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The law on assisted dying – Is it really “my right” to choose?

Mr Conway, a 67 year old man, was diagnosed with Motor Neurone Disease, a degenerative and terminal illness, in 2014. His wish, while he retains capacity to make such choices, is to enlist the assistance of medical professionals, lawfully to bring about his peaceful and dignified death. Section 2(1) of the Suicide Act 1961 however, criminalises assisted dying.

Mr Conway is seeking a declaration under the Human Rights Act 1998 (HRA) that the Suicide Act is incompatible with his Article 8 rights under the European Convention of Human Rights. On 30 March 2017, the High Court of Justice refused him permission to judicially review the existing law surrounding an individual’s right to die but on 12 April 2017, the Court of Appeal overturned the High Court’s decision, granting him permission. He will now have the opportunity to argue his case substantively.

A mirror image of Nicklinson?

Mr Tony Nicklinson brought a challenge that reached the Supreme Court in 2014 (R (on the application of Nicklinson and another) v Ministry of Justice) under similar but not exactly the same circumstances. Mr Nicklinson wished to end his life after suffering a major stroke and becoming paralysed from the neck down. This claim failed; the Court’s main reason for this was that this was an issue for Parliament to decide.

Lord Sumption and Lord Hughes found that the relaxation of section 2(1) was a decision for Parliament and in doing so Parliament could also conclude that a blanket ban on assisted suicide was necessary for the purposes of Article 8. Lord Clarke and Lord Reid broadly agreed but added that if Parliament chose not to debate the issues put before them, then the courts would be expected to intervene in the future.

Lord Kerr and Lady Hale, in dissenting judgements, stated that they would have made a declaration of incompatibility and that unless Parliament devised a scheme of “exceptions” to section 2(1), the incompatibility would persist, although recognising that Parliament could equally take a different view. Lord Neuberger, Lord Mance and Lord Wilson, agreed with the majority decision but contemplated circumstances in the future where an application for incompatibility could succeed.

At that time the issue was, as it remains, a deeply controversial one. The fact that Parliament had recently and repeatedly considered section 2 of the Act and that a Bill exploring these issues was under consideration meant that a declaration of incompatibility was not appropriate or at the very least was premature.

Time has moved on but the issues with s2 of the Suicide Act remain and Parliament has failed to deal with them. This was the core of Mr Conway’s argument. He argued that, three years on, the courts needed to re-visit the issue in the context of fresh evidence.

The ultimate question for the courts is what has changed (or not changed that should have changed) since 2014 and should the courts reach a different view based on the current position?

The Divisional Court

Burnett LJ concluded that the core reason for refusal was that Parliament had in fact dealt with the issues put before them by the nine justices of the Supreme Court in 2014. Burnett LJ deciphered the different interpretations made by the nine justices above but came to the following conclusions. He believed that Parliament had done exactly what the Court had considered was necessary since Nicklinson, a bill was before Parliament when Nicklinson was decided and since that case a second bill had been introduced in June 2015, had been debated but ultimately did not get through the second reading. He also felt that this was constitutionally an issue for Parliament.

Mr Justice Charles had a different, dissenting view. His judgment was that despite the majority decision in Nicklinson, at some future time, and in different circumstances, the court could entertain an application for a declaration of incompatibility; this was the case even if there had not been a significant change in circumstances or evidence.

The Court of Appeal

The claimant appealed on the grounds that the dissenting views expressed in the Divisional Court had given the claim a realistic prospect of success and there were compelling reasons for the claim to be heard. He argued that there is now substantial factual and expert evidence before the court which was absent in Nicklinson and the matter of assisted dying is no longer a live subject before Parliament. The Secretary of State however counter-argued that only three weeks before the Divisional Court’s decision, the issue had again been debated in Parliament.

The Court of Appeal decided to grant permission. Despite acknowledging that three previous bills had been rejected by Parliament since Nicklinson, and that the matter is controversial, with both moral and religious dimensions, the conclusion was that the Mr Conway should nonetheless be granted permission. The evidence before the current court was, the Court of Appeal concluded, more wide-ranging than that considered previously, including a legal academic with specialisms in assisted dying and safeguarding, three of Mr Conway’s treating clinicians and various other clinicians specialising in palliative care and terminal illnesses. The inadequacy of the evidence in Nicklinson was second to the majority decision to refuse the claim and since Nicklinson there remain many unanswered questions that merit full consideration by the court.

What does this mean for the future on assisted dying?

At present, it is not known whether the Respondents will appeal the Court of Appeal’s decision. If not, Mr Conway’s substantive claim will be heard in the High Court later this year.

Initially, the High Court was reluctant to interfere with what it concluded were primarily parliamentary decisions. The Court of Appeal however seem to be more open to reconsidering this issue, appreciating the important role of Parliament, but also the complexity of the issue, the fact that Parliament has yet to pass any legislation and that there is fresh evidence to be considered. Even though the legal position on assisted dying in the UK is set out in law under the Suicide Act and concretely detailed in policy, the future of this matter now appears to be uncertain.