Lord Justice Underhill allowed the applicant, Mr Conway, to proceed with his appeal of the decision of the Divisional Court surrounding section 2(1) of the Suicide Act 1961, banning assisted suicide.
Mr Conway suffers from motor neuron disease, a degenerative disease which causes the brain to lose control of muscle function and usually results in the patient’s death within five years of diagnosis. Mr Conway wishes to end his life at a time of his choosing in a way that is swift and dignified once he is given a prognosis of 6 months to live. This method of suicide may require medical assistance. Mr Conway took an application to the Divisional Court seeking declaration under section 4(2) of the Human Rights Act 1998 that section 2(1) of the Suicide Act is incompatible with his rights under article 8 of the ECHR.
Mr Conway submitted that the blank prohibition in section 2 of the Suicide Act is a disproportionate interference with his rights under article 8 ECHR. Mr Conway gave an outline under what circumstances the prohibition should not apply; where the individual is over 18, has been diagnosed with a terminal illness and has less than 6 months to live, has full mental capacity, makes a voluntary, clear, settled and informed decision and retains the ability to undertake the final acts required to bring about death having being provided with assistance.
The Divisional Court rejected Mr Conway’s arguments and proposals, finding that section 2 of the Suicide Act was justified under the ECHR. The Court stated that the statute had a legitimate aim to protect the weak and vulnerable, as well as the sanctity of life and the promotion of trust between doctor and patient. The Court concluded that the prohibition on assisted suicide under section 2 of the Suicide Act 1961 achieved a fair balance between the interests of the wider community and the interests of individuals like Mr. Conway. For earlier PILA Bulletin commentary on the case please click here.
Mr Conway is appealing the decision on seven grounds: (1)The Divisional Court misdirected itself as to the correct legal test to apply under Art 8 ECHR, (2)The Divisional Court adopted a legally flawed approach to the evidence, (3)The Divisional Court misdirected its self in law in identifying whether the prohibition under s.2 is more than necessary for the purposes of the ECHR, (4)The Divisional court failed to address significant evidence before it in relation to the strength of the safeguards proposed by the applicant, (5)The Divisional Court failed to address the consequences of “biased decision making” in treatment refusal decisions, (6)The Divisional Court misdirected itself as to the approach to take in identifying whether the prohibition struck a fair balance between the interests of the community and the appellant for the purposes of article 8 ECHR, (7)The Divisional court failed to address the legal and moral differences between an assisted dying and euthanasia.
Mr Justice Underhill gave permission to appeal on all grounds. Justice Underhill referred to the case of R v Nicklinson where the majority of the Supreme Court contemplated that, in the case of a challenge such as Mr Conway’s , any proposed safeguards for assisted dying would be subjected to a more intense form of assessment than was undertaken by the Divisional Court. Justice Underhill further went to state that the Divisional court performed the wrong kind of proportionality assessment with the evidence before them, and that the benefit of the doubt must go to the appellant.
To read the full judgement click here.
For further commentary on the case please click here.