. . . . as suggested by the Daily Telegraph, or if you read the Daily Mail, “… could be legal in months”. The facts behind these headlines require a degree of unpicking before one responds “closer but not necessarily significantly closer”, and “certainly not legal in months”. To date there have been five attempts to modify the provisions of the Suicide Act 1961: Lord Joffe’s Assisted Dying for the Terminally Ill Bill, introduced in 2004; two separate amendments by Patricia Hewitt and by Lord Falconer to the Coroners and Justice Bill 2008-09; Dame Joan Ruddock’s unsuccessfully attempt to secure a government consultation on putting the DPP Guidance on a statutory basis during a backbench debate on 27 March 2012; and Lord Falconer’s Assisted Dying Bill [HL] 2013-14 which received its first reading on 15 May 2013 but for which no date has been set for second reading.
These developments are covered in more detail in the House of Commons Library Standard Note SN/HA/4857 Assisted suicide, last updated on 16 March 2012 but probably due for a revision in view of current interest. It also provides background to the offence of assisting a person to commit suicide under the Suicide Act 1961, in the context of disabled or terminally ill people who may be unable to end their lives without the assistance of family or friends; but it does not cover the related issue of euthanasia or decisions by doctors to withdraw (or not commence) life-saving medical treatment.
It reviews some of the relevant case law:
- Pretty v DPP and Secretary of State for the Home Department  UKHL 61 and Pretty v United Kingdom 2346/02  ECHR 427;
- the death by suicide of Daniel James, on which there was no prosecution by the Crown Prosecution service, (CPS);
- Sir Edward and Lady Downes, who travelled to the Dignitas Clinic in Zurich where they decided to end their own lives rather than continue to struggle with serious health problems; and
- R v DPP ex p Purdy  EWHC 2565 (Admin), R v DPP ex p Purdy  EWCA Civ 92 and R v DPP ex p Purdy  UKHL 45.
In this blog we have reported on more recent cases, including:
- Nicklinson & Anor, R (on the application of) v A Primary Care Trust  EWCA Civ 961;
- Re E (Medical treatment: Anorexia)  EWHC 1639 (COP) (15 June 2012;
- the Church of England’s response to the Assisted Dying Bill consultation; and
- a pan-European poll on assisted dying.
The Standard Note makes particular reference to the case of Debbie Purdy on account of the House of Lords’ ruling which ordered the Director of Public Prosecutions (DPP) to formulate an offence-specific policy setting out the factors he will consider when deciding whether to prosecute assisted suicide offences. An Interim Policy was published on, and took immediate effect from 23 September 2009, and simultaneously a public consultation was launched, closing on 16 December 2009. This received 4,700 responses including almost 4,000 from individual members of the public as well as healthcare professionals, faith representatives, academics, lawyers, politicians and over 100 organisations.
The DPP Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide was published on, and took immediate effect from 25 February. This emphasises that the act of suicide requires the victim to take his or her own life, [paras 33 and 34]:
“It is murder or manslaughter for a person to do an act that ends the life of another, even if he or she does so on the basis that he or she is simply complying with the wishes of the other person concerned.
“So, for example, if a victim attempts to commit suicide but succeeds only in making him or herself unconscious, a person commits murder or manslaughter if he or she then does an act that causes the death of the victim, even if he or she believes that he or she is simply carrying out the victim’s express wish”.
There are 16 public interest factors tending in favour of prosecution, and 6 public interest factors against. None of these factors is weighted, and assessing the public interest is not simply be a “tick box” exercise of adding up the factors on either side and seeing which has the greater number – Each case must be considered on its own facts and on its own merits.
Debate in the House of Lords
On 5 March, Baroness Jay of Paddington (Lab) secured a short debate in the House of Lords on Assisted Suicide, Hansard HL Deb 5 March 2014, vol 752, col 1409, “To ask Her Majesty’s Government whether they continue to be satisfied with the Director of Public Prosecutions’ Guidelines on prosecution for assisted suicide”. In summing up the debate, The Minister of State, Ministry of Justice (Lord Faulks) (Con) noted inter alia [our emphasis]:
– Whatever view you take of the law, the Director of Public Prosecutions’ policy for prosecutors in cases of encouraging or assisting suicide has brought clarity to the practical operation of the existing law and has generally been welcomed. But it is clear that views on the desirability of legislative change remain deeply divided, as is apparent from this evening’s debate;
– The Government’s view—one expressed by others standing at the Dispatch Box in the past few years—that any change to the law in this area is a matter for Parliament to determine as an issue of individual conscience, [i.e. a “free vote”]. In amending the Suicide Act by Section 59 of the Coroners and Justice Act 2009, Parliament confirmed that it should remain an offence to intentionally encourage or assist suicide or an attempted suicide;
– A number of noble Lords have mentioned the Assisted Dying Bill introduced by the noble and learned Lord, Lord Falconer of Thoroton, in May 2013. That seeks to legalize in England and Wales assisted suicide for terminally ill mentally competent adults who are reasonably expected to die within six months. The Government will take a collective view on the noble and learned Lord’s Bill in order to respond to the debate on its specific provisions at, but not before, Second Reading. As things stand, however, no date has been set for Second Reading of the Bill.
– Noble Lords might want to know something about the statistics. Records show that from 1 April 2009 to 13 February 2014, 91 cases have been referred to the CPS by the police recorded as assisted suicide or euthanasia. Of those 91 cases, 65 were not proceeded with by the CPS, 13 were withdrawn by the police and there are currently eight ongoing cases. One case of attempted assisted suicide was successfully prosecuted in October 2013. The facts of the matter would not trouble anyone, whichever side of the argument they were on. It involved someone with lower mental capacity. Four cases were referred onwards for prosecution for murder or serious assault.
– In exercising her discretion to decide whether to prosecute someone for encouraging or assisting suicide, the DPP is not doing anything new. Under the Suicide Act, there has always been a requirement for the director’s consent to a prosecution. In exercising that discretion, it has always been necessary to weigh up the public interest factors for and against prosecution on the facts of individual cases. The assisted suicide policy is a public document, which has provided some clarification for the process by informing the wider public how decisions are made.
The Standard Note examines the views of a number of stakeholders: Dignity in Dying; Care Not Killing; British Medical Association; Royal College of Nursing; Not Dead Yet UK; Commission on Assisted Dying, to which should be added Living and Dying Well whose report Another ‘Assisted Dying’ Bill Does it pass the public safety test? provides an analysis of the Assisted Dying Bill [HL] 2013-14. These groups, the recent parliamentary debate, and recent blogs such as Gillan Scott’s Can we trust the decision over legalizing assisted suicide to politicians’ consciences? provide a range of opinions on the arguments for and against introducing new legislation.
In assessing new legislation, it is important to compare it with the current DPP guidelines, for as Lord Brown of Eaton-under-Heywood pointed out in last week’s debate, [5 Mar 2014 : Column 1423], in certain respects these guidelines go further than Lord Falconer’s proposed Bill as to what circumstances would be acceptable.
With regard to the media headlines, it would be unusual if parliamentarians were not given a free vote on an issue of conscience, and as of last week, Lord Faulks gave no indication of when Lord Falconer’s Bill would be scheduled. At the end of 2013, the BBC’s Mark D’Arcy suggested that the Bill was too low in the batting order to get a worthwhile debating slot, and he had traded the chance of a late second reading debate, which would not go much further, for assurances from the House authorities of a better chance of full discussion in the 2014-15 session which starts on 3 June, and perhaps an opportunity to send a bill to the Commons, or even have a parallel bill debated by MPs at the same time.
As to the possible of success of an Assisted Suicide Bill, this will be strongly lobbied by both those for and against its introduction, but as has been commented elsewhere, the issue is unlikely to go away.