Supreme Court will not hear assisted suicide appeal

30 November 2018 by

Conway, R (on the application of) v Secretary of State for Justice [2018] – read judgment

A man suffering from motor neurone disease has been refused permission to appeal to the Supreme Court in his bid to be allowed to choose when and how to die. He is now wheelchair bound and finds it increasingly difficult to breathe without the assistance of non-invasive mechanical ventilation (NIV). His legal campaign to win such a declaration, on his own behalf and others in a similar position, has met with defeat in the courts (see our previous posts on Conway here,  here and here). As the Supreme Court noted in their short decision, Mr Conway

could bring about his own death in another way, by refusing consent to the continuation of his NIV. That is his absolute right at common law. Currently, he is not dependent on continuous NIV, so could survive for around at least one hour without it. But once he becomes dependent on continuous NIV, the evidence is that withdrawal would usually lead to his death within a few minutes, although it can take a few hours or in rare cases days.

But Mr Conway doesn’t  see this as a solution to his difficulties, since he cannot predict how he will feel should ventilation be withdrawn, and whether he will experience the drowning sensation of not being able to breathe. Taking lethal medicine, he argued,  would avoid all these problems.

In his view, which is shared by many, it is his life and he should have the right to choose to end it in the way which he considers most consistent with his human dignity.

Whilst it is clear that only parliament can change the law on assisted suicide, it is open (and some may say incumbent) on the highest court in the country to declare that the blanket ban is incompatible with the Convention right to die with dignity, leaving it to Parliament to decide what, if anything, to do about it. Had the appeal been allowed through, the questions for the Supreme court would have been:

(1) Is the hard and fast rule banning all assistance to commit suicide a justified interference with the Convention rights of those who wish for such assistance?

(2) If it is not, should this court make a declaration to that effect?

The Court acknowledged the public importance of these questions, but nevertheless declined to hear them. In somewhat circular reasoning, they recruit the controversy behind the claim as the justification for the refusal to Mr Conway to pursue it.

In his post on the High Court ruling in this case, Dominic Ruck Keene observed that the issue of whether the law should permit assisted suicide raises moral, ethical, practical and legal questions. He ends with this comment:

it is hard to imagine that this Claimant, or future Claimants in a similar position, will rest until the Supreme Court, however unwillingly, is required to look at the problem again.

Social history has been replete with blind spots which the courts have regarded as their job to address and amend. There is serious work to do on this question, and it is a pity that the Supreme Court has opted out on this occasion.

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