Analysis
The Appellant, Mr Conway, suffered from terminal motor neurone disease. He sought a declaration under s4 of the Human Rights Act 1998 that s2(1) of the Suicide Act 1961, which makes assisted suicide a criminal offence, disproportionate interferes with his right to respect for his private life under Art8 of the ECHR.
At first instance, Mr Conway put forward four main arguments:
1. The ‘blanket ban’ on the provision of assistance for suicide constituted an interference with his Art8(1) rights in a way which is disproportionate and incompatible with Art8(2).
2. Mr Conway proposed an alternative statutory scheme which would sufficiently protect the weak and vulnerable in society and thereby demonstrate that the blanket prohibition in s2(1) is an unnecessary and disproportionate interference with his Art8(1) rights. This scheme was materially similar to a number of bills which had been put before Parliament in recent years.
3. The s2(1) prohibition should be modified to allow individuals, who come within a category of individuals proposed under Mr Conway’s scheme, to be provided with assistance so as to be enabled to commit suicide by their own actions.
4. If the wording of s2(1) is clear in its meaning and effect so that no alternative interpretation can be given to it pursuant to s3 of the HRA, then the court should grant a declaration of incompatibility under s4 of the HRA.
Sales LJ, giving the decision of the Divisional Court, rejected the claim, and held as follows:
- i. If Mr Conway wished to die, he could lawfully act upon that wish by asking for life-preserving treatment to be removed.
- ii. As a result of the European Court of Human Rights’ decisions in Pretty and Nicklinson, the ECtHR would find the blanket prohibition in s2(1) involved no violation of Art8, and therefore the declaration of incompatibility sought by Mr Conway only concerned the domestic law.
- iii. The court was not bound by Pretty to dismiss Mr Conway’s claim. Similarly, it was not formally bound by Nicklinson to decide the present case in a particular way since the majority of the Supreme Court reached their decision in the context where it was known that a specific bill (the Falconer Bill) was before Parliament.
- iv. There were three legitimate aims promoted by s2(1) which were sufficiently important to justify limiting Mr Conway’s fundamental rights under Art8(1).
- a. The protection of the weak and vulnerable.
- b. The protection of the sanctity of life as a moral principle.
- c. The promotion of trust and confidence between doctor and patient, which encourages patients to seek and then act upon medical advice.
- v. There is clearly is a rational connection between the prohibition in s2(1) and all three of those legitimate aims; s2(1) strikes a fair balance between the three legitimate aims which represent the interests of the wider community and the rights of people in the position of Mr Conway as to the timing and manner of their death.
- vi. There is a real risk that a change in the law to legalise provision of assistance for suicide could have a serious detrimental effect on trust between doctors and patients.
- vii. There are powerful constitutional reasons as to why the court should respect Parliament’s assessment of the necessity of s2(1), not least where it has made its own evaluative assessment with the benefits of the judgments in Nicklinson.
Grounds of appeal
Mr Conway appealed on seven grounds, which were grouped within three main issues of principle.
The first issue concerned the correct way in which the court should respond to Parliament’s decision not to amend s2(1) of the 1961 Act and the proper approach to be taken when assessing the proportionality of s2(1).
The second issue concerned the way in which the Divisional Court considered Mr Conway’s proposed scheme, including whether it had misdirected itself in determining the approach to take in identifying whether s2(1) strikes a fair balance between the rights of the individual and the interests of the wider community.
The third issue concerned the weight to be placed on personal autonomy, and the legal and moral differences between a request for an assistance with dying and a request for euthanasia.
Held:
- 1) There was no error of principle in the reasoning of the Divisional Court.
- 2) The prohibition on assisted suicide achieves a fair balance between the interests of the wider community and the interests of people like Mr Conway.
- 3) The Divisional Court had not abdicated its responsibility to make an assessment under Article 8(2); there were powerful constitutional reasons for respecting Parliament’s assessment of the necessity of maintaining s2 of the Suicide Act, and the Divisional Court had given this the appropriate weight when making its own assessment.
- 4) The decision as to whether the blanket ban on assisted suicide is both necessary and proportionate involves an evaluative judgment and a policy decision, which Parliament is better placed than the court to decide.