Conway, R (On the application of) v The Secretary of State for Justice  EWHC 2447 (Admin) – read judgment
This case concerns the issue of provision of assistance to a person with a serious wasting disease who wishes to commit suicide, so as to be able to exercise control over the time of his death as the disease reaches its final stages. See our previous post on it here and here. It follows a line of cases which have addressed that or similar issues, in particular R (Pretty) v Director of Public Prosecutions  UKHL 61;  1 AC 800 (“Pretty“), R (Purdy) v Director of Public Prosecutions  UKHL 54;  1 AC 345 (“Purdy“) and R (Nicklinson) v Ministry of Justice  UKSC 38;  AC 657(“Nicklinson“). Permission to bring this judicial review was granted by the Court of Appeal (McFarlane and Beatson LJJ, see  EWCA Civ 275), having earlier been refused by the Divisional Court (Burnett LJ, Charles and Jay JJ) at  EWHC 640 (Admin
Section 1 of the Suicide Act 1961 abrogated the rule of law whereby it was a crime for a person to commit suicide. In this hearing Mr Conway sought a claim for a declaration of incompatibility pursuant to section 4 of the Human Rights Act 1998 in respect of the prohibition in the criminal law against provision of assistance for a person to commit suicide. That prohibition is contained in section 2 of the Suicide Act 1961.
The facts are set out in our previous posts, but to summarise them: Mr Conway suffers from Motor Neurone Disease. This is a neurological disease which attacks the nerve cells responsible for controlling voluntary muscle movement. The nerve cells degenerate and die and stop sending messages to the muscles. The muscles gradually weaken and waste away. Eventually, the brain’s ability to start and control voluntary movement is lost. Mr Conway has to use a wheelchair and requires ever increasing levels of assistance with daily life, eating and bodily functions. The muscles which allow him to breathe are also wasting away. He increasingly finds it difficult to breathe without mechanical assistance in the form of non-invasive ventilation, which he requires for an increasing number of hours each day. He told the court:
I would like to be able to seek assistance from a medical professional so that I may be prescribed medication which I can self-ingest to end my life successfully, if I wish to do so. If I am unable to take the medication by drinking a prescribed medication, I would also be prepared to receive medication in a different format, by activating a switch for example. I do not believe that unsupervised alternative methods of suicide are humane or acceptable and would be additionally distressing for my loved ones.
I do not wish to get to a stage where my quality of life is so limited, in the last six months of life, that I am no longer able to find any enjoyment in it. This disease is a relentless and merciless process of progressive deterioration. At some point, my breathing will stop altogether or I will become so helpless that I will be effectively entombed in my own body. I would not like to live like this. I would find it a totally undignified state for me to live in. I find the prospect of this state for me to live quite unacceptable and I wish to end my life when I feel it is the right moment to do so, in a way that is swift and dignified. …
The prohibition under Section 2 of the Suicide Act had been found, in Pretty  and Nicklinson  , to interfere with the individual’s right to respect for autonomy under Article 8. But the statutory prohibition was found to be justified under Article 8(2). Parliament had debated assisted suicide since the Pretty and Nicklinson decisions and had reaffirmed the prohibition.
Mr Conway does not regard palliative care an acceptable option for ending his life. Nor does he regard approaching the Dignitas service in Switzerland as an acceptable option. In any event, as with Martin in the Nicklinson case, he would need assistance from others to make use of it, in contravention of the prohibition in section 2, so that is not a viable alternative. He wants respect for his dignity in the sense of being able to choose for himself the timing and manner of his death, by means of being provided with assistance in the form of advice from professionals and drugs at a fatal dose which he could administer himself.
According to comparative law evidence before the Court, five of the forty-seven member states of the Council of Europe permit forms of assisted suicide. Of those, three permit euthanasia, i.e. termination of life by others on request by the individual, as well as assisted suicide (the Netherlands, Belgium, Luxembourg); the others permit assisted suicide but not euthanasia (Switzerland and Germany). The US States which have legislation have adopted a model for assisted suicide only, not euthanasia, e.g. in Oregon, Washington, Vermont and California. Canada permits assisted suicide and euthanasia.
The application was refused.
Reasoning behind the Court’s decision
The High Court was not bound by Pretty; Nicklinson had not suggested that Pretty had binding effect. Nor was the court bound by Nicklinson to decide the case in a particular way. Nicklinson had been decided in a particular context, where Parliament had been due to consider a bill to legalise assisted dying which had been introduced. A group of the justices in Nicklinson had deferred finally determining compatibility in those circumstances. Since then, Parliament had chosen to maintain the prohibition.
Section 2 served a legitimate aim under Article 8(2) by protecting the weak and vulnerable. It was therefore justified on that basis. However, the prohibition on assisted suicide also promoted wider aims. Protection of the sanctity of life as a moral view was one of the aims. The promotion of trust between doctor and patient was a further legitimate aim: the evidence showed a real concern amongst doctors that if the prohibition were relaxed, patients would have less confidence in their doctors.
The prohibition also fulfilled the requirement in Article 8 of being necessary in a democratic society by promoting the aim of protecting the weak and vulnerable. Persons with serious debilitating terminal illnesses could feel despair and consider themselves a burden, making them wish for death, even while they retained full capacity and were not subjected to improper pressure by others. There was evidence of a real risk of vulnerable people seeking assistance to die were the Section 2 prohibition to be relaxed. The process of seeking approval from the High Court – an alternative to a blanket prohibition advocated by Mr Conway – would not be a complete safeguard. The court would have to proceed on the evidence placed before it. External pressures might be very subtle and not visible to the court. Furthermore, the difficulty of formulating a clear and reliable criterion for who is to qualify as terminally ill under such a scheme was a factor of some relevance as indicating again the difficult legislative nature of the choices to be made in fashioning any such scheme. Parliament was better placed than the court to assess the likely impact of changing the law. The necessity point became stronger still when the other legitimate aims were considered. Parliament was entitled to decide that the clarity of the moral position on the sanctity of life could only be achieved by a clear rule forbidding assisting suicide, and entitled to make a clear rule to promote doctor-patient trust.
Finally, the Court found that the prohibition achieved a fair balance between the interests of the wider community and those of people in Mr Conway’s position. The proportionality of the prohibition had been confirmed in Pretty. Nothing had changed since then except that Parliament had reaffirmed the prohibition and evidence now showed that palliative care would make the process of dying for Mr Conway far less distressing than appeared to have been assumed in Pretty. Those developments strongly reinforced the conclusion arrived at in Pretty. The absence of consensus among Council of Europe states about the balance between individuals and community indicated that the balance struck by Parliament fell within the margin of appreciation. The fact that Mr Conway was expected to die soon and the available palliative care indicated that his interests were less badly affected by the interference with his Article 8 rights arising from Section 2 than was the case in Nicklinson. The options for the applicant did not amount to a form of cruelty.
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