The right to die – who decides?

by Dominic Ruck Keene

In R. (on the application of Conway) v Secretary of State for Justice [2018] EWCA Civ 1431 the Court of Appeal held that the blanket ban on assisted suicide in the Suicide Act 1961 s.2(1) was a necessary and proportionate interference with the ECHR art.8 rights of the appellant.

The appellant had proposed an alternative scheme for assisted suicide containing certain conditions and safeguards, including the approval of a High Court judge, for those who were terminally ill and had less than six months to live. However, it was held that the alternative scheme would not be effective and raised wide-ranging policy issues that would be better dealt with by Parliament.

The Court identified the origin of the case as being that the Claimant has a prognosis of six months or less to live and wishes to have the option of taking action to end his life peacefully and with dignity, with the assistance of a medical professional, at a time of his choosing, whilst remaining in control of the final act that may be required to bring about his death. However, Section 2(1) of the 1961 Suicide Act makes it a criminal offence to provide encouragement or assistance for a person to commit suicide.

Mr Conway therefore sought a declaration of incompatibility under section 4 of the HRA , on the basis that the ban on assisted suicide was a disproportionate interference with his right to respect for his private life under Article 8 of the Convention (“Article 8”).

The Court noted that the ECtHR had made it clear that while Article 8(1) was engaged by such a ban, it was the kind of case that fell within a state’s margin of appreciation, giving Parliament discretion to legislate as it had done.

The Court noted that prior the Conway case, R (Nicklinson) v Ministry of Justice [2014] UKSC 38 was the most recent challenge to the 1961 Act, and that an important part of the background to Nicklinson in the Supreme Court was the introduction by Lord Falconer of his Assisted Dying Bill in the House of Lords on 5 June 2014, shortly before the judgment in the Supreme Court was delivered. In Nicklinson the disabilities of two Claimants were such that they would be unable to carry out any act that enable them to commit suicide; i.e. the issue in Nicklinson was in part whether euthanasia rather than assisted suicide should be lawful.

The Court of Appeal noted that the criteria and safeguards proposed under Mr Conway’s alternative statutory scheme were materially similar to those in the Falconer Bill, and the later the Marris and Hayward Bills that had also sought to legalised assisted suicide, namely that:

1) The prohibition on providing assistance for suicide should not apply where the individual: a) is aged 18 or above; b) has been diagnosed with a terminal illness and given a clinically assessed prognosis of six months or less to live; c) has the mental capacity to decide whether to receive assistance to die; d) has made a voluntary, clear, settled and informed decision to receive assistance to die; and e) retains the ability to undertake the final acts required to bring about his or her death having been provided with such assistance. 2) The prohibition would only be disapplied where the following procedural safeguards are satisfied: a) the individual makes a written request for assistance to commit suicide, which is witnessed; b) his or her treating doctor has consulted with an independent doctor who confirms that the substantive criteria in (1) are met, having examined the patient; c) assistance to commit suicide is provided with due medical care; and d) the assistance is reported to an appropriate body. 3) Finally, as a further safeguard, permission for provision of assistance should be authorised by a High Court judge, who should analyse the evidence and decide whether the substantive criteria in (1) are met in that individual’s case.

The Court of Appeal summarised the central issue as

whether that blanket ban is a breach of Convention rights as a matter of domestic law under the Human Right Act.

The Justice Secretary accepted that, in principle, the court had jurisdiction to consider whether section 2 of the 1961 Act was compatible with Article 8 as part of the court’s function as determined by Parliament under the HRA.

The Court rejected the Justice Secretary’s contention that the Court was bound by the decision in R (Pretty) v DPP [2001] UKHL 61, holding that

We reject that submission. We do not do so on the basis that, as contended by Ms Lieven [for the Claimant], Pretty was a case about euthanasia rather than assisted suicide. We consider it is clear that the House of Lords dealt with the case as one of assisted suicide: see the judgment of Lord Steyn at [44]. We do so for two reasons. First, as the Divisional Court noted (at [81]-[82]), no Justice of the Supreme Court in Nicklinson suggested that the decision in Pretty had binding precedential effect on a domestic Re G application of Article 8(2) , subject only to the Supreme Court’s inherent power to depart from previous decisions of itself and the House of Lords. They plainly considered the matter to be at large. Secondly, the balancing exercise under Article 8(2) falls to be carried out on the facts as they exist at the moment, and in the light of all that has taken place since Pretty and the precise scheme that is now put forward and the evidence adduced by the parties, which differs from that before the court in Pretty.

The Court also rejected the Justice Secretary’s argument that the domestic court was bound to go no further than that which had been decided by the ECtHR, namely that, as determined in Pretty v United Kingdom, section 2(1) fell within the United Kingdom’s margin of appreciation and the domestic court should go no further, saying

We disagree with those submissions. Mr Eadie’s argument is circular in that, on his argument, the domestic court has to make a decision for itself under a domestic Re G interpretation because the ECtHR has held the matter to fall within the United Kingdom’s margin of appreciation, only for the domestic court to be prevented from doing so by having to take into account the very decision which gives the domestic court latitude to make its own decision.

Accordingly the court had to decide

whether the blanket ban on assisted suicide under section 2 of the 1961 Act is both necessary and proportionate, having regard to the proposed scheme put forward by Mr Conway and the evidence before it.

The Court held that it was not bound by the decision in Nicklinson

as it focused on the situation of people in long term suffering rather than, as under Mr Conway’s scheme, those suffering from a terminal illness who are within six months of death … Further, while there was only limited evidence in Nicklinson as to how weak and vulnerable people might be protected if assisted suicide was legalised, Mr Conway’s scheme is specifically designed to impose appropriate safeguards and considerable evidence has been adduced as to whether the proposed scheme would maintain a proper balance between the interests of the cohort of persons in the same position as Mr Conway, on the one hand, and the rest of the community, on the other hand.

With regards to the detail of the proposed scheme, the Court stated that there were various issues on which there were evidential disputes:

(1) the possibility of predicting death within six months with any reliable degree of accuracy;

(2) whether changing the law to permit assisted suicide would have an adverse effect on the doctor-patient relationship, and the extent to which permitting assisted suicide would result in “doctor-shopping” by a patient; and

(3) the potential for indirect coercion or undue influence if assisted suicide is permitted

The Court held that

Despite Ms Lieven’s submissions on the evidence, what remains quite clear is that an element of risk will inevitably remain in assessing whether an applicant has met the criteria under Mr Conway’s proposed scheme. The submissions and counter-submissions of counsel on the evidence, limited as it is to the evidence which the parties choose to place before the court, highlight the limitation of the ability of the court to assess with confidence the precise extent of the risk. The weight to be given to that risk, in deciding whether or not the blanket ban on assisted suicide is both necessary and proportionate, involves an evaluative judgement and a policy decision, which, for the reasons we give below, Parliament is, on the face of it, better placed than the court to make.

The Court also identified other potential concerns with the proposed scheme:

The potential for complications in the actual medical procedure for assisting suicide; How the proposed inquisitorial role of a High Court judge would work in practice: to decide matters such as freedom from coercion, undue influence or the imminence of death the judge would need proper evidence, which would require funding; The advance made in palliative care in recent years; and A concern that others would then seek to extend the scheme to different categories.

The Court concluded that:

There is no common law right to assisted suicide and Parliament has expressed a clear position, not only by the terms of the 1961 Act itself, but by subsequently and relatively recently rejecting legislation along the lines of Mr Conway’s scheme. What is in issue is not the application of well established principles to new facts but the possible legalisation of conduct that was criminal at common law and is now criminal as a matter of statute. When considering whether the blanket ban is necessary and proportionate, the DPP’s Policy is also a relevant consideration. The evidence is that this has been faithfully implemented and so provides a reasonable degree of assurance on likely prosecution … In other words, in the context of the circumstances which Mr Conway postulates in the criteria which have been advanced to the court, although we recognise that a retrospective examination of events in the context of the DPP’s policy will always be more traumatic and difficult, the possibility of prosecution is not a high risk. There can be no doubt that Parliament is a far better body for determining the difficult policy issue in relation to assisted suicide in view of the conflicting, and highly contested, views within our society on the ethical and moral issues and the risks and potential consequences of a change in the law and the implementation of a scheme such as that proposed by Mr Conway. The contentious nature of the proposal is reflected in the fact that assisted suicide is unlawful in the great majority of Convention countries. It is particularly of note that Mr Conway’s proposed scheme is broadly equivalent to the Falconer Bill, which never became law, and the Marris Bill, which was rejected by the House of Commons.

Comment

The decision of the Court of Appeal will almost certainly be considered again by the Supreme Court. The issue of whether the law should permit assisted suicide raises moral, ethical, practical and legal questions and 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.

One area that may be the focus of challenge to the Court of Appeal’s judgment is whether there was sufficient differentiation between the moral, ethical and risk management issues posed by those who are terminally ill and not disabled vs disabled but not terminally ill.

Dominic Ruck Keene is a barrister at One Crown Office Row. He is entirely independent from his brother Alex Ruck Keene, of 39 Essex Chambers, who was junior counsel for Mr Conway in this case.