A clearer direction

This month started with Sir Terry Pratchett giving the annual Dimbleby lecture in which he proposed legalisation of physician-assisted suicide. As the law currently stands, those who assist another to die may be prosecuted for assisted suicide or even murder. Sir Terry is proposing the establishment of a tribunal to license assisted dying on a case-by-case basis.

While there is broad public support for a change in the law, Parliament has yet to respond and the law on assisted dying is opaque. The Director of Public Prosecutions (DPP) has the discretion to decide whether or not to prosecute in cases of assisted suicide (section 2(4) Suicide Act (1961)) and next month he is expected to publish guidelines explaining how he exercises this discretion. This discretion was afforded by Parliament and to fetter it would be to act ultra vires and against the sovereign will of Parliament.

How the DPP exercises the discretion afforded to him was until recently unclear, the only real indication being precedent. In July 2009, Debbie Purdy won her judicial review of the DPP's refusal to formulate and publish a policy on how he exercises his discretion. His consultation exercise, based on a preliminary policy ('Interim Policy for Prosecutors in respect of Cases of Assisted Suicide') ended on 16 December 2009, and full guidelines are expected in March 2010.

The DPP's interim policy does not change the law on assisted suicide; it aims to offer clarity in how the law is exercised and succeeds in doing so. The policy clarifies that it applies to assistance to suicides committed in England and Wales and extra-territorially without distinction '“ debunking the myth of decriminalised suicide tourism. The policy is set out as a series of factors for and against prosecution which when considered together would provide an indication of whether a prosecution would be in the public interest. Reading the guidelines, it is apparent that the DPP is concerned with balancing a respect for the wishes of the competent adult patient with the protection of vulnerable individuals such as children and the mentally ill.

The factors for and against prosecution can be broadly classified as those factors which focus on the status of the individual seeking assistance, who the DPP calls the 'victim', and the motivations of individuals offering assistance, who he calls the 'suspect'. Although the terms the DPP adopts are grossly misleading, they will be used in this paper.

Prosecution factors

The factors that focus on the status of the victim include the victim's age, capacity, desires, and any terminal illness, physical disability or degenerative condition. It is unlikely that a prosecution would be brought had a competent adult patient genuinely requested assistance. However, if the patient was under 18, had limited decision-making capacity or the suggestion of assisted suicide had not come from them, then there is a greater possibility that a prosecution would be brought.

Prosecutors will also consider whether a patient is terminally ill, or suffers from a physical disability or degenerative condition. This has been criticised by some, arguing it values the lives of those with a disability less than those without. However, as the guidelines serve to clarify, consideration will also be given to whether the victim was physically able to take her own life, allowing those with physical limitations the same autonomous right to end their lives as those who would not need assistance.

The factors that focus on the motivation of the suspect include the relationship with the victim and any ties of love and affection, any discouragement or encouragement offered and any financial or personal gain. A suspect who is a close friend or relative is unlikely to be prosecuted where they did not encourage suicide or stand to financially gain from it, while someone previously unknown to the victim who encourages the suicide or accepts payment or reward would likely face prosecution.

The Court of Appeal held in R (on the application of Purdy) v DPP [2009] UKHL 45 that the DPP's reasoning in his published decision not to prosecute the family of Daniel James gave a clear indication of the likelihood of prosecution; however, the House of Lords rightly held that legal certainty was necessary to give reassurance to those contemplating a final act of love and compassion.

A positive start

The interim guidelines offer clarity and it is expected that there will be little, if any, deviation from this document when the final guidelines are published in March 2010. If Parliament is minded to respond to strong public opinion, then even greater clarity through legislative action would be welcome.

The strength of Sir Terry's proposal is that it involves an independent body to guard against abuses and protect the vulnerable. The likelihood, however, is parliamentary indifference. The clarification afforded by the DPP's guidelines is a hard fought for step in the right direction and withdrawing the guidelines, as some suggest, would only add to uncertainty and the distress caused to those who deserve compassion and reassurance.