Judges once again avoid right to die issue

Conway, R (on the application of) v Secretary of State for Justice [2017] EWHC 640 – read judgment

Noel Douglas Conway, 67, is a victim of motor neurone disease. He has just been refused permission to seek judicial review of the criminalisation of physician-assisted suicide under the Suicide Act 1961. The High Court considered that Parliament has recently examined the issue following the Supreme Court decision in the 2014 Nicklinson case , and two out of three judges concluded that it would be “institutionally inappropriate” for a court to declare that s.2(1) of the Suicide Act  was incompatible with the right to privacy and autonomy under Article 8 of the ECHR. Charles J dissented (and those who are interested in his opinion might want to look at his ruling last year in the case of a minimally conscious patient).

Background facts and law

The claimant, whose condition worsens by the day, wishes to enlist the assistance of a medical professional or professionals to bring about his peaceful and dignified death. But Section 2(1) of the Suicide Act criminalises those who provide such assistance. The question of whether someone would be prosecuted for assisting suicide is governed by a detailed policy promulgated by the Director of Public Prosecutions. That policy was formulated in 2010 in response to the decision in R. (on the application of Purdy) v DPP [2009] UKHL 45, and was refined in 2014 following the decision of the Supreme Court in Nicklinson. A similar declaration of incompatibility had been sought in Nicklinson, but by a majority of seven to two the court refused to make the declaration on the grounds that it was not “institutionally appropriate” to do so. The court, however, encouraged Parliament to reconsider the issue of assisted dying.

In the instant case, the court had to determine whether the circumstances which led the Supreme Court to refuse to grant the declaration in Nicklinson had changed so that a different outcome was now possible.

The Court concluded – with an interesting dissent from Charles J – that  this was a matter for parliament.  A declaration of incompatibility would be institutionally inappropriate in the light of the recent Parliamentary consideration of Nicklinson. The claim was unarguable and permission was refused.

Reasoning behind the decision

Both the House of Commons and the House of Lords had debated the matter in the context of bills proposing a relaxation of the strict application of the Suicide Act’s prohibition on assisted dying. So Parliament had decided, at least for the moment, not to provide for legislative exceptions to that prohibition. The policy of the DPP had also been subject to Parliamentary scrutiny and debate. Furthermore, the Strasbourg Court had ruled that the question fell within the margin of appreciation of the State parties to the Convention.  Whilst the courts had the jurisdiction (recognised in Nicklinson) to issue a declaration of incompatibility in such circumstances, even where Parliament had struck the balance for itself, it also recognised that Parliament was better placed to resolve “this very difficult moral issue.’

The issue was likely to remain subject to continued political attention, just as it remained a matter of intense public debate and controversy. Despite Parliament’s full investigation and consideration, it had been unable to coalesce around a change in the law which would command popular acceptance. Furthermore, Parliament was not required to confront the issue to the extent that it could not leave the law unchanged. In both Pretty  (2002) 35 EHRR 1 and Nicklinson the collective view was that

unless Parliament devised a scheme which admitted of exceptions to section 2(1) the incompatibility would persist. Both Lady Hale and Lord Kerr recognised that Parliament might take a different view and decline to change the law, as the Human Rights Act 1998 allows.

Furthermore, Lord Neuberger in Nicklinson expressly left open the possibility that a declaration of incompatibility would not be the necessary consequence of Parliament leaving the law unchanged. Overall, Parliament had done precisely what the Supreme Court had suggested was necessary. Having done so, it remained institutionally inappropriate for a court to make a declaration of incompatibility. In the mean time,

 the settled position of both Government and official opposition is that any change in the law must await a private member’s bill which commands support in both houses. All current indications are that such a bill would struggle to pass. Whatever the position in the courts any change in the law seems unlikely in the foreseeable future.

Charles J’s dissent

Charles J thought the court should have calibrated the question differently. The court should have asked itself whether the nine-judge conclusion in Nicklinson precluded any possibility of Mr Conway’s request for judicial review proceeding. In his view, it did not.

It was at least arguable that the majority of the relevant reasoning in Nicklinson was that, at some time and in some circumstances, it would be institutionally appropriate for the court to entertain an application for a declaration that s.2 was incompatible, notwithstanding the common view that Parliament was the preferable forum for deciding the issues.

even taking the reasoning of all four [of the judges in Nicklinson] as being against the grant of permission they do not constitute a majority on this issue.

…the issue on permission is whether in light of what has happened since the decision in Nicklinson it is arguable that in the circumstances of this case, and so now, it is institutionally appropriate for the court to entertain such an application.

In other words, none of them said in so many words that a consideration by Parliament of the Assisted Dying Bill, or a decision by Parliament to continue a blanket ban would be enough to exclude the court from considering whether s. 2 of the Suicide Act 1961 was compatible with the right to autonomy under the Convention.

the qualitative element of [their] reasoning linked to the knowledge that the Assisted Dying Bill was then before Parliament makes it arguable that the Supreme Court in Nicklinson decided that, without any breach of Article 9 of the Bill of Rights, the court could in the future consider what Parliament had done and conclude that [this] would not be enough to exclude its consideration [of compatibility].

Charles J has recently dealt quite directly with this death-with-dignity question in the Court of Protection case Briggs v Briggs. Here he found that it was entirely within the court’s remit to make a decision on behalf of an individual as to what his best interests were.  He ruled that a patient in a minimally conscious state should be allowed to refuse consent for the continuation of his clinically assisted nutrition and hydration. The “strong presumption” in favour of continuing life-sustaining treatment for a life that had value was not absolute and had to be weighed against the principle of self-determination. In that case, self-determination won.

As Sarah Jane Ewart mentions in her forthcoming roundup, Mr Conway plans to appeal the decision, supported by charity Dignity in Dying, and a crowd-funding page which has raised over £75,000 towards his legal fees.

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