Although committing or attempting to commit suicide is not a criminal offence in Ireland or Britain, it must be achieved without assistance from anyone. Assisted suicide is a criminal offence in Ireland and in Britain, punishable by up to 14 years imprisonment in both jurisdictions.
In July 2009, Multiple Sclerosis sufferer, Debbie Purdy, won a House of Lords Appeal seeking clarification on the prosecution of relatives in the context of assisted suicide. The House of Lords agreed with Miss Purdy that the law on assisted suicide was not clear. As a result, the Law Lords directed the Director of Public Prosecutions (“DPP”), to draft a specific policy identifying the facts and circumstances which should be taken into account in deciding whether or not to prosecute for assisting in another’s suicide.
In response, the draft guidelines on assisted suicide were published by the DPP in September and were effective immediately in England and Wales. Consultation guidelines were also published in Northern Ireland. The DPP also launched a 12 week consultation period, after which any amendments to the policy will be considered. The closing date for responses during the consultation period is 16 December 2009.
The interim policy details the public interest factors that prosecutors will consider when deciding whether or not to prosecute someone for assisting suicide. It also details those public interest factors which carry more weight than others. The interim policy will be applied to all current and future cases until a final policy is published in spring 2010. It applies to all cases where the act or acts of assisting the suicide are carried out in England and Wales, regardless of where the suicide takes place. It also applies to cases of attempting to assist suicide. The policy does not address euthanasia which remains murder or manslaughter. It also does not provide any individuals with immunity from prosecution, nor does it decriminalise assisted suicides.
Many believe that the right to life includes the right to end one’s own life when one can still do so with dignity. For these reasons, the DPP, to whom the decision-making function is delegated, ought to have the clearest possible instructions as to the factors when performing that function. In addition, the police, who exercise an important discretion as to whether or not to bring a case to the attention of the Crown Prosecutors, also need guidance if they are to avoid criticism that their decision-making is arbitrary. These developments in the UK certainly warrant a discussion of this issue in this jurisdiction.
There are sixteen public interest factors in favour of prosecution, which include:
- The victim was under 18 years of age.
- The victim's capacity to reach an informed decision was adversely affected by a recognised mental illness or learning difficulty.
- The victim did not have a clear, settled and informed wish to commit suicide nor did he or she unequivocally indicate to the suspect that he or she wished to commit suicide.
- 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.
- The suspect was not wholly motivated by compassion.
- 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.
- 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.
The evidence to support these factors must be sufficiently close in time to the assistance to allow the prosecutor reasonably to infer that the factors remained operative at that time. This is particularly important at the start of the specific chain of events that immediately lead to the suicide or the attempt.
These lists of public interest factors are not exhaustive and each case must be considered on its own facts and on its own merits.
These guidelines also do not change the position that Dignitas type clinics will still be illegal in Britain. The author of the policy, the DPP Ken Starmer QC, also indicated that there was no risk of these types of clinics opening in the UK as a result. It is important to bear in mind that there is no separate policy for healthcare professionals who might assist patients. The policy makes a distinction between relatives and close friends on the one hand who, on a compassionate basis, may assist in a suicide and on the other hand those that on an ongoing basis provide such a service. It is claimed that the checklist of factors to be taken into account in each case will allow relatives and close friends some comfort.
 R (on the application of Purdy) v. Director of Public Prosecutions  EWHC 2565;  WLR (D)337
This article first appeared in The Irish Medical News (November 2009).