Assisted dying: Will the UK ever alter the law?

Yesterday’s Supreme Court decision suggests not

Yesterday the Supreme Court published its decision to reject the granting of permission for Noel Conway to bring his case to the Supreme Court. Another nail has been hammered into the coffin on altering the UK’s law on assisted dying. The three justices (Lady Hale, Lord Reed and Lord Kerr) stated that “not without some reluctance, it has been concluded that in this case those prospects are not sufficient to justify giving permission to appeal.”

Conway is a sufferer of motor neurone disease, a neurological condition which attacks the nerve cells responsible for controlling voluntary muscle movement. He was diagnosed in 2014 and is now in a wheelchair and possesses very little ability of movement below his neck. Dependent on a ventilator almost permanently, his muscles continue to degenerate and he finds it increasingly difficult to breathe. The former lecturer’s case concerned the UK’s laws on assisted suicide and how it should be legalised in certain circumstances.

The UK currently holds under s2 of the Suicide Act 1961, that a person will be committing an offence if they “encourage or assist the suicide or attempted suicide of another person.” So, while suicide itself is no longer a criminal offence, the input of others will be prosecuted. This subject has been, for years, up for considerable debate.

Advocates of legalising assisted dying often invoke arguments of allowing anyone who is suffering from a terminal illness should be given the right to decide how they may die. They should be given the opportunity to decide how and when they will die. For many individuals suffering from such illnesses they are often unable to commit the act of suicide themselves, and require the assistance of perhaps their partner or loved ones. As the current law stands, the patients loved ones may be prosecuted. This can include for example, aiding them to travel to Switzerland or another jurisdiction where assisted suicide is legal.

Prior to the Conway litigation, it was accepted “that any right to die is contained within the right to respect for private and family life contained in Article 8” of the European Convention on Human Rights. Yet, each previous decision has been unsuccessful due to the establishment that “any interference with that right is necessary in a democratic society for the purpose of preventing crime and protecting the rights of others.” Courts have been hesitant to declare the law incompatible because it believes it could harm the vulnerable. This was reiterated in Nicklinson v Ministry of Justice where the Supreme Court asserted that parliament was the correct body to legislate on this issue.

Conway pursued a line of cases disputing this law. He sought to be allowed help to die when he has less than six months to live and still has the mental capacity to make the “voluntary, clear, settled and informed” decision. He currently holds the common law right to end his own life by refusing consent to the continuation of his non-invasive ventilation (NIV) which helps him breathe.

However, he was concerned that he does not know how he will feel if his NIV is withdrawn and wanted to die in a dignified manner at a time of his own choosing. In July 2017, Conway and his legal team sought judicial review of the current law and “a declaration of incompatibility with his rights under the ECHR” and proposed that “assisted dying should be available to people aged 18 and above, who were of sound mind, with fewer than 6 months to live, and that each application should be reviewed by a High Court judge.”

In October 2017, this application was rejected by the High Court and then in January 2018 his challenge of that decision was rejected by the Court of Appeal. The decision by the Supreme Court to not hear his case in full means that it cannot proceed any further, and his efforts of altering the law on assisted suicide are lost.

Assisted suicide is a topic which emotes various ethical and moral dilemmas. Other jurisdictions such as the Netherlands and Switzerland have legalised euthanasia and assisted suicide. The State of Oregon has also legalised assisted suicide under their Death with Dignity Act in 1997. Why should the UK not legislate on this issue? Is it not the right of a terminally ill patient to autonomously decide when to die? As Barnoness Blackstone contended in the House of Lords reading of the 2014 Assisted Dying Bill:

“If we respect human rights, we should not deny those who know that they are dying the right to bring their lives to a more rapid end to alleviate their misery.”

It is likely that Conway will now turn to petition for parliament to alter the law, as it appears that the courts have provided no solace on this issue. However, the likelihood of parliament legislating on this issue is a slim one. In 2014, Lord Falconer attempted to pass the Assisted Dying Bill — this was rejected. The bill was resubmitted and again rejected in 2017. Opponents of the bill indicated reasons such as violating the sanctity of human life, that it places undue pressure on those believed to be vulnerable and that it could lead to a high proportion of terminally ill patients requesting death. It is a highly contentious issue.

Prior to Conway, it had been four years since the Supreme Court had heard a case on this issue, since Nicklinson. Perhaps not enough time had passed in order for the justices to come to a different conclusion. So, given case law history and rejected legislation on this issue, it is unlikely that the law will change any time soon.

Emma Diack is a postgraduate student at King’s College London studying medical law. She recently completed her undergraduate law degree at the University of Warwick and has a passion to pursue sectors of law ranging from commercial to family.