• Tuesday 19th November 2019 at 2pm JUDGMENT handed down

Decision

The court has rejected Phil’s application to properly consider the evidence he wishes to present from experts around the world that a law change is proportionate, the court merely stating that this is best done by Parliament and that the Conway case is a bar to further consideration of Phil’s case.

Phil Newby said in response:

The High Court’s decision not to hear my case, and not to test the evidence for-and-against assisted dying, is disappointing to me and the many hundreds of others who support my case. With their support, I will be fighting on to bring attention to a law that is widely thought to be cruel, so that it can be replaced by something more humane and compassionate.

Saimo Chahal QC (Hon), Phil’s solicitor said:

It is important that the highest court should have an opportunity to consider issues which it is accepted are if transcendental importance to Phil and many others in his situation. An appeal will shortly  be lodged in the court of appeal as the prospect of Parliament considering the issues is non existent.

Background

On Tuesday 22nd October at 2pm there was a permission hearing for a terminally ill man with motor neurone disease who is seeking to challenge the blanket ban on assisted dying. Phil Newby, 49, from Rutland, (who is married with two teenage daughters) is asking the Court to undertake a “detailed examination of the evidence” to determine whether the current blanket ban is compatible with his human rights.

Asking Divisional Court Judges Lord Justice Irwin and Mrs Justice May to examine a large body of expert evidence from all over the world and to cross-examine experts is a novel legal approach in a judicial review claim, but Phil & his legal team believe that this is the only way that the court can decide whether it is proportionate to change the law in favour of people like Phil, whilst ensuring that safeguards exist to protect the weak and vulnerable.

If Phil was successful in this argument, this will be an important development of the legal procedure in this area. It is vital that this should happen in order to overcome the stalemate in these cases – without listening to the evidence, the court cannot arrive at a fair and balanced decision in this sensitive area.

Noel Conway’s claim was rejected by the Supreme Court November 2018. Phil Newby’s case presents a novel approach to the evidence. Moreover, since that time, there have also been significant developments in the UK and overseas that mean that the Court should consider Phil’s case:

• In March, the Royal College of Physicians dropped its longstanding opposition to a position of neutrality on assisted dying, following a survey of its membership. The Royal College of General Practitioners and British Medical Association are also soon to survey their members.
• High-profile stories in the media have demonstrated that the law on assisted dying is not working. In February, Ann Whaley spoke of her experience of being interviewed under caution by the local police domestic violence team for helping her husband Geoffrey to have an assisted death at Dignitas. In September, Mavis Eccleston was finally cleared after 18 months of investigation and a two week trial at Stafford Crown Court of the murder and manslaughter of her husband Dennis, who took his own life when dying of bowel cancer.
• More jurisdictions across the world have implemented assisted dying legislation, including Hawaii, New Jersey and Maine in the USA and Victoria in Australia. Western Australia and New Zealand are also currently debating proposals. New Zealand has recently passed legislation for assisted dying, which would come into effect if it is agreed by a confirmatory referendum in 2020.

Please note that Phil Newby will NOT be attending Court on Tuesday but is available to speak to the media and for interviews at home.

Dignity in Dying, MDMD and Fate are supporting Phil’s case.

Phil Newby is represented by Saimo Chahal QC (Hon) Partner, Bindmans LLP and Paul Bowen QC Brick Court Chambers. Junior counsel is Adam Wagner, Doughty Street Chambers and Jennifer Macleod of Brick Court.

NOTES TO THE EDITORS

Full background on Phil’s case can be found in the press release regarding the launch of the case here.

Phil Newby has raised funds for the case through Crowdjustice.

The law on assisted dying in the UK

• Assisted another to die is prohibited in England and Wales under the Suicide Act (1961), and in Northern Ireland under the Criminal Justice Act (1966) which states that anyone who “encourages or assists a suicide” is liable to up to 14 years in prison. There is no specific crime of assisting a suicide in Scotland, but it is possible that helping a person to die could lead to prosecution for culpable homicide.
• In February 2010, following the Debbie Purdy case, the Director of Public Prosecutions (DPP) issued the CPS’s prosecution policy on cases of ‘Encouraging or Assisting Suicide’. It covers actions that happen in England and Wales, even if the death happens abroad. The policy includes a list of public interest factors that a prosecutor will take into account in deciding whether to prosecute.
• In the House of Commons in a debate in July and at Justice Questions in October, MPs have called on the Government to initiate a call for evidence on the damage being done to dying people, their families and public servants who have to enforce the law.

Noel Conway’s legal case

• The Courts’ judgments on Noel’s case confirmed that “all are agreed” that the blanket ban is “an interference with the right to respect for private life” protected by the Human Rights Act.
• Although the Supreme Court declined to give Noel’s case permission to have a full hearing, that decision acknowledged that assisted dying is an “issue of transcendent public importance” and “touches us all” (November 2018).

Developments – support for a law change

• 84% of the public support a change in the law on assisted dying. The figure is from a Populus poll in March 2019, with a sample of more than 5,000 British adults.
• Assisted dying as an option for terminally ill, mentally competent adults in their final months of life is legal in eight US jurisdictions: Oregon (1997), Washington, Vermont, Montana, the District of Columbia, California, Colorado and Hawaii (January 2019). New Jersey (April 2019) and Maine (June 2019) voted to introduce assisted dying laws which will come into effect in the coming months.
• Victoria became the first Australian state to legalise assisted dying for terminally ill people in June 2019. In Western Australia, the Voluntary Assisted Dying Bill was recently passed by the state’s Lower House and will now be considered by the Upper House (Legislative Council).
• Canada legalised medical aid in dying (MAID) in June 2016. As a result of the Canadian Supreme Court’s judgment in Carter v Canada in February 2015, the Canadian government introduced assisted dying legislation in June 2016.
• New Zealand is currently considering an End of Life Choice Bill which having passed a second recoding on Wednesday 26 June 2019 will now go to a Committee stage.