Appeal judges dismiss Conway bid

27th June 2018

'We do not consider that the approach or those conclusions of the Divisional Court can be faulted... [and so] we dismiss both the appeal and the respondent's notice'

Three senior Court of Appeal judges have upheld the Divisional Court's October 2017 judgment in the case of Mr Noel Conway, which found that the 1961 Suicide Act (amended 2009) was not incompatible with the European Convention on Human Rights (enshrined in UK law as the 1998 Human Rights Act). The case was brought against the Secretary of State for Justice, with Care Not Killing, Not Dead Yet UK and Humanists UK (formerly the British Humanist Association) intervening.

Sir Terence Etherton (Master of the Rolls), Sir Brian Leveson (President of the Queen's Bench Division) and Lady Justice King heard the appeal in May of this year. Counsel for Mr Conway had secured permission to appeal on seven grounds, but the Court of Appeal has delivered a clear repudiation of these:

'The Divisional Court concluded... that the prohibition in section 2 of the 1961 Act achieves a fair balance between the interests of the wider community and the interests of people in the position of Mr Conway... we do not consider that the approach or those conclusions of the Divisional Court can be faulted... [and so] we dismiss both the appeal and the respondent's notice.' (206-208)

Substantial reference was made in the course of the original hearing to expert evidence on palliative care put forward by CNK, and this is borne out in the text of the judgment, with references both to our witness Professor George and to CNK's principal arguments. CNK previously intervened at the High Court, and has also intervened in the case of 'Y' at the Supreme Court and in Nicklinson, Lamb and Martin at the Court of Appeal and Supreme Court.

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Ruling that the current blanket ban on assisted suicide achieves a fair balance between the interests of the wider community and the interests of people in the position of Mr Conway, the Court of Appeal fully upheld the Divisional Court's finding that

'It is legitimate in this area for the legislature to seek to lay down clear and defensible standards in order to provide guidance for society, to avoid distressing and difficult disputes at the end of life and to avoid creating a slippery slope leading to incremental expansion over time of the categories of people to whom similar assistance for suicide might have to [be] provided... we find that section 2 (right to life) is compatible with the Article 8 rights (private and family life) of Mr Conway. We dismiss his application for a declaration of incompatibility.'

The objectives of this ban are not limited to the protection of the weak and vulnerable, but also include respect for the sanctity of life and the promotion of trust between patient and doctor in the care relationship.

In British Parliaments there have been over ten attempts to change the law on assisted suicide since 2003, all of which have failed. The most recent legislative challenge to the law on assisted suicide was the Marris Bill in the House of Commons, which was defeated by the huge majority of 330 to 118 in September 2015. Members of Parliament, just like every major doctors' group and disability rights groups expressed concerns about public safety, the failure of safeguards in the handful of places that have assisted suicide or euthanasia and the discriminatory message removing universal protections, from the sick, elderly and dying would send.

Dr Peter Saunders, Campaign Director of Care Not Killing commented:

'This sensible decision by the Court of Appeal yet again recognises that the safest law is the one we already have - a complete ban on assisted suicide and euthanasia. Our laws deter the exploitation, abuse and coercion of vulnerable people, who as we have seen in the US States of Oregon and Washington often cite feeling they have become a financial, or care burden as the reason for ending their lives.

'We hope that those who have been campaigning to remove these important and universal protections from the disabled and infirm accept this ruling. It is now time for them to move on and turn their attention instead to how we can secure equality of access to the very best health care for all. This must include palliative care and mental health support, because we know when the physical, psychological and spiritual needs of patients are met, there is no pressure for change.'

Mr Conway's legal team immediately announced their intention to bring a further appeal before the Supreme Court.