Conway v The Secretary of State for Justice

Where a person with capacity challenges a prohibition on assisted suicide under article 8, the interference requires anxious scrutiny. The court must identify the justifications relied upon and test them through the four-stage proportionality inquiry: legitimate aim, rational connection, necessity and fair balance. At the permission stage, a serious arguable issue may arise where the lower court has not sufficiently analysed expert evidence, including evidence concerning an alternative safeguarded scheme. Relevant matters may include autonomy, vulnerability, palliative care and the distinction between assisted suicide and euthanasia. The decision grants permission to appeal and establishes no final conclusion on compatibility.

The appellant, who had motor neurone disease, sought a declaration under section 4(2) of the Human Rights Act 1998 that section 2(1) of the Suicide Act 1961 was incompatible with article 8. He proposed a scheme permitting assistance for a capacitous adult with a terminal illness and a prognosis of six months or less, subject to medical, reporting and judicial safeguards.

The Divisional Court dismissed his judicial review claim on 5 October 2017. The proposed appeal raised issues concerning the proportionality test, the assessment of expert evidence, the role of Parliament, safeguards, autonomy, palliative care, inherent bias and the distinction between assisted suicide and euthanasia. The central question was whether those issues had a real prospect of success or otherwise justified permission to appeal.

Permission to appeal was granted on all grounds. The appellant was permitted to add ground 1. The Court of Appeal did not determine whether section 2(1) of the Suicide Act 1961 was compatible with article 8.

1. The relevant permission threshold was whether a ground had a real prospect of success or whether there were other compelling reasons for an appeal. The importance of the issue and its consequences justified giving the appellant the benefit of any doubt at this preliminary stage.
2. The appellant had capacity to decide to end his life and to request assistance. His rights under article 8(1) were engaged and interfered with. The interference therefore required anxious scrutiny. The court had to identify the justifications relied upon and test them through the four-stage proportionality inquiry: legitimate aim, rational connection, necessity and fair balance.
3. There was an arguable question whether the Divisional Court had applied the correct proportionality exercise. Its statement that Parliament needed only a proper basis for maintaining the prohibition arguably did not reflect the required analysis. A further arguable issue was whether the court had sufficiently analysed the expert evidence and resolved serious disagreements within it.
4. The indications in Nicklinson ([2014] UKSC 38) concerning the relevance of an alternative statutory scheme made it arguable that each justification should have been tested against all relevant evidence. The proposed safeguards, the evidence concerning palliative care and withdrawal of non-invasive ventilation, the interests of society and the role of Parliament were therefore matters for the full appeal.
5. The court also considered arguable the issues concerning the autonomy of a capacitous person, inherent bias in treatment-refusal decisions and the relevance of experience in the Family Division. The distinction between assisted suicide and euthanasia was not, by itself, sufficient to justify permission, but was included because of the breadth of the other issues. The principle illustrated by Re Z ([2004] EWHC 2817 (Fam)) was that a capacitous voluntary request for assistance with dying could be formulated even though assistance remained unlawful.
6. Lord Justice Underhill agreed. He identified as arguable the criticism that the Divisional Court had identified objective factors and left their weight to Parliament without conducting the required assessment of proportionality. He expressly left open both the correctness of that criticism and the proper form of the required exercise.

The appeal was expedited and directed to be heard by three Lord or Lady Justices of Appeal. Directions were given for any Respondent’s Notice and applications for permission to intervene.

1. Divisional Court—dismissed the judicial review claim on 5 October 2017.
2. Court of Appeal (Civil Division)—granted permission to appeal on all grounds, permitted the addition of ground 1 and directed an expedited substantive appeal.