Comment: what is the future of the policy for prosecutors on assisting or encouraging suicide?

In 2013, Martin, one of the claimants in the case known as Nicklinson was successful in his claim at the Court of Appeal. By a majority of 2-1, the Court of Appeal ruled that the Director of Public Prosecutions’ Policy on prosecuting cases of assisted suicide did not allow professionals such as doctors, nurses, carers and social workers to foresee the consequences of providing such assistance.

In the Policya group of factors in favour of prosecution are designed to ensure that assistance in suicide remains an activity carried out by inexperienced individuals without the open assistance of professionals or amateur organisations (as in Switzerland):

(11) the suspect was unknown to the victim and encouraged or assisted the victim to commit or attempt to commit suicide by providing specific information via, for example, a website or publication;

(12) the suspect gave encouragement or assistance to more than one victim who were not known to each other;

(13) the suspect was paid by the victim or those close to the victim for his or her encouragement or assistance;

(14) the suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional, a professional carer [whether for payment or not], or as a person in authority, such as a prison officer, and the victim was in his or her care;

(16) the suspect was acting in his or her capacity as a person involved in the management or as an employee (whether for payment or not) of an organisation or group, a purpose of which is to provide a physical environment (whether for payment or not) in which to allow another to commit suicide.

The very role of such professionals was therefore a factor in favour of prosecution (factor 14), while factors against prosecution might also be present, including a compassionate motive (factor 2 against prosecution). The DPP was therefore asked to revise the Policy. Instead, he announced his intention to appeal and today the Supreme Court allowed his appeal. The court would not require the DPP to go further than he did in response to the House of Lords decision in Purdy by providing a list of factors for and against prosecution when deciding whether prosecution would be in the public interest. Martin had sought to force the DPP to identify a class of cases in which prosecution would not be in the public interest. Lord Hughes concluded (at [277]):

It is legitimate to say that Parliament no doubt recognised that there might be persons who commit the [Suicide Act 1961] section 2(1) offence, whom it turns out not to be in the public interest to prosecute. That, however, is true of every offence in the criminal calendar. It is not legitimate to suppose that there is a category of such persons which can be identified in advance by the Director of Public Prosecutions. She cannot do so without crossing the constitutional boundary into either changing the law or giving advance exemption from it to a group of potential offenders.

However, this is not the end of the story in relation to the policy for prosecutors. The DPP will need to consider whether the policy should be revised to reflect a claim made by Lord Judge (dissenting on this point) in the Court of Appeal which was accepted by counsel for the DPP before the Supreme Court ([143]):

185. … [I]t seems clear to me that paragraph 14 addresses the risks which can arise when someone in a position of authority or trust, and on whom the victim would therefore depend to a greater or lesser extent, assisting in the suicide in circumstances in which, just because of the position of authority and trust, the person in authority might be able to exercise undue influence over the victim. As I read this paragraph it does not extend to an individual who happens to be a member of a profession, or indeed a professional carer, brought in from outside, without previous influence or authority over the victim, or his family, for the simple purposes of assisting the suicide after the victim has reached his or her own settled decision to end life, when, although emotionally supportive of him, his wife cannot provide the necessary physical assistance.

186. … Naturally, it would come as no surprise at all for the DPP to decide that a prosecution would be inappropriate in a situation where a loving spouse or partner, as a final act of devotion and compassion assisted the suicide of an individual who had made a clear, final and settled termination to end his or her own life. The Policy … deliberately does not restrict the decision to withhold consent to family members or close friends acting out of love and devotion. The Policy certainly does not lead to what would otherwise be an extraordinary anomaly, that those who are brought in to help from outside the family circle … are more likely to be prosecuted than a family member when they do no more than replace a loving member of the family, acting out of compassion, who supports the ‘victim’ to achieve his desired suicide. The stranger brought into this situation, who is not profiteering, but rather assisting to provide services which, if provided by the wife, would not attract a prosecution, seems to me most unlikely to be prosecuted. In my respectful judgment this Policy is sufficiently clear to enable Martin, or anyone who assists him, to make an informed decision about the likelihood of prosecution.

Having accepted that a person acting in his or her professional capacity in these circumstances (for example a professional carer, motivated by compassion, who enters into a non-profiteering arrangement to accompany a patient for whom he or she was not previously caring and who has already decided to go to Dignitas) would be unlikely to be prosecuted, Lord Neuberger invited the DPP to change the policy accordingly ([146]):

Given that, in an important respect, the 2010 Policy does not appear to reflect what the DPP intends, it seems to me inevitable that she will take appropriate steps to deal with the problem, particularly in the light of the impressive way in which her predecessor reacted to the decision in Purdy. However, if the confusion is not sorted out, then, at least in my view, the court’s powers could be properly invoked to require appropriate action, but, as I have said, it seems very unlikely that this will be necessary.

If this remains the DPP’s position, then the policy could possibly be amended to limit the applicability of the current factor 14, though Lords Mance ([193]) and Sumption ([251]) were sceptical that the policy could be so amended without rendering it internally inconsistent or incoherent. Lady Hale, though, was in favour of a more far-reaching review of the policy (at [323]), returning to an argument she made in Purdy about the role such a policy could play in ensuring that the interference with the claimants’ rights under Article 8(1) could be justified under Article 8(2) (which neatly takes us back to the other argument in this case):

It seems to me, as it seemed in Purdy, that the policy has two purposes. The first, and uncontroversial, purpose is to make the way in which decisions to prosecute will be taken sufficiently clear to meet the Convention requirement that the interference be “in accordance with the law”. This entails accessibility (hence the need to clarify the policy) and foreseeability, as well as consistency and lack of arbitrariness. We can debate endlessly what the Strasbourg court meant, at para 76 of Pretty (quoted by Lord Neuberger at para 32 above) by first stating that the “Court does not consider therefore that the blanket nature of the ban on assisted suicide is disproportionate” and going on to discuss the flexibility of enforcement in the next sentence. It might have been reverting to the “non-arbitrary” requirement of legality. Or it might have been continuing its discussion of proportionality. I ventured to suggest in Purdy (paras 63 and 64) that the policy may have a part to play in securing that section 2(1) does not operate as a disproportionate interference with the right protected by article 8 and now so clearly articulated in Haas v Swizerland. The underlying theme of the factors which the DPP considers relevant to whether a prosecution will be in the public interest is clearly to identify the sort of cases which might be covered by the exception proposed above. The time may therefore be ripe for a review to see whether further progress can be made in that direction without offending against the constitutional prohibition of “dispensing with the laws”. But I agree that there is no need to make an order requiring the DPP to conduct a review. She will no doubt be considering the position in the light of the judgments in this Court and in the Court of Appeal.

What can we conclude at this point? Perhaps only that there is no evidence that this DPP will take a more restrictive position on the public interest in prosecuting these cases than her predecessor. Whether she and her team will revise the policy to make prosecutions less likely and thereby possibly encourage greater professional involvement in assisted suicide remains to be seen. As I wrote in response to the decision of the Court of Appeal:

The advantages of open medical involvement in assisted suicide are manifold, and include a lower risk of botched suicides and suffering during the suicide or attempted suicide (as illustrated in the Gilderdale case) and the possibility of screening for possibly hitherto unknown mental disorders including depression. At present, the expertise necessary to achieve a safe, peaceful assisted death is concentrated in healthcare professionals, and they are the main gatekeepers of the medications needed to accomplish this. A Policy under which those seeking assistance in dying cannot access this expertise, even in the form of advice, nor the appropriate medications, and where others are prevented from developing and disseminating such expertise, is undesirable. Allowing assistance from healthcare professionals only on a “one off” basis would frustrate the development of expertise in assessing the validity of requests for assistance. It should be possible to assign weight to the relevant factors that would not prevent compassionate, professional and expert assistance while still avoiding what the Lord Chief Justice has termed “profiteering” (at [184]-[186]).

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