No right to assisted death: Conway v Secretary of State for Justice
Anna Beale
In recent years, disabled and terminally ill applicants have brought repeated legal challenges to section 2 of the Suicide Act 1961, which makes it an offence intentionally to do an act capable of encouraging or assisting the suicide or attempted suicide of another. Anna Beale considers Conway v Secretary of State for Justice, the most recent contribution to this difficult and complex area of law.
Facts
Mr Conway suffers from a form of Motor Neurone Disease, which is a terminal condition. It was agreed between the parties that it would be possible for Mr Conway to express a wish, at any stage prior to his death, to bring about his own death by asking for his mechanical ventilation to be removed. Evidence from palliative care experts was to the effect that this would bring about death swiftly without causing discomfort or distress to the patient. Mr Conway’s situation was therefore different from that of Tony Nicklinson and Paul Lamb, whose cases were considered by the Supreme Court and ECtHR in 2014 and 2015, and who both suffered from “locked in syndrome” with an indefinite life expectancy. Their only means of ending their own lives would have been through refusing food and water and starving to death. Mr Conway did not regard removal of his ventilation as an acceptable way of ending his life, and wanted instead the option of being provided, by professionals, with a fatal dose of a drug which he would then administer himself.
The Arguments
Mr Conway’s application before the Divisional Court was for a declaration that the blanket ban on the provision of assistance for suicide contained in section 2 of the Suicide Act was incompatible with his right of respect for his private life under Article 8 ECHR.
It was agreed between the parties that the section 2 prohibition represented an infringement of Mr Conway’s right to respect for his private life under Article 8(1) (as established in Pretty and Nicklinson); the question for the court was whether the interference could be justified under Article 8(2).
The Secretary of State argued that section 2 was necessary and proportionate as a means of protecting the weak and vulnerable; giving proper respect to the sanctity of life; promoting trust between doctors and patients and safeguarding the provision of appropriate healthcare.
Mr Conway put forward an outline of an alternative statutory scheme which, he argued, would safeguard relevant competing legitimate interests and sufficiently protect the weak and vulnerable in society. His scheme incorporated a requirement that the individual in question has a terminal illness with a clinically assessed prognosis of six months or less to live, and procedural medical and legal safeguards, including authorisation by a High Court judge. The scheme was similar to the Assisted Dying Bill unsuccessfully introduced into Parliament by Lord Falconer in 2014.
The Decision
1. The Court refused Mr Conway’s application in a nuanced judgment (given on behalf of the court by Sales LJ) which deals conclusively with certain issues, but makes it clear that this is not the end of the road for this type of argument. The following points are of particular interest.
2. The Court rejected the Secretary of State’s argument that it was bound by the decision of the House of Lords in Pretty to hold that section 2 was compatible with Article 8. Whilst both the House of Lords and the ECtHR had held in Pretty that section 2 was compatible with Article 8 as interpreted by the ECtHR, the House of Lords had not considered the more recent jurisprudence, reviewed and endorsed in Nicklinson, to the effect that there may be a distinct claim of incompatibility with the Convention rights as set out in domestic law under the HRA 1998. A domestic interpretation of the Convention rights could result in a declaration of incompatibility where none would be available before the ECtHR.
3. The decision not to make a declaration of incompatibility in Nicklinson did not bind the Court to reach the same conclusion in Mr Conway’s case. The majority in Nicklinson decided not to make a declaration on the basis that Parliament was very soon to debate Lord Falconer’s Bill. By contrast, there was no firm prospect of Parliamentary reconsideration at the time Mr Conway’s case was decided, and it was the court’s duty to determine Mr Conway’s application on its merits.The Court accepted that all of the aims put forward by the Secretary of State were significant and legitimate and were rationally connected to the prohibition in section 2.The court accepted the Secretary of State’s argument that section 2 was necessary to promote the aims relied upon. In particular:
the procedural safeguards put forward by Mr Conway did not meet the point that persons with serious debilitating terminal illnesses could retain full legal capacity and not be subjected to improper pressure, but still feel that they are a burden to others and thus be susceptible to influence by the “normalisation” of assisted suicide. The Court referred in particular to the position statement by the British Geriatric Society, the Scope position statement and survey of disabled people and the evidence of Baroness Campbell, from Not Dead Yet UK, and Baroness Finlay;
in such circumstances, as the court charged with giving authorisation would be reliant on evidence placed before it, it might have difficulty in picking up issues of external pressure and thus be unable to provide sufficient safeguards;
Parliament was entitled to conclude that a clear moral position could only be achieved by forbidding people from providing assistance to others in committing suicide
similarly, there was good evidence that a clear rule was required to safeguard and reinforce the relationship of trust between doctor and patient.
4. The Court went on to say that, Parliament having considered the matter after Nicklinson, there were strong constitutional reasons as to why Parliament’s view as to the necessity of retaining section 2 should be respected. This was particularly so because there was an important element of social policy and moral value judgment involved in the decision, and Parliament was uniquely placed to receive and assess wide-ranging evidence on the point.
5. The Court relied on similar reasons in concluding that section 2 struck a fair balance between the interests of the community and those of individuals such as Mr Conway. Sales LJ pointed out that the lack of a European consensus on this issue reinforced the importance of allowing an area of discretion to Parliament. He further noted that the interference with Mr Conway’s Article 8 rights was, on the facts, less significant than the interference in Nicklinson.
The Future?
As with the Supreme Court in Nicklinson, the Divisional Court’s judgment in Conway makes it clear that in complex, policy-driven areas such as this, decisions made by Parliament will be given a high degree of respect. It is also important, however, to note that this decision rested heavily on the facts of Mr Conway’s case. Much of the judgment is devoted to analysing the options available to Mr Conway and to outlining the differences between his case and that of Tony Nicklinson and Paul Lamb. Indeed, the judgment expressly states that the court was aware that a distinct challenge had been brought against section 2 by a person whose situation was more akin to Mr Nicklinson’s, and that consideration of that challenge would have to take place in separate proceedings. Should that court reach similar conclusions about the views of the medical profession and the ambit of Parliament’s discretion in this area, it is difficult to see that challenge succeeding; but Sales LJ’s clear and compelling analysis of the Supreme Court’s decision in Nicklinson demonstrates that it is open to another court to take a different view.
Catherine Casserley of Cloisters appeared on behalf of the third interveners, Not Dead Yet UK.
Anna Beale
5.10.17