12 April 2017

This morning the Court of Appeal granted Noel Conway permission to pursue a case challenging laws against assisted dying, on the basis that the current prohibition is a breach of people’s human right to respect for private life. This right includes protecting autonomy and exercising choice.

 

BIHR frequently works on end of life care issues, supporting people to understand how the Human Rights Act is relevant to the decisions they face, both in terms of delivering care and treatment, and in supporting people, families and advocates when they need to challenge those decisions. Most recently we have been working with Sue Ryder, and have developed a guide for end of life care workers to understand how human rights law can assist with making these difficult decisions. You can find a copy of the guide here.

 

In terms of Mr Conway’s case, he is bringing a judicial review challenging the part of the Suicide Act 1961 which prohibits assisting people to take their own life (this is currently a criminal offence). Mr Conway is arguing that the prohibition is not compatible with his human right to respect for private life, which is protected by Article 8 of our Human Rights Act 1998.

 

All other laws, whether passed before or after the HRA, should be compatible with the human rights it contains, if not people are able to ask the courts to review them. The courts can consider whether laws are human rights compliant, and if not then the higher courts can issue a declaration of incompatibility. However the law remains in place until parliament decides whether to pass a new law. This is called the “democratic dialogue model”; essentially judges interpret and apply law, parliament decides whether to change it or not.

 

The right to respect for private life covers a range of issues, including our ability to exercise choice and control over what happens to us. It is however, a non-absolute right, and so can be restricted provided officials can meet the three-stage test of the restriction being (1) lawful, (2) for a legitimate reason (usually to protect a person or the wider public), and (3) proportionate. These will be the issues that the High Court will explore when Mr Conway’s case is heard. Today’s Court of Appeal case reversed the previous High Court ruling on 30 March that the case could not proceed; now it will go back to the High Court for the full case.

 

For more information about how the Human Rights Act works check out our eBook Get with the Act.

 

For more information on human rights when accessing or delivering health and care services please visit our human rights in health care hub here.