Catriona Stirling considers the Court of Appeal’s judgment yesterday in R (Conway) v Secretary of State of Justice. Cloisters’ Catherine Casserley was intervening on behalf of Not Dead Yet UK.
The Court of Appeal yesterday handed down its judgment in the case of R(Conway) v Secretary of State for Justice, the latest in a long line of challenges brought by disabled and terminally ill individuals to section 2(1) 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.
Mr Conway unsuccessfully applied to the High Court for a declaration of incompatibility under section 4 of the Human Rights Act 1998 (“HRA”) on the basis that section 2(1) of the 1961 Act is a disproportionate interference with his right to respect for his private life under Article 8 of the European Convention on Human rights (“Article 8 ECHR”).
Mr Conway is a 68-year-old man who was diagnosed with a form of motor neurone disease (“MND”) in November 2014.
When Mr Conway has a prognosis of six months or less to live, he wishes to have the option of taking action to end his life peacefully and with dignity, accomplished with the assistance of the medical profession, at a time of his choosing, whilst remaining in control of such final act as may be required to bring about his death.
It was not in dispute 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.
His situation was therefore different from Tony Nicklinson and Paul Lamb, whose widely publicised cases were considered by the Supreme Court and ECtHR in 2014 and 2015. Both of them suffered from “locked in syndrome”. They had an indefinite life expectancy and their only means of ending their own lives would have been through refusing food and water and starving to death.
However, 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.
Previous decisions of the ECtHR including those of Pretty v United Kingdom and Nicklinson v United Kingdom have established that the right of an individual to decide how and when to end his or her life is an aspect of the right to respect for private life protected by Article 8 of the Convention.
It was undisputed between the parties that section 2(1) of the Suicide Act 1961 interferes with that right; the question was whether this was a valid interference, i.e. whether it satisfies the requirements of Article 8(2).
The ECtHR had held in Pretty and Nicklinson that the blanket ban on assisted suicide in the 1961 Act is not a violation of Article 8 as it falls within the wide margin of appreciation granted to member states on this subject.
However, it was accepted that it was open to the Court of Appeal in accordance with the principles in Re G  UKHL 38 to determine whether the blanket ban was a breach of Convention rights as a matter of domestic law.
Grounds of Appeal and Cross-Appeal
Mr Conway’s appeal to the Court of Appeal focused on:
- the Divisional Court’s approach to determining proportionality;
- the way in which the Divisional Court had addressed the proposed safeguards; and
- the weight to be placed on personal autonomy.
The Secretary of State had cross appealed on the grounds that:
- the Court was bound by the House of Lords decision in Pretty to rule that s 2(1) does not infringe Art 8(1); and
- it was institutionally inappropriate for the courts (rather than Parliament) to consider the compatibility of section 2(1) and Art 8.
The appeal was therefore solely concerned with the question of proportionality under Article 8(2), and specifically:
- whether the measure (section 2(1) of the Suicide Act 1961) was no more than was necessary to accomplish the legislative objective
- whether it struck a fair balance between the rights of the individual and the interests of the community
A significant difference in Mr Conway’s case from previous cases is that he sought to win the proportionality argument by proposing a specific scheme of safeguards and he limited his arguments regarding the disproportionality of section 2(1) to saying that it was disproportionate only insofar as it would not allow for assisted suicide where the proposed safeguards were in place.
His proposed scheme was that:
- The prohibition should not apply where the individual:
- Is aged 18 or above;
- Has been diagnosed with a terminal illness and given a clinically assessed prognosis of six months or less to live;
- Has the mental capacity to decide whether to receive assistance to die;
- Has made a voluntary, clear, settled and informed decision to receive assistance to die; and
- Retains the ability to undertake the final acts required to bring about his or her death having been provided with such assistance.
- The prohibition would only be disapplied where the following procedural safeguards are satisfied:
- The individual makes a written request for assistance to commit suicide, which is witnessed;
- His or her treating doctor has consulted with an independent doctor who confirms that the substantive criteria in (1) are met, having examined the patient;
- Assistance to commit suicide if provided with due medical care; and
- The assistance is reported to an appropriate body.
- Permission for provision of assistance should be authorised by a High Court judge, who should analyse the evidence and decide whether the substantive criteria in (1) were met in that individual’s case.
Decision of the Court of Appeal
The Court of Appeal dismissed the appeal on the basis that the Divisional Court’s approach and conclusions could not be faulted. There was no error of principle in their reasoning. The cross-appeal was also dismissed.
Moreover, the Court of Appeal’s own analysis supported the Divisional Court’s views.
The legitimate aims
The Court did not accept that the issue under Article 8(2) was solely focused on the legitimate aim of the protection of the weak and vulnerable. While this was a critical issue, permitting assisted suicide raises important moral and ethical issues. Society is deeply divided on two competing values – the sanctity of life and the right to personal autonomy.
Contradictory nature of the evidence
The Court noted that the evidence before it was extensive and contradictory. The conflicts could not be resolved by cross-examination. Unlike Parliament, the court can’t consult the public or engage its own experts.
The controversial nature of Mr Conway’s proposal was reflected in the fact that assisted suicide is unlawful in the great majority of Convention countries.
It was noteworthy that the proposed scheme was very similar to previous Bills which had been rejected by the House of Commons. Moreover, the Select Committee which had examined the Joffe Bill had consulted widely on the same issues and well beyond the evidence in the case.
In addition, some of the evidence regarding the views of the professional bodies was left in an unsatisfactory state of uncertainty.
Areas of disputed evidence included:
- whether the proposed scheme would effectively protect the weak and vulnerable;
- whether a High Court Judge would be able to test the main criteria;
- whether it’s possible for medical professionals accurately and reliable to predict a remaining life expectancy of six months;
- whether the scheme would have an adverse effect on the doctor-patient relationship; and
- whether the scheme would result in ‘doctor-shopping’ to find a doctor willing to assist.
Specific areas of concern
In considering the proposed scheme, the Court of Appeal was particularly concerned by the following factors:
- The evidence before it of the potential for indirect coercion or undue influence of vulnerable individuals.
- Concern as to whether others would be likely to seek to extend the scheme to different categories (as had happened in Belgium with extension of euthanasia to children), i.e. the ‘slippery slope argument’.
- The fact that a significant preponderance of medical opinion was clearly against changing the law.
- The fact that the proposed scheme was limited to those with a terminal illness and less than six months to live and that it wasn’t possible for the court to consider if the line should be drawn elsewhere.
- How the proposed role of the High Court judge would work in practice. It was noted that a High Court judge could only make a decision based on the evidence before her, therefore someone independent would be needed to find the evidence for the judge to assess and that would require funding.
- There would inevitably be an element of risk in assessing whether the scheme’s criteria were met for a particular individual.
- Removing the current clear line between suicide on one side and assisted suicide and euthanasia on the other might make the different legal treatment of assisted suicide and euthanasia very difficult to maintain.
Other relevant factors
Other relevant factors that the Court of Appeal considered should be borne in mind in weighing the balance included the fact that:
- Advances in palliative care were making it easier to manage MND symptoms towards the end of life, including the withdrawal of ventilation.
- The Director of Public Prosecution’s policy on prosecution in assisted suicide cases provided a reasonable level of assurance about the unlikelihood of prosecution in similar circumstances.
- Evidence from abroad showed that there may be problems in carrying out assisted suicide.
Mr Conway had sought to argue that the case law on withdrawal of treatment demonstrated the willingness of the courts to give effect to the autonomy of a person in a termination of life situation while being assiduous to establish mental capacity and freedom from undue influence. However, the Court of Appeal rejected the comparison of withdrawal of treatment cases with assisted suicide.
They held that it is not enough to say that doctors are doing the same checks in withdrawal of treatment as they would under the proposed scheme. Assisted suicide was not comparable: it was criminal under common law and is now criminal in statute. Parliament had expressed a clear view on this point in the 1961 Act and in rejecting a change.
On the other hand, withdrawal of treatment cases were concerned with common law rights, i.e. the absolute right to refuse or terminate medical treatment even if it was necessary to keep a person alive. Parliament had not intervened or sought to intervene in such rights. The court therefore had no option in those cases but to tackle difficult moral, ethical and social considerations in order to reach a decision.
For similar reasons, a comparison of the proposed safeguards with Advance Decisions to Refuse Treatment (which allow people to decide in advance when they would wish to refuse treatment or have it withdrawn), which are governed by statute, was not appropriate.
Further, it was no answer to say that someone with capacity is entitled to withdrawal of treatment even if others think it’s a bad decision. The concern about legalising assisted suicide was not about the wisdom of the ultimate decision, but about assessing capacity, coercion, and undue influence etc.
What happened in other countries, where assisted suicide was legal, was not a reason to dismiss concerns in this case. Those arrangements are all different. They were of interest and may be relevant to the debate but carried little weight in a UK court, especially where there was limited evidence of them.
Deference to Parliament
A key issue in determining proportionality was the extent to which it was appropriate for the courts to defer to Parliament on this issue.
The Court of Appeal reiterated the views set out in many previous assisted dying cases that Parliament is a far better body to decide this question, given the contentious views on the ethical and moral issues involved and the potential consequences of a change in the law. They noted that almost all of the judges in the Supreme Court in Nicklinson had viewed Parliament as a more appropriate form to determine this question. The Court of Appeal did not consider that weighing the views of Parliament heavily in the balance was an abdication of their constitutional responsibility.
The Court of Appeal considered the Supreme Court judgments in the recent case about the anti-abortion laws in Northern Ireland, In the matter of an application by the Northern Ireland Human Rights Commission for judicial review (Northern Ireland)  UKSC 2.
A majority of the Supreme Court in that case decided that, had they had jurisdiction, they would have held the current legislative prohibition on abortion in Northern Ireland is incompatible with Article 8, insofar as it forbids abortion in cases of rape, incest and fatal foetal abnormality and thus had not deferred to the views of the legislator.
The Court of Appeal considered that the present case was different from the issue that was before the Supreme Court for a number of reasons including that the issue of assisted dying is more difficult and controversial in terms of its moral and religious dimensions and that the UK’s approach to assisted dying largely reflects the approach over almost the whole of Europe, whereas the abortion laws in Northern Ireland are almost alone in their strictness. Further, there was no assurance as to when or even if, the Northern Ireland Assembly would address the issue, whereas Parliament has actively considered the issue of assisted dying and has given no indication that it would not do so again.
While this most recent challenge to section 2(1) of the Suicide Act 1961 has again failed, the decision of the Court of Appeal may be subject to appeal and it is likely that further challenges to the legality of section 2(1) will be made in the future. At least one further challenge in the Divisional Court was stayed pending this decision of the Court of Appeal and it remains to be seen how that case will progress.