The Supreme Court handed down its long-awaited and much-publicised opinion on the legal issues surrounding assisted suicide. Notwithstanding some interesting splits between the justices, the Court held that the current legal position on assisted suicide is compatible with Article 8 of the European Convention on Human Rights and that the Director of Public Prosecution's current policy on when to bring prosecutions for assisted suicide was lawful.
Under Section 2 of the Suicide Act 1961, it is illegal to assist someone to commit suicide, although the DPP must consent to any criminal proceedings and the DPP maintains a published policy in respect of the matters to be considered when deciding whether to prosecute. This sensitive area of law has recently been subjected to a number of legal challenges, and in this case by three individuals with full mental capacity but almost complete paralysis who wished to commit suicide but required physical assistance in doing so. In a relatively rare step reflecting the importance of the case, nine justices of the Supreme Court heard the appeal.
In a 132 page decision, the Court held by a majority of seven to two that the current position is lawful. The Court was unanimous in its opinion that, while Section 2 engaged Article 8 of the ECHR (the right to respect for private and family life), it was within the "margin of appreciation" for the UK to decide whether Section 2 was incompatible with Article 8. It was then for the Court to decide whether Section 2 was a "justified interference" with an individual's rights under Article 8, i.e. that it was "necessary in a democratic society… for the prevention of disorder or crime, for the protection of health or morals, of for the protection of the rights and freedoms for others."
However, the Court further split as to whether it had the constitutional authority to declare Section 2 incompatible with Article 8. A slim majority of five Justices concluded that it was within the Court's authority to make such a declaration; however, three held that it would be inappropriate for the court to make a declaration without first allowing Parliament to consider its position. Obiter, and in comments that have been widely discussed, Lord Neuberger suggested a future system where individuals wishing for assistance in committing suicide may potentially apply for this to be sanctioned in advance by an independent assessor such as a judge.
In the minority, Baroness Hale and Lord Kerr indicated that they considered that s.2 of the Suicide Act is incompatible with the right to private and family life under Article 8 of the ECHR and that a declaration of incompatibility should be issued. They held that Article 8 gives an individual the right to decide the circumstances of their death, and in not making an exception for those with an autonomous who wish to commit suicide but would require assistance, the law is incompatible with this right. Lord Kerr emphasised that in making a declaration of incompatibility, the Court would not be making a moral judgment itself but requesting Parliament to make the decision.
This decision is one of a number of recent instances where there has been scrutiny of sensitive end-of-life decisions, coming alongside Lord Falconer's draft Bill on assisted dying and the recent Tracey decision on Do Not Resuscitate orders. Moreover, the decision rewards reading in full due to the discussion of fundamental constitutional issues as to which matters can properly be considered by the courts and which should be left to Parliament. However, given the increasing interest in this issue and the number of people surviving debilitating health problems, this issue is unlikely to go away and the suggestion of an independent arbiter is an intriguing one which will undoubtedly be heavily debated.