Conway, R (On the Application Of) v The Secretary of State for Justice (Rev 1)

A blanket prohibition on assisting suicide may interfere with the right to respect for private life under Article 8(1), but remain justified under Article 8(2). The assessment requires consideration of the legitimate aims pursued, rational connection, necessity and fair balance.

Protection of the weak and vulnerable, respect for the sanctity of life, and trust between doctors and patients are legitimate aims. Parliament may reasonably conclude that a clear prohibition is necessary where subtle social pressure, vulnerability and the effects of normalising assisted suicide cannot reliably be identified through individual safeguards. In this field, Parliament has a wide discretionary area of judgment, particularly after repeated consideration of the issue. The court dismissed the claim for a declaration of incompatibility.

The claimant, who suffered from motor neurone disease, sought a declaration under section 4 of the Human Rights Act 1998 that section 2 of the Suicide Act 1961, as amended, was incompatible with Article 8 rights.

He proposed a scheme allowing adults with capacity, a terminal prognosis of six months or less, and specified procedural safeguards to obtain medical assistance to end their own lives. The Secretary of State defended the continuing prohibition. The claim followed permission granted by the Court of Appeal after refusal by the Divisional Court. The central issue was whether the prohibition was a proportionate interference with the claimant’s domestic Article 8 rights.

1. The court dismissed the application for a declaration of incompatibility. The prohibition in section 2 of the Suicide Act 1961 interfered with the claimant’s Article 8(1) rights, but was justified under Article 8(2).

2. The court was not bound by R (Pretty) v Director of Public Prosecutions [2001] UKHL 61 on the domestic interpretation of Article 8. That decision pre-dated the distinct domestic approach identified in Re G (Adoption: Unmarried Couple) [2008] UKHL 38 and applied in R (Nicklinson) v Ministry of Justice [2014] UKSC 38.

3. The court was also not required to defer indefinitely to Parliament in the manner contemplated by some judgments in Nicklinson. The specific parliamentary opportunity then anticipated had passed, and Parliament had repeatedly considered but maintained the prohibition.

4. The proportionality inquiry required consideration of the importance of the legislative objective, rational connection, necessity and fair balance. The prohibition was rationally connected to protecting the weak and vulnerable, preserving the sanctity of life, and promoting trust between doctors and patients.

5. Individual capacity and the absence of overt pressure would not address the wider risk of indirect social pressure. Terminally ill or dependent people might regard themselves as burdens, internalise negative assumptions, or be influenced by subtle family or social pressures. A court authorisation procedure could not reliably detect all such influences or later changes of mind.

6. Parliament was entitled to conclude that a clear rule was necessary. The issue involved contested moral and social judgments, uncertain evidence and effects on groups not fully represented in litigation. Parliament was better placed to assess those matters and enjoyed a wide discretionary area of judgment.

7. The common-law right to refuse medical treatment did not establish disproportionality. Withdrawal of treatment, where treatment could no longer be justified, was legally and morally distinct from actively assisting a person to end life. The proposed six-month criterion was also difficult to apply reliably, reinforcing the legitimacy of Parliament’s cautious approach.

1. High Court (Administrative Court): the application for permission had previously been refused by the Divisional Court at [2017] EWHC 640 (Admin).
2. Court of Appeal: permission to bring the judicial review was granted at [2017] EWCA Civ 275.
3. High Court (Administrative Court): the claim for a declaration of incompatibility was dismissed.