Assisted dying challenges: Dynamic and stasis in the UK courts: Conway v. Secretary of State for Justice

Introduction

Legal and ethical debates about how the law treats individuals at the end of life, especially in the context of assisted dying have a simultaneous stasis and dynamic. Academic commentators acknowledge that ‘[t]he same arguments are rehashed again and again without any apparent clearing away of old arguments or addition of really new arguments’. ¹ This stasis is also recognized judicially. In Noel Conway’s High Court application for permission for a declaration of incompatibility between the criminal law’s prohibitions on assisted suicide and his human rights, Charles J observed ‘the underlying arguments are well established and are unlikely to change albeit that they may be affected by changes in moral values and medicine and other evidence relating to them’. ² The dynamic in end-of-life debates is found in the increasing pace of attempts in the United Kingdom to persuade the legislature and judiciary to reform the law on assisted suicide. R (Nicklinson) v. Ministry of Justice; R (AM) v. Director of Public Prosecutions ³ was decided by the Supreme Court in 2014. By a 7:2 majority, the Supreme Court dismissed an appeal which argued that section 2(1) of the Suicide Act 1961 constituted a disproportionate and therefore unjustifiable interference with Article 8(1) of the European Convention of Human Rights (‘ECHR’), in respect of persons who have made a clear and settled decision to commit suicide and require assistance. Three assisted dying bills were introduced in Westminster in the 3 years following that decision, all of which failed to make it into the statute books. ⁴ The legalization of assisted dying debate has clearly gained momentum, notwithstanding that the outcome remains the same. Noel Conway’s legal challenge against the ban on assisting suicide forms part of that dynamic.

In Conway v. Secretary of State for Justice, ⁵ the applicant sought a ‘declaration of incompatibility’, pursuant to section 4 of the Human Rights Act 1998 (‘HRA’). Specifically, Mr Conway argued that section 2(1) of the Suicide Act 1961 ⁶ was incompatible with his Article 8 right to respect for private and family life under the ECHR, adopted as a Convention right for the purposes of the HRA. Section 2(1) admits of no exceptions to the criminalization of those persons who commit an act capable of encouraging or assisting the suicide or attempted suicide of another person and that act was intended to encourage or assist suicide, or an attempt at suicide. Section 2(1) thus imposes a ‘blanket ban’ on acts of assistance in suicide. ⁷ Mr Conway argued that section 2(1) should be adjusted to allow terminally ill persons who have capacity, a prognosis of 6 months or less to live and who have made a settled and informed decision to receive assistance to die, to be able to receive that assistance on satisfying further procedural criteria, outlined by Mr Conway in an alternative statutory scheme. ⁸ In a single unanimous judgment delivered by Sales LJ, ⁹ the High Court considered Mr Conway’s claim on its own merits and found that the court was not bound by Nicklinson to decide Mr Conway’s case in any particular way. ¹⁰

The High Court dismissed Mr Conway’s application. Even narrowly interpreting section 2’s aim as only being concerned with protecting the weak and vulnerable, the court accepted that this legislative purpose was objectively justified under Article 8(2) ECHR, as being ‘for the protection of health, morals, and the rights of others’. That legislative objective could thus limit the right to respect for private life, found specifically in Article 8(1) ECHR. ¹¹ The reasoning behind being able to limit Article 8(1) shall be explored towards the end of this commentary. The court also accepted there is a rational connection between section 2(1)’s blanket ban and the protection of the weak and vulnerable and that the blanket ban does no more than is necessary to meet the stated objective. ¹² Finally, the court accepted that section 2(1)’s blanket ban strikes a fair balance between the wider interest of the community as well as the interests of people in a similar position to Mr Conway. ¹³

In commenting on the ruling, Mr Conway noted that ‘[t]he experiences of those who are terminally ill need to be heard. This decision denies me a real say over how and when I will die’. ¹⁴ This particular judgment in the Conway litigation is important because certain aspects of the High Court’s reasoning are questionable, as well as certain arguments put forward by counsel for Mr Conway. This comment proceeds to discuss the High Court judgment in Conway along the following four themes, a number of which pose obstacles to the judicial reform in this area. First, it examines the court’s attempts to draw morally arbitrary distinctions between claimants who can act to end their own lives, such as Mr Conway, from individuals who cannot carry out any act to commit suicide. Second, it examines Conway as a further example of the trend in this type of litigation to propose a statutory scheme for assisted suicide in narrowly defined circumstances as a means to argue that the current prohibition is disproportionate. The third theme examined here is whether the prior judgment in Nicklinson was binding in the current case. Finally, this commentary explores what the Conway judgment had to say about whether the aim of the section 2 prohibition was solely the protection of the weak and vulnerable, and if so, whether Mr Conway’s proposed scheme would suffice to provide that protection.

Each of the above shall be considered in turn, although there is a degree of overlap, owing to the way Mr Conway’s case was argued, and the ethical issues implicit in the case. Although at the time of publication Mr Conway’s case had recently been heard by the Court of Appeal, his appeal was unsuccessful and the judgment confirmed that ‘the approach and conclusions’ of the lower court could not be faulted. ¹⁵

Mr Conway’s case and the High Court’s comparison with Nicklinson: Morally dubious distinctions?

Noel Conway suffers from motor neurone disease (MND). He was informed in November 2014 that he may have a life expectancy of 6–18 months, and he has become more reliant on the use of non-invasive ventilation (NIV) as his breathing muscles waste away. Mr Conway wishes, when he has a prognosis of 6 months or less to live, to ‘be able to seek assistance from a medical professional so that I may be prescribed medication which I can self-ingest to end my life successfully, if I wish to do so’. ¹⁶

Mr Conway’s reasoning illustrates how morally messy end-of-life issues can become. He explained:

I do not wish to get to a stage where my quality of life is so limited, in the last six months of life, that I am no longer able to find any enjoyment in it.…I will effectively be entombed in my own body. I would not like to live like this. I would find it a totally undignified state for me to live in.…I wish to end my life when I feel it is the right moment to do so. ¹⁷

Mr Conway argued that section 2’s blanket ban not only interfered with his Article 8(1) right to respect for private and family life but that this prohibition could not be justified under Article 8(2) for the protection of health, the protection of morals and the protection of the rights of others, namely, the weak and vulnerable. Given that there was no alternative interpretation which could be given to section 2 under section 3 HRA, a declaration of incompatibility was sought. ¹⁸ Counsel for the Secretary of State accepted that the prohibition on assisting suicide was an interference with Mr Conway’s Article 8(1) right. ¹⁹ However, it was argued that this interference was justified under Article 8(2). ²⁰ Counsel for the Secretary of State argued that the prohibition in section 2 served three purposes and was thus shaped to those points: to protect the weak and vulnerable; giving proper respect to the sanctity of life and promoting trust between doctors and patients. ²¹ As section 2 justifiably infringed Article 8(1), Counsel for the Secretary of State argued that no declaration of incompatibility should be granted.

The Conway judgment rules on the relationship between Convention rights as a matter of international law as per the ECHR and Convention rights as distinct domestic provisions under the HRA. The court accepted it was possible to bring a distinct claim of incompatibility in respect of domestic Convention rights, notwithstanding that the European Court of Human Rights in Pretty v. UK and the Supreme Court in Nicklinson v. UK had both ruled that section 2’s blanket ban involves no violation of Article 8. ²² Indeed, Lord Neuberger explicitly states in Nicklinson the terms of the HRA and the principle of subsidiarity ‘require UK judges ultimately to form their own view as to whether or not there is an infringement of Convention right for domestic purposes’. ²³ Conway arguably goes further than Nicklinson in suggesting that insofar as R (Pretty) v. DPP ²⁴ assumes that domestic Convention rights mirror those in the ECHR, this is incorrect. Instead, the ability to bring a domestic incompatibility claim, even where there is no breach of the ECHR itself, suggests the interpretation of the domestic version of Convention rights in the HRA goes beyond reflecting the Convention rights in the ECHR. ²⁵

The ability to bring a distinct domestic incompatibility claim was significant for Mr Conway’s case. It allowed Mr Conway to argue that, notwithstanding the interpretation given to Convention rights as a matter of international law, the need to protect the weak and vulnerable is the single rationale underpinning section 2. ²⁶ However, this leads on to the second issue this comment addresses. Importantly, Mr Conway did not ‘contend that compatibility with Article 8 would require the law to be changed to allow people to be killed by the action of another person, which is properly called euthanasia’. ²⁷ The High Court stated:

In this significant respect, the present case involves issues which are distinct from those which arose in two of the three cases under review in Nicklinson. There are also other material differences between Mr Conway’s case and all three cases under review in Nicklinson. ²⁸

In attempting to draw this distinction, the court noted ‘[a]n important part of [Nicklinson] was that in order to respect their Article 8 rights, the law ought to allow a third party to take action to end their lives’. ²⁹ The judgment continues to contrast individuals with the conditions of the Nicklinson claimants, and Mr Conway’s condition, by stating the Nicklinson claimants ‘faced the prospect of living for many years in a helpless condition, completely dependent on others, which they found demeaning and monotonous and which they wished to end’. ³⁰ If the Nicklinson claimants did wish to end their lives, they could do so only by undertaking the ‘painful and undignified process’ ³¹ of starving and/or dehydrating themselves to death. Mr Conway could instead act upon his wish to die, by asking for removal of his NIV equipment. If necessary, this could be communicated through eye-blinking. Therefore, for the High Court, ‘the practical issues in relation to Mr Conway in balancing his individual interests against the public interest are materially different’ from the Nicklinson claimants. Indeed, comparatively to Nicklinson, ‘the options available to Mr Conway are not so very bleak’. ³²

The court’s focus on the process by which different parties would have to kill themselves, and the outcome of their condition, is arguably too blunt. It fails to recognize important ethical values and principles that should be taken into account in analysing both cases and that make up Mr Conway’s case. Moreover, the High Court conflates important ethical values in explaining Mr Conway’s reluctance to end his life by removing his NIV or availing himself of the Dignitas service in Switzerland. The judgment noted ‘he wants respect for his dignity in the sense of being able to choose for himself the timing and manner of his death’. ³³ Often, the reference to a ‘dignified death’ is in relation to the total circumstances surrounding that process of death. ³⁴ For example, a dignified death takes place at home, in the presence of loved ones, rather than in a formalized hospital setting, when we are most vulnerable in our lives. ³⁵ That process of death has a quality which makes it dignified, one it could possibly have not had. ³⁶ In contrast, we respect the choice for death at home, with loved ones, made with understanding of and reflection on what that choice entails, because it protects and promotes an individual’s character values and life commitments. These ideas are better encapsulated by the principle of respect for autonomy. ³⁷ The timing and manner of death may be part of what makes a dignified death. But the courts should avoid collapsing the distinct principles of respect for dignity and respect for autonomy, as it is arguable that dignity should have a significant role to play in legal end-of-life decisions. ³⁸

Another allegedly material distinction between Mr Conway’s circumstances and those of the Nicklinson claimants was that they wished to rid themselves of years of meaningless and undignified existence. However, it is arguable that perspective taken here is too narrow, as this comparison overlooks the important consideration that the value of an individual’s life is primarily the value to that individual. As Harris notes:

[a]ll of us who wish to go on living have something that each of us values equally although for each it is different in character…This thing is of course “the rest of our lives.” So long as we do not know the date of our deaths then for each of us the “rest of our lives” is of indefinite duration. ³⁹

That the Nicklinson claimants would have to starve and dehydrate themselves, in contrast to Mr Conway having to ask to have his NIV equipment removed, is another basis upon which the court found materially different circumstances between Mr Conway’s case and Nicklinson. But, this distinction runs counter to inherent ethical principles affecting both cases, specifically, the imperative to treat all individuals with equal concern and respect. The universalizability of prohibitive moral principles is recognized by the court. The judgment observes that ‘the moral injunction against ending a human life may be taken by many to extend with broadly equivalent force to a case of providing assistance to commit suicide as to a case of euthanasia’. ⁴⁴ But, as shown above, the court fails to recognize a crucial perspective for valuing life; the person’s own. Mr Conway also places importance on having his autonomous decision for death respected, as did the Nicklinson claimants. ⁴⁵ The point of autonomy, the reason why respect for ourselves and others means we must respect others’ autonomous decisions, derives from the capacity it protects. That is the capacity for an individual to express their own character in the life they lead. ⁴⁶ Respecting autonomy allows us to develop as moral agents, and be ascribed moral responsibility. ⁴⁷ To disrespect that autonomy likewise disrespects our capacity for moral agency and responsibility.

Once the point of respecting an individual’s autonomy is understood, it is clear that the methods by which each individual would have to kill themselves may matter practically, but matter morally far less. Regardless of the circumstances by which individuals can end their lives, all applicants in Conway and Nicklinson were arguing a point of principle: Their autonomous decisions for death should be respected by reading Article 8 to allow a private sphere of action to receive willingly provided assistance in committing suicide. To then state there are materially different considerations to Mr Conway’s argument because in the current sphere of non-interference, taking his own life would involve a different mechanism to the Nicklinson claimants, is to miss completely the universalizable point of principle claimed in Nicklinson and Conway. As such, the language the court uses in the comparative approach takes a morally arbitrary stance against Mr Conway’s case.

Mr Conway’s Statutory Scheme: An unfortunate strategy

Mr Conway’s argument consisted of various interlinked elements. Mr Conway sought to argue that the single purpose of section 2 was to protect the weak and vulnerable. If successful, this argument would enable Mr Conway to outline an alternative statutory scheme to demonstrate that section 2’s blanket ban was a disproportionate interference with his Article 8(1) rights. The substantive elements of Mr Conway’s alternative statutory proposal have been outlined above. The procedural safeguards in the proposal included the individual making a witnessed written request for assistance to commit suicide, the treating practitioner must consult with an independent practitioner to confirm that the substantive criteria have been met, the assistance to commit suicide must be provided with due medical care and reported to an appropriate body. It was argued that this scheme would sufficiently protect the weak and vulnerable in society while allowing individuals with a terminal illness and a clinically assessed prognosis of less than 6 months to live to seek assistance in suicide. ⁴⁸ The outlining of a statutory scheme continues the ‘novel, and disturbing, new trend’ ⁴⁹ since Nicklinson for there to be a less intrusive, worked-out alternative to support an application for a declaration of incompatibility. Lord Kerr recognized in Nicklinson that it was not necessary to the question of principle (viz. whether section 2 disproportionately infringes an individual’s Article 8 right) to demonstrate an alternative legislative means of achieving the rationale underpinning section 2. It is possible to argue that a provision is disproportionate without demonstrating what an alternative measure might look like. ⁵⁰ For example, it might be that the universal prohibition on assisting others to end their lives to protect those regarded as vulnerable is simply too broad a prohibition. ⁵¹ That others in Nicklinson thought this step was necessary, ⁵² and that it now seems to have taken on a life of its own in the Conway litigation, is unfortunate. ⁵³ The focus on whether there is an alternative legislative scheme in order to declare section 2 incompatible, detracts attention from the proper question, which is ‘whether the current statutory measure is intrinsically proportionate’. ⁵⁴

Construction of the Rules of Precedent: Was the court bound by Nicklinson?

To determine whether section 2’s interference with Mr Conway’s Article 8(1) right was justified, the court addressed four questions that are now standard in human rights analysis. ⁵⁵ First, is the legislative objective sufficiently important to justify limiting a fundamental right? Second, are the measures which have been designed to meet it rationally connected to it? Third, are they no more than necessary to accomplish it? And finally, do they strike a fair balance between the rights of the individual and the interests of the community?

It might be puzzling why the court considered it was not formally bound to decide Conway a certain way because of Nicklinson. The court reasoned that Nicklinson was decided in a specific context, namely, that Parliament was actively considering the Assisted Dying Bill 2013–2014. The majority of the Supreme Court considered it was institutionally inappropriate to make a declaration of incompatibility at that time. ⁵⁶ ‘[T]hat is now all water under the bridge’ the Conway court noted. Parliament had considered section 2 and chose to maintain it without change. Given that the situation was so different to Nicklinson, the High Court was not bound to reject Mr Conway’s claim because of Nicklinson. Mr Conway’s claim could be considered on its own merits.

The High Court’s interpretation of Nicklinson is both promising and problematic. The High Court noted that the judgments of Lords Sumption, Hughes and Reed ⁵⁷ ‘reflected what they regarded as the importance of and respect due to Parliament’s legislative choice’, ⁵⁸ in deciding that Parliament should be the body to review assisted suicide legislation. This was because of the complex nature of that review and because Parliament’s members are elected and responsible to the community. The court, therefore, recognizes that a political–moral argument regarding the nature and function of Parliament is needed to justify the argument that assisted dying primarily is an issue for Parliament and that no declaration of incompatibility is needed. ⁵⁹ The High Court also identifies that all the Supreme Court Justices thought Parliament was the appropriate forum to address these issues but reasoned differently on why a declaration of incompatibility was (in)appropriate at that time. ⁶⁰ However, again the court appears to fail to grasp the implications of the qualitative terminology used by Lords Neuberger, Mance and Wilson, in staying it was for Parliament to address assisted suicide legislation, and ‘if it is not satisfactorily addressed, there is a real prospect that a further, and successful, application for a declaration of incompatibility may be made’. ⁶¹ Parliament satisfactorily addressing the assisted suicide legislation is not the same as simply considering the question of assisted dying and the prohibition remaining in place. Using qualitative terminology amounts to a non-formal request to Parliament to change the law. Lords Neuberger, Mance and Wilson’s non-declaration of incompatibility is contingent upon legislation being addressed in this way. ⁶²

Certainly, neither party in Conway suggested that Parliament had ignored Nicklinson. It is simply acknowledged that Parliament addressed assisted suicide legislation with Nicklinson in mind. Further, the court stated, ‘Lords Neuberger, Mance and Wilson…were at pains to emphasise the question of incompatibility would be at large and would have to be considered afresh after any parliamentary debate’. ⁶³ The court interprets these judgments as ‘an unusual course of postponement’. ⁶⁴ But, it is unclear why three Supreme Court Justices would adopt a course of postponement (given that Article 9 of the Bill of Rights 1689 prohibits judicial consideration of the content of parliamentary proceedings) if not to imply that legal change is needed. This issue is given further weight as the High Court also recognizes that Lady Hale and Lord Kerr would have made a declaration of incompatibility in Nicklinson. This constitutes the ‘hidden majority’ in Nicklinson; five judges imply the law should be changed, and a future application for a declaration of incompatibility is likely to succeed if not. ⁶⁵ Notwithstanding that the Conway judgment examined here is a first-instance decision, there is significant weight behind the idea that the judgments in Nicklinson, and the outcome of later parliamentary debates, mean it is now institutionally appropriate for a court to issue a declaration of incompatibility on the grounds that Parliament has had an opportunity to amend section 2 and has not done so. That Nicklinson was construed as ‘not binding’ meant that the court further analysed the legitimate aim behind section 2, rational connection, necessity and fair balance. These issues are explored in the final section of this commentary.

The underlying purposes of section 2: Beyond protection of the weak and vulnerable?

The court accepted the submission by the Secretary of State that the section 2 prohibition is objectively justified under Article 8(2), even if section 2’s aim was only to protect the weak and vulnerable. However, the wider claim was also accepted, obiter, that section 2 legitimately seeks to pursue two broader aims: protecting the sanctity of life and the promotion of trust between healthcare professional and patient. ⁶⁶

Here, a degree of ethical sensitivity is shown by the court. The judgment notes the ‘protection of the sanctity of life as a moral view regarding the importance of human life [is] one of the aims promoted by section 2’ and that this is a broader consideration than the objective of protecting the weak and the vulnerable. ⁶⁷ This reasoning is convincing and accords with John Keown’s formulation, in which the sanctity of life is articulated as a prohibition of intentional killing, not because of perceptions of vulnerability, but on the basis of an inherent dignity of human beings as a result of their radical capacities (‘an ability to develop the ability to exercise something’). ^68,69 This account of radical capacities is arguably flawed, ⁷⁰ but is concerned with expressing the appropriate commitments flowing from viewing life as inherently valuable, rather than focusing on the status of those whose lives we consider to be inherently valuable.

Mr Conway’s alternative statutory scheme also formed an important component of his argument that section 2 goes beyond what is necessary to ensure its legitimate aim. That alternative scheme, it was argued, could protect the weak and vulnerable. That the High Court would be involved in reviewing any application for assistance in suicide would ensure that the applicant was free of any pressure and had the capacity to make the decision to die.

The court rejected this argument. The court reasoned that even if the legitimate aim promoted by section 2 was confined to protecting the weak and vulnerable, the involvement of the High Court would be insufficient to meet the ‘real gravamen’ of this issue. ⁷¹ Individuals with terminal illnesses may be prone to feelings of low self-esteem, despair, isolation and loneliness, which might undermine an individual’s resilience and reinforce the idea they are a burden to others. The court concluded it was possible all this may be true while an individual still retains full legal capacity and is not subjected to improper pressure by others. However, given that Mr Conway’s scheme could not completely safeguard against the real risk of vulnerable people seeking assistance to die if the prohibition on assisting suicide was relaxed, section 2 was necessary to promote the aim of protecting the weak and vulnerable. Drawing heavily upon Lord Sumption’s judgment in Nicklinson, ⁷² and the court’s own review of evidence from medical associations, charities working with vulnerable persons and comparative legal jurisdictions, ⁷³ the court concluded ‘[t]he evidence we have reviewed shows that there is a serious objective foundation for [the] assessment’ that section 2 is necessary to promote the legitimate aim of protecting the weak and the vulnerable. ⁷⁴

Conclusion

There are many strands to the Conway judgment, a number of which operate to stifle the dynamic for reform represented by the ‘hidden majority’ in Nicklinson. Not only does the High Court conflate important ethical values in explaining Mr Conway’s reluctance to end his life, it arbitrarily distinguishes between Mr Conway and Nicklinson-type claimants, focusing on the morally insignificant distinction of the process by which the parties would have to end their lives. Notwithstanding this, the Conway litigation could be a further catalyst for dynamism with regard to challenges against the ban on assisting suicide in section 2. It is hoped that in future litigation, courts are more discerning in understanding why, ethically, a claimant with circumstances similar or equivalent to Mr Conway’s are not necessarily materially different from Nicklinson-type claimants. There is a degree of paradox here. Mr Conway’s circumstances are substantively similar, and common, core concepts, values and principles need to be recognized across cases and claimant circumstances. Legally, however, any future case is likely to have to distinguish itself sufficiently from past rulings, in order to be justiciable – either on facts or law – otherwise, it is likely to be treated as covered by existing precedent. Future claimants thus need to demonstrate (legal) difference while arguing for (ethical) sameness. ⁷⁵ Similarly, Mr Conway’s argument of an alternative statutory scheme is likely to continue, given its function in arguing that section 2 does more than necessary to protect the weak and vulnerable. However, it must be recognized that disproportionate infringement is a question of principle. Finally, the real effect of Parliament not changing assisted suicide legislation in the light of Nicklinson might only be seen if (and likely, when) Conway reaches the Supreme Court. The ‘hidden majority’ in Nicklinson may then finally reveal itself.