In the recent case of Daniel Khaisai v. Hungary, the European Court of Human Rights (ECHR) rendered a decision involving end-of-life rights. The applicant, Daniel Khaisai, a human rights lawyer, was diagnosed with amyotrophic lateral sclerosis (ALS), a progressive neurodegenerative disease. ALS is characterized by the degeneration of muscle controlling neurons, leading to severe muscle weakness and the eventual loss of essential bodily functions including breathing, eating, swallowing, etc. This condition culminates in total paralysis resulting in death by suffocation. “However,” as Khaisai himself puts it, “the mental faculties are not affected, forcing one to experience this with a fully lucid mind.” ALS is incurable and the prognosis is grim. The patient most certainly dies within three to five years of diagnosis – with their existence being “almost exclusively of pain and suffering” (¶14).
Khaisai sought permission for physician-assisted suicide (PAD), a request obstructed by the fact that both euthanasia and PAD are criminalized under Hungarian law. Only the refusal of “life-saving or life-sustaining interventions” (RWI) is permitted. He argued that this prohibition on PAD violated his rights under Article 8 (respect for private and family life) and Article 14 (non-discrimination) of the European Convention on Human Rights. He contended that the criminalization of PAD in Hungary infringed upon his personal autonomy and dignity. Moreover, even if he were to travel to a jurisdiction where PAD is legal, his friends and family assisting him could face legal prosecution upon returning to Hungary. The court dismissed the applicant’s plea by a 6:1 majority. Felici J wrote a sharp and incisive dissenting opinion.
Our blogpost is perched on this dissenting opinion, using it as a lens to examine the central questions of this judgement. Effectively, by employing Felici J’s dissent as a foundational framework, we aim to illuminate our disagreements with the majority judgement. First, we lay down the background of the case, which would serve as the conduit for our analysis. Second, relying on Felici J’s dissent we probe the evasive reasoning of the majority judgement. Finally, we offer our conclusions.
Background
Felici J astutely articulates that the core plea is not for a general right to PAD, but rather for “the specific and circumstanced right of a terminally-ill patient” to access a remedy to end their life (¶1, Felici J). The bedrock of the applicant’s argument lies in the undeniable truth of the existence of a right to a self-determined death (¶89). Ergo, only the delineation and scope of this right were to be crystallized in this judgment (¶, 89, cf. ¶94). The applicant’s contention consisted of four parts, which are:
1. Specifics of his condition and lack of remedy in Hungary: Given the nature of ALS, even palliative care and refusal or withdrawal of life-sustaining interventions (“RWI”) would force him to endure intolerable suffering. Further, palliative care cannot provide relief from the existential dread which creeps in as the disease progresses. Conversely, sedation would deprive him of his remaining autonomy. In sum, Hungarian law forces him to stay alive even when unbearable, and disregards quality of life.
2. Criminal ban on PAD: The applicant has expressed a preference to end his life in Hungary, but is willing to travel abroad to do so if it is not permitted in Hungary. However, those who assist him in this endeavor risk facing potential prosecution.
3. Evolving international trend: The applicant points to an emerging trend in Europe towards legalizing PAD, citing recent court decisions and legislative changes in various countries.
4. Lack of legislative review: Hungary has prohibited assisted suicide in criminal law since 1978 without an accompanying explanation of its necessity. This has not been subject to review considering its decriminalization, despite increasing public acceptance.
Furthermore, he argued that his case should be distinguished from Pretty v United Kingdom – in which the plea for PAD was denied by the court. The court in Pretty found a clear risk of abuse, consequently holding the blanket ban on assisted suicide as proportionate. The applicant argued for distinguishing his case on the grounds of : a) the extraterritorial criminalisation not being under question earlier; b) prosecution being mandatory in Hungary law; c) Europe, since then, being evolved on legal and social fronts.
The Evasive Reasoning
The aforementioned argument is accepted by Felici J. In fact, he holds that let alone Pretty, there are no identical precedents for this case. On the contrary the majority judgement expressly relies on various precedents including Pretty. This is crucial, for the logic of “risk of abuse” (of PADs) becomes the animating reasoning running throughout the majority judgement. As we would show, this logic is clumsily drawn to dispense most arguments of the petitioner, ultimately foreclosing any space for meaningful balancing. First, we examine the reasoning employed for Article 8 challenges. Second, we turn to explore the discrimination angle under Article 14.
A. Article 8
For an infringement of Article 8 (respect for private and family life) to be permitted three prongs have to be met. One, there should be existence of a law, which here was the Hungarian law criminalising PAD. Two, a legitimate state aim to infringe on the right. Here, the court outlines three chief aims: a) preventing vulnerable individuals from risk of abuse; b) upkeeping medical ethics; and c) upholding societal morals and values (¶137). Three, there should be a fair balance between interest of applicant and the legitimate aims. The core of the judicial inquiry in this case is constituted of this final criterion.
The first question in this balancing stage is the quantum of Margin of Appreciation (“MoA”) to be granted to the state. The majority judgment bluntly provides an expansive MoA to the state – with the “risk of abuse” and “societal morals” being onerously weighed in its calculus. This undiscerning treatment of MoA directly impacts the balancing stage, rendering it otiose – in almost like a self-fulfilling prophecy. Conversely, Felici J treads this very carefully. He refuses MoA to the state reasoning that “risk of abuse” (of legal instruments) is not a valid legal argument.
Having established the extent of MoA the court proceeds to balance the state’s aim and individual’s right on three issues: a) societal implications; b) lack of alternative means; and c) criminalisation of PAD. We examine each of them.
1. Social implications
The court heavily concerns itself with the implications of the requested relaxation of the impugned legislation on vulnerable individuals and society as a whole. The Government argued that the relaxation could expose the vulnerable to overt and covert pressure to end their lives, eating their sense of self-worth, undermining trust in the medical profession, ultimately resulting in a “slippery slope”.
We argue that this collection of arguments is at best a speculation and a hypothetical. The court adopts a highly simplistic and unreflective view of such policy where such an arrangement would compulsorily lead to the slippery slope of people starting to misuse it. Crucially, the court does this without any policy study or empiricism backing its conclusions. In fact, the court goes on to say that this government’s claim cannot be determined solely on the “basis of statistical or other evidence“, quickly proceeding to add that essentially these are issues tethered to wider collective moral values.
The Court, throughout the judgement, eschews any articulation of these moral standards – which in fact acts as the north star in their reasoning. This perfunctory treatment of moral standards leaves it to abstraction, sans any boundaries – ultimately making it impossible to carry out any meaningful balancing of individual’s rights against the society’s values. Uncritically the court notes that “the wider social implications and the risks of abuse and error entailed in the provision of PAD weigh heavily in the balance when assessing if and how to accommodate the interests of those who wish to be assisted in dying” (¶152). The court completely dismisses the appellant’s contention on the basis of the risks posed without attempting to reconcile the possible misuse with the right of self-determination. Ultimately, it denies the possible benefits in protecting the dignity and autonomy of terminally ill patients based on the real or illusory possibility of misuse.
2. Lack of alternative means
Here, the Court analyses the parts in isolation without being mindful about the whole. The patient is in a condition where RWI will be available to him at the very mouth of his death – thus this facility is of no practical aid to him. He has no other option but to bear the immense pain till he reaches that point, unless he decides to get sedated. The patient refuses this sedation for it would lead to a total loss of his autonomy. Thus, when the court, bereft of any logical consistency or empathy, calls refusal to get sedated as mere “personal preference” it gifts the patient a grand illusion of choice. No “personal preference” gets exercised while refusing to be subjected to such intolerable and unending pain. If anything, this preference is impersonal and common to all humanity. The court utilises this logic to say, “that a personal preference to forego otherwise appropriate and available procedures cannot in itself require the authorities to provide alternative solutions” (¶155).
Thus, the court considers sedation to be an alternative procedure available to the applicant, thereby considering it an adequate form of palliative care. It fails to take into account that by bypassing the applicant’s refusal to receive sedation, it undermines the right of the terminally ill patients to ensure that their last moments on earth are spent with dignity. As the applicant argues, being sedated would lead to a complete loss of autonomy further imploring his dignified existence. Thus, the only real options available are to either live in physical and existential pain or lose all their sense by sedation. This renders functionally nugatory the right of self-determination. By enabling PAD, the applicant as well as other terminally ill patients will have a real and not illusory choice. This ability to determine whether they want to exercise RWI or resort to PAD would enable them to effectively exercise their right to self-determination. Without this real choice the right to self-determination is stripped of any meaning.
3. Criminalisation
Hungry alongside outlawing PAD, also criminalized assisting a terminally ill patient seeking PAD abroad. The majority opinion of the court stated that in order to accommodate the option of allowing people to exercise PAD abroad, the State would have to create an exception to its national criminal law. However, in the court’s opinion the “collective moral and ethical considerations” raised by the Government provided reasonable grounds to not provide such an exception.
The court here failed to effectively balance the rights of parties involved. Even if, for argument’s sake, we were to accept that there is no positive obligation on the state to give a right to PAD, it is of a different nature than criminalizing assisting people. The criminalisation is negative in nature, and the state’s justification ought to be of a higher threshold than the justification not to give the positive right to PAD. By creating an exception, the government would not have provided for assisted suicide but simply ensured that people who have supported the decisions of bearer of the right are not unduly subjected to further agony.
The Court acknowledges the Government’s claim that while prosecution for aiding assisted suicide is legally mandated, mitigating factors such as perpetrator motivation, victim circumstances, and offense danger can be considered, potentially resulting in sentences below the statutory minimum. This however does not in any way mitigate the factor that the assisting people are after all being considered as a criminal by the system. As Felici J notes risk of prosecution is itself an interference, regardless of the state’s claim to take various factors into consideration. Additionally, by allowing the state to criminalise assistance under the guise of MoA the court has erred on two counts. One, is has accepted the state’s claim without considering if it is a standard practice. Two, it has effectively put various people to risk, at the will of the state, to be prosecuted and face legal harassment if assisting another terminally-ill patient.
B. Article 14
The applicant’s contention was that the law discriminated by differentiating between one set of terminally ill patients who could hasten their death by RWI and another set of those who could not rely on RWI to end their life. The majority rejects this based on two grounds, one, RWI and PAD are procedures “inherently different in terms of causation and intent”; and two, the earlier rationale of MAP and risk of abuse per Article 8 also applies here. Felici J sharply notes the unsettling paradox at the heart of this reasoning, where “the person who is biologically able to survive has the possibility of choosing not to do so by making use of RWI, whereas the person who is biologically unable to survive does not have the freedom to choose not to do so, except in the final stages of his illness” (¶12, Felici J).
Overall, there are multiple issues pertaining to the majority’s rationale here. First, noting the different intent and causation of RWI and PAD does not address the moot issue at hand – the differential treatment of a homogeneous class of terminally ill patients. Second, the majority fails to see the adverse effect of the provision on one group of terminally ill people in reality – a feature that has become cornerstone in modern day discrimination analysis (for example, see here). Ultimately thus, it displays a very restricted understanding of discrimination. Three, legislative intent and execution can have blind-spots – for as it seems here that the legislature failed to see the diverse types of terminally ill patients. These blind-spots should have been illuminated by the court to foster an inclusive and non-discriminatory system – however, it takes a wholesale deferential stance – suffocating the space for addressing discriminatory impacts.
Additionally, it is also crucial to look at this reasoning from a critical lens. For instance, the court accepts the government argument that, “RWI was not an intentional deprivation of life but simply an acceptance of the fact that the patient’s life could not be saved and thereafter allowing death to occur naturally. In the case of PAD, death was intended to be actively and deliberately hastened by the intervention of the medical profession” (¶172). The courts create an artificial cleavage between RWI and PAD to soothe societal morals – at the cost of immense individual suffering. It notes that “between letting someone die and taking active steps to bring about their death as being central to the common law for centuries” (¶68) One ought to ask who is the someone – a perfectly healthy person? Effectively, in the paradigm within which the court reasons, a healthy individual becomes the default and the measure of a dignified death. In reality, for the terminally ill patient, the technical distinction between RWI and PAD is meaningless – the only tangible difference is prolonged suffering while awaiting death. However, the court labours under the notion that natural death is kosher, while the other less approved per societal morals.
Conclusion
Ultimately what is denied by the court is the intrinsic right of self-determination of people in order to meaningfully exercise their ability to ensure a life of dignity. Erecting the (ostensibly) non-negotiable shield of morality and risk of abuse the court has denied people with terminal illnesses their right to determine and decide a very sensitive, private and existential aspect of their lives. As expressed throughout the blogpost, the issues flagged by the court are artificial hurdles capable of being addressed at the level of policy. That is, the creation of robust safeguards for PAD could be tasked to the law makers while upholding the content of the applicant’s rights.
The court’s central error lies in its treatment of life as a divisible and an isolated legal concept, divorced from its philosophical and existential moorings. As Khaisai poignantly illustrates through the aphorism, “We practice ju-jitsu for being able to die like the trees: standing,” the essence of dignity in life is inextricably linked to one’s ability to face death on their own terms. This illuminates the court’s failure to consider life as a whole, encompassing both its lived experience and its conclusion.
Samriddh Sharma and Avani Tyagi are undergraduate law students at WBNUJS, Kolkata.
Picture Credit: The NY Times/Gracia Lam
Jindal Forum for International and Economic Laws 