R (on the application of Noel Conway) v The Secretary of State for Justice  EWHC 2447 (Admin) (5 October 2017)
The UK High Court has rejected the latest legal challenge to the prohibition on assisted dying, holding that the prohibition represents a necessary and proportionate interference with the applicant’s right to private life. The Court placed reliance upon the fact that Parliament had repeatedly decided to leave the prohibition in place, providing a timely reminder of the crucial role of Parliament in promoting a person’s right to die with dignity in the context of the assisted dying laws currently being debated in Victorian Parliament.
This is the most recent in a series of legal challenges brought by terminally-ill or disabled applicants to section 2 of the Suicide Act 1961 (UK) (Suicide Act), which makes it an offence to intentionally do an act capable of encouraging or assisting the suicide or attempted suicide of another person. This application was brought on behalf of Mr Conway, a man with a terminal motor neurone disease who wishes to end his own life with the assistance of a medical professional prescribing him a lethal dose of medication.
Mr Conway fears that he will be forced to suffer unnecessarily and against his wishes under the operation of the existing law, stating (at ):
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…
Mr Conway sought a declaration of incompatibility pursuant to section 4 of the Human Rights Act 1998 (UK) (HRA) in respect of the prohibition on assisted suicide. Mr Conway submitted that section 2 of the Suicide Act provides a blanket ban on the provision of assistance for suicide which constitutes an interference with his right to respect for his private life under Article 8 of the European Convention of Human Rights (ECHR), as adopted as a Convention right for the purposes of the HRA.
Article 8 of the ECHR states:
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
It was common ground between the parties that the prohibition on assisted suicide represents an infringement of Mr Conway’s right to respect for his private life under Article 8(1). This position has been established by the authorities. As such, the central issue was whether such interference could be justified under Article 8(2); that is, whether the interference promotes one or more of the objectives outlined in Article 8(2) in a way that is proportionate to such an objective or objectives.
The Secretary of State for Justice (SSJ) submitted that section 2 of the Suicide Act is “necessary in a democratic society” as a proportionate measure “for the protection of health”, “for the protection of morals”, and “for protection of the rights of others” as it aims to protect the weak and vulnerable, protect the sanctity of life and promote trust and confidence between doctor and patient.
Mr Conway submitted that the only aim of the legislation was protection of the weak and vulnerable. Mr Conway advanced a proposed alternative scheme similar to the Assisted Dying Bill which was unsuccessfully introduced into UK Parliament by Lord Falconer in 2014. In the scheme proposed by Mr Conway, the prohibition should not apply where:
- the individual is aged 18 or above;
- has been diagnosed with a terminal illness and given a clinically assessed prognosis of six months or less to live;
- has the mental capacity to decide whether to receive assistance or to die;
- has made a voluntary, clear, settled and informed decision to receive assistance to die; and
- retains the ability to undertake the final acts required to bring about their own death having been provided with such assistance.
The proposed scheme also provided for a number of procedural safety measures, including authorisation of the provision of assistance by a High Court judge, who should analyse the evidence and decide whether the substantive criteria are met in that individual’s case.
Mr Conway contended that such a scheme would safeguard relevant competing legitimate interests and would sufficiently protect the weak and vulnerable in society such that the blanket prohibition in section 2 is an unnecessary and disproportionate interference with his rights under Article 8.
The High Court dismissed Mr Conway’s application for a declaration of incompatibility, finding that section 2 of the Suicide Act is compatible with the Article 8 rights of Mr Conway.
In assessing compatibility, the Court applied the following tests as set out in R (Aguilar Quila) v Secretary of State for the Home Department  UKSC 45;  1 AC 621 at  per Lord Wilson JSC:
- Is the legitimate objective sufficiently important to justify limiting a fundamental right?
- Are the measures which have been designed to meet it rationally connected to it?
- Are they no more than are necessary to accomplish it?
- Do they strike a fair balance between the rights of the individual and the interests of the community?
The key aspects of the High Court’s decision are considered in the four points below.
Declaration of incompatibility for Convention rights in HRA available where Convention rights in ECHR have been declared compatible
The first submission of the SSJ was that the Court must find in accordance with the decision of R (Pretty) v Director of Public Prosecutions  UKHL 61 (Pretty), in which the House of Lords held that section 2 is compatible with Article 8. However, Mr Conway was not seeking a declaration of incompatibility with Convention rights in the ECHR, as was the case in the Pretty decision, but rather was seeking a declaration of incompatibility with the Convention rights as set out as distinct provisions of domestic UK law under the HRA. The High Court, applying Re G (Adoption: Unmarried Couple)  UKHL 38;  1 ACF 173 and R (Nicklinson) v Ministry of Justice  UKSC 38 (Nicklinson), considered that interpretation of the domestic version of the Convention rights in the HRA does not simply mirror interpretation of the Convention rights in the ECHR. Consequently, Pretty did not constitute binding authority in these circumstances.
Objectives of section 2 sufficiently important to justify limiting Article 8 rights and rationally connected to the prohibition
The Court agreed with arguments put forward by the SSJ, holding that the legitimate aims of section 2 encompass not just protection of the weak and vulnerable, but also protection of the sanctity of life and promotion of trust and confidence between doctor and patient. Consequently, the Court found that there is a rational connection between the prohibition on assisted suicide and these aims. The Court considered that moral views regarding the sanctity of life are relevant to the issue of assisted suicide and that this was borne out by the consideration of the protection of morals in a number of relevant authorities. The Court also relied upon the evidence from doctors’ groups and disability campaigns as to the risk of a loss of confidence in the medical profession should the prohibition against assisted suicide be relaxed.
Prohibition in section 2 necessary to promote the legislative objectives
The High Court considered that the procedural safeguards in the scheme proposed by Mr Conway would not be sufficient to ensure that the weak and vulnerable would be protected. For example, terminally ill or disabled people could be subject to improper pressure that may be very subtle or indirect, and judges or medical professionals approving the process may not be able to pick up on such pressures. The Court further considered that to allow assisted suicide could result in a normalisation of suicide which would serve to encourage people to end their lives.
In determining the issue of necessity, the High Court, citing Nicklinson, gave weight to the “discretionary area of judgment” to be accorded to Parliament. The Court referred to the statement of Lord Judge CJ in Nicklinson that Parliament represents “the conscience of the nation” for decisions which raise “profoundly sensitive questions about the nature of our society, and its values and standards, on which passionate but contradictory opinions are held” (Court of Appeal, ).
The Court found that opponents of section 2 had failed to persuade Parliament to change the law despite active consideration of the issue (e.g. the Falconer Bill, which contained essentially the same proposals as those of Mr Conway). As such, the Court concluded that there were powerful constitutional reasons for upholding Parliament’s assessment as to the necessity of the provision, stating that “the democratic process would be liable to be subverted if, on a question of moral and political judgment, opponents of the legislation could achieve through the courts what they could not achieve in Parliament” (at , citing Nicklinson at ).
Prohibition strikes a fair balance between interests of the wider community and interests of people in the applicant’s position
The Court held that the prohibition in section 2 achieves a fair balance between the interests of the wider community and the interests of people in Mr Conway’s position. The Court considered that its analysis in relation to the discretionary area of judgment for Parliament was also relevant in this context.
Although the decision turned heavily on the facts of the case, the weight placed by the High Court on Parliament’s assessment of the issue of assisted dying highlights the crucial role of Parliament in upholding and promoting human rights through legislative reform in cases raising issues of social policy and moral value-judgments.
This case is particularly relevant in the context of the current debate on assisted dying laws in Victoria. Currently in Victoria, assisted dying is an offence under the Crimes Act 1958 (Vic) and the right to life in the Charter of Human Rights and Responsibilities Act 2006 (Vic) has not been recognised as including as a corollary a right to die with the assistance of a third party or public authority. Accordingly, individuals wishing to end their lives with assistance have had limited recourse to the courts.
However, the Victorian Parliament is set to enact a system of voluntary assisted dying similar to that proposed by Mr Conway in this case. The Victorian Government’s Voluntary Assisted Dying Bill passed this week in the Upper House of the Victorian Parliament following 100 hours of debate. The bill will now return to the Lower House for a final vote in its amended form. Given the Lower House already passed the previous version, the bill appears certain to become law. From June 2019, terminally ill Victorians with six months to live (or 12 if it is a neurodegenerative disease) will be able to obtain a lethal drug within ten days of a request to die after a three-step process, which includes two independent medical assessments.
The full text of the decision can be found here.
Alex McKinlay is a Solicitor at King & Wood Mallesons