R (Conway) v SSJ  EWCA Civ 1431
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Regina (Conway) v Secretary of State for Justice (Humanists UK and others intervening)
2018 May 1–3; June 27Sir Terence Etherton MR, Sir Brian Leveson P, King LJ
Crime— Aiding and abetting— Suicide— Terminally ill person wishing to have assistance to commit suicide— Whether statutory prohibition on assisting suicide compatible with Convention right to respect for private life— Suicide Act 1961 (9 & 10 Eliz 2, c 60), s 2 (as amended by Coroners and Justice Act 2009 (c 25), s 59(2)) — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 8
The claimant, who was terminally ill as a result of suffering from motor neurone disease, wished to have the option of ending his life with the assistance of a medical professional once he had been given a prognosis of six months or less to live. However, section 2 of the Suicide Act 1961, as amended, made it a criminal offence to do an act capable of encouraging or assisting the suicide or attempted suicide of another person. The claimant sought judicial review by way of a declaration of incompatibility under section 4 of the Human Rights Act 1998 in respect of section 2 of the 1961 Act, on the grounds that it was incompatible with the right to respect for private life, guaranteed by article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. On the claim it was common ground that the prohibition in section 2 involved an interference with the claimant’s right to respect for his private life within article 8.1. The Divisional Court of the Queen’s Bench Division when dismissing the claim held that the legitimate aims which section 2 sought to pursue encompassed not only protection of the weak and vulnerable but also protection of the sanctity of life and promotion of trust between doctor and patient, and there was a rational connection between the prohibition in the section and all those legitimate aims; that the prohibition achieved a fair balance between the interests of the wider community and the interests of a terminally ill individual in the position of the claimant, so that interference with his rights under article 8.1 could be justified under article 8.2; and that the blanket prohibition against assisting a terminally ill person to commit suicide in section 2 was compatible with his rights to respect for his private life under article 8 of the Convention as interpreted by domestic authority. The claimant appealed. Humanists UK, Care Not Killing and Not Dead Yet UK intervened on the appeal.
On the appeal—
Held, dismissing the appeal, that the question to be determined was whether the blanket ban on assisted suicide under section 2 of the Suicide Act 1961, as amended, was both necessary and proportionate, having regard to the evidence before the court and the criteria and safeguards proposed in the claimant’s alternative statutory scheme. While the legitimate aim of the protection of weak and vulnerable people, within the meaning of article 8.2 of the Convention, was a critical issue in evaluating the suitability and efficacy of the proposed scheme, a decision to permit assisted suicide raised important moral and ethical issues on which society was divided and many held passionate but opposing views (paras 129, 135). In spite of the voluminous evidence adduced as to the appropriateness of the substantive criteria in the scheme, there was a dispute as to the possibility of predicting death within six months with any reliable degree of accuracy, and what was clear was that an element of risk would inevitably remain in assessing whether an applicant had met the scheme’s criteria. The evidence being limited to what the parties chose to place before it highlighted the limitation on the court’s ability to assess with confidence the precise extent of that risk. Although in cases involving the withdrawal of treatment the court dealt with common law rights, namely the absolute right to refuse or terminate medical treatment where the legislature had not intervened so that there was no option but to tackle difficult moral, ethical and social considerations in order to reach a decision, and was thus applying established common law or statutory principles to new situations to determine what was in a person’s best interests, there was no common law right to assisted suicide and the legislature had expressed a clear position, not only by the terms of section 2 of the 1961 Act but also by subsequent and relatively recent rejection of legislation similar to that in the proposed scheme. There could be no doubt that Parliament was a far better body for determining that difficult policy issue in view of the highly contested views within society on the moral and ethical issues raised and the risks and consequences of any change in the law (paras 142, 171, 180, 181, 186, 189). There was no error of principle in the reasoning of the Divisional Court. It had not been obliged to set out in meticulous detail all the evidence before it, and it had had material on which properly to conclude on the inadequacy of the scheme to protect the weak and the vulnerable, its failure to give proper weight to the moral significance of the sanctity of life and its potential to undermine relations of trust and confidence between doctors and their patients. By according appropriate respect for the views of Parliament, its approach was plainly not an abdication of all responsibility to make an assessment under article 8.2, and, accordingly, its conclusions could not be faulted (paras 201, 204, 205, 207).
R (Pretty) v Director of Public Prosecutions (Secretary of State for the Home Department intervening)B, HL(E) and R (Nicklinson) v Ministry of Justice (CNK Alliance Ltd intervening) B, SC(E) considered. Decision of the Divisional Court of the Queen’s Bench Division B; B affirmed. Nathalie Lieven QC, Alexander Ruck Keene and Annabel Lee (instructed by Irwin Mitchell llp) for the claimant.
Caoilfhionn Gallagher QC and Graeme L Hall (instructed by Hodge Jones & Allen llp) for the first intervener.
James Eadie QC, James Strachan QC and Benjamin Tankel (instructed by Treasury Solicitor) for the Secretary of State.
Catherine Casserly (instructed by Fry Law, Sheffield) for the third intervener.
David Lawson (instructed by Barlow Robbins llp, Guildford) for the second intervener.
Reported by: Robert Rajaratnam, Barrister.