The law

Section 2 (1) Suicide Act 1961 states:

“A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years.”

Mrs Purdy

Mrs Purdy suffers from progressive multiple sclerosis and wishes to be able to choose the timing of her death, and to die by way of assisted suicide with her husband (Omar Puente’s) support. Mrs Purdy had brought her case against the Director of Public Prosecutions (DPP) to the High Court and then the Court of Appeal because she wanted to know if Mr Puente would be prosecuted were he to help her commit suicide overseas.

She argued that, if this was the case, she might have to end her life sooner, while she was still able to travel abroad alone. She did not seek a guarantee of immunity from prosecution. What she sought was information. The DPP had declined to say what factors they would take into consideration in deciding whether or not it is in the public interest to prosecute those who assist people to end their lives in countries where assisted suicide is lawful. Mrs Purdy argued that her Article 8 right to respect for her private and family life under the European Convention of Human Rights was engaged and that she should be able to exercise her choice to avoid an undignified and distressing end to her life.

Further, and importantly for many patients throughout the country with debilitating terminal illnesses, she sought clarification from the DPP in relation to when it was likely that a prosecution would be brought against somebody who assisted an incapacitated person under Section 2 of the Suicide Act 1961. Similar cases

It was noted that by the time of the hearing there had been 115 such cases. Of those only eight had been referred to the DPP for a decision. In all but two of them the decision not to prosecute was taken on the ground that there was insufficient evidence. The most recent prosecution had been made, including in the case of Daniel James (who sustained a serious spinal injury in a rugby accident and had travelled with his parents to Switzerland to end his life).

The DPP has a Code for Crown Prosecutors giving guidance on general principles to be applied in determining, amongst other things, whether proceedings for an offence should be instituted. The question the court considered was whether it satisfied the requirements of accessibility and forseeability. The Court of Appeal noted that many of the factors in this code have no relevance in the case of assisted suicide.

Summary

The House of Lords concluded that clear guidance from the DPP outlining when a prosecution in respect of section 2(1) Suicide Act 1961 was likely to be brought was required. That guidance is now expected in September 2009.

They also agreed that Article 8 was engaged.

The detail – House of Lords decision

The judgment is quite lengthy and raises several important points in relation to patients’ Article 8 rights and assisted suicide. Some important points to note are: Lord Hope

It was not a part of the court’s function to change the law in order to decriminalise assisted suicide. If changes are to be made this must be a matter for Parliament. The function of judges is to say what the law is and, if it is uncertain, to do what can be done to clarify it.

He observed that the crown prosecutors to whom the decision-taking function is delegated need to be given the clearest possible instructions as to the factors which they must have regard to when they are performing it. He noted that whilst cases that have been referred to the DPP under the Suicide Act 1961 were small they will undoubtedly grow in number.

Baroness Hale

Baroness Hale observed that the current code for crown prosecutors was not sufficient. Her view was that the focus of an exercise for the DPP should not be upon a generalised concept of “the public interest” but upon the features which will distinguish those cases in which deterrence will be disproportionate from most cases in which it will not.

She noted that the prime object must be to protect people who are vulnerable to all sorts of pressures, both subtle and not so subtle, to consider their own lives a worthless burden to others. But at the same time, the object must be to protect the right to exercise a genuinely autonomous choice.

In accordance with the Mental Capacity Act 2005 she noted that if we are serious about protecting autonomy we have to accept that autonomous individuals have different views about what makes their lives worth living. A relevant question is in what circumstances the law is justified in interfering with a genuinely autonomous choice.

She observed that 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.

Finally, with regard to the code, she hoped that some attention would be paid to the reasons why the person wished to be helped to end his or her life.

Lord Brown

Lord Brown observed that no advance undertaking can be sought from the DPP, and that he will refuse consent to a prosecution in a particular case because he could never be sufficiently sure of the precise circumstances of the case and in any event circumstances can change.

He was of the view that a custom built policy statement indicating the various factors for and against prosecution was needed. This should indicate the various factors for and against prosecution, 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 least forgiven, rather than condemned for giving assistance.

He made it very clear that it is wrong to assist in the suicide of someone who was not mentally competent or not clearly fixed in their intention, or who may feel under pressure to end their life for the benefit of others, or whose condition may not be extreme or may perhaps be curable rather than deteriorating. Assistance in those situations is clearly to be condemned. He was of the view that there will on occasion be situations where the conduct of the aider and abettor could be seen as altruistic rather than criminal, conduct rather to be understood out of respect for an intending suicide’s rights under Article 8 of the ECHR than discouraged so as to safeguard the right to life of others under Article 2 of the ECHR.

He found it impossible to find that the current code satisfied ECHR requirements of accessibility and forseeability in assessing how prosecutorial discretion is likely to be exercised.

Lord Neuberger

Lord Neuberger concluded also that the DPP ought to formulate and publish a policy which sets out what he would generally regard as the aggravating factors and mitigating factors, when deciding whether to sanction a prosecution under Section 2 of the 1961 Act. He noted that it was a matter of common sense that each case would be decided by reference to its own particular facts and that the contents of the policy could not be exhaustive. However, a sensible and clear policy document would be of great legal and practical value. He concluded that, in the absence of such a policy, there was not sufficiently clear or relevant guidance available as to how the very widely expressed discretion of the DPP would be exercised.

Conclusion

The case has run alongside high profile campaigns by interest groups and debates within both Houses of Parliament in relation to assisted dying legislation. In addition there have been statements from interest groups, including the recent Royal College of Nursing announcement that it had relaxed its opposition to assisted suicide to a “neutral” position following consultation with its members.

The DPP is to produce an interim policy on assisted suicide, ahead of a final version next year on which the public will be consulted.

We await with interest the proposed policy from the DPP and will keep you briefed on this. In the meantime, health practitioners should be aware that the law in relation to assisted suicide and possible implications under the Suicide Act 1961 remain unchanged in practice. Practitioners who are asked to be involved in any way in this type of end of life decision are advised to contact their managers/legal advisors for advice.