Comment: House of Lords decision in Purdy

What has the House of Lords asked the Director of Public Prosecutions (DPP) to produce for Debbie Purdy and others in a similar position?

Lord Hope’s leading speech requires “an offence-specific policy identifying the facts and circumstances which he will take into account in deciding, in a case such as that which Ms Purdy’s case exemplifies, whether or not to consent to a prosecution under section 2(1) of the 1961 Act.” ([56]) Lord Neuberger refers to “a policy, which sets out what [the DPP] would generally regard as the aggravating factors and mitigating factors, when deciding whether to sanction a prosecution under section 2 of the 1961 Act.” ([101]) Along the same lines, Lord Brown describes “a custom-built policy statement indicating the various factors for and against prosecution, many but not all of which are touched on in the [Daniel] James case, factors designed to distinguish between those situations in which, however tempted to assist, the prospective aider and abettor should refrain from doing so, and those situations in which he or she may fairly hope to be, if not commended, at the very least forgiven, rather than condemned, for giving assistance.” ([86])

A policy will undoubtedly cover the obvious factors such as whether the choice made by the person who has received assistance in suicide was a “genuine exercise of autonomy” (Baroness Hale at [65]). Sub-issues here will be whether there was pressure or coercion (mentioned by Lords Brown and Hope), and whether the individual was competent.  Another issue will be whether the person who assisted the suicide had an “improper motive” or stood to gain from the death, although as Lord Hope points out, “the mere fact that some benefit might accrue is unlikely, on its own, to be significant” ([53]).

To my mind, there are two key questions to be resolved:

(1) will the policy apply only to those providing assistance with travel to a country where assisted suicide is lawful (as Lord Hope envisages at [54]), or will it apply more broadly to all offences which could be prosecuted under s.2(1) of the Suicide Act 1961 (as could be inferred from the speeches of Baroness Hale at [63-[69], Lord Brown at [82]-[87] and Lord Neuberger at [100]-[106]), which could include providing medication, writing a prescription, or other technical or practical assistance with the act of suicide itself? Debbie Purdy has stated that she plans to travel to Switzerland for assistance in suicide, and would like her husband Omar to be able to accompany and assist her in getting there. Dianne Pretty, by contrast, was requesting that her husband receive immunity from prosecution for assisting her suicide in the UK. While the facts of the Purdy case do not require a policy which would cover assisted suicides which take place within the UK, it will be up to the DPP to decide whether guidance should be provided to cover these cases as well.

(2) What will be the eligibility requirements for the policy? The most commonly stated requirement is that of ‘terminal illness’, which would cover Debbie Purdy’s case. But it would not include the case of Daniel James, which was discussed extensively by the House of Lords. Only Oregon among jurisdictions in which assisted dying is lawful imposes a ‘terminal illness’ requirement: “an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months” (Death With Dignity Act, §1.01(12)). The Netherlands and Belgium have eligibility requirements based on suffering, which include the terminally ill but also those who are not terminally ill. In the Netherlands, the “attending physician . . . must have been satisfied that the patient’s suffering was unbearable, and that there was no prospect of improvement” (Termination of Life on Request and Assisted Suicide (Review Procedures) Act (2001) 8 Eur. J. Health L. 183, s.2(1)(b)). In Belgium, the “patient [must be] in a medically futile condition of constant and unbearable physical or mental suffering that cannot be alleviated, resulting from a serious and incurable disorder caused by illness or accident” (Belgium, Act on Euthanasia of May 28 2002 (2003) 10 Eur. J. Health L. 329, s.3§1).

Baroness Hale discusses the possibility of a terminal illness requirement and raises the question “in what circumstances the law is justified in interfering with a genuinely autonomous choice”? Her response to the Daniel James case suggests that she would not be in favour of a broad policy which would include those who are not terminally ill but who are seriously disabled (at [68]:

It is not for society to tell people what to value about their own lives. But it may be justifiable for society to insist that we value their lives even if they do not. In considering the factors for and against prosecution in the Daniel James case, the DPP did not focus upon the reasons why Daniel wished to die. Rather, he focussed upon the fact that he was “a mature, intelligent and fiercely independent young man with full capacity to make decisions about his medical treatment”, who had tried to commit suicide before, and whose parents had tried relentlessly to persuade him not to do so; also, far from gaining any advantage from his death, it had caused his parents profound distress. These are obviously among the most important factors, although no doubt there are many more. But among them, I would hope that some attention would be paid to the reasons why the person (whose Convention rights are engaged) wished to be helped to end his or her life.

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3 Responses to Comment: House of Lords decision in Purdy

  1. […] I wrote last week, one of the key questions about the policy is whether it will apply only to those providing […]

  2. Mark Bratton says:

    Baroness Hale’s judgement offer one of the most discursive treatments of individual autonomy that I’ve encountered in the medical jurisprudence. I read her as implying that in principle there should be some limits to individual autonomous choice in assisted suicide cases and that the reasons why somebody wishes to die might give a clue as to those limits. The notion of there being any limit to autonomous choice would be peverse on a stringently libertarian reading of autonomy. On a ‘principled’ reading of autonomy,however, certain dispositional factors might become relevant, e.g. the intelligence, determination and pre-possession of the the person seeking an assisted suicide. So the DPP might have a stronger case for prosecuting somebody who assists a person who does not evince these characteristics. On a principled autonomy view though (putting Kant’s strictures against suicide and presumably assisted suicide to one side) , patients like Daniel James might be assisted with impunity simply because they have a death wish and evince certain dispositinal characteristics , not because they are terminally ill or suffering unbearably (as Daniel James putatively was). Most who seek assisted suicide in Switzerland tend to conform to the archetype of the strong-willed, heroic, self-sufficient individual seeking to die as they live, i.e. in control.

  3. […] her private and family life was engaged, and with the subsequent decision of the House of Lords in Purdy v. DPP). A key issue was therefore whether that engagement could be justified under Article […]

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