The law on assisted suicide has been clarified but it still splits opinion. Here, representatives of the Care Not Killing Alliance and Dignity in Dying go head to head
The prosecution of assisted suicide has moved from a paragraph on the statute books to the front pages over the past half a century, with cases such as those of Diane Pretty and Debbie Purdy gaining a high profile this century as the issue moves firmly into mainstream consciousness.
Guidance from Keir Starmer, the new director of public prosecutions, following Purdy’s case in July (see “Context and guidance”, below), has made clearer the circumstances under which prosecution of suicide assistants would be more likely. But only a change in the law – section 2(1) of the Suicide Act 1961 created the only criminal act of assisting in something which is not in itself a crime – can decriminalise assisted suicide. This still looks unlikely, though: in July, the House of Lords voted to reject a bill to remove the threat of prosecution.
‘These guidelines need further work’, says Peter Saunders, director, Care Not Killing Alliance
The director of public prosecutions’ interim guidelines suffer from two main defects. One is that they do not make clear that, in all cases of assisted suicide, there will be a presumption that a prosecution will take place unless there are powerful mitigating factors present; the other is that, although some of the factors listed for and against prosecution are sensible enough, others introduce criteria that would put vulnerable people at serious risk of harm.
Assisting a suicide is a grave offence. In attempting to meet the remit placed upon him by the Law Lords, the DPP has taken what appears to be a neutral position between opposing points of view on the subject.
His role, however, is to enforce Section 2(1) of the Suicide Act 1961 and, in this case, to set out the circumstances under which, exceptionally, he might decide not to proceed to a prosecution. The interim guidelines do not convey that message. They place the DPP in the position of an arbitrator between competing cases for and against prosecution rather than in that of an enforcer of the criminal law who may feel it appropriate, in specific circumstances, not to prosecute. To put it another way, the interim guidelines shift the centre of gravity of the DPP’s position.
Three of the individual criteria listed are particularly open to objection – that a more lenient view of assistance with suicide might be taken if it is given to people with terminal or degenerative illnesses or with incurable disabilities; or to people with a history of suicide attempts; or if it is provided by spouses or close family members. These criteria which are said not to favour prosecution single out groups of people for special category status. In a civilised society, people who are seriously ill or suicidal should be protected by the law, not fast-tracked for suicide. Parliament has twice declined to change the law to allow assisted suicide for terminally ill people, yet here we have a criterion from the DPP that would facilitate it for them and for a range of other unwell people.
The suggestion that spouses and family members might receive more lenient consideration as assisters is based on the facile notion propagated by euthanasia campaigners that such people are invariably “loved ones”. The reality is different: most violence and abuse takes place within families. These guidelines need further work before they can be considered fit for purpose.
‘A significant victory for patient control’, says Jo Cartwright, Campaigns and press officer, Dignity in Dying
The director of public prosecutions’ interim guidelines following Debbie Purdy’s legal victory represent a significant breakthrough for greater patient choice, control and protection at the end of life. We at Dignity in Dying hear from many people who, understandably, do not want to suffer unbearably and against their wishes. These interim guidelines allow those who are suffering at the end of their lives and their loved ones to make decisions in the knowledge of what the likely consequences of their actions will be.
The factors outlined in the guidance, both for and against prosecution, sensibly allay fears of creating a duty to die while not imposing a duty to suffer. Most of us do not want to see people prosecuted when they have reacted compassionately to a loved one’s request for help to die. Importantly, these guidelines provide the first formal recognition that, in circumstances motivated by compassion, people should not be prosecuted for assisting a death, and the DPP made it clear the motivation was crucial when making these prosecution decisions.
Although these guidelines are helpful, they only partly resolve the problem.
The guidelines clarify the law for the loved ones of those asking for assistance, but they cannot and do not provide a safeguarded means of assisted dying in the UK. Therefore, we continue to export our terminally ill abroad to die or condone suicides behind closed doors. This status quo is unacceptable and, fundamentally, the law needs to change.
Critics of the DPP have said that he has overstepped the mark and that this is an issue for parliament. But parliament has failed to address this. The DPP was instructed by the Law Lords to provide a prosecution policy, and he has done so well, within his remit.
In light of parliament’s continued reluctance to address this issue, we call on the government to launch a full and impartial consultation on the issue. We are confident that evidence from other countries and US states that have legalised assisted dying shows that a safeguarded assisted dying law not only gives greater choice but also provides better protection against abuse.
At present, even with the DPP’s guidance, assisted deaths go on unregulated, with investigations occurring retrospectively. An upfront and safeguarded assisted dying process is the logical progression to a more compassionate approach to end of life.
Context and guidance
Assisted suicide has hit the headlines after a number of Britons travelled to die, legally, at a clinic in Switzerland run by the charity Dignitas, writes Vern Pitt.
In 2002, Diane Pretty, who had motor neurone disease, failed to convince the European Court of Human Rights that her husband should be immune from prosecution.
However, in July 2009, Debbie Purdy won her case at the House of Lords to force the DPP to publish criteria under which prosecution of suicide assistants would be more likely. She also wants to protect her husband from prosecution if he takes her to Switzerland should she want to end her life.
The DPP’s guidance covers factors to be taken into account in deciding if a prosecution would be in the public interest. Those favouring prosecution include:
1 The victim is under 18.
2 The victim’s mental capacity was adversely affected.
3 The victim did not have a clear, settled or informed wish to commit suicide.
4 The victim did not indicate unequivocally to the suspect that she wanted to commit suicide.
5 The victim did not ask personally on their own initiative for the suspect’s assistance.
6 The victim did not have a terminal illness, a severe and incurable physical disability, or a severe degenerative physical condition.
7 The suspect was not wholly motivated by compassion.
The converse of 3-7 are among the most important factors against prosecution.
A consultation on the policy closes on 16 December.
➔ More on the public consultation into assisted suicide
This article is published in the 29 October 2009 edition of Community Care under the headline “A matter of life or death”