The Court of Appeal has refused Phil Newby’s application for permission to appeal against the decision of the Administrative Court to reject his application for the Court to properly consider the evidence from experts around the world which supports a change to the law on assisted dying. 

This is the end of the court proceedings in the UK, but the fight is far from over. Last Thursday, a large number of MPs spoke on the subject during a Parliamentary debate. The majority took up the challenge that Phil and those that support him have laid down, by agreeing that Parliament should look at the evidence for and against assisted dying. Moreover, Justice Minister, Robert Buckland MP, has modified his position on assisted dying – and is “actively considering” a call for parliamentary evidence.

Phil Newby said in response:

“As one door seems to close, another bigger door may well be opening. This is an important moment and is one in which we have played a substantial part. Sadly, the legal case is now finished in the UK (though the possibility remains open to go to the European Court of Human Rights, which my lawyers are considering). My plan was always to give a chunk of this year to the court case. Now that it is over in the UK, the intention is to use the media and political platform that we have created to get politicians to conduct a proper review of the evidence. If they do, we will hope to be able to submit our nine box files of evidence to the process – to demonstrate that our current law is cruel and that an intelligently crafted assisted dying law is desperately needed and can address the concerns raised by its opponents.

Thank you to everyone who has supported me for your financial assistance, your heartfelt messages and for your encouragement. You have been the tide that floated this boat.”

Jamie Potter, Partner of Bindmans LLP said:

“This issue deserves full and proper scrutiny.  If this cannot be done in the Court, it is welcome news that parliament is finally engaging in the process with a view to considering detailed evidence. There are many examples of assisted dying regimes around the world that should be properly reviewed to develop an appropriate scheme for the UK that avoids the cruelty and suffering the current regime inflicts on individuals like Phil and Omid T and their loved ones.”

Background

On Tuesday 22nd October at 2pm there was a permission hearing in the Divisional Court 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) asked 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 was a novel legal approach in a judicial review claim, but Phil & his legal team believed that this is the only way that the court could have decided 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.  Phil and his legal team considered this would be the only way 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.

The Divisional Court refused to give Phil permission, and the Court of Appeal have in last week’s judgment closed the door on this argument. 

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

• In March 2019, 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 and Western Australia in Australia. New Zealand has recently passed legislation for assisted dying, which would come into effect if it is agreed by a confirmatory referendum in 2020.

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

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