A public matter

Following the House of Lords decision in the Debbie Purdy case (R (Purdy) v DPP [2009] UKHL 45, Solicitors Journal 4 August 2009) the DPP published his draft guidance for prosecutors on 23 September along with a consultation with a view to developing permanent guidance.

Since the lords last considered a similar case (R (Pretty) v DPP [2001] UKHL 61), the European Court of Human Rights (ECtHR) has considered whether the article 8 right to respect for a person's private life was engaged as far as the ending with dignity of a person's life was concerned (Pretty v UK (2002) 35 EHRR 1). The court said in paragraph 67:

'The applicant in this case is prevented by law from exercising her choice to avoid what she considers will be an undignified and distressing end to her life. The court is not prepared to exclude that this constitutes an interference with her right to respect for her private life as guaranteed under article 8(1) of the Convention.'

In Purdy, the lords took heart from this ECtHR decision. Purdy was arguing that the factors which the prosecution had to consider in deciding whether to prosecute a person who had helped someone to take their own life were unclear. The effect was that she was unsure whether to go to Switzerland when she could still do it unaided; or whether she could wait until she was unable to commit suicide unaided and could no longer tolerate continued life, and then rely on her partner to help her get to Switzerland to take her own life. She wanted to live as long as she could bear it and not feel forced to take her life earlier for fear her partner would be prosecuted.

Guidance for prosecutors provides a list of factors to consider when deciding whether it is in the public interest and consistent with human rights standards to authorise criminal charges generally. But up to now, the guidance has not covered the specific factors relevant to a decision whether or not to prosecute an office under section 2(1) of the Suicide Act 1961.

The lack of clear guidance meant, the lords said, that the requirements of article 8(2) were not fully complied with. Human rights law requires the law to be sufficiently clear and predictable so that citizens can clearly know if their circumstances will fall into one of the exceptions to article 8(1). This is why they directed the DPP to publish specific guidance to cover the circumstances.

Prosecution considerations

The published draft guidance sets out the factors to be taken into account by prosecutors. They include:

• Whether the person wishing to end their life (S) is over 18 and has full capacity to make an informed decision.
• Whether S had a clear, settled and informed wish to end his/her life.
• Whether S clearly and unequivocally expressed this wish to the person requested to assist (A).
• Whether S had a terminal illness or a severe and incurable disability or a severe degenerative condition for which there was no possibility of recovery.
• Whether A was motivated wholly by compassion and not by the prospect of gain.
• Whether A was a spouse, partner, close relative or close personal friend of S.
• Whether A was paid to care for S in a care/nursing home environment.
• Whether A was unknown to S and assisted by providing specific information via, for example, a website or publication, to the victim to assist him/her end his/her life.
• Whether there was any persuasion, pressure, malicious encouragement or improper influence on S to end his/her life.
• Consideration will also be given to whether A was a person who had given assistance before or was a member of an organisation providing a physical environment allowing people to commit suicide, or where A was paid by S for the assistance.

The draft guidance is open to criticism. To begin with it uses 'prosecutor speak' so S (the person wanting to end their life) is referred to as the 'victim', when S is really the opposite of a victim. He/she is a person seeking to be in control of the manner and timing of his/her death, not be a victim of it. The word 'victim' is understandable for considering routine criminal cases, but is surely inappropriate for a case of voluntary assisted dying. The draft guidance also speaks of the 'suspect' (i.e. A) and 'committing suicide'. These words appear to prejudge the decision to be made. Indeed, if A has not been 100 per cent open and is only 'suspected', that in itself suggests the assistance was not given openly and above board. More neutral words are called for to ensure the prosecutor has a clear mind in approaching the facts.

Another surprising feature of the draft guidance is its attempt to discourage organisations which help people who wish to end their life for good reason, by threatening them with an adverse decision to prosecute. A factor tending towards prosecution would be membership of such an organisation or having assisted others before to take their lives.

There is confusion here: either it is right that S has the right to take their life if they deem it the right way forward to secure a dignified death, or it is not. If it is right, then why deny to those wishing to end their lives the assistance of those best qualified to help; whether by virtue of having assisted before, or being members of an organisation dedicated to help, or providing facilities to ensure the death is achieved in a dignified manner?

Of course the draft guidance itself is just an interim phase. But permanent guidance may not be good enough. Such an important step as deciding to take one's own life, although inevitably taken by an individual alone in the first place, naturally attracts public attention and concern. Death, like birth and marriage, is a public matter. The decisions both of S and of the prosecutor whether or not to prosecute are made behind closed doors '“ and in the case of the prosecutor after the event. Safeguards such as the agreement of two doctors to an assisted suicide are still decisions made in private. However, the public is entitled to reassurance.

Parliamentary concern

There are those who are opposed to the whole concept of assisted suicide for religious and/or ethical reasons and others who express fears that a relaxation of the law might expose vulnerable people to pressure from family members and others. Section 62 of the Mental Capacity Act was specifically inserted in response to fears that the legislation might introduce 'euthanasia by the back door'. The draft guidance, allocating the matter to prosecutorial discretion, leaves the law in an unsatisfactory state that calls for robust parliamentary consideration of this issue. It is the legislature that should take the responsibility of tackling this fundamental but difficult issue, not prosecutorial discretion in individual cases.

The issue has attracted the attention of politicians. Harriet Harman was reported as saying before the draft guidance was issued that, if the DPP fails to produce clearer advice on when it is illegal to help someone die, the government might consider giving time for a Bill to allow assisted dying. She said the issue was on the boundary between 'prosecutorial discretion and legislative definition'. The criticisms made above of the draft guidance might now prompt her forward. Additionally, David Winnick MP has reportedly pledged to bring forward such a Private Members' Bill.

A more public and open system which gave clearance to individuals in advance regarding the proposed assistance would be more transparent '“ and minimise uncertainty at a difficult time.

Prosecutors seek good evidence to demonstrate the relevant factors, so the greater openness and recording, and the wider involvement of family and friends and any other persons concerned, the better. Rather than depend on the chance of evidence coming to light later, a better way would be to clear the matter in advance.

A more open system

Alternatives that might be considered are:

• The Court of Protection. But this is concerned with people who do not have capacity to make their own decision by reason of learning difficulty, brain damage or dementia. Using it may stigmatise unduly those who make a rational decision to seek assistance to die, sending out totally the wrong message.
• The High Court. The High Court has been the venue for cutting edge cases up to now, but it may prove too expensive for the routine case.
• A tribunal. Arguably the tribunal model has much to recommend it. The panel could include a mental health professional (to ensure S had full capacity and was not mentally disordered, and to assess the medical appropriateness of the proposed suicide), and a person with social work experience (to assess the social aspects, the voluntariness of the proposal, and the position of the relatives).

Such a tribunal could sit quickly (within a few days as the Mental Health Review Tribunal often does). It would receive and test the medical and social evidence. It would publish its reasoned decision (perhaps on a website) so that the public would find the reassurance it reasonably requires.

The tribunal would also be relatively cheap. It would in effect clear the way for an assisted suicide without fear of prosecution in a manner the public could have confidence in.

In the early stages, cases of assisted suicide are private and the details, especially medical and personal, should not be made public. But death is a public matter and much private information is often made known in coroners' inquests. The public also need to know the full facts to be sure that the suicide was voluntary and reasonable. It would therefore be reasonable to publish the full facts and reasoned decision only after the death. But S and A, the police/Crown Prosecution Service and the coroner would receive the full decision immediately after it was made, so they could appeal if necessary.