrate the delicate distinction between acts and omissions:

In the first, Smith stands to gain a large inheritance if anything should happen to his six-year-old cousin. One evening while the child is taking his bath, Smith sneaks in­to the bathroom and drowns the child, and then arranges things so that it will look like an accident. 

In the second, Jones also stands to gain if anything should happen to his six-year-old cousin. Like Smith. Jones sneaks in planning to drown the child in his bath. However, just as he enters the bathroom Jones sees the child slip and hit his head, and fall face down in the water. Jones is delighted; he stands by, ready to push the child's head back under if it is necessary, but it is not necessary. With only a little thrashing about, the child drowns all by himself, "accidentally," as Jones watches and does nothing. 

Suppose the only duty was to prevent the loss of life via a positive act, in which case no duty is breached in the second scenario. That is to say that in omitting to help the child, Jones intended to kill, and watching him die breaches no duty. This thought experiment translates easily into cases of suicide; there is a proportional duty to prevent an active taking of one’s own life but no proportional duty arises when the cause of death can be classified an omission.

This was the case with Tony Nicklinson who suffered from ‘locked in’ syndrome and lost his legal battle for a painless, lethal injection. The ruling was such that he suffered a slow and painful death having to opt for the discontinuation of life-sustaining tube feeding, further putting his family through tormentous emotional pressure. Through his lawyers, he said of the ruling that he was ‘saddened that the law wants to condemn me to a life of increasing indignity and misery.’ Lord Mustill recognised that ‘it is difficult to find any moral difference between inaction resulting in a slow death and action resulting in a swift one.’ This goes a long way to exposing the flaws in the emphasis placed on the distinction: the legal obligation of public authorities to prevent suicide inflicts further suffering on those who are forced to accept a far less dignified death.

Several years prior to this judgment, Anthony Bland’s case marked a milestone in the jurisprudence in this area of law. The patient was in a persistent vegetative state having incurred very serious injury as a result of the Hillsborough Disaster. The medical opinion was unanimous, the prognosis being that there was no hope of recovery. Thus his life sustaining ‘treatment’ was discontinued; that is to say that the nasal tube feeding him was removed. This stretched the semantic limits of the term ‘omission’ further still, equating the administration of life-sustaining fluid with medical treatment such that removal of it would constitute an omission of treatment; a legally permissible course of action.

Sanctity of Life                            

This approach marks a significant shift away from a legal emphasis on the Sanctity of Life principle, which has been long recognised in the provisions of Article 2 holding that ‘everyone’s right to life shall be protected by law.’ One cannot contend that it is acceptable to deny that which sustains life, if life itself is deemed sacred (this could be read, for secular purposes, as inviolable). It is incoherent to abuse human life so dramatically by starving its needs, and still maintain its legal sanctity. The inference then is a developing focus on the quality of the life in question. If we suppose there exists a threshold of suffering which, once crossed, a life can justifiably be starved of sustenance, then life can not be described as inviolable but instead as an entity of liveable worth only when enjoying a prescribed level of quality.

This is problematic. The Osman duty to enforce Article 2 depends upon deference to the Sanctity of Life principle, because if life is no longer considered sacred there is little to justify the absolute prominence afforded to it. There is no justification for enforcing Article 2 in preventing the self-cessation of life at the expense of other rights (including, but not limited to, Articles 1, 3, 5, 8, 9 and 10) if life itself is not regarded higher than incidental, material things which comprise it, for the preeminence afforded to it is what justifies its taking precedence over other rights.

In Bland, Lord Goff contended that the reasoning for this decision was that any court-sanctioned active treatment to hasten the end of a life would, ‘…cross the Rubicon which runs between on the one hand the care of the living patient and on the other hand euthanasia--actively causing his death to avoid or end his suffering.’ This is pivotal for the issue regarding the extent to which there is a legal obligation to prevent suicide, because it broadens the conditions in which the cessation of life may be lawful from a simple omission to act, to a positive act in order to achieve an omission i.e. the active removal of the naso-gastric tube so as to omit nutrition and hydration. This indicates the fraught nature of this area of law; the court won’t sanction any active cessation of life, but in doing so it erodes the Sanctity of Life principle and leaves far less justification for enforcing the provisions of Article 2, which justify positively acting to protect that life in the first place.

Thorpe LJ in Secretary of State for the Home Department v Robb further highlighted these prevalent difficulties flowing from Bland. As Johnston alludes to in his excellent book Medical Treatment, Decisions and the Law. The Mental Capacity Act in Action (p270): ‘The determination in Robb that refusing nutrition is not an act of suicide follows from the decision in Bland that providing food and drink comprises medical treatment’ which may then be declined, and I contend that the determination is a disingenuous one. The idea that omitting to feed someone dependant upon you is to kill them, but omitting to feed oneself is not to kill oneself, makes little sense. Where the intention is assisted suicide and that intention is realised, yet the law ascribes it a different label so as to maintain its lawfulness, a situation develops in which what constitutes an act and an omission becomes very difficult to ascertain. Resultantly, where the duty to prevent suicide arises is both unclear and based on poorly founded distinctions.

Thus, there is an undesirable lack of clarity in the law whereby it is acceptable for a medical professional to omit treatment and to actively remove feeding tubes so as to effect the omission of treatment, in the knowledge that it will facilitate a slower and less dignified death, yet there is no scope to perform a lawful positive act to end a patient’s life. The line of permissibility here is far from entrenched, the Bland judgment turns away from the SoL principle and, in doing so, compromises the provisions of Article 2 in which the principle is enshrined. With regard to the obligation to prevent suicide, it remains so for positive acts as these remain governed by the criminal law, but this seminal case makes unclear the extent to which an act is classified as positive or an omission.

This engenders two enormously important questions: how can we talk about duties to act to uphold Article 2 for the prevention of suicide when there is so little to distinguish an act of assisted suicide from an omission yielding the same result? How can we be clear when the duty to prevent suicide arises when what constitutes suicide is so delicate a distinction couched in confusing semantic argument?

A Constitutional Symptom

Whilst the legal obligation to prevent suicide may be fraught with problems, it is symptomatic of the British constitutional framework; namely, that it is for Parliament and not the courts to establish the legal position. The court’s reluctance to fill the legislative gap marks the continuation of a respect for our constitutional separation of powers, ensuring democracy in the law making process. Despite the Select Committee of the House of Lords affirming the illegality of active killing in 1994, there is now a clearer case for reform. The issue, catalysed by the recent case law, has more recently been debated in Parliament (The Assisted Dying Bill 2014) and it is with hope that I await reform such that we might avoid throwing such a difficult issue back into the court’s domain.

I venture a tentative suggestion at this point, contending that scope for state sanctioned suicide in cases satisfying the strictest of criteria would go a long way to remedying my concerns; Lord Falconer’s Assisted Dying Bill (to enjoy its second reading in the House of Lords in July) is perfectly suited to the task of formulating these criteria. Legislating on these terms would bring an end to the legal reign of the incoherent act/omission distinction, and consequently make clearer when the duty to positively uphold Article 2 provisions arises. The most frequent argument running contrary to such a proposal supposes that once that bill is passed, we are a short distance from National Socialist style genocide. This is an implausible suggestion. Parliamentarians must be aware of criminally minded, legislative gerrymandering, and ensure that there is no room within the law for boundaries to be stretched far enough to give credence to a slippery slope argument (cf Burgess (1993)). Let us hope that Lord Falconer’s Bill is a success, but until then, patients and victims must endure the faults of the current law.

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Tagged: Human Rights, Medical Law & Ethics

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