Cases which touch on the legality of assisted suicide attract the heat of press attention. The emotionally charged circumstances with which almost everyone can identify coupled with the legal complexity make them desperately sad, and utterly compelling, to follow.
The current law
The well-publicised cases of Noel Conway, Debbie Purdy, Diane Pretty and Tony Nicklinson all arose from litigation challenging the status of the current law, and essentially seeking permission to change the law to allow their loved ones to take steps to assist their dying, which would amount to criminal offences under the current law. Alongside them, and on their behalf, campaigners and pressure groups have called for a review of the law, citing its inflexibility and lack of humanity in criminalising acts of altruism and mercy, and identifying the perversity in criminalising the act of providing assistance when the act itself is not a criminal offence. It is a sentiment that is almost impossible to counter, and a situation in which none of us would wish to find ourselves.
The difficulty is that the debate sometimes overlooks the full range of scenarios which can potentially be criminalised under the existing legislation. The Suicide Act 1961 (“the Act”) was enacted to decriminalise the act of suicide. Section 2 of the Act criminalises acts which amount to assistance to, or encouragement of, someone contemplating or undertaking the act of suicide. When we talk about ‘assisted suicide’ or ‘assisted dying’, the circumstances that are generally being referred to involve assisting someone suffering with a terminal or life limiting condition to end their own life, as the cases above all demonstrate. Critics of the existing law rightly identify how absurd and heartless it is to prosecute someone who assists a loved one to end their life under those circumstances.
What does it mean in practical terms?
In practice, prosecutions of this nature are rare to the point of being practically non-existent. The reality of the situation is that assisting a loved one to travel to a jurisdiction where assisted dying is legal may amount to a criminal offence, but it is highly unusual for anyone in those circumstances to be prosecuted. The case of Daniel James is one such example and the Director of Public Prosecutions’ (DPP) Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide sets out clearly the circumstances in which the public interest would tend in favour or against prosecution. The assistance provided is only half of the consideration as the public interest in prosecuting people under these circumstances is difficult to establish. In the recent case relating to the estate of Alexander Ninian ( EWHC 297 (Ch)), the investigation into the actions of his wife was a demonstration of how the public interest test is applied, and the nature of the evidence those caught up in this dilemma might rely upon.
This invites the obvious question – if the law is unlikely to ever be applied in these circumstances, why not repeal it to save well intentioned loved ones in situations such as these the distress and uncertainty?
The difficulty lies in how to replace the existing legislation in such a way that retains the ability to safeguard the vulnerable and identify those cases in which a prosecution is necessary. Whilst prosecutions of individuals assisting loved ones to travel to Dignitas may be exceptionally rare, there have been successful prosecutions under other circumstances.
These prosecutions have included individuals who have deliberately encouraged vulnerable individuals, usually through online contact, to self-harm or take their own lives. As a matter of public policy it is necessary, and of fundamental importance, to have legislation in place to allow prosecutions for this exceptionally harmful behaviour to take place. Any repeal of the current legislation would require careful consideration in order to ensure that vulnerable individuals in a range of circumstances were adequately protected.
What does the future hold?
The desperately sad cases of Noel Conway, Debbie Purdy, Diane Pretty and Tony Nicklinson all received huge public support for the impossible position in which these families found themselves. The coverage was central to providing a base for arguing that the current law was out of step with current feeling about the right to die with dignity and to choose the manner of your own death. Essentially, the applications asked either for permission to commit what would otherwise be a criminal act, or to change the law. Applications of this nature will inevitably face an uphill battle to succeed.
A recent Guardian editorial identified that one family a week travels from the UK to Switzerland for the purposes of assisted dying. The number of people being interviewed by the police in respect of such activity, let alone prosecuted by the criminal courts, remains miniscule. With over ten years’ experience of representing suspects at the police station, and a wide network of professional contacts, I remain the only person I know to have represented someone who was interviewed by the police for travelling with their loved one to Switzerland for an assisted death.
It is clear that anyone in the agonising position of considering whether to accompany or assist a loved one who is contemplating an assisted death receives little reassurance from the current law, and the prospects of receiving immunity from prosecution are limited to non-existent. Nonetheless, the lack of criminal prosecutions arising from conduct which is clearly taking place provides a different picture. Whilst the DPP must give consent for the prosecution of anyone for the offence of assisting or encouraging suicide, this does not mean that the DPP has to be consulted if the decision is taken not to investigate or prosecute an individual suspected of committing the offence – decisions which are clearly being taken but not necessarily publicised.
It is often said that it is easier to seek forgiveness than permission. In the case of the current law in respect of assisted dying that would most certainly seem to be the case.
About the author
Vivien Cochrane is a Senior Associate in the Criminal Litigation team. Her practice focuses on serious and complex crime and she has experience of representing clients across the full spectrum of criminal matters. She has a very good understanding of the strategies involved in advising clients from the outset of a criminal investigation and the tactics and complexities of representing clients at trial.
For further information on the issues raised in this blog post, please contact a member of our Criminal Litigation team.