The intractable dilemmas of assisted suicide and euthanasia have been thrown very much into the spotlight in the UK following the bold and final act of the House of Lords as a judicial body in Purdy v DPP[1] which saw the Department of Public Prosecution’s (DPP) lack of published policy on assisted suicide[2] held to be incompatible with article 8 of the European Court of Human Rights[3]. The DPP was compelled to produce a policy which made clear the factors for and against prosecution to satisfy the requirements of accessibility and foreseeability under article 8[4]. The woman at the centre of the case, a well-travelled music journalist married to a Cuban jazz pianist, was just 46 but suffering from a chronic form of multiple sclerosis which was deteriorating rapidly to the point where she was conscious that any decision to end her life may soon have been taken out of her hands[5]. The shadow cast by the Suicide Act 1961, which criminalises those who assist in suicide albeit with the consent of the DPP[6], prompted Ms.Purdy to pursue this case to be reassured that her husband would not be convicted of assisted suicide under the 1961 Act, if they travelled together to the Swiss suicide clinic Dignitas, but are the celebrations prematureIs it right that the Director of Public Prosecutions retains discretion over who to prosecuteDo we really have a legal situation now which reflects the compassion of a mature society which comprehends assisted suicideThe answer to this last question is a resounding no: the policy guidance produced by the DPP is flawed and, as Baroness Hale envisaged[7], the grant of broad discretionary powers to the DPP is an example of Parliament passing responsibility for which it should alone legislate[8]. The policy, complementing an Act from 1961 the validity of which has been under strong criticism from all quarters[9] and which has even been labelled as “an instrument of state torture”[10], is reflective not of a more compassionate view which recognises personal autonomy as the House of Lords indicated[11] and the present situation demands, but indeed of discredited views of assisted suicide from the 1960s which no longer reflect a reality in which it is increasingly becoming recognised that those in irreversible pain and suffering who are competent and of sound mind, should be able to, with appropriate safeguards, take the informed decision to end their own lives with the assistance of the ones they love or at the very least of a physician without fear of criminal sanction[12]. Some commentators are justifiably sceptical of any changes towards autonomy for impact this may have on the disabled and the vulnerable who may be beguiled into death by those seeking to profit and indeed the House of Lords was acutely sensitive to such issues during submissions[13]. Dominic Lawson wrote powerfully in the Independent that a law on voluntary euthanasia would “pave the road to hell” for some and is a timely reminder that there are those who would abuse the law for their own profit[14]. Aristotle’s views on assisted suicide reveal a perspective which views the taking of one’s life as being a violation of the sanctity of life and is interwoven with voluntary euthanasia:
“But to seek death in order to escape from poverty, or the pangs of love, or from pain or sorrow, is not the act of a courageous man, but rather of a coward; for it is weakness to fly from troubles, and the suicide does not endure death because it is noble to do so, but to escape evil” (Nicomachean Ethics: G7, 1116a13-17).[15]
The practical reality now is that hundreds of Britons now go to Switzerland to die and that the turning of the intellectual tide is gathering pace as our medical sophistication increases[16]. The sanctity of life is, in contrast to classical Aristotlean views, now balanced against personal autonomy[17] and was accorded primacy over the right to life in the House of Lords back in 1993 in a leading case regarding a patient who was in a Persistent Vegetative State (PVS)[18]. The hypothesis of this dissertation is that the policy of the DPP is still in violation of article 8 of the ECHR and that only legislation from Parliament can cure the chaotic situation which now prevails: where “suicide tourism” is attracting Britons in their hundreds to Switzerland while at home the 1961 Act still holds sway. The Suicide Act of 1961 is painfully out of date and events are overtaking it. There are issues with other articles of the ECHR as well which were disproved in Pretty[19] but which could now hold some currency and expose the Suicide Act 1961 to a reference to Strasbourg. Chapter 1 will examine the history and theory of euthanasia in the United Kingdom while chapter 2 will look at the key role the House of Lords has played in two vital decisions as well as the policy produced by the DPP. This chapter will also highlight the problems, chief of which is the potential extension of ways in which those who assist suicide may be liable of a crime and uncertainty surrounding medical professionals, and chapter 3 looks at the approach in other jurisdictions. Chapter 4 details the recommendations of this study before conclusion. A new Act, which is what this study recommends, would clear up the mess which currently prevails and would introduce some clarity into a situation where individuals face losing their autonomy in the most demeaning and harrowing of ways, perversely prolonged by our medical science, as Lord Justice Hoffman memorably and disturbingly observed of Tony Bland after the Hillsborough tragedy:
“He lies in…hospital…fed liquid food by a pump through a tube passing through his nose and down the back of his throat into his stomach. His bladder is emptied through a catheter inserted through his penis, which from time to time has caused infections requiring dressing and antibiotic treatment. His stiffened joints have caused his limbs to be rigidly contracted so that his arms are tightly flexed across his chest and his legs unnaturally contorted…Anthony Bland has no consciousness at all…the darkness and oblivion…will never depart”[20].
Chapter 1: The evolution of assisted suicide in the UK
A. The Suicide Act of 1961
The Suicide Act of 1961 is the principal piece of legislation which regulates assisted dying in the United Kingdom and it provides, as amended by the Coroners and Justice Act 2009[21], that anyone who “does an act capable of encouraging or assisting” the suicide of another with the intention of encouraging either an attempt at suicide or actual suicide then that person will be liable on indictment for imprisonment up to 14 years[22]. The vital question is what state of mind attracts criminal liability and satisfies the mens reaIt has been settled in the House of Lords in Woollin[23] that where a certain result (eg suicide) is foreseen as an inevitable consequence of A’s actions then A will be held to have the requisite intention[24]. The encouragement or assistance, the actus reus, may be in words or actions and covers not just actual suicide but attempts as well[25]. The ingredients of an attempt were summarised well in the case of R v S[26], a case which involved an attempted suicide, where the elements of s.2 were discussed by Lord Justice Rix. His Lordship quoted with approval the comments by the trial judge to the effect that a charge of suicide was impossible where the victim had no intention to commit suicide but possible where only an attempted suicide was libelled. Indeed case law has determined that there only needs to be a possibility of suicide[27] in an attempt and the 2009 amendment further inserted that a person may be guilty even if no suicide or attempted suicide transpires[28].
That this piece of legislation has survived for half a century is surprising enough although it should be noted that the 1961 Act was a major improvement upon the situation which had prevailed since the early 19th century. Lord Phillips in Purdy briefly examines the jurisprudence prior to the Act coming into force and points out that anyone who would assist another in suicide would be guilty of murder as a principal in the second degree[29]. He cites a case from 1823, in front of a nine judge panel, which answered a question on a point of law about a man who went to the Thames with his wife after a theatre performance expressly to commit suicide together[30]. Their suicide pact failed, however, when he clambered back into the boat while her body drifted into the depths. He was granted a pardon due to evidential problems but the principle that the survivor of a suicide pact would be criminally responsible for the death of the other was extended outside of such pacts to just one person who was encouraged to commit suicide with the assistance of another[31]. After the Suicide Act came into force it was indeed 17 years before a case of assisted suicide tested its efficacy in the shape of R v Mcshane[32]: a case which revolved around a daughter’s increasingly desperate attempts to make her mother commit suicide in order to inherit from her legacy. The consent of the mother was no defence in this instance and the 1961 Act was construed as applying to hypothetical attempts as well as to actual suicides[33]. There was no evidence that the mother would have taken the pills but nevertheless the conviction was affirmed on appeal[34]. Margaret Brazier and Emma Cave note that strong evidence must be produced of assisting before a prosecution can be successful and observe that the case of Attorney-General v Able[35] demonstrates the limits of the 1961 Act where the Voluntary Euthanasia Society were not held criminally responsible for disseminating leaflets which set out the ways in which suicide could be attained. The intention of those supplying the booklets was not of a quality to attract criminal sanction[36].
Since its enactment there have been just four reported appeals which have invoked s.2 of the 1961 Act[37] with, according to Huxtable’s research, 21 known convictions of such accomplices in total and about “one or two convictions a year”[38]. The House of Lords Select Committee justifiably noted in 1994 that the Suicide Act is notable for its lack of use[39] and since the turn of the century it has fallen into even greater decay with only one actual reported appeal in 2005 which resulted in a 14- year-old boy being sentenced to three years supervision with various conditions attached for encouraging his girlfriend to commit suicide but succeeding only in injuring her after a fall from a bridge[40]. This case was very clear cut in that the boy expressed a strong intention for his girlfriend to die and was, according to the Crown allegations, unhealthily obsessed with Satanism and violence and furthermore dictated her suicide note[41]. The maximum sentence is 14 years imprisonment but the Courts have shown that mitigating factors will be taken into account and it appears that this maximum is but a guide.
The full gamut of offences is evident here from cold-blooded murder to what Huxtable calls the “shadowy area of mercy killing or common humanity”[42]. In R v Mcshane[43] the daughter was sentenced to two concurrent two year sentences for the cold-blooded attempt to force her mother to commit suicide and inherit, in R v McGranahan[44] a prisoner who assisted and encouraged another prisoner with learning difficulties to commit suicide was sentenced to eight years imprisonment, in R v Robey[45] a husband who pushed a knife into his wife’s stomach after she stabbed herself to commit suicide to relieve her suffering was sentenced to three years imprisonment and in R v Hough[46] a woman of 60 was sentenced to nine months imprisonment for helping an elderly lady die by providing her with Sodium Amytal tablets and holding a bag over her head as she took her last gasps of air[47]. These sentences demonstrate that in reality the Suicide Act has been watered down from being too draconian and that judges are ready to take into account mitigating factors in sentencing. There is no discernible pattern to sentencing, however, as the following observation demonstrates:
“The offence is a very rare offence. When it is committed, it is generally in the context of a mercy killing of some kind. There is, therefore, no established pattern of sentencing practice to which one can turn for any help in seeing whether the sentence which was imposed by this judge at Knightsbridge was right or wrong.”[48]
The factors which the court took into account were the accused’s early plea of guilty, remorse and abusive background but the factors working against him included his lengthy criminal career and cruel behaviour towards the deceased[49]. Despite this disparity between the law and reality the coming of the Human Rights Act was initially seen as a way to challenge the legislation and has brought no less than three major challenges against the Suicide Act 1961 which have culminated in the decision in Purdy v DPP[50]. In A v UK[51], a pre-human rights case from 1984 and almost forgotten in the annals of law, two members of the Voluntary Euthanasia Society were charged with two offences of aiding and abetting a suicide under the 1961 Act and the applicant was sentenced, after appeal, to 18 months imprisonment[52]. He had acted as a middle man for those who wanted to commit suicide in the early 1980s. His application to the court, prior to the entrenchment of human rights into UK law in the Human Rights Act 1998, centred on article 6 and his right to a fair trial owing to an unsworn dock statement made by his co-accused which he contended prejudiced his right to a fair trial under article 6(1) and 6(3)(d)[53]. Interestingly he also attempted to challenge the 1961 Act as being firstly a violation of his freedom of expression under article 10 and a violation of his right to privacy under article 8[54]. The court gave short shrift to both these arguments, however, and the Commission observed firstly that article 8 was not engaged due to the “trespass on the public interest”[55] and secondly that article 10 was engaged but justified under article 10(2) as being “necessary in a democratic society for the protection of health and the prevention of crime”[56]. The next human rights challenge came after the 1998 Act’s incorporation into UK law: Pretty v UK[57]. This case was the “inevitable challenge” to the Suicide Act which also inevitably failed as Michael Freeman observes[58]. Diane Pretty, much like Debbie Purdy, sought an indemnity from the DPP that her husband would not be convicted under the Suicide Act if he assisted her in dying to escape the debilitating Motor-Neurone disease. Her case in the UK reached the House of Lords and then after dismissal went to Strasbourg where her complaint was founded upon alleged violations of articles 2, 3, 8 and 14. The argument under article 2 (right to life) was dismissed as article 2 did not confer a right to die, the argument under article 3 (inhuman/degrading treatment) was also dismissed as not amounting to “inhuman or degrading treatment”, article 8 was engaged but justifiably interfered with[59] and finally the argument on article 14 was also dismissed. This case is now doubted, however, in the light of firstly Purdy, where article 8(1) of the ECHR was held to be engaged, and secondly from Z (Local Authority: Duty), Re[60] where an injunction set by a local authority to prevent a vulnerable person travelling to Switzerland was held to engage article 2 rights for a person of full capacity[61]. It is respectfully submitted that the Suicide Act is not human-rights proof in its present incarnation and challenges could foreseeably be made under articles 2 and 8 principally. What is clear is that the Act is now in a very dubious position: it has suffered from chronic under-usage, difficulties in proof[62] and is accordingly under-litigated and frankly confused as Michael Freeman rightly points out[63]. With the growth of suicide tourism there are now real questions as regards its validity as Mullock points out:
“By covertly allowing the phenomenon of ‘suicide tourism’ to develop yet potentially punishing the self-same conduct in England, English law is arguably surrendering control over a potentially dangerous practice. In Switzerland, there is a very limited framework of control over assisted suicide, and minimal assessment of the person seeking suicide. There is no requirement for intractable, unbearable suffering and people with psychiatric problems or non-terminal illnesses may be assisted in suicide. While this is not necessarily ethically unsound, it is certainly ethically questionable.”[64]
B.The theory of euthanasia and assisted suicide
It must be immediately pointed out that there is a difference between euthanasia and assisted suicide which is sometimes not crystal clear and which even divided the House of Lords in the Dianne Pretty case. Voluntary active euthanasia involves a situation where an individual cannot kill themselves but have the capacity to express a clear desire to end their lives through a physician who performs the ultimate act while assisted suicide involves an individual who can end their life and choose to have a loved one or a relative assist them in doing so[65]. But to some extent, as Lord Steyn observed in Pretty, these two concepts are “intertwined”[66] and arguments for a right to life under article 2 will logically include both as Lord Bingham rightfully acknowledges[67]. Michael Freeman observes:
“If you hand her an open bottle of paracetamol and she consumes the contents this is assisted suicide. If you put them in her mouth, does this remain within the realm of assisted suicideWhat is the final actDoes she take it(This is invariably said to be a crucial mark distinguishing suicide and euthanasia.) Suppose with the tablets in her mouth she changes her mind but is unable to communicate this and is also physically unable to spit them out. Or what if, though physically constrained, she is still able to communicate her wish not to die, but the assistor ignores thisIs this an act or an omissionPassive or activeAnd what if the person wishing assistance in suicide is so physically disabled that she asks her assistor to push the tablets down the back of her throatHave we now crossed over from assisted suicide to voluntary active euthanasia?”[68]
Freeman goes on to point out that the criminal sanction is quite different between the two with voluntary active euthanasia attracting a charge of murder with a mandatory life sentence while, as we have seen, assisted suicide has a range of sentences up to a maximum of 14 years[69]. Morally speaking there is a razor sharp line between the two and thus the same arguments and theory can be applied to both. The sanctity of life holds that it is wrong under any circumstances to take life. But what is the sanctity of lifeThe argument that euthanasia and suicide are contrary to God’s will is a powerful one which time has only begun to erode in our increasingly secular world[70].
The decision in Airedale v Bland[71] could be viewed as an assault on the traditional edifice of life’s preservation as overriding all other interests and perhaps, in the famous words of Lord Goff, represents a “crossing of the Rubicon” which enabled Purdy and indeed the present drive towards personal autonomy to take place[72]. The opprobrium with which murder is treated is a symbol of how the sanctity of life has held sway over mankind for centuries. Sir Thomas Bingham M.R. recognized very early on in the Bland case that it was common ground between both parties that “a profound respect for the sanctity of life is embedded in our law and our moral philosophy”[73]. No longer does this appear to be the case in the 21st century where self-determination, a corollary of individual rights, slowly squeezes the life out of previously sacrosanct views which held ending life as no less than heresy as epitomized by the views of Aristotle. His views, articulated in his Nicomachean Ethics, on assisted suicide, reveal a perspective which viewed the taking of one’s life as being a violation of the sanctity of life[74]. The sanctity of life is, in contrast to Aristotlean views, now balanced against personal autonomy. Autonomy was accorded primacy over the right to life in the House of Lords back in Bland and indeed it could be argued with some justification that this was a “crossing of the Rubicon”[75]. Of course the sanctity of life is not just one-dimensional as Dworkin’s carefully crafted argument, that to end one’s life with dignity is also an extension of the sanctity of life, demonstrates: “to die proudly when it is no longer possible to live proudly”[76]. Both Keown[77] and Finnis[78], however, justifiably criticise the decision in Bland as misunderstanding the sanctity of life. John Keown observes:
“But why was discontinuance not a breach of the principle of the sanctity of life, a principle which Lord Keith accepted was the concern of the State, and the judiciary as one of the arms of the State, to upholdWhat is remarkable is that, while their Lordships agreed with the fundamental importance of the principle, none of them accurately articulated it.”[79]
Keown argues persuasively that the Court adjudged Bland’s life to be worthless and not the actual treatment itself. This is, as Lord Mustill acknowledged but refused to follow, the beginning of a “very dangerous road indeed” which involves the courts determining the worth of lives[80]. Keown and Finnis are accurate in their criticism of their Lordships in Bland although it must be said that articulating the sanctity of life might have been a step too far even for the House of Lords. Ultimately personal autonomy was balanced against the sanctity of life and personal dignity. Hazel Biggs asserts that it was John Stuart Mill’s influential speech on individual autonomy which first ignited the flames of self-determination: “the only power which can be exercised over any member of a civilised community, against his will, is to prevent harm to others”[81]. The ability to end one’s life at an appropriate time and in an appropriate manner is but one aspect of the many important decisions which an individual has a right to make under the European Convention on Human Rights except when they are unable to make such a decision[82]. Where a patient has expressed a firm resolution to die, what Dworkin refers to as a “living will”, then the patient’s personal autonomy must and surely will be respected[83]. Hoffman L.J observes that a “painful compromise” must sometimes be made:
“In the case of the person who refuses an operation without which he will certainly die, one or other principle must be sacrificed. We may adopt a paternalist view, deny that his autonomy can be allowed to prevail in so extreme a case, and uphold the sanctity of life. Sometimes this looks an attractive solution, but it can have disturbing implications. Do we insist upon patients accepting life-saving treatment which is contrary to their strongly held religious beliefsShould one force-feed prisoners on hunger strikeEnglish law is, as one would expect, paternalist towards minors. But it upholds the autonomy of adults. A person of full age may refuse treatment for any reason or no reason at all, even if it appears certain that the result will be his death.”[84]
Chapter 2: The House of Lords final act
A. Purdy v DPP: A more liberal approach
In Purdy v DPP[85] the House of Lords faced a difficult question: was the DPP under a legal duty to clarify his policy regarding the prosecution of individuals under s.2(1) of the 1961 ActTheir Lordships were unanimous in deciding that the DPP was under such a legal duty and in so doing came to a more liberal position which goes against the grain of established English jurisprudence on the subject[86]. Lord Hope delivered the leading judgement in this case which the others concurred with and so I will concentrate predominantly on his opinions[87]. The facts are that Debbie Purdy was suffering from a progressive form of multiple sclerosis, diagnosed in 1995, for which there is no known cure. She expressed a will to travel to a different country, such as Switzerland, in order to escape from a situation where she would no longer be able to express her wishes[88]. She was able to express her wishes but incapable of travelling alone to another country without the assistance of her husband who had expressed his desire to help. This assistance would of course bring him under the scope of the Suicide Act 2(1) and it was for this reason that Debbie Purdy sought a judicial review of the DPP’s refusal to publish details of the policy to prosecute under s.2(4) of the Suicide Act. She relied exclusively upon her right to a private and family life under article 8 of the Convention. The legal proceedings started in the Divisional Court[89] and then were dismissed upon appeal[90] before coming to the House of Lords which, in its last judicial act before disbanding to form the Supreme Court, allowed her appeal and forced the DPP to publish a detailed policy pertaining to s.2(1) of the Suicide Act. The Divisional Court and the Court of Appeal noted the schism between the House of Lords and the European Court of Human Rights on the subject of whether article 8 was engaged at all with respect to assisted dying and opted to follow the House of Lords in Pretty[91]. In effect both of these courts’ hands were tied due to the decision in Pretty and it was clear that only a decision of the House of Lords would be able to defy otherwise binding precedent. As Kate Greasley observes[92] there are three different parts to Lord Hope’s leading judgement: in the first part he deals with a preliminary point of whether the Suicide Act could even apply to a suicide which takes place outside of England and Wales. His conclusion on this matter is that an offence in Switzerland could come under the ambit of the Act:
“But I can find nothing in the wording of the subsection, bearing in mind the context in which it was enacted, to suggest that it was Parliament’s intention to narrow the circumstances in which the offence which it describes would apply. The anomalous results that this would give rise to are a powerful indication to the contrary. The 1961 Act extends to England and Wales only: section 3(3) . It would surely be absurd if the offence which section 2(1) creates could be avoided by aiding or abetting someone who was contemplating suicide to travel from Berwick-upon-Tweed to Scotland so that he could commit the final act by jumping over the cliffs just over the border at Burnmouth.”[93]
Lord hope concluded here that there was a “substantial risk” of prosecution for a suicide committed abroad[94]. Michael Hirst, whose opinion that the Suicide Act could not be committed outside of England and Wales was discussed at length by Lord Hope[95], now calls this the “unresolved issue” of the Purdy case[96]. He points out that the change in wording brought about by the Coroners and Justice Act 2009 could now render the question academic since the House of Lords preferred a more “inclusionary”[97] approach which seems to be adopted in the 2009 amendments and thus if A helps B to the airport to travel to Switzerland to commit suicide then A will come under the scope of the amended 1961 Act by the assistance in the UK. Thus the decision’s liberal appearance unravels slightly as Lord Hope does not give any sense of finality to the question of jurisdiction. The reality is that no case of suicide tourism has yet been prosecuted by the DPP despite numerous referrals[98]. As to the numbers it was apparent that in the period from 2002 to 2009 there were at least 90 UK citizens who died in Switzerland and recent newspaper reports suggest a quantum leap in that number which now places UK citizens above even Swiss citizens at Dignitas[99].
The second and third parts of Lord Hope’s judgement concern firstly the applicability of article 8 to assisted suicide and secondly whether such interference is “in accordance with law” and “necessary in a democratic society”[100]. Simply they decided that the right not to live in physical or mental “decrepitude” was included under article 8 in line with the Strasbourg decision in Pretty[101]. The key question was whether such an interference was justified. Lord Hope observes that s.2(1) of the Act does satisfy the Convention requirements of accessibility and foreseeability[102] but that it is in fact s.2(4) of the 1961 Act which Debbie Purdy was scrutinising as lacking in these two key ingredients which make up article 8(2)[103]. The existing prosecutor’s code[104], as Lord Hope observed, did not satisfy the certainty which article 8(2) requires and thus there was a breach of Debbie Purdy’s article 8 rights:
“In most cases its (the existing code) application will ensure predictability and consistency of decision-taking, and people will know where they stand. But that cannot be said of cases where the offence in contemplation is aiding or abetting the suicide of a person who is terminally ill or severely and incurably disabled, who wishes to be helped to travel to a country where assisted suicide is lawful and who, having the capacity to take such a decision, does so freely and with a full understanding of the consequences. There is already an obvious gulf between what section 2(1) says and the way that the subsection is being applied in practice in compassionate cases of that kind.”[105]
B. The DPP’s response: policy guidance
So the DPP was then compelled to create a policy, on top of the Prosecutor’s Code which has been around for 26 years, which satisfied the requirements of accessibility and foreseeability under the article 8 Convention rights which were found to have been breached in the House of Lords[106]. The DPP produced such a policy in February of 2010 after an extensive consultation exercise[107] and now abides by it when dealing with cases of assisted suicide[108]. The policy lays out, unique to assisted suicide, sixteen public interest factors for prosecution[109] and 6 factors against prosecution[110]. The interaction of these competing factors is very complex and clearly is not intended merely to be a numbers game but instead a matrix of competing considerations which the prosecutor will take into account and, as Roger Daw and Alex Solomon observe, all the factors are, apparently, born equal[111]. The tone which emerges is aptly summarized by Alexandra Mullock:
“Whilst the final Policy reflects the general tone of the interim policy – so that the message that it is not in the public interest to prosecute a person who has compassionately and reluctantly assisted in the suicide of a determined and competent adult endures – some changes have been made.”[112]
Mullock observes that it is compassion which is at the heart of the DPP guidance and a focus on the accused’s state of mind: “the suspect was wholly motivated by compassion” as factor 2 of those against prosecution outlines[113]. The obvious problems with assessing the motives of those who have assisted the very person likely to be able to testify to whether those motives are selfish or compassionate is immediately obvious[114]. The first case which the DPP dealt with under the new policy guidelines was that of Michael Bateman in May 2010 who had assisted his bedridden wife to die by placing a plastic bag over her head while she turned on the helium and tightened the bag[115]. The reviewing lawyer for the CPS Special Crime Division said:
“I concluded that a prosecution would not be in the public interest because Mrs Bateman, who had suffered from chronic pain for decades, had a clear and settled wish to commit suicide. Interviews with Mr Bateman and the couple’s sons supported this. It was also clear that Mr Bateman was wholly motivated by compassion…There was no evidence to suggest any motive other than compassion. Mr Bateman cooperated fully with the investigation into the suicide and freely admitted assisting Mrs Bateman. As such, there was sufficient evidence to charge the offence of aiding or abetting a suicide, but it would not have been in the public interest to do so in the particular circumstances of this case.”[116]
As we can see from this statement there was insufficient evidence to conclude that he had acted out of self-interest and confirms Mullock’s observations about the difficulties in obtaining such evidence and the overriding focus on compassion. The question on jurisdiction, as outlined above in relation to Michael Hirst’s article[117], has not been answered conclusively although the policy does not make any distinction in the location of the victim’s suicide, preferring instead to focus on where the acts or assistance occurred[118]. There are also numerous factors for prosecution which hint strongly at being aimed at suicides conducted in organizations such as Dignitas and it would appear that such an organization could not operate within the UK[119]. Part of these factors is a “heightened risk of prosecution”[120] which medical professionals now have to endure under the policy and could jeopardize such benign acts as releasing a patient’s medical records for traveling to Dignitas in Switzerland[121]. Furthermore, and perhaps most importantly, the policy could encourage botched suicide attempts as people take matters into their own hands[122] due to the need to travel abroad to commit suicide with assistance and the tendency to exonerate loved ones and relatives[123]. This compulsion to travel abroad to die is clearly unsatisfactory and has led to a heightened scrutiny of Dignitas, the Swiss suicide clinic, which has come under scathing criticism. The concerns about its operation are well-founded as Mullock observes:
“As Seale has observed, ‘Swiss cases entail more women than men, and one in five has no fatal condition but rather, for example, arthritis, osteoporosis, “general weakness,” blindness, or mental disorders, usually depression’. Although no validated statistics exist for the assisted suicide cases in Switzerland, some of the cases involving UK citizens dying at Dignitas clearly support Seale’s observation and so it seems that we have good reason to be concerned. If the Policy succeeds in keeping down the numbers of assisted suicide within the jurisdiction only at the cost of exporting suicidal UK citizens to a jurisdiction where an assisted suicide is too easily available, this approach is less than satisfactory.”[124]
Chapter 3: The approach in other jurisdictions
A. The Netherlands
The Netherlands has had a policy on voluntary euthanasia since the 1970s stemming from the Postma[125] case where a Dr.Postma gave his disabled mother a fatal dose of morphine to relieve her suffering. As noted above the line between voluntary euthanasia by medical professionals and assisted dying is exceptionally thin and thus a discussion of the Dutch system is relevant when considering assisted dying[126]. As Margaret Brazier and Emma Cave note an informal agreement was struck between the prosecution and the medical profession in the 1970s[127]. Under Dutch law article 293 the taking of another’s life at the other persons “serious and express” request is punishable by up to 12 years imprisonment or a substantial fine[128]. Under article 294 assisted suicide is also prohibited with a punishment of up to three years imprisonment or a fine[129]. It is notable, as John Keown points out, that aiding attempted suicide is not criminal. The immediate comparison with the UK is that these punishments, for voluntary euthanasia and assisted suicide respectively, are much lower than their British counterparts[130]. The interpretation of the Dutch criminal courts resulted in further promises whereby the Dutch prosecution authorities agreed not to pursue prosecutions against any doctor who ends a patient’s life subject to certain guidelines[131]. John Keown refers to two supreme court cases which introduced the defence of necessity into the realm of voluntary euthanasia subject to certain criteria[132] but argues that this has been misused[133]. The tone of his article is one of scathing criticism as he firmly is of the view that the Dutch law had started to incorporate non-voluntary euthanasia and was convenient in disposing of the elderly and infirm:
“The above considerations suggest that a substantial number of the most prominent Dutch advocates of voluntary euthanasia in fact support non-voluntary euthanasia. They may, moreover, be logically committed to this position, for the basis of their case for voluntary euthanasia, namely, respect for self-determination, may well be thought to provide little or no ground for judging wrongful the euthanatising of those who do not possess autonomy, whether because they are infants, or senile, or mentally handicapped, or comatose.”[134]
The statistics are incredible: thousands of patients each year opt for such a manner of death and could be as much as 2.7% of all deaths[135]. Andre Janssen points out that a notification procedure began in 1990 whereby all medical professionals who participated in euthanasia were bound to inform the coroner who would then pass the information onto the prosecutor for a decision on prosecution[136]. Up until the year 2000 euthanasia was still formally unlawful in the Netherlands. In 2002 the Termination of Life on Request and Assisted Suicide Act came into force[137]. Under article 20 of this Act an individual is exempt from punishment under either article 293 or article 294 if they firstly satisfy the requirements of “due care”[138] as defined under the act and secondly notify the coroner promptly[139]. This is by no means a complete legalization as Janssen notes but a partial one and there are persistent problems under Dutch law with 46% of cases apparently going unreported by the medical profession[140].
B. Oregon
It is to this unassuming state in the Pacific north-west of the USA that the world looks to for a model of a system which adopts a physician-assisted suicide model[141]. While it is virtually impossible to say whether the Dutch system of voluntary euthanasia is “working” or not by all accounts the model in Oregon is, in the words of Wendy Hiscox, “impeccably implemented” with exceptionally strong safeguards which have noted to be so lacking in Dutch law[142]. The Oregon Death with Dignity Act 1994 came into force in 1997 and applies explicitly to adults who have been diagnosed as being terminally ill. As Margaret Brazer and Emma Cave note direct assistance with suicide is illegal and the only aid that can be given is a “prescription for oral medication”[143] . The Act expressly states that the provisions do not apply to euthanasia, mercy killing or assisted suicide and is only available for residents of Oregon who are capable of consenting and above 18[144]. The requirement that the individual seeking death be terminally ill is also limited to those who have less than six months to live[145]. There are additional procedural safeguards as well with the Act requiring that there first be an oral request, then a written request, which must be witnessed by two witnesses (one of whom cannot be a relative or an heir) and another oral request before the doctor can provide assistance with a prescription[146]. Despite the seeming infallibility of this physician assisted model of dying there are problems below the surface. Doctors are frightened of making incorrect diagnosis and those who cannot administer the lethal drugs by themselves cannot take advantage of the Act. Indeed Lord Joffe’s Patient (Assisted Dying) Bill 2003 was modelled on the Oregon system but attempted to incorporate voluntary euthanasia for those incapable of taking the final steps to end their life[147]. Thus the Act is somewhat exclusive and this is born out in the statistics which reveal that although it is used it is not used as frequently as the Dutch law for example with the 2010 annual report of Oregon revealing that since 1997 525 patients have died from ingesting medicines prescribed under the Act[148].
Chapter 4: Recommendations
A. Repeal of the Suicide Act 1961 and removal of DPP discretion
The first recommendation of this study is to repeal the Suicide Act 1961. It has survived for 50 years but has become obsolete, invalid[149] and completely overtaken by events and medical technology. The advent of so-called “suicide tourism” has undermined the efficacy of the Act and the inability of the Suicide Act to deal with foreign assisted suicides sets a dangerous precedent. As noted earlier the Swiss practices are highly questionable in relation to the range of illnesses they will cater for which goes outside what would normally be accepted in the UK. By continuing to criminalise assisted suicide and euthanasia in the UK the courts and the government are forcing people to either arrange their own “botched” attempts or to travel abroad in the hope of finding peace from incurable illnesses. Although Polly Toynbee went too far in calling the Act an “instrument of state torture” this study argues that the repeal of this Act would represent a milestone in removing from the statute books an Act which does not conform to reality. The DPP should not have such a broad discretion when it comes to prosecuting assisted suicide cases. This is a matter for which Parliament should alone legislate upon. The policy guidance promulgated by the DPP in response to the decision in Purdy is evidence of the immense strain placed upon them by a legislature which is certainly afraid to act and perhaps acting unconstitutionally[150]. The policy advice will encourage D.I.Y suicide attempts and also singles out medical professionals unfairly. It is further submitted that the Suicide Act is not ECHR proof. Issues remain with both article 8 and article 2 and a direct challenge to the Act under either of these could spell the end for the 1961 Act.B. The Assisted Dying for the Terminally Ill Act 2015
This Act takes its inspiration from Lord Joffe’s Patient (Assisted Dying) Bill 2003[151] which unfortunately did not progress beyond a second reading. The proposal to merge a law of voluntary euthanasia with a physician assisted suicide model based on Oregon was innovative but perhaps incomplete. Adding provisions which relate to involuntary euthanasia would square the circle. The Act should firstly provide, as the Oregon Act does, that it applies only to British subjects[152] and also apply only to those who have an incurable illness by the standards of contemporary medical science updated every six months by an expert panel of doctors[153]. There should be no time requirement as in the Oregon Act however, as this entails fine distinctions being drawn but certainly the procedural safeguards should be in place which are rigorous and serve to dissuade those who are unsure. There should also be funding made available to those who are less fortunate in society in order that they can afford to initiate the process. Education is also a vital step and could be used to empower and inform people whereas before they have been ignorant of being able to end their own lives. The provisions which relate to involuntary euthanasia should explicitly state that to kill someone in conflict with their beliefs is murder and will attract a mandatory life sentence except in the most extraordinary of circumstances. The Act should also make it illegal to travel abroad to end your life[154]. This is desirable to stop the practice of “suicide tourism” and to ensure that only those suffering from incurable conditions can take their own lives with assistance. A UK Dignitas could be setup, finally, in order to once and for all ensure that assisted suicide is not being exported to another country whose practices are suspect. A fully funded, fully transparent organization on UK soil would be a huge leap forwards.C. Lessons from the Netherlands and Oregon
The Netherlands has demonstrated that a mature policy on voluntary euthanasia will result in many thousands taking up the chance to end their lives with dignity. The 2002 Act did much to formalize what had been informal up to the year 2000 and indeed quite similar to the situation now in the UK. The method of reporting is arguably a very potent way of dealing with such cases but the startling fact that 46% of cases go unreported is worrying. It is similarly difficult to get a handle on UK instances of euthanasia and assisted suicide but a requirement to report would be a first step to understanding more. The first recommendation from the Dutch model is that the sentences for assisted suicide and voluntary euthanasia be reduced along similar lines to the Netherlands. The 14 year maximum in the 1961 Act, as we have seen, is a little illusory given that most cases are settled with a sentence far below this arbitrary number. The second one would be that if full legalization is not possible then partial legalization may be. The third recommendation is to avoid, at all costs, involuntary euthanasia which, as John Keown has warned, leads to a “slippery slope” of ethics. The Oregon model of physician-assisted suicide is arguably less effective than the Dutch model but is much more concentrated and policed by very tight safeguards. The recommendation of adopting these safeguards is paramount to achieving a sensible solution. The Oregon model does not cater for those who cannot, for example, swallow medicine and the final recommendation would be to incorporate those who are incapable of doing so into the UK system. ConclusionLike Julius Caesar’s army the law on assisted suicide and euthanasia has now crossed the Rubicon and, to continue the analogy, is indeed marching upon Southern Spain for the Battle of Munda. But the progress made by Airedale v Bland has been frustrated by the Suicide Act 1961: a piece of legislation whose validity is certainly questionable in the light of the growing numbers travelling abroad to die[155]. A legal fudge has instead been created which appeases all and satisfies nobody in an environment where personal autonomy is being increasingly recognised. By compelling the DPP to produce a policy on assisted suicide the House of Lords in its final act as a judicial body gave the impression that it was making waves but instead it was creating soft ripples which are unlikely to have any meaningful impact upon acknowledging that people who are suffering irreversibly in life should, with appropriate safeguards, be able to take their own lives and end their suffering with the assistance of loved ones or doctors. Indeed the 1961 Act could be described as an “instrument of state torture”[156] in that it forces underground and abroad those who wish to be assisted in dying. It also, in conjunction with the 2010 policy, encourages D.I.Y attempts at suicide. Recognition that assisted suicide need not necessarily attract criminal sanction would set us on the road to being a mature democracy. Netherlands has shown us the road to go on – or perhaps Oregon with its physician assisted suicide legislation. The present situation, which now sees more Brits being killed in Switzerland than any other nation, is surely intolerable and the legislature must act soon. No less than an Act of Parliament is needed to take decisions out of the DPP’s hands and put the power back into the individual. The decision in Haas[157] confirmed that member states enjoy a large margin of appreciation: its time we started using that margin. The Suicide Act should be repealed and discretion taken away from the DPP. A new Act of Parliament is called for and a brave Parliament to instigate it. This is quite unlikely under the present Conservative regime: only under a labour/liberal government in 2015 could this area be attacked and dealt with. In the meantime we must travel to Switzerland to die.
Bibliography1.0 Journals
Burns, Seamus (2007) ‘The Quality of Mercy’ New Law Journal 157(7256) pp86-87
Cartwright, Nick (2009) ’48 years on: is the Suicide Act fit for purpose?’ Medical Law Review 17(3) pp467-476
Coggon, John (2010), ‘Doctors and Assisted Suicide’ 340 British Medical Journal 547.
Daw, Roger & Solomon, Alex (2010) ‘Assisted Suicide and Identifying the Public Interest In the Decision to Prosecute’ Criminal Law Review 10 pp737-751
Finnis, J.M (1993) ‘Bland: Crossing the Rubicon?’ Law Quarterly Review 109(Jul), 329-337
Freeman, Michael (2002) ‘Denying Death its Dominion: Thoughts on the Diane Pretty Case’ Medical Law Review 10(3) pp.245-270 at p.246
Gevers, Sjef (2004) ‘Euthanasia and the Law: Recent Developments in the Netherlands’ Medico-Legal Journal of Ireland 10(1) pp32-37
Greasley, Kate (2010) R.(Purdy) v DPP and the Case for Wilful Blindness’ Oxford Journal of Legal Studies 30(2) pp301 – 306
Heywood, Rob (2010) ‘The DPP’s Prosecutorial Policy on Assisted Suicide’ King’s Law Journal 21(3) pp424 – 433
Heywood (2010) 2010 ‘R. (on the application of Purdy) v DPP: clarification on assisted suicide’ in Law Quarterly Review vol.126 p.5-8
Hirst, Michael (2009) ‘Suicide in Switzerland: Complicity in England?’ Criminal Law Review 335.
Hirst, Michael (2009) ‘Assisted Suicide After Purdy: The Unresolved Issue’ Criminal Law Review 12, 870-876
Hiscox, Wendy (2007) ‘Physician-Assisted Suicide in Oregon: the Death with Dignity Data’ Medical Law International 8(3) pp197-220
Janssen, Andre (2002) The New Regulation of Voluntary Euthanasia and Medically Assisted Suicide in the Netherlands’ International Journal of Law, Policy and the Family 16(2) pp260-269
Keown John (1992) ‘The Law and Practice of Euthanasia in the Netherlands’ Law Quarterly Review 108 (Jan) pp51-78
Keown, John (1997) ‘Resisting Moral and Intellectual Shape to the Law after Bland’ Law Quarterly Review 113(Jul), 482-503
Lewis, Penney (2010) ‘Informal Legal Change on Assisted Suicide: The Policy for Prosecutors’ Legal Studies Vol.31 issue 1 pp119-134
Mason, J.K (2009) ‘Unalike as Two PeasR (On the Application of Purdy v DPP)’ Edinburgh Law Review 13(2) pp298 – 302
Mullock, A (2009) ‘Commentary: Prosecutors Making (Bad) LawDecision on Prosecution – the Death by Suicide of Daniel James, 9 September 2008’ 17 Medical Law Review pp.290-299, at p. 290
Mullock, Alexandra (2010) ‘Overlooking the Criminally Compassionate: What Are the Implications of Prosecutorial Policy on Encouraging or Assisting Suicide?’ Medical Law Review 18(4) pp442-470
Morris, Dan (2010) ‘Assisted Suicide under the ECHR: A Critique’ in European Human Rights Law Review vol.1 pp65 – 91
2.0 Books
Aristotle Nicomachean Ethics G7, 1116a13-17
Brazier, Margaret & Cave, Emma (2007) Medicine, Patients and the Law (4th ed) Penguin Books: London
Biggs, Hazel (2001) Euthanasia, Death with Dignity and the Law Hart Publishing: Oxford, Portland, Oregon
Fontana & Keene (2009) Death and Dying in America Polity Press: Cambridge & Malden
Huxtable, Richard (2007) Euthanasia: Ethics and the Law: From Conflict to CompromiseRoutledge Cavendish: USA, Canada
Lewis, Penney (2007) Assisted Dying and Legal Change Oxford Uni Press: Oxford
Mason, J.K & Laurie, G.T (2011) Law and Medical Ethics Oxford University Press: Oxford
Wacks, Raymond (2009) Understanding Jurisprudence Oxford Uni Press: Oxford & New York
3.0 Statute
Coroners and Justice Act 2009
Human Rights Act 1998
Netherlands Penal Code (Wetboek van Strafrecht ).
Suicide Act 1961
Termination of Life on Request and Assisted Suicide (Review Procedures) Act’ (Wet toetsing levensbeeindiging op verzoek en hulp bij zelfdoding )
4.0 Cases
A v United Kingdom (10083/82) (1984) 6 E.H.R.R. CD140 (Eur Comm HR)
Airedale NHS Trust v Bland [1993] AC 789
Attorney General v Able [1984] Q.B. 795;
Dalton v Latham [2003] EWHC 796 (Ch);
Dunbar v Plant [1998] Ch. 412;
Kirkham v Chief Constable of Greater Manchester [1990] 2 Q.B. 283;
Haas v Switzerland (application no. 31322/07)
Rex v William Britton Dyson (1823) Russell and Ryan 523
R v S [2005] EWCA Crim 81
Purdy v DPP [2009] UKHL 45
Pretty v United Kingdom (2346/02) [2002] 2 F.L.R. 45 (ECHR)
(on the application of Pretty) v DPP [2001] EWHC Admin 788; (on the application of Pretty) v DPP [2001] UKHL 61; (on the application of Pretty) v DPP (Permission to Move for Judicial Review) [2001] EWHC Admin 705 (QBD (Admin)) (on the application of Purdy) v DPP [2008] EWHC 2565 (Admin); (on the application of Purdy) v DPP [2009] EWCA Civ 92; (on the application of Purdy) v DPP [2009] UKHL 45; (on the application of Williamson) v Secretary of State for Education and Employment [2002] EWCA Civ 1926; v Clegg (Lee William) [1995] 1 A.C. 482; v Hough (Charlotte Helen) (1984) 6 Cr. App. R. (S.) 406; v McShane (Yolande Tregenna) (1978) 66 Cr. App. R. 97; v Inner West London Coroner Ex p. De Luca [1989] Q.B. 249; v Kennedy (Simon) [2005] EWCA Crim 685; v Robey (David George) (1979) 1 Cr. App. R. (S.) 127; v McGranaghan (Terence) (1987) 9 Cr. App. R. (S.) 447 (CA (Crim Div))Woollin [1998] 4 ALL E.R. 103
Z (Local Authority: Duty), Re [2004] EWHC 2817 (Fam)
5.0 Websites
Doughty, Steve (2011) ‘Britons Die at Dignitas Suicide Clinic in Record Numbers’ from Daily Mail online retrieved on 30th August 2011 and available from: http://www.dailymail.co.uk/news/article-1377924/Britons-die-Dignitas-suicide-clinic-record-numbers.html
Lawson, Dominic (2011) ‘Why the disabled fear Assisted Suicide’ from the Independent online retrieved on 1st August 2011 and available from: http://www.independent.co.uk/opinion/commentators/dominic-lawson/dominic-lawson-why-the-disabled-fear-assisted-suicide-2297116.html
Toynbee, Polly (2009) ‘The 1961 Suicide Act is an Instrument of State Torture’ retrieved on 30th August 2011 and available from: http://www.guardian.co.uk/commentisfree/2009/jul/31/assisted-suicide-law-debbie-purdy
Oregon Public Health Division ‘Oregon Death With Dignity Act 2010’ retrieved on 1st September 2011 and available from: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year13.pdf
Crown Prosecution Service : ‘Assisted Suicide Charge Not in the Public Interest’, http://www.cps.gov.uk/news/press_release/120_10/>
6.0 Government reports
Session 1993-4, HL 21- House of Lords Select Committee on Medical Ethics
Appendix A: DPP policy: Factors for Prosecution
The victim was under 18 years of age. The victim did not have the capacity (as defined by the Mental Capacity Act 2005) to reach an informed decision to commit suicide. The victim had not reached a voluntary, clear, settled and informed decision to commit suicide. The victim had not clearly and unequivocally communicated his or her decision to commit suicide to the suspect. The victim did not seek the encouragement or assistance of the suspect personally or on his or her own initiative. 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. The suspect pressured the victim to commit suicide. The suspect did not take reasonable steps to ensure that any other person had not pressured the victim to commit suicide. The suspect had a history of violence or abuse against the victim. The victim was physically able to undertake the act that constituted the assistance himself or herself. 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. The suspect gave encouragement or 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 his or her encouragement or assistance. 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. 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. 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.Source – Crown Prosecution Service Website: http://www.cps.gov.uk/news/press_releases/109_10/
Appendix B DPP policy: Factors Against Prosecution
The victim had reached a voluntary, clear, settled and informed decision to commit suicide. The suspect was wholly motivated by compassion. The actions of the suspect, although sufficient to come within the definition of the crime, were of only minor encouragement or assistance. The suspect had sought to dissuade the victim from taking the course of action which resulted in his or her suicide. 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. 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.Source – Crown Prosecution Service Website: http://www.cps.gov.uk/news/press_releases/109_10/
