Case note: R (on the application of Conway) v Secretary of State for Justice (27 November 2018)2
The topical issue of assisted dying (“AD”) has shadowed over medical law and human rights law with numerous considerations, including the need to respect the patient’s right to family life and safeguarding the sanctity of life.3 Since the Supreme Court’s seminal decision in R (on the application of Nicklinson) v Secretary of State of Justice,4 the spotlight is placed on the respective institutional appropriateness of the courts and Parliament in addressing AD. The recent Conway litigation (since 2017) has reignited optimism of a right for terminally ill patients to AD. However, the Supreme Court’s rejection of permission to appeal5 has unsatisfactorily extinguished the optimism. This Note analyses the Supreme Court’s approach to the contentions underlying the right to AD and its balancing exercise, arguing that it is incoherent and fails to articulate succinctly its own approach. The Note will also briefly examine the wider human rights law implications of the rejection in the medical law context. It will be argued that the Supreme Court’s rejection is an unfortunate submission to the authority of the Parliament, and fails to live up to the optimism given by Nicklinson.
Factual and legal backgrounds
Mr Noel Conway is 67 years old and has terminal motor neurone disease. In contrast to Nicklinson, Mr Conway’s disease is a terminal illness. Mr Nicklinson’s locked-in syndrome, whilst resulting in total paralysis, does not threaten him with imminent death. Medical evidence shows that it is possible for his breathing muscles to collapse, meaning he could die at any time. He wishes in the final six months of his life to enlist the assistance of a medical professional to bring about his death. Mr Conway sought permission to appeal for judicial review to argue for a declaration of incompatibility (“DOI”)6 that the offence of assisted suicide7 disproportionately infringed his Article 8(1) ECHR right. Section 2(1) SA criminalises those persons who commit an act capable of encouraging or assisting the suicide or attempted suicide of another person, and their act was intended to encourage or assist suicide or an attempt at suicide.
Since the decisions of the Supreme Court and the European Court of Human Rights (admissibility stage), the Parliament has considered the question of a right to die for gravely ill patients. However, all three private members bill were rejected. That being said, there were intense parliamentary debates during the second reading of the Bill.8
Refusing the application for judicial review, the High Court noted “the difficulty of formulating a clear and reliable criterion for who is to qualify as terminally ill under the scheme…is a factor of some relevance as indicating again the difficult legislative nature of the choices to be made in fashioning any such scheme.” Given such lack of clarity, it is legitimate “for the legislature to seek to lay down clear and defensible standards in order 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 of suicide might have to be provided.”9 It also took note of the Parliament’s decision to maintain section 2 as it is,10 despite the Nicklinson ruling.
In the Court of Appeal, the court made explicit notice of the moral and ethical issues underlying a right to AD.11 The implications arising from Mr Conway’s scheme, including the inquisitorial role of a judge and the potential for expansion to non-terminal diseases, are “wide-ranging policy issues”12 and that the Parliament is “a far better body” for determining “conflicting, and highly contested, views within our society on the ethical and moral issues and the risks and potential consequences of a change in the law…“13 This reflects the similar concerns the Supreme Court had in Nicklinson, albeit in a different context.14
The question posed before the Supreme Court was whether Mr Conway’s case raises an arguable point of law of general public importance which ought to be heard by the court.
The court’s confusing approach to the balance between “letting someone die” and “taking active steps to bring about their death”
The Supreme Court began at 6 by distinguishing between “letting someone die” and “taking active steps to bring about their death.” It then noted the contribution of the HRA to the distinction and the debate around it: “All are agreed that the ban on assisting suicide is an interference with the right to respect for private life.” It also correctly noted that there is no European consensus on the matter. This is reflected in the ECtHR judgement in Nicklinson v United Kingdom that contracting states are free to determine “which of the three branches of government should be responsible for taking policy and legislative decisions which fall within their margin of appreciation and it is not for this Court to involve itself in their internal institutional arrangements.”15 Furthermore, the Supreme Court noted that the ultimate question is “whether the prospects of Mr Conway succeeding in his claim…are sufficient to justify to justify our giving him permission…“16
In a somewhat surprising turn, the Supreme Court conclusion is vague and unsatisfactory without addressing the key questions it posed in the order’s foregoing paragraphs. In paragraphs  and , the Supreme Court noted that the question is whether an “arguable point of law of general public importance” is raised, the appropriateness of a “hard and fast rule”17 banning all cases of AD, and the possibility of a DOI if the said “hard and fast rule” is incompatible with the ECHR In dodging the issue raised, the Supreme Court merely concluded that “not without some reluctance, it has been concluded that…those prospects are not sufficient to justify giving permission to appeal.”18 In light of the court’s recognition that AD raises arguable points of law,19 the court’s conclusion on the lack of sufficient prospects throws such recognition into doubt in the first place. The legal and moral conundrums surrounding AD have been well-recognised by the Parliament, domestic courts and the Strasbourg court. The clear distinction in terms of context between Nicklinson and the Conway litigation led to a sharp focus on the permissibility of AD for patients with not ordinary, but terminal illness.
More disconcerting is the dissonance between the court’s wide considerations and its hasty conclusion. The considerations the court set out include: (i) the moral and practical implications of AD, (ii) the role of the HRA, (iii) the nature of “a hard and fast rule,” (iv) the interplay between courts and the Parliament, and (v) the role of courts in case of finding (on a principle-level) the inappropriateness of a hard and fast rule.20 Despite neatly and correctly observing the relevant concerns in the AD debate (particularly in light of Nicklinson), the conclusion of a lack of prospect does not reflect the nature of the considerations mentioned. The dissonance is twofold. Firstly, it is not clear how the factors are weighed against one another in the Supreme Court’s deliberation. Some of the factors, for example (i) and (iii), are legal questions marred with significant moral considerations.21 Others, however, are questions of constitutional law posed in response to the legal-moral consideration raised by factors (i) and (iii). The notion and meaning of “prospect” in the present case do not appear well-substantiated enough to justify the refusal of appeal. Secondly, and more seriously, it throws the standard and criteria for a successful appeal into doubt. Given the obvious general public importance of the issue, it remains unclear what factors tilted the courts towards rejecting the permission. Although the court is only required to give “brief reasons” for refusing an appeal,22 no such brief discourse of the factors was mentioned. This leaves the deliberation of the judges and reason for refusal in a mystified state.
The broader implications of Conway
On the surface, the prospects appear dim: the Nicklinson litigation (including the ECtHR decision) firmly established the role of the Parliament in deliberating and devising a framework for AD; the Conway litigation showed that even for patients with terminal illness, palliative care is the only viable option for them; the Parliament has also rejected (on three instances) private members’ bill for AD. Commenting on the Supreme Court’s decision in Nicklinson, Wicks noted that the reluctance to declare the existing law as incompatible is a “worrying new approach to the courts’ powers under the HRA.”23 This worry, whilst potentially unrealistic back in 2014, appears a more understandable perspective in light of the Supreme Court’s rejection. Moreover, given the intense nature of the parliamentary debates on the AD Bills and topical nature of AD, it is submitted that it is institutionally appropriate for the Supreme Court to take a more active approach. By issuing a DOI under section 4 HRA, it can engage with the Parliament in an institutional dialogue on such an issue. Although the nature and usefulness of such dialogue are beyond the scope of this Note,24 such possibility should not be dismissed without detailed considerations in the first place. It should be highlighted, however, that a meaningful dialogue would at least require the Parliament to take into account the reasons underlying the DOI when it debates on any legislative amendments or enactments.
The key question left by Nicklinson, and arguably unresolved by Conway, is whether the Parliament is required to have “satisfactorily addressed” the question of relaxing or modifying section 2(1) SA 1961. Although the Director of Public Prosecutions, in a new set of guidelines published as a result of the Nicklinson litigation, stated that medical practitioners will not be prosecuted if it administers palliative care ultimately leading to the patient’s death. The right to AD itself was still scarcely scratched upon. What Conway does, apart from the legal conundrums presented above, is a comprehensive framework for patients who wish to exercise a right to AD. In particular, the framework recommended very strict requirements for such right to be exercised: (i) terminal illness with less than six months to live, (ii) Informed, settled and voluntary consent given by the patient, and (iii) evidence of mental capacity. Although a sophisticated framework cannot be devised by the courts, it is nevertheless possible for Parliament to consider at least discussing a proposal of a similar kind.
The highly contentious nature of AD logically implies that it is an issue that cannot be resoundingly settled in a short period of time. Given the topical interest Conway (and Nicklinson) have generated, it is submitted that courts and parliament should adopt a more active stance articulating the boundaries of such right. The Supreme Court’s refusal of permission to appeal, however, is an unfortunate step back for respecting the right to private and family life for terminally ill patients. It leaves them in a state of potential despair with their dignity jeopardised by the illness they have to suffer.
 Unlike other case notes, given that Conway litigation raises similar questions and concerns with the previous Nicklinson litigation, this case note will make frequent reference to Nicklinson in order to emphasise why the refusal is particularly unfortunate in light of the Supreme Court’s decision in Nicklinson.
 Respectively, Articles 8 and 2 of the European Convention on Human Rights (“ECHR”).
  UKSC 38.
 R (on the application of Conway) v Secretary of State for Justice (27 November 2018).
 Section 4(2), Human Rights Act 1998 (“HRA”).
 Section 2(1), Suicide Act 1961 (“SA”).
 C Hobson, “Is it now institutionally appropriate for courts to consider whether the assisted dying ban is human rights compatible? Conway v Secretary of State for Justice” (2018) 26(3) Medical Law Review 514, 523.
  EWHC 2447 (Admin), .
 Ibid .
  EWCA Civ 1431, -.
 Ibid .
 Ibid .
 Two major factors distinguish Nicklinson and Conway: (i) when Nicklinson was before the Supreme Court, the Parliament was debating on an AD bill; (ii) Nicklinson concerned non-terminal illness (locked-in syndrome), while Conway concerned terminal-illness (Motor neuron disease).
 Nicklinson and Lamb v United Kingdom(2015) 61 EHRR 97, .
 (n 4) .
 Ibid, .
 Ibid .
 Ibid .
 Ibid. Factors (i) to (iii) are discussed in [6[; factors (iv) and (v) are considered in .
 This means that whilst the factors are prima facie legal questions, a satisfactory answer would necessarily have recourse to moral considerations. For example, the question of the appropriateness of a “hard and fast rule” in the present context would inquire upon the weight to be given to moral considerations over, for example, the dignity of the terminally-ill patient. For further references, please see “Law” in R Dworkin, Justice for Hedgehogs (HUP; Cambridge, 2011), which argues that there is a necessary conceptual connection between law and morality.
 Supreme Court practice direction 3.3.3.
 E Wicks, “The Supreme Court Judgement in Nicklinson: One step forward on assisted dying; two steps back on human rights” (2014) 23(1) Medical Law Review 144, 154.
 For readers are interested on this issue, the following cases and the related parliamentary reactions are recommended: Hirst v United Kingdom (No.2) (2006) 42 EHRR 1; R (F) Secretary of state for the Home Department  UKSC 17; R (Prothero) v Secretary of State for the Home Department  EWHC 2830 (Admin).