A self-imposed dilemma: the Terminally Ill Adults (End of Life) Bill and Article 2 of the European Convention on Human Rights

The Terminally Ill Adults (End of Life) Bill has been described by many as one of the most significant shifts in the legal landscape of England and Wales in our generation. Whether this claim overstates the matter is open to debate. What is not in dispute, however, is that the Bill raises profound questions about the relationship between the state and those it governs. Unsurprisingly, its existence, proposals, and suggested amendments have generated extensive discussion and controversy. In this blog series, leading voices in the field of assisted dying reflect on the Bill, what it means for the state to sanction the deliberate and knowing ending of an individual’s life, and how we might tread a path forward.

Alex Ruck Keene KC (Hon), 39 Essex Chambers

Keywords: Article 2 ECHR, Right to life, Article 8 ECHR, Mental Health Act 1983, End-of-life law

Introduction

I am a practising barrister, who acted for the claimant in the last major challenge to the ban on assistance with suicide contained in s.2(1) Suicide Act 1961; I also teach Law at the End of Life on the medical law Masters programmes at King’s College London; I have also had experience of legislating on matters of life and death through my involvement, inter alia, as legal adviser to the independent Review of the Mental Health Act 1983, which led ultimately to the Mental Health Act 2025.

My approach to the Terminally Ill Adults (End of Life) Bill

With colleagues from the Complex Life and Death Decisions group based at King’s College London, and from a standpoint of neutrality on the principle of legalising assistance in dying, I have set out significant concerns as to which the Bill represents ‘good law.’ I have set out with my colleagues a set of amendments designed to secure, insofar as possible, that the Bill achieves the policy of the sponsors in a workable fashion (and, where those policies compete, most obviously in relation to the eligibility criteria, that the issues are framed as clearly as possible for Parliament to be able to grapple with them). 

The Terminally Ill Adults (End of Life) Bill and the wider framework of the law

In this blog, I want to highlight a further concern, as to the place of the Bill in the wider framework of the law.  Just as one definition of a gentleman is that they are a person who is never unknowingly rude, good law is legislation which only knowingly sits in tension with the duties imposed by other legislation. 

In significant part because the Terminally Ill Adults (End of Life) Bill represents the outcome of a sustained campaign focused on a single issue, it does not account for other priorities adopted by or imposed upon the Westminster Government.  This is accentuated by the fact that, as a Private Member’s Bill, it has not benefited from the pre-legislative work that would normally have been expected from a Governmental initiative in relation to an issue of such magnitude.

Article 2 European Convention on Human Rights

Whilst there are numerous flashpoints as regards the interaction between the Bill and other, existing laws, for present purposes, I want to focus on the interaction between the Bill and the obligations imposed upon the United Kingdom under Article 2 of the European Convention on Human Rights.   

The obligation to secure life under Article 2 ECHR arises in the face of a real and immediate risk to life of which the state is aware or ought to be aware.  There are qualifications to that obligation, including by reference to the practicability of the steps that can be taken, and by reference to person’s own perception of their situation, a term I use to capture the fact that, depending upon the context, it may include the person’s capacity to understand that refusing treatment will lead to their death, or the person’s understanding that taking lethal substances will lead to their death. 

However, the positive obligations under Article 2 ECHR are not qualified by reference to the state of the person’s physical health.  Indeed, it is difficult to see how it could be because it would be impossible to pinpoint the point in the trajectory of a terminal illness that the state ceases to have a concern to secure the person’s life – is it at diagnosis, at 9 months prognosis, at 6 months, or 6 days? 

In principle, therefore, the Bill places those discharging functions on the horns of a dilemma.  They are faced with a person who is clearly expressing a desire to end their own life, and are deploying functions with a view to giving effect to that wish.

In human rights terms, do they prioritise Article 8 ECHR or Article 2 ECHR?   And does prioritisation of Article 8 ECHR through operation of the framework provided for under the Bill get them off the hook in terms of Article 2? 

Before answering that question, it is necessary to add a further complicating factor. 

In England & Wales, as in many other jurisdictions, the obligation to secure life sits behind and above mental health legislation which can secure the compulsory admission and involuntary treatment of those who, by reason of mental disorder, put themselves at sufficiently serious risk to life.  It is not dependent on capacity: i.e. that a person appears to have the mental capacity to decide to end their own life is not a complete answer to the question of whether compulsory admission and treatment is justified.  This will remain the case notwithstanding the passage of the Mental Health Act 2025. Following a reform process marked by its consensual nature, Parliament has therefore very recently spoken, and, in that context, prioritised life over ‘pure’ autonomy. 

It is undoubtedly the case that not every person who expresses a desire to end their life in the context of terminal illness has a mental disorder, although the prevalence of (in particular) depression in this context is well-established.  Further, detention under the Mental Health Act 1983 could only be justified (in broad terms) if there was a prospect of providing medical treatment that might address that mental disorder.

However, critically, detention under the Mental Health Act 1983 is not an option to secure against a self-inflicted risk to life that is taken off the table simply because the risk is posed by a person who is terminally ill.  It is therefore legislation which, in principle, hovers in the background in any situation where a terminally ill person expresses a desire to end their life. 

Nothing new under the sun?

Some might argue that the issues set out above are nothing new – they arise, for instance, in the context of treatment refusal, or so-called Voluntarily Stopping Eating and Drinking or (‘VSED’). It is not uncommon for there to be charged discussions about the use of the Mental Health Act 1983 in such circumstances – see here in relation to VSED.[1]  

However, here, as in other areas, the Terminally Ill Adults (End of Life) Bill is taking us into new territory by allowing medical professionals to provide an approved lethal substance with the direct intent of enabling the person’s death at their own hand.  Further, and importantly, the Bill does not require medical professionals do so, because it is being proposed as being an ‘opt-in’ model (see clause 31).  

Unlike the situation in relation to the current dilemmas, a medical professional could not therefore plead that they are being forced onto the horns of the dilemma, as we do not recognise the right conscientiously to opt out of responding to a suitably serious risk to life.  They are, in legal terms, choosing to put themselves in harm’s way. 

They are, further, also not protected by the Bill as it stands.  The exclusion from civil liability it provides expressly does not apply in relation to “any liability in tort arising from a breach of a duty of care owed to a person” (clause 33(2)(b)).  So it does not exclude liability for failure to prevent self-inflicted death in the face of a pre-existing duty to do so. 

Conclusion

At a minimum, therefore, I suggest that the Bill needs to make clear that professionals who choose to fulfil functions under the Bill are discharged from any obligations that they might owe under Article 2 ECHR to seek to secure the person’s life, and, in particular, any obligations that might be mediated through recourse to the Mental Health Act 1983.  Given that this is ultimately an issue which can only be resolved by Strasbourg,[2] this may not be a complete answer; but if Parliament here has expressly spoken it would provide the basis for an argument before Strasbourg that the approach taken lies within the margin of appreciation granted member states of the Council of Europe.

More broadly, I suggest that it is important that Parliament be asked to grapple squarely with the fact that it is being asked to introduce a framework which – in policy terms – trumps suicide prevention in relation to those within scope of the Bill, and – in legal terms – prioritises Article 8 ECHR over Article 2 ECHR. 

The tension between the relevant legal frameworks will therefore, at least, be a knowing one. 

Notes

[1] For the avoidance of doubt, I am not necessarily endorsing the observations made in the report about whether the Mental Health Act 1983 was or was not properly used in the cases described; the point is that it has been considered as an option. 

[2] To the best of my knowledge, this issue has never been considered by Strasbourg.  Cases concerning assisted dying / assisted suicide have either been brought by those seeking to challenge bans on its provision, or about the procedural safeguards.