Gastvortrag: Refusing medicine as a human right
Ort: Institut für Ethik, Geschichte und Theorie der Medizin, Seminarraum EG, Lessingstr. 2, 80336 München
Zeit: Mittwoch, 14.10.2015, 18.00-19.30 Uhr
Isra Black, Klinikum Rechts der Isar, Technische Universität München, Centre of Medical Law and Ethics, King's College London
In its case law on assisted suicide, the European Court of Human Rights (ECtHR) has identified a right to decide when and how to die (let us call this right D) within the right to private life protected by article 8 of the European Convention on Human Rights (ECHR). Because it is derived from an individual’s autonomy interests in general, right D’s scope is not limited to assisted suicide in particular. Rather, right D is potentially engaged in many end of life situations.
Here, I consider the implications of right D for legal regimes governing refusals of life prolonging medical intervention (LPMI), both contemporaneous and in advance. First, I engage with the question of what interference with right D, in the form of restrictions on refusals of LPMI, is compatible with the demands of article 8 ECHR. I argue from two philosophical theories about what human rights individuals possess, the interest view and the ‘reason-blocking’ theory, to the conclusion that only legal regimes that secure wide substantive respect for refusals of LPMI are likely to be Convention compliant. Second, I engage with what George Letsas has termed the structural concept of the margin of appreciation, that is, the extent to which the ECtHR will afford the State a wide margin of appreciation in virtue of the state of consensus among Council of Europe members on how to regulate a specific issue. In respect of refusals of LPMI, I argue that there is at least an emergent consensus among Member States on the importance of refusing LPMI, both contemporaneously and in advance. Therefore, States are perhaps not free to regulate refusals of LPMI as they wish, that is, the ECtHR may not defer to national authorities on the question of whether interference with this facet of right D is justified under article 8 ECHR. However, if we reflect on the features of this particular claimant pool, the ECtHR is perhaps unlikely to hear a refusal case. Hence the importance of States securing effective respect for refusals of LPMI within their own domestic legal structures.
Isra Black works in health law and philosophy. He has a particular interest in issues around the end of life. Isra is a research associate in health law and human rights on the ALS-CarE project, based at the C. He is also a doctoral candidate in law and ethics at the Centre of Medical Law and Ethics, King's College London. He is on Twitter: @israblack.