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Noel Conway's Case: New Developments in the Right to Die Debate

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About The Author

Peter Lennon (Joint Editor-in-Chief )

Peter Lennon recently completed the LPC at the University of Sheffield, and is a future trainee of Mills & Reeve LLP. Before law, Peter studied History at Selwyn College, Cambridge. His main areas of interest are corporate law, administrative law, and legal policy. Outside the law, Peter enjoys writing, cooking, and pretending to know about football.

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I strongly believe that we should all have the right to control our lives and especially the means and manner of our death.

Noel Conway

In February 2014, Ryan Turner covered the impending conclusion of the “right to die” appeals in R (Nicklinson) v Ministry of Justice [2014] for Keep Calm Talk Law. Just over four years later, the issue of a right to die does not appear to be concluded. This was demonstrated by the case of R (Conway) v Secretary of State for Justice [2017] , which went before the High Court last autumn and – as recently announced –  is set to be heard by the Court of Appeal. It seems likely that the case will move on from there to the Supreme Court, just as Nicklinson [2014] did.

Importantly, however, the case of Conway [2017] can be distinguished from Nicklinson [2014] on its facts, as well as the arguments advanced: Mr Conway’s lawyers went some way towards narrowing the scope of a proposed “right to die” beyond a general principle, and the government raised new arguments against the idea that were not voiced in Nicklinson [2014]. As this article examines, the case is therefore worth looking at in some detail, if for no other reason than that this legal argument shows no signs of ending soon.

Statutory Context: Suicide Act 1961

The Suicide Act 1961 (SA 1961) decriminalised the act of suicide in England and Wales. However, Section 2(1) of the SA 1961 confirms that to intentionally carry out an act which is capable of ‘encouraging or assisting the suicide or attempted suicide of another person’ remains a criminal offence. This other person need not be known to the defendant, and need not even be a specific individual - the offence is drawn extremely broadly. As such, case law has confirmed all of the following situations are potential offences under Section 2(1) of the SA 1961:

  • A spouse assisting the suicide of their terminally ill partner, as in R (Pretty) v DPP [2001];
  • A doctor providing advice to a terminally ill patient on how to painlessly end their life, as in Conway [2017];
  • Family members assisting a disabled person fly to the Dignitas clinic in Switzerland, as in Nicklinson [2014].

Under Section 2(4) of the SA 1961, no prosecution for such an offence can be pursued without the consent of the Director of Public Prosecutions (DPP). However, the chance of avoiding prosecution is unlikely to be enough for many in these situations: if the DPP decides to go ahead and prosecute, they could face up to 14 years’ imprisonment. Furthermore, if assistance crosses into the realm of a “mercy killing” – euthanasia – then the defendant could instead face a common law charge of murder, regardless of the victim’s consent or desire to die.

This is the statutory and criminal context within which a string of disabled claimants have attempted to ensure that they can receive assistance in ending their lives peacefully – where they themselves are unable to do so – without their loved ones or doctors facing subsequent punishment.

Case Law: Pretty and Nicklinson

Pretty v DPP

R (Pretty) v DPP [2001] was the landmark case upon which subsequent appeals such as Nicklinson [2014] and Conway [2017] have been built. Diane Pretty (P) was suffering from motor neurone disease, sometimes known as ALS or Lou Gehrig’s disease, a progressive condition which causes the atrophy of muscles throughout the body. This eventually causes difficulty in moving, communicating, or breathing. The disease is incurable, and relentless.

Before the progression of the disease became too severe to communicate, P expressed a desire to end her life on her own terms. Her physical symptoms rendered her incapable of doing so herself, but – with the support of her family – her husband was willing to assist. P sought a declaration from the DPP that her husband would not be prosecuted under Section 2(1) of the SA 1961 if he did so. However, the DPP refused to give such a declaration in advance.

As a result, P sought judicial review of this refusal, claiming that her right to a private life under Article 8 of the European Convention of Human Rights (ECHR) included a right to determine when and how she died. She argued this right was being infringed by Section 2(1) of the SA 1961.

P’s was unsuccessful before both the domestic courts and the European Court of Human Rights (ECtHR) in Pretty v UK [2002]. Both courts found that even if P’s rights under Article 8 of the ECHR were engaged, the correct question was one of proportionality, as Article 8 of the ECHR is a qualified right. Both courts agreed, furthermore, that Section 2 of the SA 1961 was a proportionate interference with that right for the purpose of protecting vulnerable persons from pressure - real or imagined - to end their lives. Remarkably, however, the ECtHR in Pretty v UK [2002] refused to rule out the possibility that Article 8 of the ECHR does include a right to die.

Nicklinson v Ministry of Justice

Since Pretty [2002], the discussion has shifted from the scope of the rights in the ECHR (P also founded an argument on Article 2 of the ECHR, a line of attack which has since been largely abandoned) to proportionality and policy.

Indeed, the applicants in R (Nicklinson) v Ministry of Justice [2014], rather than following P’s approach and seeking a declaration in advance from the DPP, sought to challenge the SA 1961 directly. With Ryan Turner having comprehensively outlined the case’s facts for Keep Calm Talk Law in the run-up to the Supreme Court’s judgment, only a brief summary is necessary.

Three applicants, including Tony Nicklinson (N) – who suffered from “locked-in syndrome” – wished either for medical assistance in ending their lives, or for assistance to  travel to the Dignitas clinic in Switzerland. Two of the three applicants were incapable of ending their lives, other than by the painful and degrading process of self-starvation; the other was capable of carrying out the act himself, but required assistance in travelling to Switzerland.

The Supreme Court ultimately rejected the applicants’ claim, though not unanimously. Lady Hale and Lord Kerr, dissenting, both expressed a willingness to declare Section 2 of the SA 1961 incompatible with Article 8 of the ECHR. The majority of five accepted that questions of assisted suicide did engage Article 8 of the ECHR– thereby resolving the ambiguity of Pretty [2002] – but felt that the issue was an inherently moral one, more suitable for determination by Parliament than the courts.

Indeed, Lord Falconer’s Private Members’ Bill in the House of Lords (the Falconer Bill) - about which Amy Ling has written for Keep Calm Talk Law - seemed to have been particularly significant to the Supreme Court’s decision, though it was subsequently stymied by a lack of debating time and was never voted upon. A more recent Private Members’ Bill introduced by Rob Marris MP in 2015 failed to pass second reading by a vote of 330-118. This is the context underpinning Noel Conway’s case.

The Facts of Conway's Case

Noel Conway (C), like P, suffers from motor neurone disease and seeks to end his life. Under the current law, his only possible options are to allow the disease to take its natural course – waiting for it to kill him, or leave him reliant on a respirator, which he could then refuse – or to travel to Dignitas. He does not regard either of these options as acceptable. Instead, C wishes to be prescribed a course of drugs by a doctor which will enable him to die peacefully and painlessly before his condition progresses so far as to deprive him of all dignity. However, under the current law, this would make the doctor involved liable under Section 2(1) of the SA 1961.

C’s claim is essentially a refined version of the Pretty [2002] and Nicklinson [2014] claims, with one important distinction: there is a difference between assisted suicide (assisting a person in their own act of suicide) and euthanasia (intentionally killing a person out of a sense of mercy, often at their request). Unlike in Pretty [2002] and Nicklinson [2014], at no point has C advocated for, or considered, euthanasia. This distinction seems to leave C’s case tailor-made to defeat the proportionality test applied with regards to assisted suicide in Pretty [2002] and Nicklinson [2014].

C has argued that the blanket ban on assisted suicide in Section 2 of the SA 1961 is unnecessary because the same legitimate aim (protecting the vulnerable) could be achieved by a scheme of proper safeguards. C’s proposed scheme, bearing some similarity to the provisions in the Falconer Bill, was that a person could legally pursue assisted suicide if:

  • The individual is aged 18 or above;
  • They have been diagnosed with a terminal illness;
  • They have a prognosis of six months or less to live;
  • They retain mental capacity to decide whether to receive assistance to die;
  • They made a voluntary, clear, settled and informed decision to receive assistance;
  • They retain the ability to undertake the final acts required to bring about death.

C’s scheme would also require a witnessed, written request for assistance to commit suicide by the individual, the consultation of their treating doctor with another independent practitioner, and a thorough reporting procedure to an independent body. It was also suggested that permission to go forward might have to be sought from a High Court judge. This is, clearly, quite a thorough and specific set of criteria tailored around C’s own circumstances. By drawing the criteria more narrowly to focus on assisted suicide alone – thereby reducing the potential number of individuals eligible (and therefore affected by the determination) – it becomes more difficult in theory to argue that the blanket ban is necessary using the proportionality test.

The danger, of course, is that C’s scheme (or a future, even narrower scheme designed to pass the courts’ test) may not be fit for the purpose it set out to achieve. It is worth noting that three out of the four applicants in the Pretty [2002] and Nicklinson [2014] cases would not be eligible for assistance under this scheme: P lacked the ability to undertake the final act of suicide herself, while two of the Nicklinson [2014] applicants were suffering from locked-in syndrome, which is a cruel but not terminal condition. Indeed, a major point in favour of those applicants was that their condition would not kill them, but leave them alive in a state of suffering.

Legitimate Aims: The Government’s Response

A second distinctive feature of Conway [2017] was the government’s response to the claim. In both Pretty [2002] and Nicklinson [2014], the government had relied on a single legitimate aim to justify the blanket ban in section 2: the protection of vulnerable people. In Conway [2017], it added two additional aims: the sanctity of life (namely, the protection of public morals, which Article 8 specifically mentions as legitimate) and the preservation of trust between doctors and patients.

Protection of Vulnerable Persons

Regularly cited in arguments in favour of the ban on assisted suicide, the government in Conway [2017] supported the idea that any relaxation of the ban, however limited, would introduce the chance of vulnerable people – particularly the elderly and disabled – being pressured to end their lives. The courts heard a great deal of evidence, from disability charity Scope and the British Geriatric Society among others, that in such a scenario the pressure need not be overt: vulnerable people may base decisions on a wholly internal perception of themselves as a burden to their family or society, or during temporary periods of depression that are naturally common on diagnosis with a terminal or life-long illness. This concern with any “right to die” proposal is almost inevitable in light of current societal attitudes.

Additionally, the courts made a brief yet powerful consideration of the nature of “right to die” claimants. Though these cases are often intensely personal – N’s was, and C’s seems likely to be, covered extensively by the media –  the judgments in these cases will impact on whole classes of people. By the very nature of the legal process, the claimants who succeed in getting cases before the higher courts are likely the most perfect examples of a patient who should be allowed to utilise assisted suicide. They also fit a pattern of being intelligent, eloquent individuals who can make their case logically and convincingly both in court and in the press. However, these claimants may be unrepresentative of the classes of person that will be affected. As Lord Sumption observed in Nicklinson [2014]:

These are significant issues affecting many people who are not as intelligent, articulate or determined as Diane Pretty or Tony Nicklinson.

With this in mind, the court was reluctant to accept C’s system of safeguards. Even a person who complied with all of the procedural steps of this scheme, they argued, might be acting under an internalised perception of themselves as a burden, either to their family or to society as a whole. In the court’s view no system of safeguards could prevent this from being the case.

The Sanctity of Life

Unlike in Pretty [2002] and Nicklinson [2014], the government in Conway [2017] relied on additional legitimate aims beyond protection of the vulnerable. It argued that the “preservation of public morals” – accepted in Article 8 itself as a rationale for interfering with those rights – functioned as a second legitimate aim. Under this umbrella, both government lawyers and the judges referred at several points in proceedings to the “sanctity of life” as a concept protected under the law.

However, this seems problematic, not least as the “sanctity of life” itself is a somewhat loose term. Does the law protect the Christian definition of sanctity of life, or some secular alternative? Moreover, how are “public morals” defined? Morality is ultimately subjective. Some would argue it is immoral for a doctor to advise C on how to die; others could just as easily argue it is immoral for the state to be in the position of telling C, effectively, how and when he is allowed to die.

Samuel Cuthbert has discussed this question in greater depth for Keep Calm Talk Law. In addition to his arguments, there are a number of clear ways that an absolute sanctity of life is not protected in English law. For example, the existence of self-defence as a total defence to murder contradicts such an assertion. If life is truly sacrosanct, it would not be acceptable to allow a person escape any culpability whatsoever for killing another.

In Re B [2002] 2 All ER 449, Butler-Sloss P confirmed that a person may refuse medical treatment even if to do so would be fatal. Similarly, the Suicide Act 1961 itself states that it is no longer a crime to take one’s own life, despite being contrary to most religious definitions of the “sanctity of life.” Clearly, an absolute sanctity of life is not protected under the law.

Fortunately, the judges in Conway [2017] clarified this issue: at least in their view, the moral principle at work is not the sanctity of life, but the taboo against intentional killing. As Samuel Cuthbert noted, this is the line the courts have drawn since the case of Airedale National Health Service Trust v Bland [1993]. Previous protections on the sanctity of life have been eroded, but the “Rubicon” described by Lord Goff in matters of life and death was the act of intentionally causing death. From Bland [1993], a doctor may cease treatment to a patient in a vegetative state, or take other steps (for instance the administration of morphine) that may shorten life, but are intended to have some other beneficial effect. They may not carry out acts where the primary purpose is to shorten or end the person’s life - in other words, euthanasia.

It is questionable whether C’s proposed scheme actually crosses this line (to describe the prescription of drugs as euthanasia is to take away any agency on C’s part), but at any rate the courts demurred: as this is clearly a moral question, they said, they were minded to follow the approach in Nicklinson [2014] and leave the matter to a democratically-elected Parliament to settle.

The Medical Perspective

The government in Conway [2017] also raised a new argument: the need to preserve trust between doctors and patients. It argued that the legalisation of physician-assisted dying would lead to elderly and disabled people being more reluctant to seek medical advice for fear of being pressured into ending their lives. Also raised were concerns on the impact on doctors of being asked to provide this service.

Indeed, during proceedings, the court considered a 2015 report by the British Medical Association that found a majority of doctors thought there would be severe professional and emotional impacts on doctors – and a majority of those negative – if physician-assisted dying was legalised. Earlier consultations and papers by the Royal College of General Practitioners, Royal College of Physicians, Council of the Association of British Neurologists and the British Geriatrics Society all reinforce this position: there is a general opposition in the medical community to any change in the law. While not a strictly legal argument, this is not nothing: the courts therefore accepted it as a legitimate reason for retaining the restrictions on Article 8 of the ECHR.

In fact, the court allowed this line of argument to go further and heard submissions on the current state of affairs in jurisdictions where assisted suicide has been legalised. In the Netherlands, for instance, they heard that there was general support for assisted dying laws among the public, but a much more hostile attitude among medical practitioners. There were also complications in a “significant number” of assisted suicide procedures there.

Furthermore, in Oregon, practitioners described a pattern of “window shopping” as only a small percentage of doctors were willing to carry out such procedures. A survey by Baroness Finlay (see paragraph 75 of the judgment in Conway [2017]) suggested that only 14% of doctors would be willing, meaning a similar pattern would likely occur in this country if physician-assisted dying were to be legalised. This is significant as it increases the likelihood that the medical safeguards in C’s test would be followed, not by a local or family doctor with prior knowledge of the patient and their mental state, but by a stranger, significantly weakening their protective effect.

Conclusion: Why Conway is Important

The assisted dying debate did not end four years ago with the ruling in Nicklinson [2014]. In large part, this is because it continues to test the tension in the  legal system between rules that are intended to serve all of us, and the sense that a particular result is unfair, even if legal. It is intuitively unfair that Noel Conway should have to suffer in this way, just as it was intuitively unfair to deny Tony Nicklinson an escape from his suffering. At the same time, the government and courts are not wrong when they point out that any scheme passed through the legal system would require a degree of safeguarding that is at present impossible to provide, as it would in effect require the knowledge of the content of a person’s mind. Moreover, it would require deciding if that person’s intention was legitimate, or based on societal pressures and thus ill-founded. This is beyond the courts, and raises a number of ethical issues besides.

There are, of course, alternative ways to address this issue. In R (Pretty) v DPP [2001], the claimant sought a declaration from the Director of Public Prosecutions, not that the law would be changed, but that her husband specifically would not be prosecuted, an in personam remedy of sorts. Though this request was rejected, the approach may be worth reconsidering. Likewise, efforts to change the law through Parliament rather than the courts are ongoing, and clearly the preferred approach of the judges in these cases, though at present there seems to be no appetite among legislators for a change in the law.

In all likelihood, this question will continue to come before the courts. Conway [2017] certainly will, and it is unlikely to be the last such case. Indeed, the proceedings before the High Court are important not because they were ever likely to overturn the law themselves – even a successful claim on C’s part would surely have been appealed to a higher court by the government - but because they define the battleground issues for this area of law.

At least for the foreseeable future, advocates for assisted suicide will likely focus on overturning Section 2(1) of the SA 1961 through the necessity test rather than seeking in personam remedies or legislative change. On the other side of the issue, the government has dug in its heels, introducing new arguments - protection of public morals and the medical profession - alongside the traditional protection of the vulnerable so that even if a system of perfect safeguards for the vulnerable were developed, the ban in Section 2(1) of the SA 1961 would continue to be necessary. These arguments are likely to be repeated again as C’s case moves to the higher courts, as the debate over a “right to die” shows no signs of going away.

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Tagged: Criminal Law, Human Rights, Judicial Review, Justice, Medical Law & Ethics

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