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 Policy, a 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]).

News and comment: Divisional court decision in Nicklinson

The Divisional Court has today decided against the applications brought by Tony Nicklinson and ‘Martin’ challenging the law governing murder and assisted suicide. In a judgment which rejects almost every argument made on behalf of Mr Nicklinson and ‘Martin’, the Administrative Court reiterated earlier court decisions that the law in this context could only be changed by Parliament:

75. The reasons given in Bland and in Inglis for saying that it is for Parliament to decide whether to change the law on euthanasia are compelling and should be followed by this court. The reasons have to do with competence, constitutionality and control of the consequences.

76. As to competence, the subject is profoundly difficult and complex, raising a myriad of moral, medical and practical considerations. . . .

79. As to constitutionality, it is one thing for the courts to adapt and develop the principles of the common law incrementally in order to keep up with the requirements of justice in a changing society, but major changes involving matters of controversial social policy are for Parliament. . . .

84. A decision by the court to alter the common law so as to create a defence to murder in the case of active voluntary euthanasia would be to introduce a major change in an area where there are strongly held conflicting views, where Parliament has rejected attempts to introduce such a change, and where the result would be to create uncertainty rather than certainty. To do so would be to usurp the role of Parliament.

85. As to control of the consequences, it is hard to imagine that Parliament would legalise any form of euthanasia without a surrounding framework regarding end of life care and without procedural safeguards. . . .

86. It would be impossible for a court to introduce, still less monitor, any such regime.

87. For all of those reasons it would be wrong for the court to depart from the long established position that voluntary euthanasia is murder, however understandable the motives may be, unless the court is required to do so by article 8.

The arguments under Article 8 were dealt with relatively briefly. Although there was agreement that the applicants’ Article 8(1) rights were engaged, the court found that the decisions in Pretty were conclusive on the issue of Article 8(2):

121. The only general principles which the Strasbourg court has expounded are that the right of an individual to decide how and when to end his life is an aspect of the right of respect for private life within article 8 and that states have a wide margin of appreciation in this area. For reasons which I have already given, I am satisfied that the law maker in this area (euthanasia) should be Parliament, just as Lord Hope and others said in Purdy that Parliament should be the law maker in the area of assisted suicide. Furthermore, since it has been held by both the House of Lords and the Strasbourg court [in Pretty] that a blanket ban on assisted suicide is not incompatible with article 8, the same must apply with added force to the ban on voluntary euthanasia.

In relation to Martin’s case, which challenged the differential treatment of professionals who assist in suicide under the Director of Public Prosecutions’ policy on prosecution, the court held that the policy meets the requirements of Article 8 as mandated by the House of Lords in Purdy:

138. The DPP has in my judgment done what was required of him by the decision in Purdy and it would be wrong to require him to do more.

139. From the DPP’s policy statement, I believe that it would be clear to a person who, in the course of his profession, agreed to provide assistance to another with the intention of encouraging or assisting that person to commit suicide, that such conduct would carry with it a real risk of prosecution.

In an article in Legal Studies in 2010 on the DPP’s policy, I wrote:

The dangers sought to be addressed by the policy focus on the unscrupulous or even abusive family member or friend, and the healthcare professional or activist. The shift of focus away from the victim, and the desire to avoid the appearance of the creation of a regulatory regime, have opened the door to assisted suicide in cases which would not be permitted by most of the existing regulatory regimes, while exposing to the risk of prosecution those with much-needed expertise and those who agree with the victim’s decision.

Unsurprisingly, the policy begins with the reassurance that ‘only Parliament can change the law on encouraging or assisting suicide.’ While Parliament has been unwilling to undertake formal legal change on assisted suicide, informal legal change has been accelerated by the House of Lords’ surprising decision in Purdy, coupled with a DPP willing to create an expansive policy covering all assisted suicides rather than just those which take place in another more permissive jurisdiction. The DPP has done so by implicitly describing (albeit imperfectly through the use of factors for and against prosecution) a class of assisted suicides which are permissible.

In England and Wales, we are now in uncharted territory, with a reluctant legislature, little guidance from the courts and an opaque process of informal legal change by prosecutors.

Lord Justice Toulson was keen to rebut this contention (which had also been put forward by the Commission on Assisted Dying, as quoted in paragraph 135 of the judgment). Instead, he asserted that the factor-based approach lay on the right side of an important “constitutional boundary”:

143. . . . For the DPP to lay down a scheme by which it could be determined in advance as a matter of probability whether an individual would or would not be prosecuted would be to do that which he had no power to do, i.e. to adopt a policy of non-prosecution in identified classes of case, rather than setting out factors which would guide the exercise of his discretion.

According to Toulson LJ, it is therefore the very imperfectness of the DPP’s policy which prevents him from having usurped his authority. And yet in Purdy, Lord Hope asserted that “it ought to be possible to confine the class that requires special treatment to a very narrow band of cases with the result that the Code will continue to apply to all those cases that fall outside it.” (para. 55) This suggests that the policy could have identified “a class that requires special treatment”.

Overall, though, the court’s message is clear. This is not a matter for the courts, but only for Parliament. The unusual step taken in Purdy must be seen as an isolated instance of judicial activism centred on the precise requirements of Article 8(2). For further legal change, unless the higher courts are more sympathetic to developing the defence of necessity, Mr Nicklinson and Martin will need to look to Parliament, which seems unlikely to take such a step.

Addendum: One further interesting aspect of this decision is the extent to which it cites and relies on the report of the Commission on Assisted Dying, chaired by Lord Falconer and evidence given to it, including evidence given by the Director of Public Prosecutions. Although the Commission was independent of government and Parliament, its report seems to have influenced the court on a number of points (see, eg, paragraphs 24, 37-38, 76-77, 85, 130-133, 135).

News: assisted suicide in Switzerland on the KCLMEL blog

The law and practice of assisted suicide in Switzerland will be much discussed this week following the broadcast of Terry Pratchett’s documentary. Earlier posts have discussed the Swiss government’s plans for reform of the law, and a recent court decision allowing the defence of necessity in a case of euthanasia (termination of life on request).

The DPP’s policy on prosecuting cases of assisted suicide, including cases in which the assisted suicide takes place in Switzerland, has been discussed in a series of posts, the links to the most recent of which can be found in this post on the Caractacus Downes case. Earlier posts on the interim policy and the Purdy case can be found by scrolling through the posts tagged ‘Switzerland’.

Comment: DPP’s final guidance on assisted suicide prosecutions

The Director of Public Prosecutions has published his final guidance on prosecutions for assisted suicide. I reproduce the public interest factors for and against prosecution here, with some initial reactions to the final factors and the changes from the interim guidance.

Public interest factors tending in favour of prosecution

A prosecution is more likely to be required if:

(1) the victim was under 18 years of age;

(2) the victim did not have the capacity (as defined by the Mental Capacity Act 2005) to reach an informed decision to commit suicide;

(3) the victim had not reached a voluntary, clear, settled and informed decision to commit suicide;

(4) the victim had not clearly and unequivocally communicated his or her decision to commit suicide to the suspect;

(5) the victim did not seek the encouragement or assistance of the suspect personally or on his or her own initiative;

These factors relating to the victim’s request have been revised so that capacity is assessed according to the Mental Capacity Act 2005, and the request must now be ‘voluntary’ as well as clear, settled and informed. The request is now described as a ‘decision’ rather than a ‘wish’, which is an improvement as a ‘wish to commit suicide’ is insufficiently indicative of decisive action. (Unfortunately ‘wish’ recurs in Factor 5 against prosecution.)

Some jurisdictions have a waiting period between the request and the assisted suicide, to ensure that the request is sustained over time and to further ensure voluntariness (Oregon, and Belgium when the patient ‘is clearly not expected to die in the near future’). One way of incorporating such a cooling-off period into a factor-based approach would be to mention within Factor 3 in favour of prosecution the need for a certain amount of time to have elapsed since the request in order for the person assisted’s decision to be considered ‘settled’. The DPP, though, is concerned to avoid the charge that he is creating a regulatory regime for assisted suicide, which such a requirement might suggest. In the summary of consultation responses, the decision not to require written evidence of the victim’s request is explained as follows:

[such a requirement] is within the scope of processes and procedures that, in effect, create a regime for encouraging or assisting suicide. Only Parliament can determine the legality of such a regime – not the DPP – and accordingly, the CPS has firmly rejected any factor against prosecution that could be said to be a stepping stone towards the creation of such a regime. ([7.6])

(6) the suspect was not wholly motivated by compassion; for example, the suspect was motivated by the prospect that he or she or a person closely connected to him or her stood to gain in some way from the death of the victim;

(7) the suspect pressured the victim to commit suicide;

(8) the suspect did not take reasonable steps to ensure that any other person had not pressured the victim to commit suicide;

(9) the suspect had a history of violence or abuse against the victim;

Factors (6) to (9) are concerned with the suspect’s motives and the possible exercise of undue influence (which might cast doubts on the validity of the victim’s decision).

(10) the victim was physically able to undertake the act that constituted the assistance him or herself;

This factor is unchanged from the interim policy. However, it will bear far greater weight given the DPP’s decision to remove the factors relating to the victim’s condition and engagement with medical care.

In the Interim Policy, Factor 6 in favour of prosecution stated:

The victim did not have:

• a terminal illness; or

• a severe and incurable physical disability; or

• a severe degenerative physical condition;

from which there was no possibility of recovery.

Factor 4 against prosecution was the converse of this factor. Factor 10 against prosecution stated:

The victim has considered and pursued to a reasonable extent recognised treatment and care options.

In the summary of consultation responses, the decision to remove these factors is explained as follows:

A large number of respondents questioned the inclusion of these factors, arguing that it may be discriminatory to include factors relating to the health and disability status of the victim (over 1,500 respondents argued this in their general comments) … As a result of these views expressed during the consultation exercise, and upon further consideration, the CPS has removed [these factors] from the Final Policy. ([2.10], see also [6.14]-[6.17])

The removal of Factor 10 against prosecution is explained by the DPP’s decision to focus the factors against prosecution primarily on the suspect’s motives rather than on the victim’s characteristics. While the converse factor could nonetheless have been included as a factor in favour of prosecution (eg ‘The victim has not considered and pursued to a reasonable extent recognised treatment and care options.’), this was presumably seen as inconsistent with the decision to drop the references to the victim’s condition, based on concerns expressed by respondents over discrimination.

The need to avoid discrimination is undoubtedly important, but by removing any reference to the victim’s condition, it appears possible that a decision not to prosecute could be reached in cases of non-somatic suffering (suffering caused by a mental disorder, including severe depression) or existential suffering (‘life fatigue’ or ‘tired of life’ cases).  The former is permissible under the Dutch regime if the patient is experiencing hopeless and unbearable suffering, the latter is not. In Belgium all reported euthanasia or assisted suicide cases have involved somatic suffering (ie suffering stemming from a physiological disorder). In Oregon the patient must be terminally ill.

The assisted dying regimes in the Netherlands, Belgium and Oregon all contain a requirement related to the victim’s condition or level of suffering. (Switzerland is currently debating the adoption of a requirement that the victim be terminally ill.)

Although this issue is not addressed in the final policy, nor in the summary of consultation responses and the CPS response to them, the BBC is reporting that:

Mr Starmer made clear [presumably at the press conference] that other factors which remain in the guidance make it clear that it would not be appropriate to help someone who does not need assistance in actually committing suicide.

Without any restriction based on the victim’s condition or level of suffering, the guidance is more liberal in this respect than most assisted dying regimes. Perhaps the discriminatory impact of an explicit reference to the victim’s condition could have been avoided by consideration of the Dutch model which focuses instead on the individual’s suffering rather than their underlying condition.

To return to Factor 10 in the Final Guidance, the CPS have not provided an explanation of the impact of removing the factors relating to the victim’s condition, and the extent to which Factor 10 might mitigate such impact.

(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;

(15) the suspect was aware that the victim intended to commit suicide in a public place where it was reasonable to think that members of the public may be present;(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.

Factors 11-16 are concerned to ensure that assistance in suicide remains an amateur activity carried out by inexperienced individuals without the assistance of professionals or amateur organisations (as in Switzerland). Factor 14 has been expanded to include all medical professionals caring for the victim rather than only those caring for the patient in a care/nursing home environment. While this is at least a logical distinction, the CPS provides no real explanation for their pro-amateur stance, simply stating:

On reflection, the CPS believes that the emphasis of this factor should be around any healthcare worker who has the victim in his or her care. The fact such a person encourages or assists the suicide of the victim, whilst acting in that capacity, should be a factor in favour of prosecution.

Unlike all of the other jurisdictions which permit assisted suicide (and in the Netherlands and Belgium, euthanasia as well), where the activity is carried out in whole or in part by physicians, the inclusion of these factors will discourage the involvement of physicians, unless the person assisted is fortunate enough to have someone with medical expertise amongst his or her family or close friends who is willing to provide expert assistance but who is not providing care in a professional capacity. The reasons for the privileged status of the reluctant amateur over the expert professional are unclear. Why is there a greater public interest in the prosecution of health care professionals if they are wholly motivated by compassion (Factor 6 in favour of prosecution; Factor 2 against prosecution)? If assisted suicide is thought to be incompatible with the professional role, surely this is a matter for the General Medical Council and the Nursing and Midwifery Council, rather than the DPP.

The advantages of medical involvement are manifold, and include a lower risk of botched suicides and suffering during the suicide or attempted suicide [R.S. Magnusson, Angels of Death – Exploring the Euthanasia Underground (Yale Univ. Press, 2002) 202-10; S. Jamison, ‘When Drugs Fail: Assisted Deaths and Not-So-Lethal Drugs’ in M.P. Battin & A.G. Lipman, eds., Drug Use in Assisted Suicide and Euthanasia (Informa Healthcare, 1996) 223-243 at 241] and the possibility of screening for possibly hitherto unknown mental disorders including depression.

Whether intentionally or not, these factors may keep the number of assisted suicides which take place entirely within the UK relatively low. There will still be an incentive to travel to  a permissive jurisdiction such as Switzerland, when physically and financially possible, where such expertise is available. Those without supportive friends and family may commit suicide earlier than they would have wished, or travel to Switzerland when they are still able to do so on their own.

By strongly discouraging medical involvement, the guidelines place a heavy burden on supportive friends and family. If travelling to a permissive jurisdiction is not possible, for financial or health reasons, then the burden of assisting the suicide will fall on someone with no experience (Factor 12 in favour of prosecution) and no access to relevant information (Factor 11 in favour of prosecution). “Medical condition, body build, drug history and narcotic tolerance are all variables that must be factored in when developing a specific strategy to achieve death.” [Magnusson at 203]. Without this knowledge, and without access to appropriate medications, the guidelines are likely to result in assisted suicides which are more difficult, less successful and more stressful for the person assisted and his or her friends and family (including the suspect) than would be the case if medical expertise were permitted in some form.

Public interest factors tending against prosecution

A prosecution is less likely to be required if:

(1) the victim had reached a voluntary, clear, settled and informed decision to commit suicide;

(2) the suspect was wholly motivated by compassion;

(3) the actions of the suspect, although sufficient to come within the definition of the offence, were of only minor encouragement or assistance;

What is meant by ‘minor assistance’? Is making travel arrangements ‘minor assistance’? If so, then this should be made clear to those contemplating providing such assistance and seeking to use the guidelines to assess the likelihood of prosecution. It would have been helpful had the DPP provided examples of minor assistance but none have been given.

(4) the suspect had sought to dissuade the victim from taking the course of action which resulted in his or her suicide;

(5) the actions of the suspect may be characterised as reluctant encouragement or assistance in the face of a determined wish on the part of the victim to commit suicide;

Factors (4) and (5) seem to encapsulate an idealised scenario that involves an unwilling ‘suspect’ and a determined ‘victim’. Again, no reasons for the inclusion of these factors are provided. What if the suspect is fully supportive of the victim’s decision, recognising that the victim has reached his or her own decision and agreeing that it is the right course of action for him or her in the circumstances? Does this make prosecution more in the public interest than if the suspect is ‘reluctant’ and sought to ‘dissuade’ the victim? Factor 4 envisages the decision to seek assisted suicide as an unwise or irrational decision from which the person should be dissuaded, or at least suggests that this is how the ideal suspect should react to the decision. The inclusion of these two factors seems to prescribe a certain kind of emotional reaction on the part of a family member or friend to the victim’s condition, for example, not accepting a terminal diagnosis, or wanting the person to remain alive as long as possible.

(6) the suspect reported the victim’s suicide to the police and fully assisted them in their enquiries into the circumstances of the suicide or the attempt and his or her part in providing encouragement or assistance.

Reporting of assisted suicides is in the public interest so that they can be properly investigated and recorded, and prosecuted when this is in the public interest. This factor now includes ‘The suspect reported the assisted suicide to the police’ as recommended by me and presumably (no indication is given) other respondents.

Unlike the regimes in Oregon, Belgium and the Netherlands, no residency requirements have been included, although 36 consultation respondents suggested this, including me. In the absence of a requirement that the victim and suspect both be resident within England and Wales, individuals may travel to this jurisdiction in order to undertake an assisted suicide with significantly less chance of prosecution than there might be in their home jurisdiction, just as individuals travel to Switzerland for assisted suicides, and to Mexico to obtain veterinary euthanasia medications.

News: DPP speaks about assisted suicide guidance on the Today programme

The Director of Public Prosecutions gave an interview to the Today programme this morning on the final guidance on assisted suicide prosecutions which will be released later today. Nearly 5000 responses were received during the consultation period.

The DPP said that in the final guidance “there has been a change of focus, in particular on the factors against prosecution, and we’re  now concentrating very much on the acts and the motives of the suspect, rather than the characteristics . . . of the victim.”

More details are on the BBC News website and in an article by the DPP in today’s Times.

News: DPP to publish final guidance on assisted suicide prosecutions this week

The Director of Public Prosecutions will publish the final guidance on prosecutions for assisted suicide on Thursday 25 February following the consultation on the interim guidance. We know that there were over 2000 responses to the consultation five days before it closed, so there are likely to have been many more than that by the time it did close. It is now 10 weeks since the consultation closed, and the final guidance was only expected in “Spring 2010”.

TV: I Helped My Daughter Die

Panorama, BBC1, Monday 1st February, 8.30-9pm, available on iPlayer for one year after broadcast

From the Radio Times: “What drives a mother to help her child die? For almost a year, Panorama’s cameras have been following Kay Gilderdale – the woman at the centre of last week’s assisted suicide trial – as she faced a possible life sentence over her part in the death of her daughter Lynn. She talks exclusively to Jeremy Vine about the night she helped her bedridden daughter kill herself and explores whether the law should be changed with those on both sides of the debate, including Debbie Purdy and Baroness Campbell.”

Comment: euthanasia and the DPP’s interim guidance on assisted suicide

Is it possible to have a system of not prosecuting those who commit certain acts of assisted suicide but to have no such system operating for those (with similar motivations, in similar circumstances etc.) who commit murder? While there is a relevant distinction between the Gilderdale and Inglis cases (the apparent absence of a request in the Inglis case), it is hard to see why it is in the public interest to prosecute Mrs Gilderdale for attempted murder but (under the DPP’s new Interim Guidance) would not have been in the public interest to prosecute her for assisting a suicide.

If the explanation is simply that the House of Lords in Purdy was only dealing with assisted suicide and that’s why the DPP’s Interim Guidance only covers assisted suicide, this would leave open an argument based on the right to equality if the individual is unable to commit suicide with assistance. Such an argument was successfully made in one of the assisted suicide cases in the US:

“in some instances, the patient may be unable to self-administer the drugs and that administration by the physician, or a person acting under his direction or control, may be the only way the patient may be able to receive them.” Compassion in Dying v. Washington (1996) 79 F.3d 790, 832 (9th Cir. en banc).

A similar argument was made at the Supreme Court of Canada by Chief Justice Lamer, dissenting, in Rodriguez v. British Columbia (Attorney-General) [1993] 3 S.C.R. 519, [234] .

The DPP has today defended his decision on the basis of the seriousness of the charge of attempted murder.

Comment: the amateur/professional divide in the DPP’s interim guidance on assisted suicide prosecutions

The ‘ideal’ scenario envisaged by the DPP in his interim guidance on assisted suicide prosecutions is encapsulated in one of the factors against prosecution: “The actions of the suspect may be characterised as reluctant assistance in the face of a determined wish on the part of the victim to commit suicide.”

One group of factors seem concerned to ensure that assistance in suicide remains an amateur activity carried out by inexperienced individuals without the assistance of professionals or amateur organisations (as in Switzerland). Thus factors in favour of prosecution include:

• The suspect was not the spouse, partner or a close relative or a close personal friend of the victim.
• The suspect was unknown to the victim and assisted by providing specific information via, for example, a website or publication, to the victim to assist him or her in committing suicide.
• The suspect gave assistance to more than one victim who were not known to each other.
• The suspect was paid by the victim or those close to the victim for their assistance.
• The suspect was paid to care for the victim in a care/nursing home environment.
• The suspect was a member of an organisation or group, the principal purpose of which is to provide a physical environment [whether for payment or not] in which to allow another to commit suicide.

Unlike all of the other jurisdictions which permit assisted suicide (and in the Netherlands and Belgium, euthanasia as well), where the activity is carried out in whole or in part by physicians, here the involvement of a physician will remain unusual, unless the victim is fortunate enough to have someone with medical expertise amongst his or her family or close friends who is willing to provide expert assistance.

The DPP’s consultation document does not explain the thinking behind any of the factors. The reasons for the privileged status of the reluctant amateur over the expert professional are unclear. Why is there a greater public interest in the prosecution of health care professionals than family members, if both are motivated by compassion? If assisted suicide is thought to be incompatible with the professional role, surely this is a matter for the GMC and the NMC, rather than the DPP? Whether intentionally or not, this aspect of the guidance is likely to keep the number of assisted suicides which take place entirely within the UK relatively low. There will still be an incentive to travel to Switzerland, when physically and financially possible, where such expertise is available. Those without supportive friends and family may commit suicide earlier than they would have wished, or travel to Switzerland when they are still able to do so on their own.

Comment: DPP’s new interim guidance on assisted suicide prosecutions

The DPP’s new interim guidance on assisted suicide prosecutions sets out a list of public interest factors in favour of and against prosecution. I reproduce them here, with some initial reactions.

The public interest factors in favour of prosecution are set out below.

(1) The victim was under 18 years of age.
(2) The victim’s capacity to reach an informed decision was adversely affected by a recognised mental illness or learning difficulty.
(3) The victim did not have a clear, settled and informed wish to commit suicide; for example, the victim’s history suggests that his or her wish to commit suicide was temporary or subject to change.
(4) The victim did not indicate unequivocally to the suspect that he or she wished to commit suicide.
(5) The victim did not ask personally on his or her own initiative for the assistance of the suspect.

These first five factors are relatively non-contentious, focusing on the validity of the victim’s consent and the requirement of a request from the victim.

(6) The victim did not have:

• a terminal illness; or

• a severe and incurable physical disability; or

• a severe degenerative physical condition;

from which there was no possibility of recovery.

This factor relates to the extent of suffering experienced by the victim. ‘No possibility of recovery’ is a difficult standard to meet given the inherent difficulties associated with medical prognosis. What will constitute a ‘recovery’? Will it be a cure, remission, or an improvement in the victim’s condition?

In Oregon, assisted suicide is restricted to those with a terminal illness, which is defined as “an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six (6) months.” In the Netherlands and Belgium, a certain level of suffering is required. 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”. 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”.

(7) The suspect was not wholly motivated by compassion; for example, the suspect was motivated by the prospect that they or a person closely connected to them stood to gain in some way from the death of the victim.
(8) The suspect persuaded, pressured or maliciously encouraged the victim to commit suicide, or exercised improper influence in the victim’s decision to do so; and did not take reasonable steps to ensure that any other person did not do so.

Factors (7) and (8) are concerned with the suspect’s motives and the possible exercise of undue influence (which might cast doubts on the validity of the victim’s consent).

(9) The victim was physically able to undertake the act that constituted the assistance him or herself.
(10) The suspect was not the spouse, partner or a close relative or a close personal friend of the victim.
(11) The suspect was unknown to the victim and assisted by providing specific information via, for example, a website or publication, to the victim to assist him or her in committing suicide.
(12) The suspect gave 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 their assistance.
(14) The suspect was paid to care for the victim in a care/nursing home environment.
(15) The suspect was aware that the victim intended to commit suicide in a public place where it was reasonable to think that members of the public may be present.
(16) The suspect was a member of an organisation or group, the principal purpose of which is to provide a physical environment [whether for payment or not] in which to allow another to commit suicide.

Factors (9) to (16) seem concerned to ensure that assistance in suicide remains an amateur activity carried out by inexperienced individuals without the assistance of professionals or amateur organisations (as in Switzerland). Unlike all of the other jurisdictions which permit assisted suicide (and in the Netherlands and Belgium, euthanasia as well), where the activity is carried out in whole or in part by physicians, here the involvement of a physician will remain unusual, unless the victim is fortunate enough to have someone with medical expertise amongst his or her family or close friends who is willing to provide expert assistance. This is likely to keep the number of assisted suicides which take place entirely within the UK relatively low. There will still be an incentive to travel to Switzerland, when physically and financially possible, where such expertise is available.

The public interest factors against prosecution are set out below.

“Some public interest factors set out below appear in both lists, because their presence or absence is either a factor in favour of or against prosecution, to be taken into consideration in each case.”

Where the factors appear in both lists, I have commented on them above.

(1) The victim had a clear, settled and informed wish to commit suicide.
(2) The victim indicated unequivocally to the suspect that he or she wished to commit suicide.
(3) The victim asked personally on his or her own initiative for the assistance of the suspect.
(4) The victim did not have:

• a terminal illness; or

• a severe and incurable physical disability; or

• a severe degenerative physical condition;

from which there was no possibility of recovery.

(5) The suspect was wholly motivated by compassion.
(6) The suspect was the spouse, partner or a close relative or a close personal friend of the victim, within the context of a long-term and supportive relationship.

(7) The actions of the suspect, although sufficient to come within the definition of the offence, were of only minor assistance or influence, or the assistance which the suspect provided was as a consequence of his or her usual lawful employment.

Clearly assistance which is more proximate to the suicide than travel arrangements, such as providing medication, writing a prescription, or other technical or practical assistance with the act of suicide itself are unlikely to constitute ‘minor assistance’. Taking someone to Switzerland will be less likely to attract prosecution than providing more proximate assistance within the UK. The final clause of this factor may relate, for example, to someone who assists a suicide by dispensing medication which has been prescribed, or by prescribing medication for another purpose which is subsequently used in a suicide.

(8) The victim was physically unable to undertake the act that constituted the assistance him or herself.
(9) The suspect had sought to dissuade the victim from taking the course of action which resulted in his or her suicide.

(10) The victim has considered and pursued to a reasonable extent recognised treatment and care options.

This is an interesting factor. It goes some way to providing a palliative filter. A palliative filter (debated but not included in the Belgian legislation) is a requirement that the patient be provided with advice by a palliative care team prior to consideration of a request for assisted suicide. Lord Joffe included a variant on such a filter in his Assisted Dying for the Terminally Ill Bill and it was discussed in the Select Committee’s Report on the Bill.

(11) The victim had previously attempted to commit suicide and was likely to try to do so again.
(12) The actions of the suspect may be characterised as reluctant assistance in the face of a determined wish on the part of the victim to commit suicide.
(13) The suspect fully assisted the police in their enquiries into the circumstances of the suicide or the attempt and his or her part in providing assistance.