The Death Knell on Assisted Dying

Aditi Aggarwal

The debate on assisted dying has been alive for a long time, but the Supreme Court finally pulled the plug by rejecting Conway’s appeal in R (on the application of Conway) v Secretary of State for Justice [2018] EWCA Civ 1431. 

Background to the Appeals

Although suicide was legalized through the Suicide Act 1961, through Section 2(1), Parliament chose to retain the prohibition on assisted suicide. The debate that has since ensued on assisted dying is political, legal and moral. For people like in the following 3 cases, the argument rests largely on autonomy; to be able to choose whether and how to die, and even if allowed to die, be able to do it in a dignified manner.[1] There is an equally fierce argument that autonomy cannot come at the expense of protection for vulnerable people who may feel pressured to die because they feel like a burden on their families and society. The state therefore has a pursuant duty to “safeguard those in its jurisdiction”.[2] These moral implications manifest in the political sphere, where (as seen below) there is a lack of consensus between Ministers on which priorities to protect and how a correct balance should be struck. These political and moral controversies have then influenced the court regionally, as the European Court of Human Rights (ECtHR) has chosen to give member states a wide discretion to decide their stance on assisted dying. This has filtered to the national level most prominently in the following 3 cases, each of which concerns a patient with full mental capacity, that lacks the physical mobility to end their own life but wishes to die. 

In Pretty v United Kingdom[3]Mrs Pretty wanted permission from the Director of Public Prosecutions (DPP) that her husband would not be prosecuted if assisting her to die. She used Article 2 of the European Convention on Human Rights (ECHR) to argue that her right to life also granted the antithesis: a right to die. The court was clear however, the current blanket prohibition on assisted suicide under Section 2(1) of the Suicide Act (1961) was compatible with the wide margin of appreciation the European Court of Human Rights (ECtHR) grants to member states on such a contested issue. They reasoned this on the basis that while the negative obligation under Article 2 is absolute, the positive obligation is not, and so the State is under no legal obligation to sanction means for termination of life. Although acknowledging the difficulty of Mrs Pretty’s life, the court was clear the law cannot change for a single person but rather a blanket refusal is better for communal protection. 

More than a decade later, Nicklinson[4] felt like a step in the right direction, not necessarily because of the decision reached by the majority, but instead the strength of dissenting and obiter opinions. This was a case combining the claims of Mr Nicklinson, Mr Lamb and Mr Martin, the case eventually continuing by Mr Martin and Mrs Nicklinson follow the death of the former. This time, the appellants wanted permission to use a machine that could be activated by Mr Nicklinson by himself in order to end his life or alternatively a declaration that the current law on assisted suicide was incompatible with Convention rights under Article 8’s Right to Privacy, Private and Home Life. The majority refused to issue a declaration of incompatibility under Section 4 of the Human Rights Act 1998, but Lord Neuberger was clear that the court did have the constitutional competence to consider whether Section 2 infringed Article 8 as part of the function Parliament has designated to courts under the Human Rights Act.[5] He also contended that the court has adjudicated on several “life or death”[6] matters before, and so could be fit to do so despite the sensitivity and controversy surrounding assisted dying. For example, in Airedale NHS Trust v Bland[7] the court held a patient’s removal from life support would not amount to murder, and in Re B (Treatment)[8] the court upheld the patient’s voluntary, informed decision to have assistance in turning her ventilator off and being allowed to die. These decisions were and remain evidence of the court repeatedly resolving controversial issues through creating exception to the general law, especially in Re Bwhere the facts are similar to the current issue, raising the question—why not in Conway?

Don't Hold your Breath

It necessitates acknowledging that the court in Re Bdrew a distinction between acts killing the applicant compared to omissions letting the applicant die, the latter not falling under the scope of Section 2(1). The Court of Appeal in Conwayelaborated on this distinction, stating “(There is) a clear line in law and fact between an act or omission which allows causes already present in the body to operate and, on the other hand, the introduction of an external agency of death, and changing the law on assisted suicide would blur this line”. However, Mr Conway’s request has been for a medical professional to prescribe him medication which he could choose when and where to take. This seems less like the threat of an “external agent” and more analogous to the criminal case of R v Kennedy (No 2)[9],where the deceased was responsible for his own death by self-administering the drug he overdosed on. In that vein, it seems like there is sufficient case law to base an exception to Section 2(1). 

The Ministry of Justice has also argued that “advances in palliative care could help those on ventilation to end their lives”[10], acknowledged by the Court in the appeal order as they state “Mr Conway could bring about his own death in another way, by refusing consent to the continuation of his non-invasive ventilation (NIV)”.[11] Both therefore see the omission to continue palliative care as a means of avoiding changing the law on assisted suicide. However Mr Conway’s counsel, Lord Pannick QC submitted that this form of death “could last only a few minutes, but in some cases hours, and other cases days”[12] and would likely induce “a drowning sensation”. In the face of this evidence, the legal distinction between an act and omission causing death blurs as it is unclear that one is necessarily causing less pain or suffering than the other. 

The Court of Appeal in Conway can hardly be blamed as they are bound to follow the Supreme Court’s majority decision in Nicklinson. Nonetheless the possibility of appeal gave hope, because unlike in Nicklinson this ‘known unknown’ of the possibility that Parliament might proactively amend the 1969 legislation, no longer existed. The past decade has seen bills initiated by Members of Parliament Falconer, Marris and Joffe proposing varying schemes to amend the existing law based on research such as in the Falconer report that “no evidence of vulnerable groups being pressured to seek assisted death” had been found. These bills were all debated and rejected by the House of Commons, making it clear that if the Court did want to act, it could no longer justify delay by letting Parliament act first, as the majority had done in Nicklinson.

It is therefore surprising that Lady Hale and Lord Kerr, instead of taking the opportunity to crystallise their dissent in Nicklinson, rejected permission to appeal for Conway. Lady Hale had set out in Nicklinson  a comprehensive analysis that where people have made a “capacitous, free and fully informed decision to commit suicide but require help to do so”[13] an exception to the general prohibition could be found, indicating a compromising solution on the issue is not unimaginable. Lady Hale held that it should ultimately be left to Parliament as a democratically elected and accountable institute, to decide what scheme is appropriate for introducing exceptions. This is especially due to the inaccuracy of prognosis reports (making it hard to identify whether patients will actually live less than 6 months) and the lack of certainty as to a High Court judge’s role in assessing the relevant evidence.[14]

Nonetheless, the chance to issue a declaration of incompatibility should not have been avoided in Conway as this would simply have been an acknowledgement of the problem which could then be referred to Parliament, which is rightly “the only forum in which a solution can be found”.[15]

Whether the Supreme Court has since become reluctant to give further opinion on the issue, or is too aware of Parliament’s continuous refusals to act, the rejection of Conway’s appeal has made clear Nicklinson remains the law.

References

1.R (on the application of Conway) v SS for Justice[2018] EWCA Civ 1431.

2. Pretty v UK (2002) 35 E.H.R.R. 1

3. ibid. at (13). 

4. R (on the application of Nicklinson and Another) v Ministry of Justice[2014] UKSC 38

5.Ibid. at 72.

6. Ibid. at 98 (Lady Hale citing Lord Neuberger). 

7. Airedale N.H.S. Trust v Bland [1993] A.C. 789

8. In Re B (Adult: Refusal of Medical Treatment) [2002] EWHC 429 (Fam)

9. R v Kennedy (No 2)[2007] UKHL 38

10. Bowcott, Owen. “Let Terminally Ill Man Choose When He Dies, Supreme Court Told.” The Guardian, Guardian News and Media, 22 Nov. 2018, www.theguardian.com/law/2018/nov/22/noel-conway-terminally-ill-man-lawyers-appeal-permission-supreme-court-case.

11. R (on the application of Conway) v Secretary of State for Justice [2018] EWCA Civ 1431

12. Bowcott, Owen. “Let Terminally Ill Man Choose When He Dies, Supreme Court Told.” The Guardian, Guardian News and Media, 22 Nov. 2018, www.theguardian.com/law/2018/nov/22/noel-conway-terminally-ill-man-lawyers-appeal-permission-supreme-court-case.

13. R (on the application of Conway) v Secretary of State forJustice[2018] EWCA Civ 1431 at [321]. 

14. Ibid. 142-143.  

15. R (on the application of Nicklinson and Another) v Ministry of Justice [2014] UKSC 38 at (300).