Out of focus
By attempting to avoid accusations that he is creating a regulatory regime, the DPP in his final policy on assisted-suicide prosecutions has wrongly exposed those with much-needed medical expertise to the risk of prosecution, says Penney Lewis
The Director of Public Prosecutions has published his final policy on prosecutions for assisted suicide after a 12-week consultation period and a ten-week period to revise the policy in light of the 4,710 responses received (see Solicitors Journal 154/8, 2 March 2010). The policy remains in the same format, setting out a list of public interest factors in favour of and against prosecution, to be applied when there is sufficient evidence to provide a realistic prospect of conviction.
The first group of factors in favour of prosecution relate to the victim's request. These have been revised so that capacity is now assessed according to the Mental Capacity Act 2005, and the request must be 'voluntary' as well as clear, settled and informed. It is now described as a 'decision' rather than a 'wish', which better indicates the need for decisive action.
No regulatory regime
The DPP is concerned to avoid the charge that he is creating a regulatory regime for assisted suicide, which such a requirement might suggest. For example, the summary of consultation response states: '[to require written evidence of the victim's request] is within the scope of processes and procedures that, in effect, create a regime for encouraging or assisting suicide. Only Parliament can determine the legality of such a regime '“ not the DPP '“ and, accordingly, the CPS has firmly rejected any factor against prosecution that could be said to be a stepping stone towards the creation of such a regime.' ([7.6])
Perhaps for the same reason, no residency requirements have been included (unlike the regimes in Oregon, Belgium and the Netherlands) although 36 consultation respondents suggested this (including me). In the absence of a requirement that the victim and suspect both be resident within England and Wales, individuals may travel to this jurisdiction in order to undertake an assisted suicide with significantly less chance of prosecution than there might be in their home jurisdiction '“ just as individuals travel to Switzerland for assisted suicides, and to Mexico to obtain veterinary euthanasia medications.
The victim's condition and experience
In the interim policy, factor 6 in favour of prosecution stated: 'The victim did not have: a terminal illness; or a severe and incurable physical disability; or a severe degenerative physical condition; from which there was no possibility of recovery.' Factor 4 against prosecution was the converse of this factor. 'A large number of respondents questioned the inclusion of these factors, arguing that it may be discriminatory to include factors relating to the health and disability status of the victim [over 1,500 respondents argued this in their general comments]... As a result of these views expressed during the consultation exercise, and upon further consideration, the CPS has removed [these factors] from the final policy.' ('Summary of Consultation Responses', [2.10], [6.14]-[6.17].)
The need to avoid discrimination is undoubtedly important, but the decision to remove any reference to the victim's condition raises two crucial questions. First, is there a non-discriminatory way of delineating relevant public interest factors related to the victim's experience? Second, what will be the effect of excluding consideration of the victim's condition or experience from the public interest analysis?
In the Netherlands, before assisted dying is permitted, the attending physician must be satisfied that the patient's suffering was 'hopeless and unbearable'. Perhaps the Dutch approach would have been helpful here, as it explicitly refers only to the victim's experience of suffering rather than his or her condition, or the cause of such suffering.
By failing to include any reference to the victim's condition or experience, the policy fails to distinguish between, for example, a victim with a terminal illness who isexperiencing unbearable suffering, and a victim suffering from depression (while capacity may be doubted in depression patients, a majority of depressed patients have capacity).
This issue is not addressed in the final policy, nor in the summary of consultation responses and the CPS response to them.
Perhaps factor 10 in favour of prosecution might be relevant here: 'The victim was physically able to undertake the act that constituted the assistance him or herself.' This does not necessarily distinguish between a terminally-ill victim and one with depression. If the suspect's assistance is the provision of an opioid (left over from an earlier illness of a family member, for example, or validly prescribed for the suspect) and the victim had no medical need for the opioid and therefore would not have been able to procure it him or herself, then factor 10 will not bite in favour of prosecution, even if the victim could have committed suicide without assistance using an alternative method.
Thus the policy does not distinguish between somatic suffering (suffering caused by a physiological disorder), non-somatic suffering (suffering caused by a mental disorder, including depression) or existential suffering ('life fatigue' or 'tired of life' cases). Interestingly, Dutch jurisprudence has held that the first two cases are permissible if the patient is experiencing hopeless and unbearable suffering, but the third is not. In a small number of cases in the Netherlands, assisted suicide has been lawfully provided to competent patients suffering from severe depression which was resistant to treatment.
Without any restriction based on the victim's condition or experience, the policy is more liberal in this respect than most assisted-dying regimes. Even Switzerland is now debating restricting assisted suicide to those with a terminal illness (see solicitorsjournal.com, 29 October 2009). Perhaps the discriminatory impact of an explicit reference to the victim's condition could have been avoided by consideration of the Dutch model which focuses instead on the individual's suffering rather than his or her underlying condition.
Amateur assistance only
The next group of factors in favour of prosecution remain largely consistent with those in the interim policy, and are designed to ensure that assistance in suicide remains an amateur activity carried out by inexperienced individuals without the assistance of professionals or amateur organisations (as in Switzerland). Factor 14 has been expanded to include all medical professionals caring for the victim rather than only those caring for the patient in a care/nursing home environment. While this is at least a logical distinction, there is no real explanation provided for the pro-amateur stance.
The advantages of medical involvement in assisted suicide include a lower risk of botched suicides and suffering during the suicide or attempted suicide (as illustrated in the Gilderdale case last month) and the possibility of screening for possibly hitherto unknown mental disorders including depression.
By strongly discouraging medical involvement, the policy places a heavy burden on supportive friends and family (although being in this group no longer counts as a factor against prosecution, most assisted suicides will involve such assistance). Travel to a jurisdiction which does permit medical involvement will remain attractive to some, and this may have to be done earlier than the victim would otherwise wish. If travelling to a permissive jurisdiction is not possible, for financial or health reasons, then the burden of assisting the suicide will fall on someone with no experience (factor 12) and no access to relevant information (factor 11). Without expertise or access to appropriate medications, the policy is likely to result in assisted suicides which are more difficult, less successful and more stressful for the person assisted and his or her friends and family (including the suspect) than would be the case if medical expertise was permitted in some form.
Focus on the suspect's motives
A group of factors in favour of prosecution are concerned with the suspect's motives and the possible exercise of undue influence (which might cast doubts on the validity of the victim's decision). Prosecution is more likely if 'the suspect was not wholly motivated by compassion'. A history of violence or abuse by the suspect against the victim has been added to this group of factors following the consultation. The six factors against prosecution now also focus primarily on the suspect's motives and actions rather than on the victim's characteristics.
Included in these factors are '(3) the actions of the suspect, although sufficient to come within the definition of the offence, were of only minor encouragement or assistance'. What is meant by 'minor assistance'? Is making travel arrangements 'minor assistance'? If so, then this should be made clear to those contemplating providing such assistance and seeking to use the policy to assess the likelihood of prosecution. It would have been helpful had the DPP provided examples of minor assistance but none have been given.
The next two factors against prosecution encapsulate an idealised scenario that involves an unwilling 'suspect' and a determined 'victim':
(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.
No reasons for the inclusion of these factors have been provided, although they were supported by two thirds of consultation respondents.
What if the suspect is fully supportive of the victim's decision, recognising that the victim has reached his or her own decision and agreeing that it is the right course of action for him or her in the circumstances? Does this make prosecution more in the public interest than if the suspect is 'reluctant' and sought to 'dissuade' the victim? Factor 4 envisages the decision to seek assisted suicide as an unwise or irrational decision from which the person should be dissuaded, or at least suggests that this is how the ideal suspect should react to the decision. The inclusion of these two factors seems to prescribe a certain kind of emotional reaction on the part of a family member or friend to the victim's condition; for example, not accepting a terminal diagnosis, or wanting the person to remain alive as long as possible.
The dangers sought to be addressed by the policy focus on the unscrupulous or even abusive family member or friend, and the medical professional or activist. The shift of focus away from the victim, and the desire to avoid the appearance of the creation of a regulatory regime, have opened the door to assisted suicide in cases which would not be permitted by most of the existing regulatory regimes, while exposing those with much-needed expertise and those who agree with the victim's decision to the risk of prosecution.