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Assisted-dying guidelines clamp down on medically-aided suicide

Doctors and healthcare professionals could face a higher risk of prosecution if they help patients take their own lives according to new guidelines published by the Director of Public Prosecutions Keir Starmer QC last week.

2 March 2010

The ‘Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide’ comes seven months after the House of Lords ruling in the Purdy case which required the DPP to clarify its approach to assisted dying.

The new guidelines follow a consultation which attracted 4,710 responses and replace the interim policy issued in September last year with a set of 16 factors in favour of prosecution and six against.

The main thrust of the new policy is that individuals driven by compassion will be unlikely to be prosecuted if this was their guiding motive. Those motivated by gain would be.

But one of the new factors in favour of prosecution, factor number 14, requires prosecutors to consider whether “the suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional”.

A further factor, number 16, emphasises the fact that “the suspect gave encouragement or assistance to more than one victim who were not known to each other”.

“The logic seems to be that they don’t want to create a situation where assisted suicide involving members of the medical profession becomes the norm,” said Penney Lewis, professor of law at King’s College London’s Centre of Medical Law and Ethics.

Lewis, who will provide an extended analysis of the new guidelines in next week’s issue of Solicitors Journal, said she could not see a reason for the new factor. “This seems to suggest that it is allowed to assist somebody if the suspect has no qualification but not if you are a professional.”

“There is a real risk that it could push assisted suicide underground,” she added.

Dr Irwin, the former UN doctor who paid for one of his patients to fly out to the Dignitas clinic in Switzerland, said this risk was “certainly very real” and that “it would lead to botched mercy killings”.

Dr Irwin, who is still waiting to hear whether he will be charged, surmised the new factor had been added under pressure from the medical profession itself seeking to provide doctors with legal justifications to turn down patients’ requests for help with suicide.

He expressed further concern that the new policy had been perceived to change the law and made it lawful for people to help their loved ones die.

“There is a positive element to the guidelines in that it keeps the debate open, but there is also a perception that the law has changed, that it’s ok to help somebody, and that could push the question of the legalisation of assisted suicide off the agenda,” he told Solicitors Journal.

One further factor likely to bring reassurance to those providing assistance clarifies that there will be no prosecution where the actions of the suspect “were of only minor encouragement or assistance”.

Asked how his services would apply this new criterion, Starmer replied that there was “a wide range of possible actions and that it would not be suitable to provide specific examples”.

As far as medical and healthcare professionals were concerned, Starmer added it depended how far they went and that they should ensure they sought advice beforehand.

 

CPS GUIDANCE: FACTORS IN FAVOUR AND AGAINST PROSECUTION

Public interest factors tending in favour of prosecution

A prosecution is more likely to be required if:

1.       the victim was under 18 years of age;

2.       the victim did not have the capacity (as defined by the Mental Capacity Act 2005) to reach an informed decision to commit suicide;

3.       the victim had not reached a voluntary, clear, settled and informed decision to commit suicide;

4.       the victim had not clearly and unequivocally communicated his or her decision to commit suicide to the suspect;

5.       the victim did not seek the encouragement or assistance of the suspect personally or on his or her own initiative;

6.       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;

7.       the suspect pressured the victim to commit suicide;

8.       the suspect did not take reasonable steps to ensure that any other person had not pressured the victim to commit suicide;

9.       the suspect had a history of violence or abuse against the victim;

10.   the victim was physically able to undertake the act that constituted the assistance him or herself;

11.   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;

12.   the suspect gave encouragement or assistance to more than one victim who were not known to each other;

13.   the suspect was paid by the victim or those close to the victim for his or her encouragement or assistance;

14.   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;

15.   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;

16.   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.

On the question of whether a person stood to gain, (paragraph 43(6) see above), the police and the reviewing prosecutor should adopt a common sense approach. It is possible that the suspect may gain some benefit - financial or otherwise - from the resultant suicide of the victim after his or her act of encouragement or assistance. The critical element is the motive behind the suspect's act. If it is shown that compassion was the only driving force behind his or her actions, the fact that the suspect may have gained some benefit will not usually be treated as a factor tending in favour of prosecution. However, each case must be considered on its own merits and on its own facts.

Public interest factors tending against prosecution

A prosecution is less likely to be required if:

1.       the victim had reached a voluntary, clear, settled and informed decision to commit suicide;

2.       the suspect was wholly motivated by compassion;

3.       the actions of the suspect, although sufficient to come within the definition of the offence, were of only minor encouragement or assistance;

4.       the suspect had sought to dissuade the victim from taking the course of action which resulted in his or her suicide;

5.       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;

6.       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.

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