The European Convention on Human Rights (ECHR or “the convention”) was designed to secure certain rights and freedoms with the aim of encouraging the rule of law in the wake of WWII. The purpose of this article, however, is to demonstrate that a more modern understanding of the convention shows that it can also be used as an avenue to secure certain economic, social, and cultural rights—specifically, in the realm of healthcare and medical treatment. An analysis of some of the jurisprudence concerning assisted suicide, abortion, and deportation is highlighted to make this point.
ASSISTED SUICIDE
Article 2 of the ECHR provides that “everyone’s life shall be protected by law”. On a basic level it encompasses both negative and positive obligations: signatory states must refrain from intentionally depriving a person of their life; and they are required to undertake certain actions to protect life, including adopting laws punishing people for unlawful killing. In the spirit of taking a more purposive approach to the convention, however, article 2 has been invoked in the context of the debate about both voluntary and involuntary euthanasia. For example, the European Court of Human Rights in Lambert v. France held that the withdrawal of life saving treatment to Mr. Lambert would not breach article 2.
Leading cases on assisted dying more often invoke article 8 (the “right to respect for private and a family life”). In Nicklinson v. UK, the UK Supreme Court was split on whether the UK’s blanket ban on assisted suicide was compatible with the ECHR. Thus, somewhat bizarrely, even though the majority of the justices felt that the court had the constitutional authority to make a declaration of incompatibility (in regard to the ban and article 8), only two of the justices actually made such a declaration. The Supreme Court of Canada took a bolder approach in Carter v. Canada. In this case, the court held that the blanket ban on assisted dying under the Canadian Criminal Code was incompatible with section 7 of the Canadian Charter of Rights and Freedoms (“[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”). It held that an absolute prohibition on assistance in dying would create a “duty to live,” rather than a “right to life”.
ABORTION
The convention rights have also played a part in abortion law. The courts have stopped short of finding that the ECHR provides for a right to abortion. However, they have found that the convention requires certain procedural guarantees. For example, in Tysiac v. Poland, the European Court on Human Rights held that “once the legislature decides to allow abortion, it must not structure its legal framework in a way which would limit real possibilities to obtain it”. Similarly, in P & S v. Poland the court found that Poland had breached articles 3 and 8 of the ECHR as a result of repeated failures by the authorities to ensure that the first applicant could access the legal abortion services to which she was entitled under Polish law. This shows that a failure to provide appropriate healthcare treatment can engage a signatory state’s responsibilities under the ECHR.
DEPORTATION
As a final example, rights relating to medical treatment and rights guaranteed under the ECHR have been considered in the context of deportation. In Paposhvili v. Belgium, Mr. Paposhvili (a Georgian national living in Belgium) claimed that his expulsion to Georgia would put him at risk of inhuman treatment and an earlier death due to the withdrawal of the treatment he had been receiving in Belgium. Mr. Paposhvili died whilst his case was pending but ultimately the European Court of Human Rights decided that there would have been a violation of article 3 had he been removed from Belgium. It held that Belgium had not properly assessed the risk that Mr. Paposhvilli faced should he have been deported, and thus that there was insufficient information to support Belgium’s conclusion that he would not face a real risk of treatment contrary to article 3 if returned to Georgia. In AM (Zimbabwe) v. SS for the Home Department, the UK Supreme Court endorsed the Paposhvilli judgment, holding that an individual could rely on article 3 to refuse deportation if they could prove that they would face a real risk—on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment—of being exposed to: a serious, rapid, and irreversible decline in his or her state of health resulting in intense suffering; or a significant reduction in life expectancy. Paposhvilli, thus, clearly demonstrates that, in certain circumstances, the ECHR may be invoked to guarantee a certain level of healthcare.
Helen is a trainee solicitor and has an undergraduate law degree from the University of Cambridge. She has experience working in a variety of different areas of law, including immigration, commercial, public and international law.