Right to die case allowed to proceed

13 April 2017 by

Conway, R(on the application of) v The Secretary of State for Justice[2017] 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.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:

1 comment;

  1. Reblogged this on Musings of a Penpusher and commented:
    High time for all politicians and the law to accept that some people prefer a dignified death at a place and time of their own choosing rather than a lingering death and slow, painful descent into a state of helpless degeneration. There would be a public outcry if animals were made to suffer in the same way.

    Death is the inevitable end for all creatures, human or otherwise – so why this sanctimonious pretence that human life is so precious, it is preferable to suffer the indescribable pain of a terminal illness at the end of one’s life-span, rather than be permitted the relief of a painless passage to eternity surrounded by those who love you enough to stay with you to the end?

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.


Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus costs Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza genetics Germany Google Grenfell Health HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage mental capacity Mental Health military Ministry of Justice modern slavery music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
%d bloggers like this: