3VB Case Note Runner-Up: R(Conway) v Secretary of State for Justice: Resurrecting the Right to Die D

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The UK’s prohibition of assisted suicide[1] is intellectually dishonest; [2] its compatibility with the Human Rights Act 1998 is dubious. However, cast in the shadow of the UK’s leading authority,[3] Noel Conway’s recently unsuccessful application for a declaration of incompatibility is disappointing but not surprising. [4]

A Deft Attempt

The heir to a 2-part legal saga, where the High Court’s Burnett LJ[5] had been overruled to grant a leave of appeal,[6] Conway began auspiciously. Sale LJ, whom delivered judgement for whole court, dismissed doubts that the UK’s prohibition infringed Article 8(1).[7] Noting that the issue had become “settled” [8]. The crux was justifying the law under Article 8(2).[9]

Highlighting the indiscriminate nature of the UK’s prohibition, Conway challenged this justification arguing that an alternative statutory regime could provide the same extent of protection as currently exists. Specifically, he proposed that, amongst other criteria, unless someone was (a) 18 or older, (b) terminally diagnosed with 6 or fewer months left to live, (c) had made a voluntary, clear and settled decision and (d) obtained the High Court’s permission they should not be assisted in dying.[10] Drawing a comparison to the lawful removal of life-sustaining treatment, which can prove fatal, Conway argued that judicial oversight had been demonstrated as apt for protecting against undue pressure. Hence in the context of assisted dying the court’s involvement would serve as a bulwark for the “rights and freedoms”[11] of vulnerable individuals.[12] Conway concluded that an indiscriminate prohibition was simply unnecessary and disproportionate.

Interestingly, this criterion exceeded the demands of treatment withdrawals.[13] Moreover, suffering from Motor Neurone Disease and reliant upon a ventilator, Conway would have been entitled to die via an assisted treatment withdrawal regardless of his decisions rationality.[14] However, this issue did not receive great attention.[15]

Falling on Deaf Ears

Unfortunately, Conway’s argument did not prove persuasive.

Regarding the High Court’s role, Sale LJ expressed strong reservations over its efficacy, warning that a court would struggle to untangle unwarranted external pressures from an individual’s internal thought processes[16], since seriously debilitating illnesses can lead people to “despair and low self-esteem and [to] consider themselves a burden to others, which makes them wish for death”.[17] Conway’s alternative statutory regime simply did not “meet the real gravamen of care regarding protection of the weak and vulnerable”.[18]

Moreover, it was stressed that even if a court could disentangle these factors, the court’s involvement alone would be insufficient as Conway’s regime might create a normalising effect for suicide[19] “thereby further eroding the will of vulnerable people to resist the pressures … upon them to end their life” [20].

Although Sale LJ stressed that the court’s decision did not “rest on resolving [the law’s] legitimate aim”[21], he acknowledged that wider public policy considerations underscored it. Namely the “Sanctity of Life” [22] and “Doctor-Patient trust” [23]. The court noted that whilst these additional values were insufficient justifications upon which to reject Conway’s challenge, they served as further evidence of a prohibitions necessity.[24]

Privileged Vulnerability

Although it is unsurprising that vulnerability played a prominent role in Conway, it is disappointing that the court continued to treat vulnerability so narrowly and without depth. Borrowing heavily from Lord Sumption,[25] Conway has seemingly confirmed that to speak of vulnerability is little more than to speak of a fear that the right to die will compel weak-willed individuals to end their lives prematurely. Indeed, this is the underlying logic of Sales LJ dangerous “normalising effect”.

It is unclear why the courts continue to assert this understanding, given that it relies on an increasingly fraught fiction: that the right to die doesn’t exist. Plainly those who can afford a trip to Switzerland, Belgium or the Netherlands can access the right to die. As can those who engage in the subversive practices already established in the UK. Practices defined by a “culture of deception” and which 12% of British doctors admit to engaging in. [26] A reality the High Court conveniently dismissed. [27]

The real “gravamen” [28] of the vulnerability is seemingly a political choice. One which prizes those who may become vulnerable over those who are already. Framing vulnerability in this manner is convenient. Yet, it misses that not all victims are the same. For those who endure a “relentless and merciless process of … deterioration,”[29] such as Noel Conway, there is an out. However, it depends upon an ability to leave the UK or willingness to risk a backstreet suicide. Those without this choice remain trapped. However, the law simply does not recognise them as vulnerable. Let alone protect them.

Moreover, it is paradoxical that the law is imbued with the fear of normalising a duty to die but continues to disregard the duty it already promotes: one to live. Indeed, as Lord Neuberger has rightly warned,[30] the UK’s prohibition arguably prompts those with a progressively degenerative condition to end their lives prematurely, because they fear they will become incapable later. The law is not a protection against premature dying, it is a cause.

If the courts continue to abide by such a one-dimensional understanding of vulnerability, then future cases are likely to face a near insurmountable challenge in it. The court’s privileged form of vulnerability seems to have become peremptory.

An Uncertain Future

However, disregarding vulnerability, another weighty factor which seemingly influenced Conway was the availability of palliative care. On numerous [31]occasions Sale LJ stressed how Conway faced a “less cruel” [32] fate than those who had preceded him in challenging the law. To some extent this may be nothing more than a distinguishing factor for future cases. However, placing such importance upon the ability to ease Noel Conway’s suffering seems contentious with UK’s leading authority on assisted suicide. [33] The implication being that although Noel Way’s fate was not cruel enough to justify recognising an incompatibility, if it had been, as in R(Nicklinson), [34] the task might have been easier.

Since the Supreme Court’s 2014 ruling, changes to its composition should not be overlooked. Lady Hale, a judge who has previously expressed her willingness to declare the UK’s prohibition as incompatible now leads the way.[35]

Therefore, whilst Conway is frustrating and seemingly wastes yet another opportunity to build a more nuanced understanding of vulnerability, the debate is far from settled. Seeking permission to appeal, Conway may yet find a more sympathetic ear higher in the courts hierarchy and the significance of Noel Conway’s “fate” may yet loom large.

Conway began its journey because it overturned a High Court decision. Many will now wait with bated breath to see if it can do it again.

~~~

Postscript

Prior to this comments publication, the Court of Appeal approved Noel Conway’s application to appeal.[36] Focusing on Sale LJ’s decision not to resolve the laws legitimate aim[37], the Court of Appeal found that the High Court, “in substance, if not in form”, had determined the “objective factors which weighed against [Conway’s] proposed scheme” but had failed to adopt a “proper assessment of proportionality” in relation to it.[38]

It should be noted that Sir Ryder arguably adopted a more expansive judgement than Underhill LJ, whom largely afforded Conway the “benefit of any doubt”.[39] Beyond the failings of proportionality, Sir Ryder noted that the High Court’s end of life jurisdiction, such as with treatment withdrawals, could question Sale LJ’s “hesitation” regarding the judiciary’s capacity and therefore Conway’s proposed judicial safeguard merited fuller consideration. [40] Moreover, Sir Ryder also noted that assessing the fair balance of the UK’s blanket ban for purposes of Article 8(2) would depend “in part” on the courts view of “other issues … including palliative care”.[41] However, most notably Sir Ryder also suggested that there was a “serious question” regarding the High Court’s analysis of evidence[42] in Conway and that it was “arguable” Conway’s case had been reviewed selectively. [43]

Considering that Sale LJ paid only lip service to the clandestine end of life practices within the UK,[44] Sir Ryder’s comment is a significant reproach. Although, it is too early to assess the impact of Sir Ryder’s comment, he is correct to recognise that assessments of proportionality “involve value judgements which are informed by the evidence”[45] and arguably has opened the door for the Court of Appeal to change its mind on the nature of vulnerability.

Moving to the Court of Appeal for a full hearing, Conway now has the potential to surprise yet again.

Bibliography

[1] Suicide Act 1961, Section 2(1)

[2] Sheila Mclean, Assisted Dying: Reflections on the need for Law Reform (1st Edn, Routledge-Cavendish Publishing 2007), 197

[3] R (Nicklinson and Another) v Ministry of Justice [2014] UKSC 38

[4] Human Rights Act 1998, Section 4

[5] R(Conway) v Secretary of State for Justice [2017] EWHC 640 (Admin) [5]

[6] R(Conway) v Secretary of State for Justice [2017] EWHC Civ 275 [42]

[7] Supra n.4, Article 8(1)

[8] R(Conway) v Secretary of State for Justice [2017] EWHC 2447 (Admin) [11]

[9] Supra n.4, Article 8(2)

[10] Supra n.8 [14]

[11] Supra n.9

[12] Supra n.8 [98]

[13] M (Withdrawal of Treatment: Need for Proceedings) [2017] EWCOP 19 [37]

[14] Re T (Adult: Refusal of Treatment) [1992] 3 W.L.R. 782 [102]

[15] Supra n.8 [119-121]

[16] Ibid [104]

[17] Ibid [100]

[18] Ibid

[19] Ibid [103]

[20] Ibid

[21] Ibid [91]

[22] Ibid [92-93, 112]

[23] Ibid [68, 94, 113]

[24] Ibid [112]

[25] Ibid [101]

[26] Roger Maggnusson, ‘Euthanasia: above ground, below ground’ J Med Ethics 2004; 30: 441-446, 442-443

[27] Supra n.8 [124]

[28] Ibid [100]

[29] Ibid [6]

[30] Supra n.3 [96]

[31] Supra n.8 [21-27, 31–32, 38, 115–117]

[32] Ibid [117]

[33] Supra n.3

[34] Ibid

[35] Ibid [334]

[36] R(Conway) v Secretary of State for Justice [2017] EWCA Civ 16 [20]

[37] Supra n.21

[38] Supra n36, [24], [35]

[39] Ibid [35]

[40] Ibid [28]

[41] Ibid [29]

[42] Ibid [25]

[43] Ibid [26]

[44] Supra n.27

[45] Ibid [26]