Right to die bill is a step in the right direction

Last month Lord Falconer introduced a Bill to provide for assisted dying. It is based on the conclusions of the Commission on Assisted Dying, a group of peers and academics that held hearings in the style of a royal commission and came up with a recommendation for assisted dying in certain circumstances.

The Bill would make assisted dying lawful in respect of terminally ill patients with less than six months to live in "strictly defined circumstances" (see box).

There is debate as ever as to whether the various safeguards proposed in the Bill are sufficient to protect the vulnerable.

There is an obvious tension between the two opposing views. As medical science provides increased number of solutions to diseases and injuries, then it should be allowed to provide the ultimate solution for those people who are faced with terminal illness or some severe or incurable disease and those who feel that allowing for assisted dying will increase the pressure on these people to make the decision to terminate their lives and relieve the pressure on their loved ones.

Suicide pact as murder

Before 1957 if somebody committed '¨suicide by agreement with another, for example under a suicide pact, and the '¨other person survived, the survivor was guilty of murder. This was confirmed by '¨the Court of Criminal Appeal in Croft [1944] 1 KB 295. The law was amended by section 4 of the Homicide Act 1957, which provided that the survivor of a suicide pact should '¨be guilty of manslaughter rather than murder, provided that the defendant had himself the settled intention of dying in pursuance of the pact.

In all other circumstances, it remained the law until the Suicide Act 1961 that a person who assisted or encouraged another to commit suicide was guilty of murder.

Section 1 of the Act abrogated suicide as a crime but section 2 created a new offence of complicity in another's suicide. Section 2 was amended by section 59 of the Coroners and Justice Act 2009, but the purpose was to clarify, rather than change, the law on assisted suicide.

In R (Purdy) v DPP [2009] UKHL 45 the House of Lords made an order requiring the DPP to publish an offence-specific prosecution policy under section 2(1).

New prosecution policy

Before issuing a final policy statement, the DPP issued an interim policy in 2009, and conducted an extensive public consultation. The DPP gave evidence to the Falconer commission and said he received nearly 5,000 responses to the consultation. There was strong support for most of the factors in favour of, or against, prosecution identified in the interim policy, but there were some significant exceptions. The most significant exception was whether or not the status of the victim ought to be a relevant factor.

In the interim policy, one of the factors against prosecution was that the victim '¨had "a terminal illness; or a severe and incurable physical disability; or a severe degenerative physical condition; from which there was no possibility of recovery". Many organisations representing disabled people or individuals with disabilities expressed concern about that factor.

The concern was that if there were '¨two cases involving assisted dying and '¨the only difference between them was '¨that in one of the cases the person who '¨was assisted in committing suicide had some terminal illness or some severe or incurable disease, then that would be the factor that tilts it in favour of not prosecuting which mean that those people then had less protection.

In the end the DPP omitted that factor from his final policy statement in 2010.

The policy statement listed 16 factors tending in favour of prosecution and six factors tending against prosecution (see 'Assisted-dying guidelines clamp down on medically-assisted suicide', Solicitors Journal, 2 March 2012).

More protection

The new Bill arguably provides more protection for the terminally ill than the current law. Despite more than 40 cases of assisted dying being reported since 2009, there have been no prosecutions for the offence since the DPP introduced new policy guidelines in 2010.

It would not, however, enable people such as right-to-die campaigner Tony Nicklinson, the "locked-in" syndrome sufferer who starved himself after losing a legal battle last year, to end their lives as it only applies to those deemed to be terminally ill.

Whatever the final form of the Bill and the outcome in new legislation, it appears to be a step in the right direction and keeps alive the debate about issues that are hugely difficult for those involved and to which there is no perfect solution.