In a unanimous decision of the High Court delivered on Thursday 5th October 2017 Lord Justice Sales has dismissed the legal challenge brought on behalf of Mr Conway, which would have permitted assisted dying to become accepted practice in the United Kingdom.
Mr Conway has Motor Neurone Disease, with a terminal prognosis; he will at some point become so incapacitated that he will be unable to survive without assistance. Rather than fly overseas to end his life with the assistance of Dignitas where it is legal, his case is that under Article 8 of the Human Rights Act he has a legal right to exercise control over his own life and that as the UK Parliament is a signatory to the Human Rights Act, keeping in place section 2 of the Suicide Act 1961 which gives a blanket ban on assisting suicide prevents him from exercising those Human Rights.
Mr Conway’s legal team which was substantially funded by Dignity in Dying (an organisation formally known as the Voluntary Euthanasia Society) asked the Court to declare that section 2 of the the Suicide Act is incompatible with Article 8 of the European Convention on Human Rights (as incorporated into the Human Rights Act) and that section 2 of the Suicide Act should be changed to give someone with a terminal illness and six months left to live, the right to assisted suicide.
There was considerable evidence in the case from medical experts and there was little disagreement between the experts on issues such as the quality of palliative care and the realities of the withdrawal of treatment.
The court paid particular attention to the evidence from medical bodies as to the views of their membership – setting out in some detail the conclusions of the report on the ethnical and practice issues in relation to end of life care and physician assisted dying by the British Medical Association (BMA). In the report, BMA stated that whilst there were strong views on both sides of the debate, they did not recommend a change in the law due to the extensive research conducted which found that the majority of doctors thought that there would be professional and ethical conflicts if physician assisted dying were legalised and the majority of the impacts identified by them were negative. These were concerns which all judges thought could not be regarded as unreasonable or without foundation.
The judgment also set out in some detail evidence from the British Geriatrics Society opposing a change in the law and emphasising the importance of the potential social implications of such a change, the judgment citing it as a helpful indication of the likely practical implications of a change in the law.
Fry Law was instructed pro bono by Not Dead Yet UK, on whose behalf we applied for and won the right to make representations on behalf of terminally ill a and disabled people who expressed extreme concern that changes to the law would have a devastating effect on the way in which society value disabled people.
Baroness Campbell who founded Not Dead Yet UK gave powerful written evidence to the Court highlighting a variety of case studies and opinions from people in a similar situation to Mr Conway but with opposing views about assisted suicide. This was Not Dead Yet Uk’s first intervention in a legal case and Lord Justice Sales made reference to the particular importance which he placed on Baroness Campbell’s contribution and particularly the concern felt by disabled people that society sees them as a burden and the impact that a change in the law would have upon them.
Baroness Campbell’s concerns were reinforced by the results of a poll published by Scope which showed there was a substantial concern amongst disabled people that a change in the law would lead to disabled people feeling pressure to end their lives prematurely, which the current law currently protects them against.
In short, the Court upheld the views of the cases brought before, that whilst Article 8 of the Human Rights Act is engaged, the incompatibility with section 2 of the Suicide Act is justified because of the need to protect the weak and vulnerable, and also to protect the sanctity of life as a moral view . In addition, parliament is better placed to determine these issues.
In considering justification, The legitimate aim was not only protection of the weak and vulnerable. the question, it was said, involves profound moral and ethical issues in a democracy. The sanctity of life was also a legitimate aim. Further, the Secretary of State was also entitled to refer to the promotion of trust between doctor and patient.. The evidence showed a real concern amongst doctors and a real risk that if the prohibition against assistance for suicide were relaxed, patients, particularly vulnerable and elderly patients would have less confidence in their doctors and the advice they might give. This in turn would have consequences on the extent to which patients would be willing to share information about their condition freely with their doctors, undermining the quality and efficacy of medical treatment available.
There was a rational connection between these aims and the prohibition in section 2.
The next issue was necessity. Mr Conway submitted that the alternative measures that he had proposed – a scheme of court authorise medical prescription for those with 6 months or less to live – meant that the blanket prohibition was not necessary to meet the legitimate aim. The Court rejected this contention. It held that the involvement of the Court to check the absence of pressure would not meet the problems regarding protection of the weak and vulnerable, given potential feelings of despair and low self-esteem; they cited figures from Oregan as to significant numbers seeking assistance, and the potential “normalisation” of assisted suicide.
Parliament was also said to be better placed to make the relevant assessment than the court.
The decision therefore upholds the previous decisions of the UK Courts, retaining the current protections provided to disabled and terminally ill people which comes as a significant relief to Not Dead Yet UK and their thousands of supporters.
Not Dead Yet UK were supported in their intervention on a pro bono basis by Catherine Casserley, Barrister at Cloisters Chambers and Chris Fry and Millie Broadbent at Fry Law.