Terminally ill patient’s lawyer suggests framework for individuals with six months to live
11 January 2017
Lawyers for a man with terminal motor neurone disease have started judicial review proceedings claiming the government’s failure to amend the Suicide Act to allow assisted deaths unlawfully interferes with his article 8 rights.
Former social sciences teacher Noel Conway was diagnosed with the condition in November 2014 and is not expected to live beyond 2017. He relies on a ventilator for breathing at night and says he would prefer to finish his life surrounded by his family rather than travel to the Dignitas clinic in Switzerland.
Previous attempts to introduce assisted dying laws in the UK have failed but ‘a declaration of incompatibility with article 8 of the European Convention on Human Rights would force parliament to look at the issue again,’ the 67-year-old’s lawyer, solicitor Yogi Amin, told Solicitors Journal.
The Irwin Mitchell partner said the case will also propose a specific framework for patients suffering from a terminal illness who are within the last six months of the lives and medically certified as having capacity to make decisions.
The application is the latest in a line of cases seeking a change in the law, each with their own characteristics in respect of the applicant’s circumstances and the remedy sought.
In 2001, Diane Pretty sought assurances from the then director of public prosecutions, David Calvert-Smith QC, that her husband would not be prosecuted if he helped her take her life. He refused.
Pretty’s case went all the way to the European Court of Human Rights, where judges found the following year that her article 8 right had been engaged. The terminally ill motor neurone disease sufferer died a few weeks later.
Ten years later, Debbie Purdy brought proceedings seeking to force the director of public prosecutions to issue specific guidelines. The new DPP, Ken Macdonald QC, refused. It took Purdy a trip to the Strasbourg court, followed by a ruling in her favour in the House of Lords, for the next DPP, Keir Starmer QC, to do so in February 2010.
These guidelines, which identify the specific factors prosecutors should consider when deciding whether to prosecute under the Suicide Act, are still applicable today, although they were challenged in the Nicklinson case.
Tony Nicklinson was paralysed from neck down following a stroke and unable to take his own life, but his diagnosis was not of terminal illness. Nicklinson, along with two other patients also suffering from locked-in syndrome, Paul Lamb and a man known only as Martin, lost in the Supreme Court in June 2014. However, the justices suggested that the DPP guidelines would likely be further challenged and that a declaration of incompatibility would be increasingly likely.
Two years ago, Lord Falconer championed a bill that would have legalised assisted dying subject to a number of conditions. These included a requirement that the patient suffers from an incurable illness and has been diagnosed as having less than six months to live, and that doctors are involved in the process.
Introduced before the Commons by Rob Marris, Labour MP for Wolverhampton South West, it was defeated by a 330-118 vote in September 2015.
Since then, however, a number of jurisdictions, including California and Canada, have enacted right-to-die legislation, said Amin, arguing that this could have some influence on the executive and on the courts as to what can be put in place. ‘It feeds into the consideration of whether the current lack of arrangements would be incompatible with individual rights,’ he said.
‘Our application will bring evidence on what could be available in a new legal framework with clear criteria and safeguards; it’s what the Supreme Court in the Nicklinson case said would be needed.’
The proposed criteria would require the patient to be an adult suffering from a terminal illness with six months to live or less; medical evidence confirming they have capacity to make the decision; evidence that their wishes were informed, clear, settled, and voluntary; the involvement of a doctor; and possibly confirmation by a High Court judge that these criteria have been met.
The application’s admissibility is expected to be considered in early February, with a full hearing in the spring. It is being privately funded with the support of the charity Dignity In Dying.
A separate application by a couple known only as J and V is being financed partly by crowdfunding. J is suffering from an aggressive form of cancer but has not been diagnosed as terminally ill. It is unclear whether the case will be brought.
This story was first published on Solicitors Journal on 11 January 2017 and is reproduced by kind permission