Conway, R (on the application of) v The Secretary of State for Justice & Ors

An individual’s choice about the time and manner of death engages Article 8, but that does not make a statutory ban on assisted suicide incompatible with domestic human-rights law. Under the Human Rights Act 1998, the court must assess necessity and fair balance for itself. It may, however, give Parliament substantial weight where the issue is morally contentious, socially sensitive and supported by conflicting evidence.

The assessment must address the precise safeguards proposed, including capacity, coercion, prognosis, medical practice, practical administration and risks to wider groups. The proposed High Court safeguard and the possibility of later regulatory detail did not remove the identified risks. The blanket ban in section 2(1) of the Suicide Act 1961 was therefore proportionate.

Mr Conway, who had motor neurone disease and expected progressive deterioration, sought a declaration under section 4 of the Human Rights Act 1998 that section 2(1) of the Suicide Act 1961 was incompatible with Article 8. He wished to obtain medical assistance to end his life when he had six months or less to live, while retaining control of the final act.

The Divisional Court dismissed the claim: [2017] EWHC 2447 (Admin). On appeal, the issues were whether the court could reassess domestic compatibility despite the European Court of Human Rights’ margin of appreciation, the weight to be given to Parliament’s repeated consideration of assisted dying, and whether the proposed safeguards made the statutory prohibition unnecessary or disproportionate.

1. Outcome. The appeal and the respondent’s notice were both dismissed. The court found no error of principle in the Divisional Court’s reasoning.
2. The right to decide how and when to end one’s life falls within Article 8(1). The statutory prohibition therefore required justification under Article 8(2). The court rejected the submission that Pretty was binding authority requiring the same domestic conclusion. The balancing exercise had to be conducted on the facts existing at the time, having regard to the proposed scheme and the evidence. The European Court of Human Rights’ conclusion that the issue fell within the State’s margin of appreciation did not prevent an independent domestic assessment under the Human Rights Act 1998.
3. The relevant proportionality questions were whether the measure was no more than necessary and struck a fair balance. Respect for Parliament depends on the subject matter and relative institutional competence. Assisted suicide involved contested moral and ethical questions, conflicting evidence and risks extending beyond the individual applicant. Parliament was better placed to assess those matters, and giving its assessment substantial weight was not an abdication of judicial responsibility.
4. The proposed scheme did not eliminate the concerns supporting the blanket ban. The evidence raised substantial difficulties concerning the reliability of six-month prognoses, indirect coercion and undue influence, doctor-shopping, the doctor-patient relationship, practical investigation by a High Court judge, complications in administering medication and possible extension of the scheme to other groups. It was insufficient to say that unresolved regulatory details could be supplied later.
5. The court accepted that the law presently draws an objectively clear distinction between allowing causes already operating in the body to take their course and introducing an external agency of death. Withdrawal-of-treatment cases and advance decisions under section 24 of the Mental Capacity Act 2005 were not comparable with assisted suicide. On the evidence and in the constitutional circumstances, section 2(1) of the Suicide Act 1961 remained necessary and proportionate.

• Court of Appeal (Civil Division): Appeal and respondent’s notice dismissed. [2018] EWCA Civ 1431.
• Divisional Court, Queen’s Bench Division: Claim for a declaration of incompatibility dismissed. [2017] EWHC 2447 (Admin).
• Earlier permission proceedings: Permission was initially refused by the Divisional Court, [2017] EWHC 640 (Admin), but granted on appeal, [2017] EWCA Civ 275. Permission to appeal from the substantive decision was later granted in [2018] EWCA Civ 16.