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Friday, November 5, 2010

Assisted Suicide again

This is an article co-written with Lynne Townley which has been published in Criminal Law & Justice Weekly, vol 174 (6 November 2010) p 695.

For the most obvious of reasons, assisted suicide constitutes one of the most emotive of all legal issues. It is no great surprise then that the issue still receives regular press attention and continues to evoke the strongest of opposing viewpoints.

On 3 September 2010, two people were arrested in relation to the suicide of a severely disabled 76 year old retired pensioner, Donald Sinclair, who suffered from a motor neurone disease. Mr Sinclair had travelled to Switzerland in order to die at Dignitas, a clinic for voluntary euthanasia.

The story recalled two of the most famous recent cases in English law, those of the terminally ill Diane Pretty and Debbie Purdy. Both suffered conditions similar to that of Mr Sinclair, and each brought legal proceedings because they wished to die in circumstances of their own choosing.

There are two formidable issues with which law makers in this area have to deal. The first is whether or not assisted suicide should be permitted at all. The second (assuming one believes it should be) is how to create a workable legal framework to allow it.

As to the first issue, a full consideration would easily fill many books, involving as it does competing moral, cultural and religious viewpoints. Some believe suicide is wrong whether assisted or unassisted. Even those in favour would concede the risk that an apparently voluntary assisted suicide might transpire to have been brought about by improper pressure. Others consider it an issue of personal autonomy, and that everyone has a right to end their lives in the circumstances of their own choosing. Then there is a logical point: it is generally accepted (and certainly is the law) that an adult of full mental capacity has the unfettered right to refuse medical treatment of any sort – even if they will die in very short order without it. If one has the right to refuse treatment despite the fact that certain death will follow, then it follows logically that they should also have the right to accept treatment with the same result.

One then turns to the second issue of devising a legal framework to permit assisted suicide. The Pretty and Purdy cases ([2002] 1 All ER 1 and [2009] 4 All ER 1147 respectively) examined the English legal situation in close detail. In an article for a recent LexisNexis publication, Cases that Changed Our Lives, one of the present authors reviewed both cases. The key point is that although it remains an offence under s 2(1) of the Suicide Act 1961 to assist or encourage the suicide of another (see also the amendment provided by s 2A, introduced in January 2010), it is a fundamental rule under English law that prosecutorial authorities have a discretion whether or not to bring a prosecution in any individual case, even when it seems clear that an offence has been committed; and in fact the prosecutors in England and Wales have exercised that discretion in some cases not to prosecute under s 2(1).

Following an extensive consultation procedure after Debbie Purdy’s case, the CPS issued guidelines in February 2010 on how that discretion would be exercised. Factors in favour of a prosecution include where the victim was under 18, or lacked the capacity to reach an informed decision, and where the suspect was not wholly motivated by compassion. Factors tending against prosecution include where the victim had reached a voluntary, clear, settled and informed decision, and the suspect was motivated wholly by compassion.

Inevitably, however, whilst those guidelines make the law much clearer, they have done nothing to foreclose the moral debate. The author Sir Terry Pratchett, who suffers from Alzheimer’s disease, has spoken in favour of a tribunal comprising suitably qualified people, which would assess anyone seeking an assisted death and judge whether they were in fact acting of their own volition with full mental capacity.

The prospect of such “death tribunals” can hardly be uncontroversial, but unless the terminally ill can obtain prior approval they will be left with the fear that caused Debby Purdy such distress: namely that their closest relatives might be prosecuted after the event. In those circumstances they may choose to end their own lives whilst they still retain the physical ability to do so – or they may wait and suffer the agonizing death that Diane Pretty endured because she did not receive the legal approbation which she sought.

It may therefore be that a tribunal is the least-worst option, but even its adoption would hardly end the practical difficulties. Would representation before the tribunal be publicly funded? Who else would be entitled to make representations? Would the tribunal’s decisions be judicially reviewable? How long would the decision-making process take (this would be particularly important in the case of sufferers of degenerative illnesses)?

An independent legal think-tank, Halsbury’s Law Exchange, is presently compiling a white paper on assisted suicide, and no doubt it will result in a much fuller discussion of the subject than has been possible here. It will not be short of material.

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