Assisted Suicide Is, a Highly Controversial Subject

The Position in Law

Prior to 1st February 2010 the law in respect of assisted suicide consisted of two offences. The first was the substantive offence under Section 2 of the Suicide Act 1961 of aiding, abetting, counselling or procuring a suicide or a suicide attempt. For that offence to have been committed there needed to be an intention to aid, abet, counsel or procure an actual or attempted suicide and for a person to be assisted or encouraged by the conduct of the defendant to actually commit suicide or attempt it.

The second offence was an offence pursuant to Section1 (1) of the Criminal Attempts Act 1981 of attempting to aid, abet, counsel or procure a suicide or a suicide attempt. For the offence under the Criminal Attempts act to have been committed, the defendant had to do an act which was merely preparatory to aiding, abetting, counselling or procuring a suicide or suicide attempt intending to do the same. But no actual suicide or suicide attempt was required for the commission of the offence.

As Livings states “the substantive criminal law makes no difference between benevolent and malevolent intentions” (2010 pg 2). Therefore regardless of the intention a person who assists another to end their life holds themselves open to prosecution and the possibility of a maximum of 14 years imprisonment.

Section 59 of the Coroners and Justice Act 2009 which came into force on 1st February 2010 simplifies the law by replacing the two offences with a single offence. It covers behaviour which was previously caught by both Section 2 of the Suicide Act 1961 and the offence under the Criminal Attempts Act 1981, which no longer applies to this offence (Paragraph 58 of Schedule 21 to the Coroners and Justice Act 2009). In addition, in line with the Law Commission’s recommendation the wording of the offence has been altered in order to make it more readily accessible to the general public. (Law Commission 2006).

Section 59(2) applies where an individual does an act which is capable of encouraging or assisting another person to commit or attempt to commit suicide, and intends his act to so encourage or assist.

Under Section 2(4) of the Suicide Act no prosecution for an offence under Section 2 (1) may be brought except by or with the consent of the Director of Public Prosecutions (DPP). Following the House of Lords ruling in R (on the application of Purdy) v DPP [2009] UKHL 45 on 30th July 2009, the DPP was required to produce an offence specific policy identifying the facts and circumstances he will take into account when deciding whether to give consent to a prosecution being brought under the Suicide Act.

The Policy for Prosecutions in Respect of Cases of Encouraging or Assisting Suicide.

The full policy came into effect on 25th February 2010 and reflected the public consultation which had followed the publication of the interim policy on 23rd September 2009.

The policy does reiterate that the case of Purdy did not change the law in respect of assisted suicide and that only Parliament has this power. It also clearly states that the policy does not in any way “decriminalise” the offence of encouraging or assisting suicide and nothing in the policy can be taken as an assurance that a person will be immune from prosecution should he do an act which encourages or assists the suicide of another. (CPS, 2010, Para 6).

As a result when considering whether the policy is sufficient to ensure that the law serves its purpose, the purpose of the law will be taken to be ensuring that a prosecution follows in the appropriate circumstances as detailed within the policy in order to protect the vulnerable in society. As Baroness Hale said in the case of Purdy “Clearly, 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. (at Para 65)

As with any prosecution the State can only pursue a prosecution where the cases passes the Full Code Test as set out in the Code for Crown Prosecutors. The test has two stages, the evidential stage and the public interest stage. In order to pass the evidential stage the prosecution must prove that the suspect did an act capable of encouraging or assisting the suicide or attempted suicide of another person AND that the suspect’s act was intended to encourage or assist suicide or attempted suicide. The evidential stage must be considered before the public interest test and it has never been a rule that a prosecution will automatically follow where the evidential stage of the Full Code Test is satisfied (Purdy per Lord Hope at Para 44).

According to the policy a prosecution will normally follow unless the prosecutor is sure that the public interest factors against prosecution outweigh those in favour (Purdy per Lord Hope Para 38). Each case must be considered on its own merits and the policy makes clear that it is not simply a case of adding up the number of factors on each side and deciding accordingly. A copy of the policy can be found at Appendix One.

The policy focuses on the public interest factors for and against prosecution. There are sixteen factors in favour of prosecution and six against. Of the factors in favour of prosecution eight relate to the vulnerability of the victim and the others concern unscrupulous defendants, including where the defendant was acting in a professional capacity, such as a doctor or nurse. The factors against prosecution relate primarily to the autonomy of the victim, namely that “the victim had reached a voluntary, clear, settled and informed decision to commit suicide” (CPS, 2010, Para 45(1)). The other factors relate to the defendant and their motivations, considering specifically whether they were motivated “wholly by compassion” (CPS, 2010, Para 45(2)).

The effectiveness of the policy in ensuring the law serves its purpose

One of the principal themes that emerged from the public consultation was the concern regarding the victim based factors tending against prosecution, for example, inter alia, whether the victim had a terminal illness or has attempted suicide before. The message from the consultation was that “the attributes or characteristics or behaviour of the victim were not matters that the public considered should influence the decision-making process” (Daw R and Solomon A, 2010, pg 747)

This in itself causes some difficulty. The only victim related mitigating factor which remains is that “the victim had reached a voluntary, clear, settled and informed decision to commit suicide” (CPS, 2010). However, there is no guidance as to how this is to be established and arguably some of the other victim related mitigating factors which were omitted from the final policy when taken cumulatively could assist in determining whether the victim had fulfilled the above criteria (Rogers J 2010). For example, even if not relevant individually the fact that an individual is suffering from a terminal illness and has already attempted suicide and is then assisted by a close family member may go some way towards helping to demonstrate that the victim has made a voluntary, clear, settled and informed decision. The difficulty also arises when determining whether a defendant acted “wholly out of compassion”. Again certain factors taken cumulatively may go some way towards providing evidence of this but it is not clear from the policy exactly what those factors would be and the weight attributed to the factors considered relevant and that is the difficulty with any policy such as this.

As Rogers (2010) concludes it is very difficult for prosecutorial “public interest” guidelines to be clear and accessible, because clarity may tend to result in over simplification and the reduction of a concept to a single line where a more detailed explanation would be of more assistance. As a result of the lack of clarity in the policy there is much reliance placed on the discretion of the DPP which may lead to public confusion. As Daw and Solomon state “the appropriateness of the factors to be taken into consideration when determining whether or not to prosecute and then their application to individual cases is vital to the confidence which the public can have in their prosecutors” (2010, pg 741).

Reform of the law?

Given the conclusion that although the policy has assisted in giving clarification as to when a prosecution will be brought in cases of assisted suicide there are still areas which require further clarification and may result in legal challenge it is necessary to consider whether the law requires comprehensive reform.

Firstly, The policy does not apply to euthanasia generally and is specific to cases of assisted suicide. However, there are many cases which “hover ambiguously on the borderline between assisted suicide and murder” (Rogers, 2010, 555) [1] . As Burns (2010) states the law in this area appears to be very “hit and miss” in these controversial areas of life and death. He argues that there is too much discretion in the hands of the CPS and that by reforming the law to permit voluntary euthanasia with very clear and rigorous safeguards the lack of clarity would be improved.

In a survey conducted by YouGov in 2008 which surveyed 2000 people 69% think that the law should be changed and 61% said they would consider assisted suicide for themselves if suffering from a terminal disease (Times Online December 14th 2008).

However, there are also compelling arguments against legal reform to permit assisted suicide. Lord Lane gave the rationale for the offence of assisted suicide as follows, “Parliament had in mind the potential scope for disaster and malpractice in circumstances where elderly, infirm and easily suggestible people are sometimes minded to wish themselves dead”(R v Hough (1984) 6 Cr App R (S) 406 at 409). It has frequently been highlighted that a change in the law could be open to misuse. As Claire Ward, Parliamentary-Under Secretary stated in the House of Commons debate on assisted suicide “Many of those who oppose any change to the law are concerned that it would weaken the protection that the law affords the most vulnerable people in society. They believe that no safeguards, however stringent, could ever eliminate the possibility that a vulnerable person might feel pressure, whether real or imagined to end their life”(House of Commons Debate, 10th March 2010 c404). In his article Euthanasia and Physician Assisted Suicide Michael Kelleher argues that criteria for allowing assistance and safeguards to protect the vulnerable can be easily manipulated to fit the circumstances as required and that this has been seen to be the case in Holland where the law has undergone reform (Kelleher, 1996).

Conclusion

Whether the law regarding assisted suicide is in dire need of reform will continue to be one of the most debated legal issues. There are those who firmly believe that individuals should have a right to die and to be assisted in their death without fear of prosecution of their loved ones. There are others who believe that there are no safeguards sufficiently strong to protect the elderly and infirm from unscrupulous defendants. It is arguable that the guidance issued by the DPP leaves many unanswered questions and may well be subject to legal challenge. However, given that the policy states that it in no way decriminalises the offence of assisted suicide and merely hopes to provide clarification as to when a prosecution is appropriate it does appear to ensure that the law, as it currently stands, serves its purpose in protecting the elderly and infirm and merely offers hope to those who compassionately assist their loved ones, who have made a clear and voluntary decision to commit suicide, that they will not be prosecuted, whilst providing a deterrent to those who would seek to manipulate the vulnerable members of society.

2079 words.