Article type:
Commentary
Title:
Legitimate Compassion or Compassionate
Legitimation? Reflections on the Policy for
Prosecutors in Respect of Cases of
Encouraging or Assisting Suicide
Author Name:
Hazel Biggs, Professor of Healthcare Law
and Bioethics
Author affiliation:
School of Law, University of Southampton,
HEAL (Centre for Health Ethics and Law)
Author addresses:
School of Law
University of Southampton
Highfield
Southampton
SO17 1BJ
1
The final publication is available at www.springerlink.com
Legitimate Compassion or Compassionate Legitimation?
Reflections on the Policy for Prosecutors in Respect of Cases
of Encouraging or Assisting Suicide
Hazel Biggs
Abstract
This article explores the background to, and implications of, the
recently published DPP guidelines for prosecutors in respect of
cases of encouraging or assisting suicide. It considers the extent
of the provisions and questions the legitimacy of their focus on the
compassionate motivation of the assistant, and the apparent
prohibition on healthcare professionals providing such help. It
concludes by suggesting that a permissive change in the provide
better safeguards for those who seek assisted dying.
Key words
Assisted suicide, DPP, Purdy, compassion
Introduction
A series of legal cases, mostly brought by women or on their
behalf, across several jurisdictions, has ensured that assisted
dying, and particularly assisted suicide, has been a topical and
controversial issue in recent years.1 In the UK in 2009, in its last
ever judgment, the House of Lords delivered its ruling in the case
of Purdy. 2 As a victim of incurable and progressive multiple
sclerosis, Debbie Purdy contemplated a situation where she would
ultimately decide to end her life but would require assistance to do
so. In those circumstances she would opt to travel to the Dignitas
clinic in Zurich to end her life, but she would require her husband
to accompany her and assist with travel and other practical
arrangements. However, under s2 (1) of the Suicide Act 1961 it
was, at the time, an offence to ‘aid, abet, council or procure the
suicide of another’. This wording has since been amended by the
Coroners and Justices Act 2009, s 59, so that liability now attaches
1
Examples include, Re Karen Quinlan 355 A 2d 644 (NJ, 1976), Rodriguez v British
Columbia (A-G) [1993] 3 SCR 519, Lindsell case (unreported) The Times, 29 October 1997,
Pretty v UK [2000] ECtHR 1, Re Z (an adult: capacity) [2004] EWHC 2817 (Fam).
2
R (Purdy) v DPP [2009] UKHL 45
2
to ‘acts capable of encouraging or assisting the suicide or
attempted suicide of another person’. Although literal interpretation
of the statutory wording suggests that prosecution would follow
from any act of assistance, when Ms Purdy brought her case more
than 100 British nationals had been assisted to commit suicide in
Switzerland, and none of their helpers had faced criminal charges
(Joffe, 2008). Consequently, Debbie Purdy brought her case in
order to obtain clarification as to whether her husband could
expect to be prosecuted if he helped her to travel to Switzerland
for an assisted suicide.
The Suicide Act 1961 provides that ‘no proceedings shall be
instituted ... except by or with the consent of the Director of Public
Prosecutions’ (s2(4)). The Director of Public Prosecutions (DPP)
therefore has discretion to decide whether and when prosecution
of such cases is in the public interest. Purdy invited him to clarify
which factors would be considered in deciding whether or not to
prosecute, but the DPP declined. Accordingly, Purdy alleged that
the lack of transparency in the application of prosecutorial policy
infringed her right to respect for private life under Article 8 of the
European Convention on Human Rights (Purdy, 2008, para 11).
The House of Lords ultimately agreed, and required the DPP to
issue and disseminate guidance that would enable prospective
suicide assisters to know the circumstances that would be likely to
result in their prosecution. To this end the DPP published an
interim policy in September 2009 (CPS, 2009), which included
provisional lists of factors that would tend towards prosecution,
and those that would not. A public consultation was launched to
gauge attitudes to these factors and inform the final policy. It
generated more than 5000 responses and resulted in the
publication of a significantly revised policy (the Policy) in February
2010 (CPS, 2010(a)). This policy, and its implications for those
who seek and assist suicide, is the subject of this article.
The Policy
The Policy guidelines set out sixteen public interest factors in
favour of prosecution and six against. None of the individual
factors is regarded determinative, and none carries greater weight
than the others. Procedurally, these factors will only be considered
after a thorough police investigation has been conducted (the
evidential stage) and determined that there is sufficient evidence to
justify a prosecution. It is notable that the Policy applies to acts
performed after 1st February 2010, and charges relating to conduct
3
prior to that date will be brought under the wording and procedures
that pertained prior to the amendment of the Suicide Act 1961.
Regardless of the timing, these offences relate only to situations
where the victim has performed the final act that leads to death
herself. The law of homicide (murder or manslaughter) will apply if
the assistant performs the acts that result in death, even where
this amounts to merely completing the actions of the suicidal
person. The law on assisted suicide remains unchanged by the
introduction of the DPP’s policy for prosecutors, but its implications
for those seeking assisted suicide and anybody who might provide
that assistance are profound.
Voluntary victims
Although the DPP acknowledges that it is contentious, the policy
adopts the terminology of victim and suspect, since this is believed
to be ‘the most suitable term to use’ in the context of criminal
prosecution (CPS, 2010(a), para 7). Accordingly six of the 16
factors tending in favour of prosecution relate to characteristics of
the so-called victim; specifically, that s/he was under 18 years of
age, lacked mental capacity, and ‘had not reached a voluntary,
clear, settled and informed decision to commit suicide’ that was
clearly and unequivocally communicated to the suspect (CPS,
2010(a), para 43 (3 and 4)). By comparison, all but one of the
factors tending against prosecution, focus on the suspect.
The use of criminal law terminology is inevitable once assisted
suicide cases reach the courtroom, but until that time those
involved do not intrinsically assume the characteristics of victim
and suspect. In reality those who are assisted in suicide are often
willing participants who seek suicide entirely voluntarily as a
means of taking control of the situation within which they find
themselves. In these circumstances, where a person is physically
incapable of performing the final act herself, but has acted upon a
settled and determined wish to die and has not been pressurised
into fulfilling that desire, she is certainly not a victim in the usual
sense. Instead such persons would be better characterised as
acting autonomously having exercised a considered choice.
Indeed the European Court of Human Rights acknowledged this
approach in Pretty, and Mrs Pretty failed to secure the right to be
assisted only because the court was concerned that to allow her to
succeed under Article 8 of the European Convention on Human
Rights could be contrary to ‘…the protection of the rights and
freedoms of others’ (Article 8 (2), Biggs, 2003).
4
Nevertheless it is commonplace for those who might typically seek
assisted suicide to be described as victims of the medical condition
from which they suffer. Furthermore, factor 10 of those tending in
favour of prosecution specifies that prosecution will be more likely
if ‘the victim was physically able to undertake the act that
constituted assistance him or herself’ (CPS, 2010(a), para 45 (10)).
By implication then, physical incapacity is a relevant public policy
consideration in determining when a person should be prosecuted
for assisting another to commit suicide despite its overt denial in
the policy. However, whilst the interim policy included factors
relating to the health of the assisted person, regarding the
existence of terminal illness, sever, incurable or degenerative
physical illness as factors tending against prosecution, the
published policy is rightly devoid of reference to the assisted
person’s medical condition. Its removal is a direct consequence of
the fact that more than 1500 responses to the consultation
identified its inclusion as potentially discriminatory (CPS, 2010(b)).
In those terms, restricting access to assisted suicide to those
suffering terminal illness, or at least looking more favourably on
those who assist people who are terminally or incurably ill or
suffering from extreme symptoms, flies dangerously close to
labelling some lives as less worthy of protection than others, with
potentially eugenic overtones. But it is difficult to reconcile this
omission with the great emphasis in the Policy on the
compassionate motives of the assistor.
Compassionate but criminal suspects
The sixth of the factors tending in favour of prosecution holds that
prosecution is more likely if the assistor, labelled ‘the suspect’, was
‘not wholly motivated by compassion’ (CPS, 2010(a), para 43 (6),
my emphasis). Similarly the fact that ‘the suspect was wholly
motivated by compassion’ features prominently in the factors
tending against prosecution (CPS, 2010(a), para 45 (2)).
Compassion is thereby recognised as a key factor in deciding
whether or not it will be in the public interest to prosecute
somebody who assists in the suicide of another. Contextually this
is not surprising since colloquially compassion has long been
associated with assisted dying in the guise of mercy killing.
Moreover, appeals to compassion as the impetus behind a mercy
killing have sometimes also prompted a sympathetic response
from juries and professional bodies in criminal trials involving
doctors, as was evidenced in the case of Dr Cox (Dyer, 1992,
5
Boyd, 1995). It is rather disconcerting however that the assistant’s
compassionate motivation is emphasised in the absence of any
reliance on the medical circumstances of the person being
assisted. If the suicidal person’s health status is not to be
considered, the basis upon which the assistor is expected to feel
compassion is rather unfathomable.
Despite this, the policy clearly emphasises the role of compassion
in the motivation of the assistor. Motive however is not traditionally
regarded as determinative in criminal law where, as long as the
suspect is shown to have performed the requisite actus reus and
demonstrably exhibits the mens rea for the offence, her motive is
largely irrelevant (Horder, 2000). By contrast, motive is often
regarded as relevant in mitigation of sentence, particularly where
emotions such as compassion are present. The recent case of
Frances Inglis3 who was convicted of the murder of her severely
disabled son provides a clear example. Whilst this was not a case
of assisted suicide, Mrs Inglis argued that it was a mercy killing
and that she did not regard such an act as murder due to the
absence of malevolent motivation. She was convicted regardless
of motive and received a mandatory life sentence with a
recommendation that she should serve a minimum of nine years.
On appeal however, the term imposed by the trial judge was
reduced to five years, in recognition of the compassionate, if
misguided, motivation and the mental state of the defendant.
Motive was also a key factor in the case of Kay Gilderdale, also
decided this year, but prior to the introduction of the Policy.4 Mrs
Gilderdale’s daughter had suffered with ME for more than 16 years
and had previously tried to kill herself. Kay Gilderdale admitted
assisting her daughter to commit suicide, but was also charged
with attempted murder. Following her acquittal the trial judge
reportedly praised the jury for showing ‘common sense, decency
and humanity’ in their verdict (Gammell, 2010).
In relation to liability for assisted suicide under the amended
Suicide Act 1961, so long as the perpetrator has performed acts
capable of encouraging or assisting the suicide or attempted
suicide of another person, and done so intentionally, they may be
criminally culpable. From this viewpoint the introduction of
compassionate motivation in deciding whether or not to prosecute
appears to be a departure from the usual standards of criminal law.
3
4
R v Inglis [2010] EWCA Crim 2637.
R v Gilderdale 2010 (unreported).
6
However, closer examination of recent cases shows that this was
an important consideration in prosecution decisions even prior to
formal its inclusion in the published Policy.
It was revealed in Purdy that since Reginald Crewe became the
first Briton to do so in 2003, 115 British nationals have travelled to
Switzerland for assistance with suicide.5 No prosecutions followed
despite the fact that most required at least minimal assistance.
Eight of the cases were referred to the DPP who found there to be
insufficient evidence to secure a conviction in six of them. Even
though the evidential hurdle was crossed in the remaining two, the
DPP decided that it would not be in the public interest to pursue
them. But when in 2008 the parents of 23 year old Daniel James
helped their son to go to Switzerland for an assisted suicide, it
seemed possible that this trend might be broken.
Daniel had been a promising rugby player when he suffered a
severe spinal injury whilst training for the game. He was left
permanently tetraplegic and subsequently tried to kill himself three
times, without success. His parents continuously tried to persuade
him against using the services of Dignitas, but eventually relented
and reluctantly agreed to assist him. The media furore that erupted
after the circumstances of his death became known indicated a
strong possibility that this case would be the first to see a
prosecution (Brown, 2008, BBC, 2008). However, despite Daniel’s
young age and the fact that he was not terminally ill, the DPP
again decided that prosecution would be contrary to the public
interest (Mullock, 2009). The extreme reluctance, care and
compassion Mr and Mrs James displayed was highly influential in
this decision, and demonstrates that the existence of
compassionate motivation has been influential in the prosecutorial
decision-making process for some time, despite its denial in
criminal law doctrine.
The reluctance of the assistant
Reluctance to assist, combined with efforts to dissuade the person
from suicide in the face of a determined wish to die, is a prominent
factor in the DPP’s Policy, as it was in the cases of James and
Gilderdale (CPS, 2010, para 45 (5)). In practice one might expect
that anyone who is emotionally attached to a suicidal person would
usually be reluctant to help them die. This reluctance would stem
5
R (Purdy) v DPP [2009] UKHL 45, at para 30, per Lord Hope.
7
not just from a desire to avoid losing their loved one in spite of
feelings of empathy and compassion for their plight, but possibly
also from fear of prosecution. On this point, John Coggon argued
prior to the DPP’s formulation of these policy guidelines, that some
who might seek suicide could instead feel compelled to choose life
rather than place the burden of potential criminal prosecution upon
their carers (Coggon, 2008). His argument is entirely credible even
though it flies in the face of conventional thinking in opposition to
assisted suicide, which often implies that making assisted suicide
legal would lead vulnerable people to feel obliged to choose it in
order to avoid becoming overly burdensome on their carers
(McPherson et al, 2007). One way to avoid imposing the burden of
guilt upon friends and family who are prepared to assist in suicide,
is to seek professional assistance.
The role of healthcare professionals
In recent decades dying has become an increasingly medicalised
process (Clark, 2002) and in this environment it is understandable
that those who are unable to end their own lives might turn to
medical professionals for assistance. Where this is the case the
obvious route to suicide would be the provision of toxic
medications that are not readily available to members of the public.
Death caused by medication is likely to be more humane, and
certainly less violent, than many of the methods readily available to
the lay public. It may also have less extreme, and less costly
consequences than methods seen in some recent cases. For
example, in 2002, Sir Derek Bibby elected to kill himself rather
than die from prostate cancer and leukaemia. He chose not to
seek assistance but, mindful of the fact that many suicide attempts
fail and sometimes leave the suicidal person in a worse condition,
he opted for a sure fire method. Entering his home sauna he
poured rat poison over the hot coals to produce a deadly toxic
vapour, which he then inhaled. He alerted his daughter to the
danger by a pinning a note to the sauna door, and was
subsequently rescued by fire fighters wearing breathing apparatus
as protection from the fumes. Sir Derek was dead on arrival at
hospital but concerns about the toxicity of his body caused the
closure of the emergency department and five hospital staff
suffered breathing problems as a consequence (Carter, 2002).
Aside from avoiding incriminating or endangering loved ones, the
involvement of personnel with clinical knowledge and access to
pharmaceutical methods may also give greater certainty of
8
outcome. But the DPP’s Policy firmly discourages assistance from
healthcare professionals and others who have caring
responsibilities for the deceased (CPS, 2010, para 43 (14)). This is
out of step with public preferences and the approach taken in
jurisdictions where assisted dying has been legalised.6 It has also
caused consternation amongst doctors groups. As a result the
Medical Defence Union has recently reiterated that its ‘advice to its
members remains that doctors approached by patients for advice
about suicide should not engage in discussion which assists
patients to that end’ (MDU, 2010). Since the impetus behind the
publication of the DPP’s Policy was to clarify the circumstances
within which an assistor might be prosecuted for complicity in the
suicide of a person travelling abroad to die, this has been taken to
include providing access to medical records, which is usually
required by Dignitas. Denying such access may however be
contrary to established patient’s rights of access to their own
healthcare records as supported by Article 8 of the Human Rights
Act 1998. Moreover, although assisted suicide remains a crime,
the potential criminalisation of healthcare professionals for offering
such limited assistance, and in relation to something that patients
are entitled to by right, is problematic.
Conclusions: Retrospective decisions, ineffective protections
and inadequate rights
The DPP’s Policy for prosecutors in respect of cases of
encouraging or assisting suicide was introduced to provide
transparency as to the factors that will, and should, be considered
when deciding whether or not to bring a prosecution against a
person who has helped another to commit suicide. It has the
potential to offer some comfort to Debbie Purdy and others in
similar positions, but that is all it does. It does not provide immunity
from prosecution, nor does it decriminalise assisted suicide (CPS,
2010(a), para 6), and is therefore largely ineffectual in the broader
context of the debate about assisted dying. Whilst substantively
the Policy appears to include sensible factors capable of affording
safeguards for those who might be vulnerable to being pressurised
into committing suicide, in reality it offers scant protection.
Decisions on whether or not to prosecute can only ever be taken
after the fact, and merely invoking the established power of the
criminal law to punish perpetrators retrospectively seems unlikely
6
For example doctors are central to the provision of assisted suicide in Oregon and to the
administration of assisted dying in the Netherlands
9
to provide additional safeguards for those who may be vulnerable
to abuse, coercion or exploitation.
The retrospective assessment of circumstances and motives
amounts to too little too late for anybody who may have been the
victim of a criminal act. In addition, the Policy is likely to encourage
people seeking assisted suicide to travel abroad to more
sympathetic jurisdictions. Not only does it effectively outlaw the
kind of professional assistance available in Switzerland, it also
includes provisions designed to actively discourage the formation
of organisations like Dignitas in England and Wales. For instance,
paragraph 43 (16) includes the fact that persons were acting as
members of organisations or groups whose purpose ‘is to provide
a physical environment (whether for payment or not) in which to
allow another to commit suicide’ as a factor in favour of
prosecution. By seemingly encouraging Britons who seek assisted
suicide to travel overseas to access services, this approach, like
the current prohibition on assisted suicide, is likely to result in
premature death and introduces the risk that some may act upon
hasty and poorly considered choices.
With this in mind Clive Seale has voiced concerns that cases in
Switzerland ‘entail more women than men, and one in five has no
fatal condition but rather, for example, arthritis, osteoporosis,
“general weakness”, blindness, or mental disorders, usually
depression’ (Seale, 2010). Seale’s comments raise issues in
themselves about whether and when assisted dying ought to be
permissible, but that being so, it would seem preferable to enact
legislation in the UK that prescribes the parameters within which
assisted dying is regarded as acceptable and imposes robust and
enforceable safeguards, rather than effectively turning a blind eye
to practices that might be questionable. As it stands the Policy
appears to do little more than reflect the kind of reasoning that
presumably led to decisions not to prosecute the parents of Daniel
James and the relatives and carers of numerous other Britons who
have been assisted to die in Switzerland. Compassionate
motivation has clearly been an influential factor in previous
prosecutorial decisions, and it has been argued that the reliance
on compassion in the published Policy may place many who assist
beyond the reach of the criminal court (Mullock, 2010). Whether or
not this is true remains to be seen, but it is already clear that
focusing on the motives of the accused is out of step with criminal
law doctrine. The compassionate motives of a person who assists
10
in the suicide of another may be understandable, but it is
debatable whether it is legitimate for those motives to determine
that there is no case to answer and result in a failure to prosecute.
However, on a human level, the recognition that those who help
may do so with compassionate motives rather than with
malevolent intentions is all to the good.
Similarly, despite the fact that it will only be evidenced after the
suicide has occurred, the insistence in the Policy on the voluntary
nature of the suicidal person’s intentions is to be welcomed. If
suicide is regarded as a mechanism for those who seek it to
exercise their autonomy and independence, then so long as they
are competent they should be enabled to make their own choices
about how and when to die. And, if acting upon their choices
necessarily involves the assistance of others, then access to that
help should be available and permissible within the law. Within this
it is of course right and proper for the law impose safeguards to
protect those who are vulnerable, but it should also be
remembered that the women whose cases have informed this
Policy were not in that category. Both Debbie Purdy and Diane
Pretty before her, sought clarification of the legal impact upon
those who might assist them to die, but the decision about whether
to opt for assisted dying was their own and neither was vulnerable
to abuse or exploitation. They would certainly not be victims as
envisioned in the Policy. Similarly, in Re Z it was held that in spite
of her potential vulnerability Mrs Z had made a considered and
autonomous choice and was entitled to act upon it.
The Policy acknowledges the centrality of ascertaining information
about the mental capacity of the person who has committed
suicide, but it is difficult to determine how this will be determined
with certainty once that person is dead. This is particularly
worrying if the so-called suspect is the person best able to provide
such evidence. Accordingly, not only does the Policy fail to
promote the autonomy of people who wish to have an assisted
suicide, it also fails to adequately protect the interests of those who
might fall prey to unscrupulous assistants. The DPP was bound by
legal precedent to construct this Policy. In doing so it was
acknowledged that only Parliament can change the law on
encouraging or assisting suicide (CPS, 2010(a) para 5). Given the
shortcomings identified here it is time for Parliament to act.
11
References
BBC. 2008. Mother defends rugby suicide son.
http://news.bbc.co.uk/1/hi/england/hereford/worcs/7677706.stm.
Accessed 1st October 2010.
Biggs, Hazel. 2003. A pretty fine line: Life, death, autonomy and
letting it B. Feminist Legal Studies 11: 291-301.
Boyd, K. 1995. Euthanasia: Back to the future. In Euthanasia
Examined, ed. John Keown, 72-81. Cambridge: Cambridge
University Press.
Brown, David. 2008. Rugby Star Dan James in ‘Assisted Suicide’
after Training Injury. The Times, 18th October. Available at:
http://www.timesonline.co.uk/tol/news/uk/health/article4962436.ec
e. Accessed 1st October 2010.
Carter, Helen. 2002. Millionaire’s rat poison suicide closes A&E
unit.
The
Guardian
1tth
October.
Available
at
http://www.guardian.co.uk/society/2002/oct/11/health.healthandwel
lbeing. Accessed 13th October 2010.
Clark, Davis. 2002. Beyond hope and acceptance:
medicalisation of dying. British Medical Journal 324: 905-6.
the
Coggon, John. 2008. Assisting ‘death tourism’: possible
prosecution
or
pragmatic
immunity?
http://www.ccels.cf.ac.uk/archives/issues/2008/coggon.pdf.
Accessed 1st November 2010.
CPS, 2008. Decision on prosecution: Death by suicide of Daniel
James. London: UK Gov. Available at:
http://www.cps.gov.uk/news/articles/death_by_suicide_of_daniel_j
ames/ . Accessed 21st November 2010.
CPS. 2009. Interim policy for prosecutors in respect of cases of
assisted suicide. UK Gov available at www.cps.gov.uk. Accessed
13th October 2010.
12
CPS. 2010(a). Policy for prosecutors in respect of cases of
encouraging or assisting suicide. London: UK Gov. Available at,
http://www.cps.gov.uk/publications/prosecution/assisted_suicide_p
olicy.html. Accessed 21st November 2010.
CPS. 2010(b). Public consultation exercise on the interim policy,
Annex B – Equality and Diversity Impact Assessment, para 25.
Available at www.cps.gov.uk . Accessed 1st October 2010.
Dyer, Claire. 1992. GMC tempers justice with mercy in Cox case.
British Medical Journal 305: 1311.
Gammell, C. 2010. Mother Kay Gilderdale found not guilty of
murder attempt on ME sufferer daughter. The Telegraph, 25th
January.
Horder, Jeremy. 2000. On the irrelevance of motive in the criminal
law. In Oxford Essays in Jurisprudence, ed Jeremy Horder, 171195. Oxford: OUP.
Joffe Joel, 2008. Debbie Purdy deserves a less terrible choice.
The Times, 30th October.
Lindsell case (unreported) The Times, 29 October 1997.
McPherson, Christine, Wilson, Keith, Murray Mary Ann. 2007.
Feeling like a burden to others: a systematic review focusing on
the end of life. Palliative Medicine 21 ( 2): 115-128.
MDU. 2010. MDU’s concerns over CPS’s new policy on assisted
suicide. Press release. 25th February 2010. Available at:
http://www.themdu.com/section_gps_and_primary_care_professionals/topnav_N
ews_3/hidden_Article.asp?articleID=2143&contentType=Media+rel
ease&articleTitle=MDU%26%23039%3Bs+concerns+over+CPS%
26%23039%3Bs+new+assisted+suicide+policy. Accessed 23rd
November 2010.
Mullock, Alexandra. 2009. Prosecutors making (bad) law?. Medical
Law Review 17: 209-299.
Pretty v UK [2000] ECtHR 1.
13
Re Karen Quinlan 355 A 2d 644 (NJ, 1976).
Re Z (an adult: capacity) [2004] EWHC 2817 (Fam).
Rodriguez v British Columbia (A-G) [1993] 3 SCR 519.
R(on the application of Purdy) v DPP [2008] EWHC 25655.
R(on the application of Purdy) v DPP [2009] UKHL 45.
R v Gilderdale 2010 (unreported).
R v Inglis [2010] EWCA Crim 2637.
Seale, Clive. 2010. Do it properly or not at all. British Medical
Journal 340: c1719.
14