Case Analysis: Conway v. Secretary of State for Justice [2017]

This case study analyzes the legal dispute in Conway v. Secretary of State for Justice [2017] EWCA Civ 275, focusing on the right to life and assisted death. The case involves Mr. Conway, who, facing a terminal illness, sought to end his life with medical assistance. The analysis delves into the legal arguments, referencing the Human Rights Act 1998 and key precedents like Airedale National Health Service Trust v Bland and R (Nicklinson) v Ministry of Justice. The study examines the concepts of passive euthanasia, the mental state of the individual, and the ethical considerations surrounding a person's right to choose their own death. The document explores the legal implications of assisting suicide, the role of medical professionals, and the importance of consent in such cases. The analysis also touches upon the application of the Suicide Act 1961 and the Coroners and Justice Act 2009, along with the ethical issues raised by the right to live versus the right to private life under the European Convention on Human Rights. The case study highlights the complexities of balancing individual autonomy with legal and moral frameworks surrounding end-of-life decisions, particularly in cases of terminal illness and vegetative states.

Dispute formation
R (Conway) -v- The Secretary of State for Justice [2017] EWCA Civ 275
This case was an application for appeal against a decision of the divisional court. It
sought an order in light of the Human Rights Act, 1998. The case was based on a contention
relating to the right to life. Mr. Conway, aged about 67, was diagnosed with a disease relating to
his motor functions1. Such a condition limited his life expectancy to a maximum of 18 months.
This thus means that before the expiry of the term of 18 months he would no longer be alive. His
movement was also severely restricted due to the disease and it placed him in a position where
he would need the aid of a wheelchair to move freely. Despite having the wheelchair he would
still require assistance from people to function2. He also was on the verge of respiratory failure.
He has also been informed that if such a respiratory failure occurs then he would have to face
death immediately. His breathing was also supported at that time through medical equipment
(ventilator) and if the same was removed he would only have weeks to live.
Under such circumstances Mr. Conway wished to die with dignity and equated it to
ending his life on his own terms. He thus applied to the medical profession to remove the
equipment that kept him alive resultantly giving him the death that he requested for. It must also
be noted that his family was in support of his decision and thus this death would be an entirely
conscientious decision3. He would however have to have legal approval before such a step could
be undertaken by the medical profession (or the professionals aiding his current situation). This
scenario is amply similar to the case of R (Nicklinson) v Ministry of Justice (CNK Alliance
1 Cox, Karen, et al. "Public attitudes to death and dying in the UK: a review of published literature." BMJ supportive
& palliative care 3.1 (2013): 37-45.
2 Halstead, Peter. "Key Cases Human Rights." (2013).
3 Breau, S. (2016). The Right to Life of detainees in Armed Conflict. The Right to Life and the Value of Life:
Orientations in Law, Politics and Ethics, 143.

Limited and Others Intervening) [2014] UKSC 38 which was adjudicated by the Supreme
Court4. In this case however the court adjudicated that such a step would not be appropriate. The
Supreme Court also reiterated in that case that providing for such exceptions statutorily would
also not be feasible5. Thus a precedent would have to be made regarding this to ensure that such
cases can be dealt with through ejus dem generis6.
Here the ultimate issue that arose was the liability of a person who assists in such a death
after it has taken place. In the absence of statutory provisions to the contrary it would amount to
assisting suicide which is aiding and abetting of a crime specifically set out in the penal
framework. Thus a person engaging in such an activity, despite it being consensual and
conscientious decision, would still be aiding and abetting a crime and would thus face criminal
liabilities as prescribed by the penal law of the land. This case would thus have to determine if
such a decision can be endorsed. The mental state of the person would also have to be considered
in light of the issues before the court. This is because a person choosing to opt for death in an
improper mental state would not be effectively making a conscientious decision. This also means
that the first and foremost consideration would be if the decision is in fact consensual as per the
provisions of law. This debate is what sparked the entire debate and thus the contention that
assisted death would be aiding and abetting suicide. This is the dispute that was to be decided by
the court and the fact discussed above gave rise to the formation of the dispute.
Airedale National Health Service Trust v Bland [1993] AC 789
In this case the primary issue to be decided by the court was if a person who is currently
a patient and is existing in a vegetative state can the same person consent to his own death. This
4 Brazier, Margaret, and Emma Cave. Medicine, patients and the law. Oxford University Press, 2016.
5 Gardner, Simon, and Emily MacKenzie. An introduction to land law. Bloomsbury Publishing, 2015.
6 Yoo, Christopher S. "Wickard for the Internet-Network Neutrality after Verizon v. FCC." Fed. Comm. LJ 66
(2013): 415.

is because when in a vegetative state the mental capacities of a person are ideally affected and
thus the mental condition is a factor that has to be considered when deciding if a particular death
occurred due to a conscientious decision or if it arose from a state of mental instability. A person
“Bland” was injured severely in the Hillsborough disaster and thus the person remained in a
vegetative state. This state ensured that his mobility was practically null and he was surviving on
majorly medical equipment7. Bland was able to breathe on his own but required human
intervention for activities such as eating and other bodily functions. He remained on support of
these equipments for two years. He received full care for his condition, however, the state of his
condition degraded his quality of life to a position where he could no longer wish to stay alive.
The doctors tasked with treating Bland has received approval for assisting his death, this would
be administered by removal of the tube that fed him. This was however appealed before the
house of lord and that is the crux of the case before us. The case here is if a person who longer
has the quality of life to be considered a living person would be entitled to end his life. The court
has answered in the affirmative and has stated that a person who was no longer physically able to
function normally but was mentally capable in making a decision regarding his life the person
would be entitled to decide if he could opt for death8. In such a case the assisted death would be
valid and no claims of aiding and abetting suicide would arise. This means that the person
administering such a step would also be absolved of any responsibility for the formation of the
same9. Thus the facts of the case make it evident that the crux of the dispute is if assisted death
can be endorsed in exceptional case and if so the parameters that need to be considered in
making this case10. The most effective consideration here is the duty of care that treating doctors
7 Mason, Kenyon, Graeme Laurie, and Alexander McCall Smith. Mason and McCall Smith's law and medical ethics.
Oxford University Press, 2013.
8 White, S. M. "Ethical and legal aspects of anaesthesia for the elderly." Anaesthesia 69.s1 (2014): 45-53.
9 Melia, Kath M. "When the body is past fixing: caring for bodies, caring for people." Journal of clinical
nursing 23.5-6 (2014): 616-622.
10 White, S. M. "Ethical and legal aspects of anaesthesia for the elderly." Anaesthesia 69.s1 (2014): 45-53.

have towards their patients and the extent to which such a doctor’s liability extends in such
circumstances. Bland appealed the decision through his solicitors and the appeal is the case we
are considering presently.
The main argument of the case is based on the legal approach of passive euthanasia.
According to Lord Goff, passive euthanasia is illegal according to the provision of common law.
However, the matters of application of euthanasia are an apple of discord. There are certain
arguments take place regarding the matter that whether it is morally or legally right to terminate
the life of a patient or not. According to the legal scholars, where in a case the medical experts
have given their consent that the patient has gone into the persistent vegetative state and there is
no chance for him to be recovered in the near future, all the medical treatment can be stopped
and his life can be terminated. The word “persistent vegetative state” means a condition where
the patient is surviving through medical instrument only and he will be died if the entire medical
instrument stops working. In that stage, the patient is unable to take up any decision or he could
not make any sense in their present state. According to Steven et al. (2010), “Persistent
vegetative state” may happen due to brain death or traumatic injury. The most complex part of

the matter is to identify whether the medical treatment of the patient should be continued or all
the medical supporting stuffs should be closed to terminate the life of the patient.
A lifelong discussion has been going on regarding the matter and a solution to this has
been made in the case of Airedale National Health Service Trust v Bland11. In this case, Lord
Goff has attempted to interpret the ideology of passive euthanasia and has stated that in case the
possibilities of recovery could not be sustained and there was no fault from the part of the
medical treatment observed, the life of the patient can be terminated. Further, in this case, he has
stated that the medical experts should have to do their best to secure the interest of the patient
and if it has been proved that no positive outcome has been derived from the treatment, the
experts can make a justified application before the court to terminate the life of the patient.
According to Lord Goff (1993), “to cross the Rubicon which runs between on the one hand the
care of the living patient and on the other hand euthanasia - actively causing his death to avoid or
to end his suffering”? In this case, ethical decisions should be taken to come into an effective
end.
The subject matter of the present case is based on get proleptic permission for suicide and
whether the patient can get the right to end their life by way of committing suicide. According to
section 1 of the Suicide Act 1961, no person is allowed to end his or her life and if he has
attempted to do it, he will be held liable under criminal Act. In this present case, Mr. Conway has
made a claim that provision of criminal liability will not be applied on the suicide case where the
patient is suffering from an incurable disease. According to section 4 of the Human Rights Act
1998, attempt to suicide could not be prohibited under the criminal law. Further, according to
section 2 of the Coroners and Justice Act 2009, a question of criminal offence takes place where
11 [1993] AC 789

an act of a person encourages others to commit suicide, it will be treated as criminal offence.
However, if a patient wants to conclude his life due to vegetative disease, it should not regarded
as criminal act. In R (Pretty) v Director of Public Prosecutions12, a patient wants to end her life
by the help of her husband. It has been held by court; in this case, the husband can face criminal
trials, as his act encourages the patient to commit suicide.
There are certain ethical issues cropped up regarding the case of passive euthanasia. It
has been observed by Mr Strachan QC that right to live is the basic right of the individual and no
adverse situation could be permissible under the law regarding terminate the life of the
individual. However, in the words of Mr. Gordon QC, the provision of right to live opposed the
provision of right to deal with the private life as stated under section 8 of the European
Convention on Human Rights 1998. According to this section, any person has the right to take all
the relevant decisions about their private life and there should be no interference from the public
authority to make any intervention regarding the process. however, it has been established in
Nicklinson v United Kingdom13 that right to death under section 8 of the European Convention
on Human Rights 1998 applies only when the person could take all the relevant decisions by
him. However, in case where a patient is suffering from traumatic diseases and he is not in a
condition to do the same, the provision of section 8 will not be applied on them.
According to Professor Christiana Faull, the medicinal experts should have to take
palliative action or care in order to treat the patient with incurable diseases. It is the duty of the
doctors to act for the best interest of the patient. All the necessary requirements are to be
followed in this regard. However, in certain circumstances, the medical treatment becomes
irrelevant for the patient and it is ethical to claim for terminating the life of the patient at that
12 [2001] UKHL 61
13 (2015) 61 EHRR SE7

moment. Similar principle has been observed in the case of Airedale N.H.S. Trust v Bland 14
where the court has observed that where it is medically and legally ethical to terminate the life of
the patient, order for death could be given. It has further been observed in this case that where it
is certain that there is no prospect of improvement of condition for the patient, it is quite ethical
to terminate the life of the patient and this act could not be regarded as illegal. Further, the
British Medical Institute has produced a full report on that basis. According to this report (2015),
“the majority of doctors thought there would be professional and emotional impacts on doctors if
physician-assisted dying were legalised and the majority of the impacts identified by them were
negative; many doctors did not see being involved with physician-assisted dying as compatible
with their understanding of their fundamental role and remit as a doctor.” Supports have been
generated from the part of the Doctors too and they have given their consent over the issue of
passive euthanasia. Further, according to the words of Alfred Tennyson, “No life that breathes
with human breath has ever truly longed for death”. Further support has been given by New
England Journal of Medicine where it has been observed that the life of the patient on bed are
quite unbearable, right to death should be applied. Further, with the view of Airedale’s case, it
can be stated that if the condition of the patient is deteriorating and there is no chance for
survival, it is quite ethical to terminate his life.
As observed from the case of R(Conway) v Justice Secretary (DC) [2018] 2 WLR 322, the facts
of this narrate the basic fact that every individual must have the right to life. As argued in this
case, Mr. Conway had forwarded the outline of the alternative statutory scheme where he stated
that he wanted to safeguard the legitimate interests of the vulnerable individuals of the society.
The criteria of Mr. Conway stated that there are relevant prevention on producing assistance for
14 [1993] A.C. 789

the process of suicide will not be applicable. The chief facts of this case highlighted the only
major concept of right to life. Such a right was given based on the facts that took place in the
case of Airedale NHS Trust v Bland [1993] A.C. 789. However, there was an alterative statutory
that was introduced by Mr. Conway in this particular case. This alternative statutory was
considered to be equivalent to the Bill, which was established in the Parliament by Lord Falconer
of Thoroton15.
It was observed and argued on the situation when this Bill did not receive any kind of
support from the Parliament and hence, it did not become law. The major and issues that arose in
this particular case when an individual becomes unconscious does not have the ability to make
the significant choice regarding the matter of receiving life-sustaining medical treatment. It all
depended and varied on the situation of the person who needs the medical treatment. In this
scenario, the leading authority was referred to the case of Bland16. According to the House of
Lords, the life-sustaining treatment for the patient or the individual in a importunate vegetative
state could be terminated. This will thereafter result in a situation where he can die. As per the
law, it was later argued that it forbids the process of taking possible measures to reduce the life
of an unwell patient. Terminating the patient will not result in violating the prevention. However,
in few such circumstances of this case, the treatment related or engaged to this had involvement
of manipulation of the patient where his own consent was not provided17. This will not be treated
as the benefit in these circumstances if the consent is not provided. It was further noticed and
15 Huxtable; Law, Ethics and Compromise at the Limits of Life: To Treat or Not to Treat by Richard Huxtable."
(2015): 309.
16 Silvers, Anita, Rosamond Rhodes, and Margaret P. Battin. "Introduction." Physician Assisted Suicide. Routledge,
2015. 1-8.
17 Paterson, Craig. Assisted suicide and euthanasia: a natural law ethics approach. Routledge, 2017.

observed that the patient who was unwell and living and euthanasia caused the death to ignore
the end of suffering.
From the facts of this case, it can therefore be stated that even if the individual is ill or
unwell he will have the ability to use the right to life. According to the case of Airedale NHS
Trust v Bland, the issues and facts can be applied in the case of R(Conway) v Justice Secretary.
The basic issue of this case deals with ending of medical treatment in absence of informed
consent18. The issues related to this case study stated that a patient who was in a vegetative state
will not be able to keep back the consent for the treatment. It required the doctors to carry out
their activities in the interests of the patient. The doctors must show concern and care for the
betterment of the patient, which in this case was whether there will be continuation of Band
reviving or surviving on life support. It was therefore significant enough to comprehend in this
scenario that if the medical life support is not provided to the patient then the person who will
not be able to produce the medical professionals with informed consent on a specific issue will
not survive19.
The facts thereafter that existed based on the issues stated that Bland was noticed being
harmed when he was not even an adult and thus was left in a vegetative state to survive. It was
further observed more that he kept surviving based on the medical support of the machines.
There was no sign of improvement whatsoever. By witnessing such condition of Bland, the
doctors asked for his approval for removing the tube that helped to feed him. At the end it was
stated and held that the doctors have a duty to act as per the best interests of their patients.
18 Tuffrey-Wijne, Irene, et al. "Euthanasia and assisted suicide for people with an intellectual disability and/or autism
spectrum disorder: an examination of nine relevant euthanasia cases in the Netherlands (2012–2016)." BMC medical
ethics19.1 (2018): 17.
19 Clarke, Ronald V. Suicide: closing the exits. Routledge, 2017.

However, this does not necessarily oblige them to prolong life20. Based on this, it was noticed
that there was no chance of improvement in such a case. The treatment therefore that was
received did not end up in the best interest of the patient. Hence, after reviewing and observing
the facts and issues of the case, it can therefore be stated that the case of Airedale NHS Trust v
Bland is applicable in the case of R(Conway) v Justice Secretary. The common factor between
the cases is the concept of right to life21. When a patient is in a vegetative condition or states his
consent is required before taking any kind of decision. It was lawful to note that without the life-
extending treatment which was the food that Bland was being fed through a tube. Therefore, the
appeal got dismissed.
According to the facts of the case, it can therefore be applied that the concept of right to
life is appropriate in such a situation. If this right of the patient is applied, then he will not have
to face any kind of trouble in a vegetative state. Being in a vegetative state is generally not
possible for an individual to give consent to the doctors regarding his treatment. However, it can
be observed that the right to life of a patient must be utilized in such circumstances. It puts
pressure on the patient when they have to give consent by being in unbearable pain. During that
level of pain it is not possible for a patient to give his consent regarding the treatment22. It was
agreed on the decision that it becomes stronger when the other existing aims are brought into the
account. The Parliament was entitled in maintaining such a position that prevents individuals
from assisting the person who will be committing suicide. Maintaining section 2 helps in
promoting trust between the patients and the doctors. This particular case sets out the evidence
20 Chambaere, Kenneth, et al. "Recent trends in euthanasia and other end-of-life practices in Belgium." New
England Journal of Medicine 372.12 (2015): 1179-1181.
21 Vaughn, Lewis. Doing ethics: Moral reasoning and contemporary issues. WW Norton & Company, 2015.
22 Brazier, Margaret, and Emma Cave. Medicine, patients and the law. Oxford University Press, 2016.

where the relationship of trust between the doctor and patient23. The purpose of this is to
safeguard and reinforce the trust of relationship.
Therefore, it can be argued stating that right to life must be exercised for the patient who
is undergoing a medical treatment. On the other hand, it was argued that Mr. Conway was not in
the state to live anyway and was expected to die soon24. Both the cases dealt with the medical
condition of the patients and their consent. However, the duty of the doctors is to take care of the
exiting patients. As per the Human Rights Act, right to life is the duty of every individual.
In the light of the above discussed case laws, it can be concluded that there is no need to
apply for judicial review and the reasoning behind that is, because Parliament has already in its
earlier submissions reconsidered the issue of assisted dying. Following the case of Nicklinson,
the court was also of the view that there are certain conditions when assisted dying can be
considered25. If an assisted dying is legalized, there might be a relaxation of the strict application
of section 2(1). As stated in the earlier cases, a duty of care was believed to be existing in the
roles that the doctors play in the society. The doctors are deemed to have a duty towards the
patients and the duty entails that he shall take care of the patients to the best of his capabilities. It
was further buttressed with reasoning that the duty of care to ensure that patients live a healthy
life does not mean that the doctors will also have a duty to prolong that life. The duty to act in
the interest of the patient does not include the duty to make sure that the patient’s lives
irrespective of the health conditions he is suffering. Therefore, in the Airedale NHS Trust v
23 Lavoie, Mireille, et al. "Psychosocial determinants of nurses’ intention to practise euthanasia in palliative
care." Nursing ethics 23.1 (2016): 48-60.
24 Wicks, Elizabeth. "Euthanasia, Ethics and the Law: From Conflict to Compromise by Richard Huxtable; Law,
Ethics and Compromise at the Limits of Life: To Treat or Not to Treat by Richard Huxtable." (2015): 309.
25 Minocha, Vivek Ratna, and Arima Mishra. "Comments on the Formulation of Law on Passive Euthanasia and its
Draft Bill ‘Terminally Ill Patients (Protection of Patients and Medical Practioners)’." MAMC Journal of Medical
Sciences 3.3 (2017): 174.

Bland [199326], it was argued that the treatment Bland was subject to did not have the potential
to better his life and that was concluded because the medicines were showing no effect on Bland.
Bland did not show any improvement. The Parliament in the execution of its powers had held
that there shall be no legislative exception in the understanding of section 2(1) of the 1961 Act27.
The Nicklinson case was decided by a bench of 9 judges and they all argued towards the
implementation of the doctor’s duties28. While giving the judgment, there was a declaration of
incompatibility that was referred to by the judges. There was a reference made to the case of
Pretty v United Kingdom (2002) 35 EHRR 1, where the judges held that there shall not be an all
encompassing blanket ban and the courts will need to look at the facts of the case before making
an analysis. The court also considered the role domestic courts play in implementing the laws
that pass the test of reasonability. Therefore, the above mentioned cases gave a right to the courts
to implement the law and apply at their own discretion. Therefore, understanding the above two
cases in the lights of the power that the Parliament exercises, it is important to understand that no
court can surpass the laws that have already been established by the Parliament. The appeals in
the Bland case held that assisting someone to commit suicide should be seen as a criminal act.
The domestic courts do not have the power to surpass the already existing laws and come up
with a new interpretation of the laws because that will cause incompatibility of the terms of the
already existing legislature.
The above cases can be read in line with a few more cases that also deal with the issue of
allowing assistance to a person who has no chances of living a healthy and safe life. The R
26 Airedale NHS Trust v Bland [1993]
27 Coggon, John, and Lawrence O. Gostin. "Beyond medicine, patients and the law: Policy and governance in 21st
century health law." Pioneering Healthcare Law. Routledge, 2015. 104-114.
28 McCrossan, L., and R. Siegmeth. "Demands and requests for ‘inappropriate’or ‘inadvisable’treatments at the end
of life: what do you do at 2 o’clock in the morning when…?." British Journal of Anaesthesia 119 (2017): i90-i98.