On 5 October 2017 the High Court handed down their judgment in the case of Noel Conway v Secretary of State for Justice.
There were three organisations who intervened in the case – Humanists UK, Care Not Killing and Not Dead Yet UK.
Lord Justice Sales started the judgment by explaining that this case concerned the issue of provision of assistance to a person with a serious wasting disease who wishes to commit suicide, so as to be able to exercise control over the time of his death as the disease reaches its final stages.
It follows a line of cases including Pretty, Purdy and Nicklinson. Albeit it was noted that the practical issues in relation to Mr Conway in balancing his individual interests against the public interest were materially different from the claimants in Nicklinson.
Mr Conway argued that section 2 of the Suicide Act 1961 (which prohibits provision of assistance for a person to commit suicide) constituted an interference with his right to respect for his private life under Article 8 of the European Convention on Human Rights, which was both disproportionate and incompatible with it.
Mr Conway sought to put forward an alternative statutory scheme to safeguard relevant competing legitimate interests and sufficiently protect the weak and vulnerable in society.
The criteria he suggested included the patient being over 18, being diagnosed with a terminal illness, being given six months or less to live, having capacity and retaining the ability to undertake the final acts required, having been provided with assistance. He also suggested a requirement for a written request, a review by an independent doctor and reporting of assistance to an appropriate body. The final suggestion was to have the provision of assistance authorised by a High Court judge. It was noted that this was broadly similar to Lord Falconer’s Bill which had not attracted the support of Parliament.
Mr Conway did not regard withdrawal of his non-invasive ventilation or going to Dignitas as acceptable options. He sought drugs at a fatal dose which he could administer himself. He wished to be enabled to kill himself.
The court noted that only five out of 47 member states of the Council of Europe permit any form of assisted suicide. It also reviewed concerns expressed in 2015 by the British Medical Association, in 2011 by the Council of the Association of British Neurologists and in 2015 by the British Geriatrics Society.
They noted that the question at issue was whether Parliament has a proper basis for maintaining in place the prohibition against provision of assistance for suicide.
The court considered many points including that:
- There were powerful constitutional reasons why Parliament’s assessment should be respected by the High Court.
- Section 2 is necessary to protect the weak and the vulnerable.
- Section 2 is necessary to promote trust between doctors and patients.
- Section 2 achieves a fair balance between the interests of the wider community and the interests of people in the position of Mr Conway.
- The absence of consensus between Council of Europe states was another factor which indicated that the balance struck by Parliament fell within the margin of appreciation.
- The difficulty of formulating a clear and reliable criterion for who is to qualify as terminally ill under the scheme proposed was again a factor of relevance and indicated that the balance struck by Parliament was a fair one.
Hence the court dismissed the application for a declaration of incompatibility with Article 8.
We will keep readers updated on any appeal.