Lord Falconer spoke in the Second Reading debate in the House of Lords on the Coroners and Justice Bill on 18 May 2009, in support of an amendment (an expanded version of the one first proposed by Patricia Hewett in the Commons in March 2009) which would ensure that those who accompany their terminally ill relatives to Switzerland for the purposes of obtaining assistance in suicide do not commit an offence under the Suicide Act 1961. The new amendment would require two medical practitioners to certify that the individual is terminally ill and competent to make the decision. The individual would have to make a voluntary, informed declaration setting out the decision to obtain assistance in dying.
Lord Falconer said: “I strongly oppose the law [on assisted suicide] being re-enacted without reflecting one significant change. The Director of Public Prosecutions will not prosecute people who, in good faith and with good motives, assist a loved one to go to a clinic in Switzerland or another place where suicide is lawful. He will not prosecute because he rightly believes that it is not in the public interest to prosecute in those circumstances.
Approximately five days ago, the previous DPP, Sir Kenneth Macdonald, said on the radio that there were 100 cases in which he had decided not to prosecute in these circumstances. It is wrong as a matter of principle, as the noble and learned Lord, Lord Bingham of Cornhill, said on the same programme, that the law should be set to one side by one individual, no matter how important that individual is. This House should not re-enact Section 1 of the Suicide Act, which makes it a crime to assist suicide, unless it properly reflects the way in which the law operates at the moment.
There are two further reasons why the amendment should be passed. The first is that, if we do not put in a detailed amendment, we will not be able to identify the proper safeguards in relation to such a provision. The current situation is that the Director of Public Prosecutions makes a decision applying his common sense. There are no guidelines as to what is required as a matter of safeguard; he simply focuses on the facts and comes to an overall decision. The right course is that we should put in safeguards so that what is required is much clearer.
The second reason is that there is uncertainty about the law. However much one may, as a matter of principle, oppose the idea of this being allowed, it happens. People should know what the law is. Miss Diane [sic] Purdy should not be forced to go to court to try to seek immunity for her partner before he takes her to Switzerland. It is wrong that the law is so uncertain, so I will support an amendment in this House not to seek to change the law fundamentally in relation to assisted suicide but to make the law reflect the way in which it is operated. That is how the law should operate and one of the functions of this House is to ensure that that is right.”
Lord Falconer spoke to Sarah Montague about this amendment on BBC Radio 4’s Today programme on Tuesday 2nd June. George Pitcher, Religious Affairs Editor of the Telegraph, also participated in this discussion, calling Lord Falconer “intellectually indolent” and asserting that there is no palliative care in the Netherlands, a contention which is simply false. On this issue, see Janssens, Rien & Have, Henk ten, ‘The Concept of Palliative Care in the Netherlands’ (2001) 15 Palliative Med. 481 (you will need to login via Athens to see the full article). As Margaret Otlowski has explained, Dutch policy is to “integrate[ palliative care] into other aspects of the health care infrastructure, including the practice of general practitioners, hospitals, and nursing homes. Thus, palliative care is widely available, and a request for active euthanasia cannot be seen as an indication that inadequate care has been provided.” Voluntary Euthanasia and the Common Law (OUP, 1997) at 452-3. Finally, the Dutch Ministry of Health, Welfare and Sport has a leaflet entitled ‘Palliative care for terminally ill patients in the Netherlands: Dutch Government Policy’ International Publication Series Health, Welfare and Sport No. 16 (2003).
Later in the same edition of the Today programme, the former Director of Public Prosecutions Sir Ken Macdonald spoke to Sarah Montague about the likelihood of prosecution in the current legal climate.