Assisted Dying

Noel Conway v Ministry of Justice

Earlier this year the Court of Appeal reviewed the law on assisted dying in the UK in the case of Noel Conway v Ministry of Justice.

Noel Conway (68) was diagnosed with a terminal illness called Motor Neurone Disease and has been fighting for his right to have the option of an assisted death. He brought forward a judicial review challenging the current law on assisted dying in July 2017 which was rejected by the High Court in October of that year.

However, in January 2018 Mr Conway was granted permission to appeal. His argument concerned the incompatibility of two acts. One being section 2 of the Suicide Act 1961, which states that a person commits an offence if he/she

(a) does an act capable of encouraging or assisting the suicide or attempted suicide of another person; and

(b) intended to encourage or assist suicide or an attempt at suicide.

The second being Article 8 of the Human Rights Act 1998, which protects

the right to respect for private and family life” and stipulates “no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary …for the protection of health or morals, or for the protection of the rights and freedoms of others.

If, the incompatibility of these two acts were to be upheld by the court, Mr Conway would seek permission to commit suicide with assistance in the last six months of his life.

The Broader Picture

In the past suicide was illegal and those whose suicide attempts failed were charged with a criminal offence. Perhaps in an effort to save resources, or perhaps seeing how ludicrous this law was, new legislation was introduced in 1961 called The Suicide Act which put a stop to charging people for attempted suicides. Furthermore, section 2 of this act made it possible for patients to refuse medical treatment (and hasten their own death) as long as they do so without assistance.

In 2015, MPs were presented with an option of changing the law on assisted dying but voted against doing so in an overwhelming capacity. Indeed, if approved, where would the line be drawn on assisted dying? Moreover, as far as reasonableness goes, no person wants to be responsible for someone else’s death but, at the same time, we want people to have a choice and a right to a dignified death, especially as withdrawal from medication is often a painful and distressing experience.

Certainly a catch 22 situation for the UK Parliament but interestingly not so for other jurisdictions. Canada legalised ‘Medical Aid in Dying’ in June 2016, Australian state of Victoria legalised assisted dying in November 2017, an American state of Oregon introduced their ‘End of Life Options Act’ in 1997 and Hawaii is the eighth (and latest) American state that approved assisted dying earlier this year. Notwithstanding, of course, that over the years a Swiss suicide group ‘Dignitas’ has helped many terminally ill and severely paralysed people end their life in Zurich.

What happened in the Conway Case?

In view of the above changes in other jurisdictions, Noel Conway’s case may have looked hopeful. However the court expressed the view that there was no incompatibility between the two legislations.

In 2017, the court emphasised a “crucial distinction” between withdrawal of medical treatment which has ceased improving a patient’s wellbeing and the fact that Mr Conway “seeks to have steps taken actively to assist him to end his life”.

The court also examined the “blanket ban” on assisted dying in UK and its detriment or value to the society stating that there is, in fact, a “fair balance” and proportionality between section 2 of the Suicide Act 1961 and Article 8 of the Human Rights Act 1998.

In June 2018, the same outcome was reached in the appeal. During the proceedings, the court hinted that the question of assisted dying may be the one for the Parliament to debate and not the court but, considering that Guernsey has recently voted against legalising assisted dying, it seems somewhat unlikely that the UK Parliament will be changing its mind anytime soon.

Undeniably, however, the issue of assisted dying is gaining more and more exposure, and considering the recent Gosport scandal, MPs may feel compelled to think again about what it means to “keep [patients] comfortable”.

Appeal to the Supreme Court

Nonetheless, Noel Conway is not defeated yet as his lawyers are appealing his case to the Supreme Court and, following the recent decision in Re Y [2018], it will be interesting to see what the outcome will be.

In Re Y, the Supreme Court abolished the requirement for court to be involved when a decision to withdraw medical treatment needs to be made, as long as the family members and doctors are all in agreement.

However, the question of assisted dying has remained unchanged for decades. As mentioned, section 2 of The Suicide Act 1961 does not allow for assisted dying but does allow for people to refuse life-sustaining treatment.

Lasting Powers of Attorney

In recent years, a growing number of people have been granting Lasting Powers of Attorney (“LPAs”) for Health and Welfare in the event that they need someone to make medical decisions on their behalf, including decisions on refusal of life-sustaining treatment. However, such decisions can only be made if the person who granted the LPAs (the donor) has lost mental capacity and is therefore unable to make those decisions him or herself.

Pausing there, perhaps in the future LPAs can be extended to legalise assisted dying for those who are terminally ill yet mentally competent, because as medicine advances so should the law, and although the question of “whose life is it anyway” may always remain a colossal point of contention, a dignified death does not seem a wholly unreasonable request.

To find out more about Lasting Powers of Attorney for Health & Welfare (or Property & Financial Affairs) please call our offices at Haslemere, Petersfield, Liphook or Grayshott direct.