Right to die case allowed to proceed
13 April 2017
Conway, R(on the application of) v The Secretary of State for Justice EWCA Civ 275
The Court of Appeal has overturned the refusal of the Divisional Court to allow a motor neurone disease sufferer to challenge section (1) of the Suicide Act. He may now proceed to seek a declaration under section 4(2) of the Human Rights Act 1998 that the ban on assisted dying is incompatible with the European Convention on Human Rights. The background to this appeal can be found in my post on the decision from the court below, which focussed on the vigorous dissent by Charles J.
Briefly, Mr Conway wishes to enlist the assistance of a medical profession to bring about his death in a peaceful and dignified way at a time while he retains the capacity to make the decision. His family respect his decision and choices and wish to support him in every way they can, but his wife states she would be extremely concerned about travelling to Switzerland with Mr Conway so he can receive assistance from Dignitas.
The main argument in support of the permission to appeal was that it was self-evident from the division of opinion in the Divisional Court that there would be a realistic prospect of success. Mr Conway’s legal team also argued that the issues raised about Mr Conway and those in a similar position to him were of general public importance and that this was a compelling reason for the appeal to be heard.
The Court of Appeal considered that the majority of the Supreme Court in Nicklinson, and the majority Divisional Court in Conway who relied on that judgment, had overlooked the present reality that Parliament “has now effectively made a decision not to change the law, and that is its settled will.” By declaring “institutional inappropriateness” of the courts in these circumstances, the judgments in question were surely calling for an abdication of jurisdiction in an “unqualified and unpredictable way”. Again, if it were a matter of awaiting some international consensus on the question of assisted dying, that would entail the courts abdicating their jurisdiction in a way that would be positively unlawful:
to require the courts of this jurisdiction to wait for the decisions of international bodies and other countries notwithstanding the role given to them in the Human Rights Act, […] such consensus is in our judgment unlikely to happen for a considerable time so that this would itself be a form of judicial abdication.
Another reason for distinguishing Mr Conway’s case from Nicklinson was that the material before the court in the instant case was “a more wide-ranging selection of primary factual and expert evidence.”
It includes evidence dealing with temporal prognosis, capacity, and withdrawing and withholding treatment from consultant clinicians with experience of treating those with terminal illnesses including psychiatrists, a psychologist, a neurologist, an oncologist, an intensive care physician, and a specialist in palliative medicine. There is also evidence from a legal academic whose specialism is in assisted dying and the safeguards in countries with permissive legal regimes, and the Chief Executive of Dignity in Dying, from three of Mr Conway’s treating clinicians, his family and friends, others with relevant experience, and a number of others with terminal diseases or their surviving spouses or parents, including some from jurisdictions in which assisted death is permitted.
It was therefore arguable that the evidence demonstrated that a mechanism of assisted dying could be devised for those in Mr Conway’s “narrowly defined group” that was practical so as to address one of the unanswered questions in Nicklinson.
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