Legal Update – End of the line for terminally ill man’s assisted dying appeal


R (on the application of Conway) v The Secretary of State for Justice Noel Conway has been refused permission to have his assisted dying appeal heard by the Supreme Court so bringing to an end his legal challenge.

Background

Mr Conway, aged 68, suffers from motor neurone disease, a progressive degenerative condition which has left him wheelchair bound and struggling to breathe. He now requires ventilator assistance 23 hours a day.   Mr Conway’s wish is that, when he has a prognosis of six months or less to live, he would like to have the option of ending his life at a time of his choosing, with the assistance of a medical professional who can prescribe lethal medication which he would self-administer. Currently, under UK law, the provision of such assistance to a person wishing to take their own life is a criminal offence with a maximum sentence of 14 years imprisonment.

Mr Conway acknowledges that once his disease progresses to the stage where he is fully ventilator dependent he can, in theory, bring about his own death by simply refusing to consent to the continuation of ventilation – refusal of medical treatment by a capacitated adult is an absolute right it English Law. However, Mr Conway argued that this death, which might take minutes, hours or even days, would not be a dignified death.

The Legal Backdrop

Section 2(1) of The Suicide Act 1961 prohibits any act intended to encourage or assist the suicide or attempted suicide of another person.  Mr Conway brought a legal challenge seeking a declaration of incompatibility under section 4 of the Human Rights Act 1998 (HRA) on the basis that section 2(1) of the Suicide Act 1961 amounts to a disproportionate interference with his right to respect for his family life under Article 8 of the European Convention on Human Rights (ECHR).

Since its enactment the criminal offence in section 2(1) as well as its compatibility with ECHR rights has been the subject of extensive debate in Parliament and the courts. There have been a series of unsuccessful legal challenges in recent years most notably R (Pretty) v DPP, R(Purdy) v DPP,  and most recently R (Nicklinson) v MOJ.

In Nicklinson the view of the Supreme Court was that, in principle, Parliament was a better forum for determining the issue of legalising assisted dying rather than the courts. Following the Nicklinson decision in 2014 Parliament has debated three further Bills aimed at legalising assisted dying none of which have made it into law.

Parliament and the courts don’t dispute that the UK ban on assisted suicide interferes with the right to private and family life protected by Article 8(1). However, a number of justifications have been relied upon for the UK’s refusal to depart from this strict rule most notably protection of the weak and vulnerable, protection of the sanctity of life and promotion of trust and confidence between doctor and patient. Indeed Article 8(2) legitimises interference with the right to private and family life if it is ‘necessary in a democratic society’ for the ‘protection of health and morals’ and the ‘protection of the rights of others’.

Mr Conway’s case

Mr Conway’s key arguments in support of a declaration of incompatibility were as follows:-

  1. The blanket ban on assisted suicide set down in s.2(1) constituted a disproportionate interference with his Art 8 right to private and family life.
  2. He proposed an alternative statutory scheme to protect the weak and vulnerable in society to illustrate why s.2(1) is a disproportionate and unnecessary interference with his Article 8 rights. His scheme provided that the prohibition on providing assistance for suicide should not apply when the individual is:-
  • 18 or over
  • has been diagnosed with a terminal illness and given a prognosis of 6 months or less to live
  • has the mental capacity to make the decision
  • has made a voluntary, clear, settled and informed decision to receive assistance to die
  • retains the ability to undertake the final acts required to bring about his death having been provided with such assistance
  1. In addition Mr Conway proposed procedural safeguards including:-
  • his treating doctor has consulted an independent doctor who has examined the patient and has confirmed that the criteria are met
  • permission should be authorised by a High Court judge

Therefore, Mr Conway’s case was that in order to accord proper respect to his Article 8 rights, the prohibition in s.2(1) should be modified to allow people like him who meet the above criteria to be provided with assistance to take their own life.

The Courts’ decision

The Divisional Court’s decision (upheld by the Court of Appeal).

was that the s.2(1) prohibition achieves a fair balance between the interests of people in Mr Conway’s position and the interests of the wider community (in particular the weak and the vulnerable). As such s.2(1) was found to be a legitimate interference with Mr Conway’s Article 8 rights and the courts dismissed Mr Conway’s application for a declaration of incompatibility.

The courts also acknowledged that Parliament is better placed than the courts to assess the likely impact of changing the law on a matter, particularly where that matter involves complex and controversial questions of fact arising out of moral and social dilemmas. The courts were mindful that Parliament had considered and debated the issue of legalising assisted dying at length over the years and had concluded that the prohibition should remain. Unless or until Parliament decides otherwise, the courts felt that interference with Mr Conway’s Article 8 rights by section 2(1) was necessary, reasonable, proportionate and therefore lawful in the interests not only of respecting sanctity of life, protection of the weak and vulnerable but also the preservation of trust between doctors and patients.

Mr Conway applied for permission to appeal to the UK’s highest appeal court – the Supreme Court.

The Supreme Court announced last week that, with some reluctance, permission had been refused on the basis that that the prospects of Mr Conway’s case were not sufficient to justify giving permission to appeal. This brings to an end Mr Conway’s challenge to the ban on assisted dying.

Current Legal Position on Assisted Dying

Following Mr Conway’s challenge the legal position remains as follows-

  • no criminal offence is committed by a person who takes action to commit suicide (s.1 Suicide Act 1961) providing there is no third party assistance
  • it remains a criminal offence under s.2(1) of the Suicide Act for a person to do any act capable of encouraging or assisting the suicide of another – punishable by up to 14 years’ imprisonment. The DPP has issued guidance for Prosecutors to be followed when a s.2(1) prosecution is being considered
  • a patient with capacity has an absolute right to refuse medical treatment (except compulsory treatment for a mental disorder under MHA) even if to do so will result in their death
  • a patient cannot request treatment which is intended to bring about their death (euthanasia)

Comment

The call for legalisation of assisted suicide is unlikely to go away. Although Mr Conway’s challenge is at an end there are likely to be further legal challenges to s.2(1) brought by others in a similar position to him. It is an issue which raises complex moral, ethical, practical and legal questions. It now appears that the only realistic prospect for campaigners securing a change in the law is via the Parliamentary process. It is clear, however, that Parliament currently has no appetite for debating this issue again, at least in the foreseeable future.

5th December 2018

KATHRYN RIDDELL

Partner in Sintons Healthcare Team

If you have any questions or require any advice on the issues discussed in this article please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk


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