Assisted suicide: a very grey area

By Jonathan Goldberg, July 1, 2010

Rebecca from Cardiff writes: My elderly friends have an unmarried son aged 43 who has recently been diagnosed with motor neurone disease. The prognosis is awful. He may live for as long as 10 years apparently, but between one and two years is more likely. He will end up as a quadriplegic, totally dependent on others for his daily care and hygiene. Death when it comes will be painful if unassisted, and will most likely be by inability to breathe or swallow. There is no known cure. He is a very intelligent person, who is already telling his parents that he wants them to hasten his death, once he decides that he no longer wants to carry on with his life. But is it lawful for them to assist, or may they be exposing themselves to prosecution?

Rebecca, there is no issue which brings in every aspect of medical and legal ethics, raises debate and tugs at the heartstrings so painfully as this one. The agony of your friends will be exceeded only by that of their son himself. All I can do is to sketch out for you the current position of English law, as it appears to me to be in a rather grey area.

In 2009 a brave lady called Debbie Purdy, who suffered from multiple sclerosis and who recognised the likelihood of her wanting to end her life at the Swiss clinic Dignitas in the fairly near future, took her case to the House of Lords. She argued that the Director of Public Prosecutions must henceforth be made to publish his policy on the circumstances in which he would move to prosecute those who assisted people like herself to commit suicide. She had in mind whether her husband might put himself in jeopardy by making the necessary arrangements at a time when she would be unable to do so unaided. Apparently, over 100 British citizens have to date ended their lives at Dignitas.

Before 1961 it was a criminal offence to commit or to attempt to commit suicide. Thereafter suicide itself was decriminalised by Parliament, but it remains a criminal offence to carry out any act which encourages or assists the suicide or attempted suicide of another. The offence can carry up to 14 years maximum imprisonment.

If any well-wisher were to end the life of a suffering patient who was physically unable or simply unwilling to commit suicide himself, it could even constitute the crime of murder.

If a well-wisher were to end the life of a patient who was unable to commit suicide himself, it could even constitute murder

The Law Lords held that the DPP must in future publish detailed guidance on how he would exercise his discretion on whether or not to prosecute such people as Mrs Purdy's husband.

After public consultation, his guidelines were finally published in February. Available on the internet, they seem very sensible. They essentially set out lists of factors which the DPP will take into account and which will influence him both for, and against, prosecution.

In broad summary, he is looking to see if the "victim" (the term used for the suicide) had a "voluntary, clear, settled and informed" wish to end his life, which he had communicated to the accomplice. And he is looking to see if the accomplice acted honestly, without deceit, from motives of compassion, and reluctantly only, in response to overwhelming circumstances. Such a person need not fear.

On the other side of the coin, if there was a financial motivation, if the accomplice and the victim were strangers, if the accomplice was acting for ideological reasons - say on behalf of a group - if he had a history of abuse or violence towards the victim, if he were a carer or nurse, if he pressured the victim in any way, if the victim had not physically needed any assistance, if the victim were not yet an adult, or (somewhat improbably perhaps) if the suicide occurred in a place where it was likely to be witnessed by members of the public, then the DPP is more likely to prosecute.

As so often with the law, the pendulum has swung slowly but perceptibly. I have had experience in my career of doctors who were officiously prosecuted in the not-so far-distant past for administering to suffering patients a lethal dose of morphine, at the request of loved ones. I think that would not happen today.

The touchstone which applies both to a doctor and to the parents in the tragic situation you quote, is to act in good faith, and to act selflessly.

The above is not formal legal advice and is given without liability. Jonathan Goldberg QC, of Ely Place Chambers, is a leading London barrister

Last updated: 10:20am, July 1 2010