Autonomy and assisted dying / suicide – an important judicial light shed from an unexpected corner

Individual decision-making and its complexities was very much in the spotlight this week in the context of the oral evidence sessions held by the Public Bill Committee considering the Terminally Ill Adults (End of Life) Bill. The decision of Collins Rice in ‘RTM’ v Bonne Terre Ltd [2025] EWHC 111 (KB), handed down on 23 January 2025, is an important reminder of just how complex the idea of autonomy is in real life.

The case concerned a recovering online gambling addict. He used to gamble online on platform operated by the Sky Betting Group (‘SBG’) and others, in circumstances and to a degree he described as compulsive, out of control and destructive. He claimed that SBG gathered and used extensive information, generated by his use of its platforms, unlawfully, including by analysing and combining it through sophisticated profiling algorithms, and especially by way of personalised and targeted marketing which he could not handle and which fed his compulsive behaviour. He sought compensation for harm, distress and loss.

SBG’s defence was that it complied with all its legal obligations throughout and, in particular, that much of what the claimant now objected to, he had consented to at the time.

In order to determine the claim, Collins Rice J had to wade deep into the thickets of both European and domestic data protection law concerning direct marketing.  She identified that:

184. The Claimant’s evidence is that his decision-making about matters to do with gambling was materially compromised throughout the relevant period. He says his self-control, the quality and rationality of his decision-making, his sense of his personal integrity and self-worth, and his personal and private autonomy were damaged by his habits in a spiral of self-harm especially in relation to making decisions relating to (more) gambling. He says that to the extent that he executed deliberate acts which proceeded from, and had the effect of exacerbating, that spiral and further compromised his privacy and autonomy, those were acts which cannot properly be described as proceeding from free, active, informed, specific and unambiguous exercise of autonomous choice; privacy law does not recognise them as such. He says that whatever he did to trigger the harvesting and manipulation of his personal data abouthis gambling, to be returned to him as potent incentivisers of moregambling, were acts of that nature. They proceeded from compromised autonomy, and further compromised his autonomy, in a self-reinforcing manner.

Collins Rice J accepted that evidence, but then had to evaluate its consequences, emphasising that:

180. […] Personal autonomy is not an all-or-nothing thing. The authorities emphasise its dependence on context and degree. Individuals’ decisions about their own privacy can be more or less free or constrained, active or passive, informed or heedless, considered or impulsive. The question on which this case potentially turns is whether, in the absence of subjective consent of the relevant quality, the evidence before me makes it more probable than not that that absence was itself the product of sufficientlyautonomous decision making by the Claimant such that SBG is entitled to rely on it as the basis for lawfully undertaking the processing of which complaint is now made. The authorities require that to be assessed in the fullrelevant factual matrix. Doing so involves revisiting SBG’s business model, and what the authorities say about marketing to gamblers, to consider where the law places the carriage of the risks involved.

It was clear that:

186. Direct marketing of gambling to online gamblers, subject as it is to multiple layers of regulation, is explicitly recognised, both within the industry and in the decided authorities, as raising special issues. SBG’s Mr Watkin accepted that, and SBG does not shy away from it. These special issues are described in various ways – including by reference to its particular intrusiveness, its particular potency and effectiveness, or its particular risk of harm. It is recognised that there is a subset, a small minority, of online gamblers – vulnerable individuals, including but not restricted to diagnosed gambling addicts – for whom this kind of marketing can, as a result of these factors, fairly be described as dangerous to them. It deals in an intimately personal issue, their problem with gambling, that affects their whole lives. The advertising of products which are dangerous to everyone is strictly controlled – tobacco advertising is the obvious example. There are no equivalent controls in place for the protection of the minority who are experiencing, or at high risk of experiencing, gambling harms. And whether or not there should be is a question for a legislature, not a court. But online gambling is provided by a regulated industry and the recognition and protection of vulnerable individuals within that regulated context is, as we have seen, central to the regulatory purpose.

Collins Rice J accepted that there was no question of:

197. […] a presumption or even a starting point of absent or defective consent. But there is a question of managing the risk of it, including recognising the signs and symptoms of defective consent and the options for responding to them. And there is always ultimately the issue of the false negative – the individual who, for whatever reason, has not in fact provided the legal basis on which the business has relied.

198. In other sectors this may all be somewhat academic. But in this respect it is right that direct marketing to gamblers occupies a far place along a spectrum. There is an obviously enhanced risk of defective consent in such a cohort. It will include instances of selling gambling to some people whose autonomous ability to resist that selling is substantially diminished. It will include selling a product which, for some people, will harm them and further diminish the autonomous control they have over their private lives. And where it is personalised, that may at the same time both represent the obtaining and use of very personal information about their disordered behaviour, and its processing to make the marketing even more intrusive and hard to resist.

199. In some of these cases, the provider will not be able to rely on consent for all of this. There is an obvious and fundamental imbalance in the rights and interests of the respective parties in such cases. I remind myself, just by way of general context, of what recital 43 to the GDPR says about that: that in order to ensure consent is freely givenit is unlikely to be easy to rely on it where there is a clear imbalancebetween data controller and data subject. The example is given of public authority data controllers, who may be monopoly suppliers of services needed, but the analogy is extendable to data controllers in the gambling sector where they provide services craved by individuals in circumstances of compromised autonomy. The recital guides that consent is ‘presumed’ not to have been freely given where services an individual ‘needs’ cannot be obtained without privacy consents despite such consents not being necessary for the performance of the service. And it is not necessary for online gambling providers to market to their customers in order to allow them to gamble. It is something they choose to do for their own commercial reasons. The clear imbalance is part of the relevant factual matrix for the consenting behaviour in the present case.  

Collins Rice J made clear that:

201. The relevant legislation and authorities, both European and domestic, indicate that in order to provide a lawful basis for direct marketing, and for the underlying use of cookies for that purpose, a data subject’s consenting behaviour has to be of a ‘relatively high’ quality. That quality is expressed by reference to individual qualities such as ‘free’, ‘active’, ‘informed’, ‘unambiguous’, and ‘specific’ or ‘distinct’. What that means in practice is highly context-specific.

202. There are measures indicated by and under the relevant statutory regimes to assist data controllers in the online gambling sector to obtain, and evidence, consenting behaviour of the necessary quality. The sector is such, however, as to carry a real rather than theoretical risk that, occasionally, those measures will not in fact succeed in producing consenting behaviour of the necessary quality, and that the evidence of it will not be reliable. That is because it carries a known and ultimately ineradicable risk that the autonomy of the consenting behaviour in question is vitiated to some degree by problem gambling, so falls short of the relatively high quality required in law. It will be consenting behaviour which is too overborne, passive, unfocused and ambiguous, and too bound up with the craving or compulsion to access gambling, to which the consenting is experienced as a condition to be overcome, to meet the necessary legal standard.

203. In any individual case of challenge, a court needs to consider, on the evidence, and in its full context, whether or not the consenting behaviour relied on is of the necessary quality. That is clearly a highly evaluative matter. I have only the present case before me. I have accepted the Claimant’s evidence of the nature and extent of his decision-making, and looked at all the evidence of the nature and context of his consenting behaviour towards SBG. I have found he lacked subjective consent. I am also satisfied that the autonomous quality of his consenting behaviour was impaired to a real degree. I have no doubt at the same time it is possible to imagine even worse cases of problem gambling, and even worse cases of impaired consent. Nevertheless the standard looked for is relatively elevated. On balance – and it may be a fine balance – my conclusion is that, on the particular evidence and facts of this case, the quality of this Claimant’s consenting was rather lower than the standard required where processing personal data for the purposes of direct personalised marketing is concerned, throughout the relevant period, because of his gambling problem and his associated vulnerability and compromised autonomy.

Collins Rice J was concerned that the Claimant’s consent was :

204. […] insufficiently freely given, in particular. The Claimant’s consenting behaviours proceeded directly from a damaged and defective condition of personal autonomy with which the acts of consenting were inextricably and intimately bound up. The circumstances of his consenting behaviour are not recognisable as amounting to free, unambiguous, informed, specific, or distinct from the uncontrolled craving to gamble. Standards of consent set in data protection law are not insensitive to that sort of context. On the contrary, they can be recognised as requiring a ‘relatively high’ and context-specific standard of consent precisely because of the need for it to be especially incontrovertible before it can be relied on, when the processing of personal data not only invades privacy and compromises autonomy but proceeds from compromised autonomy of the very same nature. 

The claim therefore succeeded. Collins Rice J was at pains to say that her conclusion was fact-specific, even in the direct marketing context with which she was concerned. However, many might feel that her analysis of the elements going towards ‘true’ consent is one with resonances in the context of the Terminally Ill Adults (End of Life) Bill, given that is framed on an essentially consent-based model[2]. In particular, it might be thought noteworthy how Collins Rice J had to consider the combination of the context, the potential for power imbalances, and a close scrutiny of the person’s own characteristics and circumstances, in order to be able to reach (after a close analysis) a decision as to whether or not the claimant’s consent reflected the exercise of an unacceptably ‘compromised’ autonomy.  The judgment is also of interest for the ways in which Collins Rice J had to seek to balance ‘systems’ approaches to consent and the requirement for individual consent to be valid,

Finally, in the case before Collins Rice J, the remedy for an ‘inadequate’ consent was (potentially[1]) damages.  it is worth perhaps pausing to think what the remedies would be were the relevant decision to seek assistance in dying be found to be inadequately autonomous.


[1] The question of remedies was not determined, and Collins Rice J noted at paragraph 212 that the exercise would not be straightforward.

[2] Although, as witnesses including both Professor Gareth Owen and Dr Annabel Price pointed out in their oral evidence to the Bill Committee, there are real differences between a refusal of life-sustaining treatment (where a refusal to consent to a proposed treatment acts as a shield against unwanted intrusions into bodily integrity) and a request for assistance in dying.

(For the avoidance of any doubt, any views expressed here are my own and not those of any organisation with which I may be associated)

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