A Critical Analysis of R (Conway)
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By Daniel Hodgkinson
Introduction
Physician assisted suicide1 (PAS) has returned to the United Kingdom’s judiciary in the recent High Court case Conway. This case is the latest instalment in a series of cases which have challenged the law relating to assisted dying for its alleged human rights violations. Unfortunately, by dismissing the claim, this latest opportunity for reform has not yielded any change in the law relating to PAS. The aim of this paper is to critically analyse the decision of the High Court in Conway and to argue that the court’s reasoning was unconvincing and, therefore, the judgment unsound. It is hoped that when the case proceeds to the Court of Appeal, Mr Conway’s appeal will be allowed.
The facts
The case concerns Mr Conway, a 67-year-old man suffering from Motor Neurone Disease (MND) which has caused him to gradually lose the ability to control his movement and requires him to use non-invasive ventilation (NIV) in order to breathe properly. Mr Conway petitioned the High Court to allow him the option of receiving an assisted death when he has a prognosis of six months or less live. The legislation standing in his way is section 2 of the Suicide Act 1961 (section 2) which makes it an offence to intentionally perform an act “capable of encouraging or assisting the suicide or attempted suicide of another person”. Section 2 is applicable to all forms of assisted suicide and thus includes PAS. Mr Conway’s claim is that section 2, constituting a blanket prohibition on PAS, is an unjustifiable interference with his right of respect for his private life guaranteed by Article 8 of the European Convention on Human Rights (ECHR), and given effect in the UK by the provisions of the Human Rights Act 1998 (HRA).7 As this interference is unjustifiable, he submitted that section 2 is incompatible with Article 8 and therefore requested the court issue a declaration of incompatibility under section 4 of the HRA.
The Judgment
It was uncontested that section 2 constitutes an interference with Article 8, having been confirmed by the European Court of Human Rights (ECtHR). Thus, this case hinged on whether or not section 2’s interference is justifiable within the meaning of Article 8(2). If section 2 is proportionate to a legitimate legislative aim, then it is compatible with Mr Conway’s Article 8 rights. To determine this, the court applied a four-point test of proportionality:
"(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?"10.The court answered in the affirmative to all four of these questions and dismissed Mr Conway’s claim of incompatibility.
The arguments of this paper
This paper will not challenge the answers given to points (a) and (b). For point (a), the court accepted the legislative aim of the protection of weak and vulnerable members of society who may find themselves at risk of abuse if section 2 were to be relaxed. This is a legitimate legislative aim which is why Mr Conway chose not to contest it. On point (b), the court held that there was a clear rational connection between section 2 and the aim of protecting the weak and vulnerable. Again, Mr Conway made no submission to the contrary. It is logical to suggest that a ban of PAS is rationally connected to the aim of protecting vulnerable people as it is the availability of PAS that causes a risk of abuse.
The points that will be challenged in this paper are points (c) - does section 2 do no more than necessary to accomplish its legislative goal? - and (d) - does section 2 strike a fair balance between the rights of the individual and the interests of the community? The first chapter, addressing (c), will argue that section 2 does more than necessary to achieve its aim of protecting the weak and vulnerable. Two points will be made to show this. Firstly, empirical evidence from jurisdictions where PAS is legal shows that the risk of abuse to vulnerable people is not as concerning as the court believed it to be. And secondly, as far as some risk does exist, a blanket prohibition is not the only legislative measure that could be taken to address the issue. Therefore, it cannot be said that section 2 is necessary.
The second chapter, addressing (d), will argue that the courts assessment of fair balance was misguided because it significantly undervalued the seriousness of the interference with the interests held by Mr Conway. Two points will be made to support this. Firstly, the court downplayed the significance of patient choice. Secondly, by employing Richard Dworkin’s theory of the distinction between experiential and critical interests, it will be demonstrated that the court did not understand the critical importance of Mr Conway’s interest in this case. The consequence of these two points was that the court incorrectly held that section 2 achieved a fair balance between the public’s and Mr Conway’s interests.
Finally, the importance of this case’s outcome in the domestic courts should be noted. History shows that, should Mr Conway be forced to pursue his claim to the ECtHR, it is unlikely he will find a remedy there because PAS is extremely contentious, invoking highly contested moral and ethical viewpoints, so it would be expected that the ECtHR will accord the United Kingdom a wide margin of appreciation to determine its own policy relating to PAS, and adopt a highly deferential approach towards the judgements of the UK’s domestic courts. Therefore, it is vital that the court’s reasoning is sound when it comes to dealing with the crux of this case - whether section 2 is a disproportionate interference with Mr Conway’s Article 8 rights. To that end, this paper will conclude that no such sound reasoning was employed. The court’s judgment that section 2 is compatible with Article 8 is unconvincing. Consequently, the court should have issued a declaration of incompatibility under section 4 of the HRA to that effect.
