High court rejects challenge to ban on assisted dying

A terminally ill former lecturer has lost a high court bid to change the law so that he can be given assistance to die at home surrounded by his family.

Noel Conway, 67, from Shrewsbury, was diagnosed with motor neurone disease in November 2014. His condition is incurable and he is not expected to live beyond 12 months.

Supported by the organisation Dignity in Dying, he has instructed lawyers to seek permission for a judicial review of the ban on assisted dying, which, he says, prevents him ending his own life without protracted pain. Assisted dying is prohibited by section 2(1) of the Suicide Act 1961 and voluntary euthanasia is considered murder under English and Welsh law.

Conway, who plans to appeal, was not in court in London on Thursday to hear Lord Justice Burnett and Mr Justice Jay rule that – by a majority decision – of two judges to one – he did not have an arguable case to go forward. A third judge, Mr Justice Charles, found for the applicant.

Responding to the judgment, Conway said: “I am very disappointed in the court’s decision not to grant my case permission to proceed. Though this is a setback in my fight for rights at the end of my life, I will not be deterred and will be appealing [against] this decision.

“I am going to die, and I have come to terms with this fact. But what I do not accept is being denied the ability to decide the timing and manner of my death. I am not prepared to suffer right to the end, nor do I want to endure a long, drawn out death in a haze of morphine.

“The only alternative is to spend thousands of pounds, travel hundreds of miles and risk incriminating my loved ones in asking them to accompany me to Dignitas [in Switzerland]. This would also force me to die earlier than I would want.

“The option of an assisted death should be available to me, here in this country, in my final six months of life – this is what I am fighting for. It would bring immense peace of mind and allow me to live my life to the fullest, enjoying my final months with my loved ones until I decide the time is right for me to go.”

Sarah Wootton, the chief executive of Dignity in Dying, said: “We are disappointed with the outcome of the hearing and of course will be supporting Noel in appealing this decision.

“The current law simply does not work and Noel would like the courts to examine the evidence in detail. Parliament has so far ignored the pleas of dying people like Noel and the overwhelming majority of the public who also support a change in the law on assisted dying for terminally ill, mentally competent adults in their final six months of life. And that is precisely why we will continue to fight for it.”

Conway and his lawyers have set up a crowdfunding website page to help cover legal costs. It has so far raised £75,000.

Yogi Amin, the head of public law at solicitors Irwin Mitchell, who represented Conway, commented: “The world has changed phenomenally in the past few decades with many medical advances, but the law on assisted dying for those who are terminally ill hasn’t changed for more than 50 years. Naturally we are disappointed, that by a split decision in the court, Noel has not been given permission to put forward his case in court but we will seek permission to appeal.

“Noel wants the law changed so that it respects an individual’s choice about dying with dignity. This situation is clearly traumatic for the individuals involved and their families who are often torn between not wanting to see their loved one suffer and also not wanting to lose them and we commend Noel for his bravery in bringing this important legal case.”

A separate decision on the case of a man identified only by his first name, Omid, who sought permission to join Conway’s case, is expected to be given at a later date. Omid is incurably but not terminally ill.

Giving reasons for refusing Conway’s application, Lord Justice Burnett said that the last time the issue was considered by the supreme court in 2014 the justices had asked parliament to reconsider the issue.
“Parliament has done precisely what the supreme court suggested was necessary,” Burnett ruled. “Having done so, it remains institutionally inappropriate for a court to make a declaration of incompatibility, whatever our personal views of how the underlying policy issues should be resolved.
“Had Parliament done nothing after the Nicklinson case the claimant’s case that permission should be granted would be unanswerable, however it might fare on further investigation. As a result of the continuing parliamentary attention, and renewed recent determination of the underlying issue, in my opinion the claim is unarguable and I would refuse permission.”