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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Conway, R (on the application of) v The Secretary of State for Justice & Ors [2018] EWCA Civ 1431 (27 June 2018) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2018/1431.html Cite as: [2018] 3 WLR 925, (2018) 163 BMLR 73, [2018] EWCA Civ 1431, [2018] HRLR 19, 163 BMLR 73, [2018] WTLR 597, [2020] QB 1, [2018] WLR(D) 402, [2019] 1 All ER 39 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Sales LJ, Whipple and Garnham JJ
Strand, London, WC2A 2LL |
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B e f o r e :
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
and
LADY JUSTICE KING
____________________
R (on the application of CONWAY) |
Appellant/ Claimant |
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- and - |
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THE SECRETARY OF STATE FOR JUSTICE - and - HUMANISTS UK (1) NOT DEAD YET (UK) (2) CNK ALLIANCE LTD (3) |
Respondent/Defendant Interveners |
____________________
James Eadie QC, James Strachan QC and Benjamin Tankel (instructed by the Government Legal Department) for the Respondent
Caoilfhionn Gallagher QC and Graeme Hall (instructed by Hodge Jones and Allen LLP) for the First Intervener
Catherine Casserley (instructed by Fry Law) for the Second Intervener
David Lawson (instructed by Barlow Robbins LLP) for the Third Intervener
Hearing dates : 1, 2 and 3 May 2018
____________________
Crown Copyright ©
Sir Terence Etherton MR, Sir Brian Leveson P and Lady Justice King :
The Factual Background
"MND is a neurological disease which attacks the nerve cells responsible for controlling voluntary muscle movement. The nerve cells degenerate and die and stop sending messages to the muscles. The muscles gradually weaken and waste away. Eventually, the brain's ability to start and control voluntary movement is lost. Mr Conway has to use a wheelchair and requires ever increasing levels of assistance with daily life, eating and bodily functions. The muscles which allow Mr Conway to breathe are also wasting away. He increasingly finds it difficult to breathe without mechanical assistance in the form of non-invasive ventilation ("NIV"), which he requires for an increasing number of hours each day. The average life expectation of a person with MND is between two and five years. "
"I would like 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. If I am unable to take the medication by drinking a prescribed medication, I would also be prepared to receive medication in a different format, by activating a switch for example. I do not believe that unsupervised alternative methods of suicide are humane or acceptable and would be additionally distressing for my loved ones.
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. This disease is a relentless and merciless process of progressive deterioration. At some point, my breathing will stop altogether or I will become so helpless that I will be effectively 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 find the prospect of this state for me to live quite unacceptable and I wish to end my life when I feel it is the right moment to do so, in a way that is swift and dignified. "
The Legal and Parliamentary Background
Section 2(1) of the Suicide Act 1961
"(1) A person ("D") commits an offence if
(a) D does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and
(b) D's act was intended to encourage or assist suicide or an attempt at suicide."
Article 8
"Article 8: Right to respect for private and family life
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Early parliamentary engagement with section 2 and questions of assisted suicide
The Pretty case
"The applicant in this case is prevented by law from exercising her choice to avoid what she considers will be an undignified and distressing end to her life. The Court is not prepared to exclude that this constitutes an interference with her right to respect for private life as guaranteed under Article 8(1) of the Convention. "
" the Court finds, in agreement with the House of Lords and the majority of the Canadian Supreme Court in [Rodriguez v Attorney General of Canada [1994] 2 LRC 136], that States are entitled to regulate through the operation of the general criminal law activities which are detrimental to the life and safety of other individuals (see also Laskey, Jaggard and Brown, cited above, pp. 132-33, § 43). The more serious the harm involved the more heavily will weigh in the balance considerations of public health and safety against the countervailing principle of personal autonomy. The law in issue in this case, section 2 of the 1961 Act, was designed to safeguard life by protecting the weak and vulnerable and especially those who are not in a condition to take informed decisions against acts intended to end life or to assist in ending life. Doubtless the condition of terminally ill individuals will vary. But many will be vulnerable and it is the vulnerability of the class which provides the rationale for the law in question. It is primarily for States to assess the risk and the likely incidence of abuse if the general prohibition on assisted suicides were relaxed or if exceptions were to be created. Clear risks of abuse do exist, notwithstanding arguments as to the possibility of safeguards and protective procedures."
Post-Pretty parliamentary engagement with section 2 and questions of assisted suicide
The Purdy case
" promulgate an offence-specific policy identifying the facts and circumstances which he will take into account in deciding, in a case such as that which Ms Purdy's case exemplifies, whether or not to consent to a prosecution under section 2(1) of the 1961 Act."
Post-Purdy parliamentary engagement with s.2 and questions of assisted suicide
The Nicklinson case
"85. The nine justices in the Supreme Court were divided in their views about this along a spectrum. As we read their judgments, and subject to certain differences in nuance between them, (a) Lord Sumption JSC (see in particular [233]-[234]), Lord Hughes JSC (in particular at [267]) and Lord Reed JSC (in particular at [196]-[298]) considered that no incompatibility of section 2 with Article 8 could be found as a matter of substance; (b) Lord Neuberger PSC (in particular at [113]-[118]), Lord Mance JSC (in particular at [188] and [190]-[191], Lord Wilson JSC (in particular at [196]-[197]) and Lord Clarke of Stone-cum-Ebony JSC (in particular at [293]) took the view that given that Parliament was on the point of debating the Falconer Bill it would be premature for the court to consider making a declaration of incompatibility until Parliament had had the opportunity to consider the issues for itself in that debate (at [293] Lord Clarke gave a stronger indication of the ultimate outcome of any application for a declaration of incompatibility if Parliament did so in line with the justices in group (a) - than did Lord Neuberger, Lord Mance and Lord Wilson, who were at pains to emphasise that the question of incompatibility would be at large and would have to be considered afresh after any parliamentary debate: see [118], [191] and [197(f)] respectively); and (c) Baroness Hale of Richmond DPSC (at [299]-[321]) and Lord Kerr of Tonaghmore JSC (at [326]-[361]), who were satisfied at that stage of the proceedings that there was an incompatibility between section 2 and the Article 8 rights of those in the position of the claimants and were prepared to grant a declaration of incompatibility then and there. Lord Kerr considered that, among other reasons for finding an incompatibility, there was no rational connection between the aim of the legislation, taken as the protection of the vulnerable, and the interference with the Article 8 right constituted by section 2: [349]-[351] and [361]. But no other justice concurred in that view.
86. The views of the justices in group (a) reflected what they regarded as the importance of and respect due to Parliament's legislative choice in light of the controversial social and moral dimensions of the question whether section 2 should be amended, what procedures might be put in place to mitigate the indirect consequences of legalising assisted suicide and whether any remaining risks were acceptable: see in particular [233]-[234] (Lord Sumption). Other justices also accepted that these considerations were relevant to any determination regarding the compatibility of section 2 with Article 8: see in particular Lord Mance at [164], [166]-[170] and [189]-[190] ("Parliament is certainly the preferable forum in which any decision should be made, after full investigation and consideration, in a manner which will command popular acceptance"); [115] per Lord Neuberger; [201] per Lord Wilson (the area is one "in which the community would expect its unelected judiciary to tread with the utmost caution"); and [300] per Baroness Hale ("Like everyone else, I consider that Parliament is much the preferable forum in which the issue should be decided").
87. The views of the justices in group (b), in deciding to defer the question of compatibility until after further debate in Parliament, reflected the importance of Parliament as a decision-maker in this morally and socially sensitive area but also their hopes that Parliament would take into account the points raised in the judgments in the Supreme Court when deciding what to do about section 2: see [113] (Lord Neuberger), [190] (Lord Mance), and [197], [202] and [204]-[205] (Lord Wilson).
89. In our view, the judgments of the justices in group (b) in Nicklinson were based on the fact that it was known that a specific Bill was before Parliament so that the issues arising were due to be debated there in the near future. In those circumstances the justices in group (b) were prepared to postpone proceeding to a final determination of the issue of compatibility themselves. That was an unusual course to take, since normally a court will proceed to determine a properly arguable claim which is presented to it. The proper role of the court is to protect the rule of law and this means determining legal claims which are brought. The unusual course of postponement of dealing with the question of compatibility which the justices in group (b) in Nicklinson favoured was justified by the special and unusual circumstances pertaining at the time of the decision."
" If the domestic courts were to be required to give a judgment on the merits of such a complaint this could have the effect of forcing upon them an institutional role not envisaged by the domestic constitutional order. Further, it would be odd to deny domestic courts charged with examining the compatibility of primary legislation with the Convention the possibility of concluding, like this Court, that Parliament is best placed to take a decision on the issue in question in light of the sensitive issues, notably ethical, philosophical and social, which arise. "
"1. the victim had reached a voluntary, clear, settled and informed decision to commit suicide;
2. the suspect was wholly motivated by compassion;
3. the actions of the suspect, although sufficient to come within the definition of the offence, were of only minor encouragement or assistance;
4. the suspect had sought to dissuade the victim from taking the course of action which resulted in his or her suicide;
5. the actions of the suspect may be characterised as reluctant encouragement or assistance in the face of a determined wish on the part of the victim to commit suicide;
6. the suspect reported the victim's suicide to the police and fully assisted them in their enquiries into the circumstances of the suicide or the attempt and his or her part in providing encouragement or assistance."
Post-Nicklinson parliamentary engagement with section 2 and questions of assisted suicide
The Procedural History of the Present Proceedings
Judgment Under Appeal
The Divisional Court arguments in outline
1) The prohibition on providing assistance for suicide should not apply where the individual:a) is aged 18 or above;b) has been diagnosed with a terminal illness and given a clinically assessed prognosis of six months or less to live;c) has the mental capacity to decide whether to receive assistance to die;d) has made a voluntary, clear, settled and informed decision to receive assistance to die; ande) retains the ability to undertake the final acts required to bring about his or her death having been provided with such assistance.2) The prohibition would only be disapplied where the following procedural safeguards are satisfied:
a) the individual makes a written request for assistance to commit suicide, which is witnessed;b) his or her treating doctor has consulted with an independent doctor who confirms that the substantive criteria in (1) are met, having examined the patient;c) assistance to commit suicide is provided with due medical care; andd) the assistance is reported to an appropriate body.3) Finally, as a further safeguard, permission for provision of assistance should be authorised by a High Court judge, who should analyse the evidence and decide whether the substantive criteria in (1) are met in that individual's case.
The Divisional Court's findings and conclusions
The Appeal to the Court of Appeal
Grounds of appeal and cross appeal
The interveners
The submissions for Mr Conway
" The question at issue is whether Parliament has a proper basis for maintaining in place the prohibition against provision of assistance for suicide contained in section 2. "
" Parliament has made the assessment that it is. The evidence we have received shows that there is a serious objective foundation for that assessment. "
" the parliamentary process is a better way of resolving issues involving controversial and complex questions of fact arising out of moral and social dilemmas. The legislature has access to a fuller range of expert judgment and experience than forensic litigation can possibly provide. It is better able to take account of the interests of groups not represented or not sufficiently represented before the court in resolving what is surely a classic "polycentric problem". But, perhaps critically in a case like this where firm factual conclusions are elusive, Parliament can legitimately act on an instinctive judgment about what the facts are likely to be in a case where the evidence is inconclusive or slight: see R (Sinclair Collis Ltd) v Secretary of State for Health [2012] QB 394, especially at para 239 (Lord Neuberger of Abbotsbury MR), and Bank Mellat v HM Treasury (No. 2) [2014] AC 700, 795-796, paras 93-94, per Lord Reed. Indeed, it can do so in a case where the truth is inherently unknowable, as Lord Bingham thought it was in R (Countryside Alliance) v Attorney General [2008] AC 719, para 42."
"There are of course many who do not consider that there is a pressing (or any) social need for the ban imposed by the Act. But after an intense debate a majority of the country's democratically-elected representatives decided otherwise. It is of course true that the existence of duly enacted legislation does not conclude the issue Here we are dealing with a law which is very recent and must (unless and until reversed) be taken to reflect the conscience of a majority of the nation. The degree of respect to be shown to the considered judgment of a democratic assembly will vary according to the subject matter and the circumstances. But the present case seems to me pre-eminently one in which respect should be shown to what the House of Commons decided. The democratic process is liable to be subverted if, on a question of moral and political judgment, opponents of the Act achieve through the courts what they could not achieve in Parliament."
"providing an effective safeguard against potential risks to vulnerable people. The criteria have within them safeguards to ensure that the applicant is not being coerced, controlled, or manipulated and safeguards to ensure that the applicant is making a fully-informed decision in the exercise of his or her personal autonomy, personal dignity, and free will. The criteria emphasize the personal autonomy of the applicant and that the decision is a decision of a competent adult person that clearly consents to the termination of life."
" Unless the gravity of the illness has affected the patient's capacity, a seriously disabled patient has the same rights as the fit person to respect for personal autonomy. There is a serious danger, exemplified in this case, of a benevolent paternalism, which does not embrace recognition of the personal autonomy of the severely disabled patient. "
" The fact that a decision not to have life-saving medical treatment may be considered an unwise decision and may have a fatal outcome is not of itself evidence of a lack of capacity to take that decision, notwithstanding that other members of society may consider such a decision unreasonable, illogical or even immoral, that society in general places cardinal importance on the sanctity of life and that the decision taken will result in the certain death of the person taking it. To introduce into the assessment of capacity an assessment of the probity or efficacy of a decision to refuse life-saving treatment would be to introduce elements which risk discriminating against the person making that decision by penalising individuality and demanding conformity at the expense of personal autonomy in the context of a diverse, plural society which tolerates a range of views on the decision in question."
" A system whereby a judge or other independent assessor is satisfied in advance that someone has a voluntary, clear, settled, and informed wish to die and for his suicide then to be organised in an open and professional way, would provide greater and more satisfactory protection for the weak and vulnerable, than a system which involves a lawyer from the DPP's office enquiring, after the event, whether the person who had killed himself had such a wish, and also to investigate the actions and motives of any assistant, who would, by definition, be emotionally involved and scarcely able to take, or even to have taken, an objective view."
"I start with the concept of the sanctity of life. Why do we think it would be a tragedy to allow Anthony Bland to die? It could be said that the entire tragedy took place at Hillsborough and that the curtain was brought down when Anthony Bland passed into a persistent vegetative state. Until then, his life was precious to him and his family. But since then, he has had no consciousness of his life and it could be said to be a matter of indifference to him whether he lives or dies. But the fact is that Anthony Bland is still alive. The mere fact that he is still a living organism means that there remains an epilogue of the tragedy which is being played out. This is because we have a strong feeling that there is an intrinsic value in human life, irrespective of whether it is valuable to the person concerned or indeed to anyone else. Those who adhere to religious faiths which believe in the sanctity of all God's creation and in particular that human life was created in the image of God himself will have no difficulty with the concept of the intrinsic value of human life. But even those without any religious belief think in the same way. In a case like this we should not try to analyse the rationality of such feelings. What matters is that, in one form or another, they form part of almost everyone's intuitive values. No law which ignores them can possibly hope to be acceptable.
Our belief in the sanctity of life explains why we think it is almost always wrong to cause the death of another human being, even one who is terminally ill or so disabled that we think that if we were in his position we would rather be dead. Still less do we tolerate laws such as existed in Nazi Germany, by which handicapped people or inferior races could be put to death because someone else thought that their lives were useless.
But the sanctity of life is only one of a cluster of ethical principles which we apply to decisions about how we should live. Another is respect for the individual human being and in particular for his right to choose how he should live his own life. We call this individual autonomy or the right of self-determination. And another principle, closely connected, is respect for the dignity of the individual human being: our belief that quite irrespective of what the person concerned may think about it, it is wrong for someone to be humiliated or treated without respect for his value as a person. The fact that the dignity of an individual is an intrinsic value is shown by the fact that we feel embarrassed and think it wrong when someone behaves in a way which we think demeaning to himself, which does not show sufficient respect for himself as a person.
No one, I think, would quarrel with these deeply rooted ethical principles. But what is not always realised, and what is critical in this case, is that they are not always compatible with each other. Take, for example, the sanctity of life and the right of self-determination. We all believe in them and yet we cannot always have them both. The patient who refuses medical treatment which is necessary to save his life is exercising his right to self-determination. But allowing him, in effect, to choose to die, is something which many people will believe offends the principle of the sanctity of life. Suicide is no longer a crime, but its decriminalisation was a recognition that the principle of self-determination should in that case prevail over the sanctity of life.
A conflict between the principles of the sanctity of life and the individual's right of self-determination may therefore require a painful compromise to be made. In the case of the person who refuses an operation without which he will certainly die, one or other principle must be sacrificed. We may adopt a paternalist view, deny that his autonomy can be allowed to prevail in so extreme a case, and uphold the sanctity of life. Sometimes this looks an attractive solution, but it can have disturbing implications. Do we insist upon patients accepting life-saving treatment which is contrary to their strongly held religious beliefs? Should one force-feed prisoners on hunger strike? English law is, as one would expect, paternalist towards minors. But it upholds the autonomy of adults. A person of full age may refuse treatment for any reason or no reason at all, even if it appears certain that the result will be his death."
" a more drastic interference to a person's life and a more extreme moral step that authorising a third party to set up a lethal drug delivery system so that a person can, but only if he wishes, activate the system to administer a lethal drug."
Discussion
Preliminary observations
"(a) is the legislative objective sufficiently important to justify limiting a fundamental right; (b) are the measures which have been designed to meet it rationally connected to it; (c) are they no more than are necessary to accomplish it; and (d) do they strike a fair balance between the rights of the individual and the interests of the community?"
Mr Conway's proposed scheme
"The subject of euthanasia and assisted suicide have been deeply controversial long before the adoption of the Universal Declaration of Human Rights in 1948, which was followed two years later by the European Convention on Human Rights and Freedoms (1950). The arguments and counter arguments have ranged widely. There is a conviction that human life is sacred and that the corollary is that euthanasia and assisted suicide are always wrong. This view is supported by the Roman Catholic Church, Islam and other religions. There is also a secular view, shared sometimes by atheists and agnostics, that human life is sacred. On the other side, there are many millions who do not hold these beliefs. For many the personal autonomy of individuals is predominant. They would argue that it is the moral right of individuals to have a say over the time and manner of their death. On the other hand, there are utilitarian arguments to the contrary effect. The terminally ill and those suffering great pain from incurable illnesses are often vulnerable. And not all families, whose interests are at stake, are wholly unselfish and loving. There is a risk that assisted suicide may be abused in the sense that such people may be persuaded that they want to die or that they ought to want to die. Another strand is that, when one knows the genuine wish of a terminally ill patient to die, they should not be forced against their will to endure a life they no longer wish to endure. Such views are countered by those who say it is a slippery slope or the thin end of the wedge. It is also argued that euthanasia and assisted suicide, under medical supervision, will undermine the trust between doctors and patients. It is said that protective safeguards are unworkable. The countervailing contentions of moral philosophers, medical experts and ordinary people are endless. The literature is vast: see for a sample of the range of views: Glanville Williams, The Sanctity of Life and the Criminal Law (1958), ch 8. Ronald Dworkin, Life's Dominion: An Argument About Abortion, Euthanasia and Individual Freedom (1993), ch 7; Euthanasia Examined: Ethical clinical and legal perspectives (1995) essays edited by John Keown; Margaret Otlowski, Voluntary Euthanasia and the Common Law (1997), chs 5-8; Mary Warnock, An Intelligent Person's Guide to Ethics (1998), ch 1. It is not for us, in this case, to express a view on these arguments. But it is of great importance to note that these are ancient questions on which millions in the past have taken diametrically opposite views and still do."
" not every clinical diagnosis is invariably secure. The nature of neurological illness involves additional uncertainty relating to the course of that illness and future availability of effective treatments. Prognostication is notoriously fallible especially when offered early in the course of a neurological illness that may run a protracted and unreliable clinical course over several years."
" With the exception of the Royal College of Psychiatrists, which is neutral, all organisations with policy on the issue are opposed to all forms of assisted dying, while also acknowledging that there are a range of different views within their respective memberships
The BMA has consistently opposed all forms of assisted dying, with the exception of 2005 when the policy changed to neutral before subsequently reverting back to opposition the following year. The Association's policy is made at its Annual Representative Meeting and current policy dates back to 2006 and states that the BMA:
- Believes that the ongoing improvement in palliative care allows patients to die with dignity.
- Insists that the physician -assisted suicide should not be made legal in the UK. "
"physician-assisted suicide, like euthanasia, is unethical and must be condemned by the medical profession. Where the assistance of the physician is intentionally and deliberately directed at enabling an individual to end his or her own life, the physician acts unethically. However the right to decline medical treatment as a basic right of the patient and the physician does not act unethically even if respecting such a wish results in the death of the patient".
"[w]ere the law to change, and protagonists and legislators truly focussed on protecting the newly vulnerable, moving executive authority and responsibility from medicine to an appropriate judicial process with specialist non-technical technicians will be less harmful and more transparent."
"In our Parliamentary democracy, and I apprehend in many member states of the Council of Europe, such a fundamental change cannot be brought about by judicial creativity. If it is to be considered at all, it requires a detailed and effective regulatory proposal. In these circumstances it is difficult to see how a process of interpretation of Convention rights can yield a result with all the necessary inbuilt protections. Essentially, it must be a matter for democratic debate and decision-making by legislatures."
"The fact that in making their assessment they attached great significance or "very considerable weight" to the views of Parliament does not mean that they failed to carry out any balancing exercise. Rather, they chose as they were entitled to do in the light of the sensitive issue at stake and the absence of any consensus among Contracting States to conclude that the views of Parliament weighed heavily in the balance."
"118. Nicklinson was also a different case from the present in significant respects. First, it centred on a difficult balancing exercise between the interests of different adult persons: on the one hand, the sufferer with locked-in syndrome, unable to act autonomously, but unable to receive assistance to commit suicide; on the other hand, the others, elderly or infirm, who might feel pressured by others or by themselves to commit suicide, if assistance were permissible. The balancing of autonomy and suffering against the risks to others was and is a particularly sensitive matter. The legislature had chosen an absolute protection against the latter risks, with which the courts should not, at least at that juncture, interfere.
On the present appeal, there is in law no question of a balance being struck between the interests of two different living persons. The unborn foetus is not in law a person, although its potential must be respected. In addition, the current legislation already recognises important limitations on the interests and protection of the unborn foetus. It permits abortion of a healthy foetus in circumstances where the mother's life would be at risk or where she would suffer serious long-term damage to her physical or psychological health. There is therefore no question of any absolute protection of even a healthy foetus. "
The reasoning of the Divisional Court
Conclusion