Top lawyer - Assisted Dying Bill 'not compatible' with ECHR

A top lawyer is warning that Kim Leadbeater's highly controversial assisted dying Bill is not compatible with the European Convention on Human Rights (ECHR), because of inadequate safeguards for certain disabled people.

Tom Cross KC was commissioned by The Christian Institute to review the Terminally Ill Adults (End of Life) Bill after MPs rejected a slew of amendments aimed at beefing up safeguards for those with disabilities, including mental health conditions.

In a detailed legal opinion, Mr Cross and fellow barrister Ruth Kennedy say: "We are asked to advise on whether, if it were to be enacted in its present form…the Bill would be compatible with the European Convention on Human Rights. In summary, our view is that it would not be so compatible. This is because, without justification, it contains no adequate safeguard protecting the position of those with disabilities where suicidal ideation is more likely, and who are, because of that feature of their disability, more likely to express a clear and settled wish to die."

"Persons with disabilities of the above sort are in a significantly different situation from persons who do not have such disabilities, because they are - all else being equal - more likely to express the clear and settled wish to die required under the legislation to be eligible to be assisted to die. They are on that basis more vulnerable both than persons whose disabilities are not of that sort and than persons who are not disabled at all. Accordingly, they are on well-established principles required to be treated differently under Article 14 [non-discrimination] unless there is justification not to do so. However, without justification, the legislation fails to provide an adequate safeguard to address that greater vulnerability."

They go on: "In our opinion, this failure to treat these different cases differently in the enjoyment of the right to life is in breach of the ECHR. We consider that, on that basis, an application for judicial review in respect of the legislation once enacted could be brought to obtain a Declaration of Incompatibility under the Human Rights Act 1998 ("HRA"); and a person or body falling within the concept of a 'victim' for ECHR purposes could bring a complaint about the legislation in the European Court of Human Rights ("ECtHR")."

And they explain that the Bill, in its current form, fails to ensure people who have certain disabilities are adequately protected:

"There is clear and cogent evidence that particular disabilities are more likely to manifest in the sufferer expressing a wish to die".

They continue: "While the precise scope of those disabilities is a factual matter lying beyond the scope of this Advice, we observe that there is well documented medical evidence that, for example, those who have been diagnosed with the following conditions have greater rates of suicide and attempted suicide than the general population:

a) Bipolar disorder, in respect of which the latest research suggests 15-20% of people with bipolar disorder die by suicide and 30-60% will make at least one attempt to end their own life;

b) Depression; and

c) Autism, as to which the latest research suggests that 35% of autistic adults had planned or attempted suicide in their lifetime with 72% reporting suicidal ideation.

"The Bill is nevertheless drafted so as to treat those suffering from such disabilities in the same way as those not suffering from such disabilities …

"Against that background we have no hesitation in concluding that persons whose disabilities manifest as above are in a significantly different situation … than those who have no such disability. That cohort of disabled persons, who undoubtedly possess a 'status' for Article 14 purposes, are particularly vulnerable under an assisted suicide regime eligibility for which depends inter alia on expressing a wish to die. In order to avoid the risk arising from that comparatively greater vulnerability, they are in need of a safeguard requiring it to be determined (by a person able - and thus appropriately qualified - to do so) whether they are expressing a wish to die in consequence of their disability or otherwise. Absent such a safeguard, the State cannot know if it is treating them as eligible for assisted suicide because they have a disability manifesting in the expression of suicidal ideation."

Cross and Kennedy criticise the legislative process, saying that as a Private Member's Bill, "it has not been subject to the usual process in respect of HRA compliance. This means that MPs have had access to less information and assessment than that with which they would ordinarily be provided. We note that the Equality and Human Rights Commission has repeatedly raised concerns about this."

The equality impact assessment has not been published, which would not have been the case if this had been a Government Bill.

Simon Calvert, Deputy Director at The Christian Institute, commented: "This important legal opinion is a wake-up call to MPs who voted in favour of this dangerous Bill at Second Reading. It shows that the Bill discriminates against disabled people by failing to provide for any assessment of whether what appears to be a settled wish to die is actually a manifestation of their condition. This risks some of the most vulnerable people in our society being given drugs to end their lives, by the State, simply due to a lack of care, consideration and insight into their particular health needs.

"But perhaps we should not be surprised, given that the whole legislative process around this Private Member's Bill has been shambolic. Leaving the drafting of life and death legislation, with such massive implications for society, to any backbench MP is a colossal failure of responsibility by Parliament and the Government. As a result, alongside unexplained delays and a stacked Committee Stage, we've seen provisions sold to the public as making this legislation the 'safest in the world' being ditched, and safeguards for those suffering from mental health problems rejected.

"It's time that MPs gave up on this dangerous and discriminatory Bill and focused instead on improving healthcare and end-of-life care for everyone. If the many hours wasted on debating assisted suicide had been spent on debating how to improve palliative care, we'd be in a much better position, offering people life and hope instead of death and despair."

LINKS

The full legal opinion is available at: www.the.ci/ASopinion

The Christian Institute: www.christian.org.uk/

Care Not Killing: www.carenotkilling.org.uk/

If you would like to talk with someone about issues raised in this article, the Samaritans are available 24 hours a day. Call free on 116 123 or visit: www.samaritans.org