Assisted Suicide Back in the Courts

I have been prompted to dust off my blog by a story which appeared in the press yesterday about 'Martin'. Martin (not his real name) is a 46 year old male who, as the result of a brainstem stroke, has been left almost completely paralysed and can only communicate through a computer.

Martin's current life is in stark contrast to his life pre-stroke, which was described as being active and highly sociable. Such is his quality of life that Martin has expressed a desire to die. Because of his physical condition, however, he is unable to end his own life. Neither is he capable of making his own way to Switzerland to use the services of Dignitas. Martin's only hope is to seek assistance from somebody who is willing to assist him to die. And therein lies the problem.

In England and Wales it is not an offence to commit suicide. Nor is it an offence to attempt to commit suicide. It is, however, an offence to assist or encourage an individual to commit suicide with the intention that said individual should go on to commit or attempt to commit suicide (s2(1) Suicide Act 1961). Such is the current state of the law, that merely providing assistance and/or encouragement is enough. Thus conviction can follow even though no one was ever actually assisted or encouraged to commit suicide or attempt to commit suicide.

Clearly this puts Martin in an impossible position; a position that was shared by Dianne Pretty, and a position which Debbie Purdy sought to avoid. Martin cannot end his life without assistance from a third party. However, whilst no criminal sanctions would follow if Martin took his own life, anybody who assists Martin faces 14 years imprisonment.

This is, however, where things start to get interesting, because conviction can only flow from prosecution. There is no guarantee, however, that a person who has assisted another to die will be prosecuted. This is because of s.2(4) Suicide Act 1961 which states that there can be no prosecution for an offence under s.2(1) without the Director of Public Prosecution's consent.

Prior to the House of Lords' decision in Pretty, back in 2009, the Director of Public Prosecution's decision whether to prosecute a defendant or not was guided by the provisions of the Code for Crown Prosecutors. This Code created a two-stage test. A prosecution would only follow where the prosecutor was satisfied beyond reasonable doubt 1) that there was sufficient evidence to secure a realistic prospect of conviction; and 2) that prosecution would be in the public interest.

It is the second limb of that test that provoked the greatest controversy and prompted Debbie Purdy to seek judicial intervention. Unlike Dianne Pretty who was seeking assurance from the courts that her husband would not be prosecuted under the old s.2(1) Suicide Act 1961 if he assisted her death, Debbie Purdy was merely seeking clarification about the circumstances in which her husband might be prosecuted so he could make an informed decision about whether to play a role in assisting Debbie to die or not.

The House of Lords in this case appear to have concerned themselves with two key questions:

1. 
   
   Does s.2(1) Suicide Act 1961 cover those situations where a person in England and Wales provides assistance to another to travel outside this jurisdiction to commit suicide; and
   


2. 
   
   Should the Director of Public Prosecutions be compelled to produce guidance outlining the situations in which he would authorise a prosecution under s.2(1) Suicide Act 1961.
   

It is the second question, however, that is of greatest relevance here. The problem Purdy highlighted was this. To date over a hundred families have travelled with their loved ones to Switzerland to assist them on their route to Dignitas. Whilst such conduct clearly fell within the remit of s.2(1), not one of those families had been prosecuted. The closest we had come was the arrest of the family of Daniel James upon their return from Switzerland. The DPP subsequently announced, however, that a prosecution would not be in the public interest.

The Daniel James case was unusual in that it was the first time the DPP had expressly stated his reasoning for deciding not to prosecute in such a case, however, his decision was based on assessment in accordance with Code of Crown Prosecutors. What Mrs Purdy wanted from the DPP, on the other hand, was a statement which explained what factors the DPP would take into account when deciding whether or not to charge a defendant under the Suicide Act 1961 specifically.

Without going into the reasoning underpinning the decision, the House of Lords agreed that the DPP should be required to publish offence specific guidance outlining how he would make a decision whether or not to prosecute an individual under s.2(1) Suicide Act 1961. This guidance was published in February 2010 following a public consultation exercise which resulted in responses from 4,710 individuals and organisations from England and Wales.

Crucially, the guidelines contain a list of factors that the DPP will consider when deciding whether or not it is in the public interest to prosecute under s.2(1). For present purposes, however, the key factor of note is that evidence that 'the suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional, a professional carer (whether for payment or not), or as a person in authority, such as a prison officer, and the victim was in his or her care' is to be treated as a factor in favour of prosecution.

Furthermore, evidence that 'the suspect was paid by the victim or those close to the victim for his or her encouragement or assistance' is also to be viewed as a factor in favour of prosecution. Which brings us, neatly, back to Martin's case.

Martin is unable to persuade any of family or friends to assist him to die. His only option is to seek assistance from the medical profession. He is aware, however, that if the medical team responsible for his care assist him to die, they would face the prospect of prosecution. Consequently, he is taking his case to the courts, which is where things get really interesting because Martin's case, it seems, will unfold in two stages.

Stage 1: Martin is heading to the courts to seek a declaration that any lawyers, physicians or psychiatrists that help him prepare for Stage 2 of his case will not face prosecution under s.2(1).

Stage 2: If the courts grant such a declaration, Martin will seek a declaration that it is lawful either a) to obtain assistance to travel to Switzerland to die at Dignitas; or b) that it will be lawful for him to die by refusing food and water, subject to the proviso that he may be provided with medical assistance to make him comfortable.

The press have, rightly in my opinion, gotten really excited about this, but, arguably, they have done so for all the wrong reasons. This case, as the press seem to suggest, is not going to result in a change to law governing assisted dying in England and Wales. Not directly at least. The courts have consistently made it clear that such a move is the sole preserve of Parliament. What this case is going to do, however, is promote closer scrutiny of the DPP's guidelines, and hopefully offer us further insight into how they operate.

Certainly, in relation to stage 1 of Martin's claim, I cannot envisage that it was ever the DPP's intention that the guidelines should be applied in such a way as to result in the prosecution of individuals who seek to make informed choices about the end of life. That is not to say, however, that there is not great value in the DPP coming out and stating publicly that such conduct is lawful.

The other thing I expect the case will do is to call into question the DPP's role in prosecutions under s.2(1). In a way s.2(4) makes sense. It closes the door to the possibility of private prosecutions. In other ways, however, it creates an extra layer of uncertainty in an area of law where, arguably, an individual's legal position needs to be at its clearest.

Either way, you can expect further posts on Martin's case as the story develops.

The Weekly Update - 25th September 2009

Introduction
Welcome to this week’s blog post. A few stories have caught my attention this week. First up is a story from Australia.

The Case of Christian Rossiter
The BBC online news service announced on Monday 21st September 2009 that Christian Rossiter, a 49 year old Australian quadriplegic, had died ('Australian Dies After Court Win' BBC News Online, Monday 21st September 2009 http://news.bbc.co.uk/1/hi/world/asia-pacific/8266063.stm). What made Christopher's death so newsworthy was that last month a court in Perth had ruled that Mr Rossiter's carer's could lawfully stop feeding and hydrating him even though that would, of course, inevitably result in his death ('Australian Man Wins Right to Die' BBC News Online http://news.bbc.co.uk/1/hi/world/asia-pacific/8200931.stm).

Whilst this is an Australian case it certainly does not prevent us from considering how the courts in England and Wales might deal with a similar case.

For me the key issue relates to consent. It is a well established principle that an adult (that is to say anyone aged 18 or over) who has the capacity to give a valid consent to treatment can also refuse to submit to any proposed course of treatment. This remains the case even if that refusal will ultimately result in their death. Authority for that proposition can be found in a number of cases such as Re T (Adult: Refusal of Treatment), [1993] Fam. 95 and Re B (Adult: Refusal of Medical Treatment) [2002] EWHC (Fam.) 429.

This freedom to refuse treatment can, however, present medical professionals with a bit of a dilemma. On the one hand they know that they have to respect the individual's 'right' to make an autonomous decision. On the other hand allowing an individual, who is not terminally ill and may go on to live for many years (albeit with a quality of life that many might view as unbearable), to die seems to contravene the ethical obligations of beneficence (i.e. the ethical requirement for medical professionals to do the best for those in their care) and non-maleficence (i.e. the ethical requirement for medical professionals to not deliberately harm those in their care).

On top of that ethical conflict, we have a legal conflict. On the one hand, treating that individual without their consent can result in an action based in negligence or, in extreme cases in the criminal law offence of battery (Re B (Adult: Refusal of Medical Treatment) [2002] EWHC (Fam.) 429 is a good example of a case where the patient's refusal of treatment was wrongly ignored despite the fact she had the requisite capacity to do so. On the other hand all medical professionals (and of course carers) owe a duty to treat those within their care with reasonable skill and care.

This very conflict, and the difficulty the courts have in resolving it, was all too evident in the case of Airedale National Health Service Trust v Bland, [1993] 1 All ER 821. Of course whilst there are tenuous similarities between the case of Bland and the case of Christian Rossiter, Anthony Bland was unconscious and lacked capacity. Christian Rossiter, on the other hand, was conscious and had the requisite capacity to give a valid refusal. Whilst Anthony Bland had no way of making the court aware of how he would wish to be treated if he had ended up in a Persistent Vegetative State (‘PVS’), Christian Rossiter was able to express his wishes clearly and in person.

Secondly, the court in Bland ruled that food and hydration was to be viewed as basic medical treatment and, as such, it was lawful to withdraw it if such treatment could no longer be deemed to be in his best interests (at this time the issue would have been determined in accordance with the principles set out in Re F (Mental Patient: Sterilisation), [1990] 2 AC 1 - though now, of course, we'd refer to the best interests test contained in s.4 of the Mental Capacity Act 2005)

It was undoubtedly challenging enough for the court to rule that it was not in the best interests of a patient who was unconscious and in a (‘PVS’) to be kept alive, but how much more challenging must such a decision have been where that individual was a living, breathing person stood before them. To some extent those involved in the decision found themselves being asked to make a decision about the value of keeping Christian alive.

In any event, if such a situation arose in England and Wales, the carers suddenly find themselves in a ‘catch 22’ situation. If they continued to feed individuals such as Christian Rossiter they would be in breach of his autonomous ‘rights’. Similarly, however, if they respected Christian’s wishes and allowed him to die they could face a charge of gross negligence manslaughter (see Stone and Dobinson [1977] 2 All ER 341). Thankfully, however, there is a course of action open to the carers in such a case.

Over the years the courts have consistently made the point that where medical professionals are faced with such dilemmas they should apply to the courts for a declaration that the proposed course of conduct is lawful (this was certainly the approach that was taken in Bland). We must always be aware of the fact, however, that such declarations are made in civil courts, thus questions arise about the bearing they should have on any subsequent criminal prosecution (see Bridgeman, J. ‘Declared Innocent’ (1995) 3 Medical Law Review 117.

Guidance on Prosecutions under s.2(1) Suicide Act 1961
As mentioned in my previous blog the Director of Public Prosecutions published guidance on Wednesday 23rd September 2009 designed to clarify the factors that the Director of Public Prosecutions would take into account when deciding whether to authorize any prosecution under s.2(1) Suicide Act 1961. This document can be accessed at http://www.cps.gov.uk/consultations/as_consultation.doc.

When Crown prosecutors are trying to decide whether or not to initiate a prosecution they must make reference to the Code for Crown Prosecutors (accessible at http://www.cps.gov.uk/publications/code_for_crown_prosecutors/index.html). This provides that prosecutors can only initiate such proceedings where:
1) There is sufficient evidence to provide a realistic prospect of a conviction; and
2) The prosecution is needed in the public interest.

When considering the evidential stage of the test, the guidance provides that prosecution needs to prove that:
- The victim committed or attempted suicide; and
- The suspect assisted them in doing so; and
- The suspect intended to assist the victim to commit or attempt to commit suicide; and
- The suspect knew that those acts were capable of assisting the victim to commit suicide.

When considering the public interest stage of the test, the guidance provides that prosecutors must consider both the public interest factors set out in the Crown Prosecutors Code and the public interest factors contained in the guidance. Relevant factors include (but are not limited to):
- Where the victim’s capacity to make an informed decision was adversely affected by a recognized mental illness or learning difficulty;
- The victim did not have a clear, settled and informed wish to commit suicide;
- The victim was not suffering from a terminal illness/a sever and incurable physical condition/a severe degenerative physical condition;
- The suspect was motivated by factors other than compassion;
- The victim was actually physically able to undertake the act that consisted the assistance themselves;
- The fact that the assistance was provided by somebody other than a spouse, partner, close relative or close personal friend of the victim; and
- The suspect was paid to care for the victim in a care/nursing home environment.

Conversely, the presence of the following factors (and others) may indicate that it is not in the public interest to prosecute a suspect for the offence of assisted suicide:
- The suspect was motivated wholly by compassion;
- The suspect was the spouse, partner, close relative or close personal friend of the victim;
- The suspect had previously sought to dissuade the victim from taking the course of action which resulted in the victim’s suicide;
- The victim was suffering from a terminal illness/a sever and incurable physical condition/a severe degenerative physical condition;
- The actions of the suspect might be characterised as reluctant assistance in the face of a determined wish on the part of the victim to commit suicide; and
- The suspect fully assisted the police in their enquiries into the circumstances surrounding the suicide or the attempt and his or her part in providing assistance.

It is important to note that the guidance clearly states that some factors will be more influential than others in determining whether or not it is in the public interest to prosecute (consult the guidance first hand for more information on this point).

Key things the reader needs to be aware of in relation to this guidance:
- The guidance is merely interim guidance. It is currently in a consultation phase. Nevertheless, the guidance comes into force immediately and will apply to all relevant decisions between now and the eventual publication of the final guidance which is expected in the Spring 2010.
- The guidance does not change the law. It is still an offence to attempt another to commit suicide. The guidance merely clarifies the situations in which the Director of Public Prosecutions may decide to prosecute.

The Case of Rachael Gilderdale
Turning once again to the BBC, BBC Breakfast News reported on an intriguing story on Friday 25th September 2009. The story is of Jeanette Gilderdale who had been advised that her 13 year old daughter was suffering from skin cancer and had merely six months to live. Jeanette decided, however, to withhold this information from both Rachael and virtually all of Rachael’s friends and family (although Jeanette had told her mother, Rachael’s grandmother) – see ‘Mother on Cancer Secrecy Decision’ accessible at http://news.bbc.co.uk/1/hi/health/8274168.stm

Jeanette makes a number of pertinent points explaining her reasons for withholding this information from her daughter, including:
- The desire for her child to have a ‘normal’ life, that is to say to behave normally and be treated normally and not to be known as ‘that girl who has got cancer and is going to die’;
- As a mother it was her duty to ‘protect’ her daughter;
- If she had been in her daughter’s position she would not want to have been advised about the fact she was suffering from a terminal illness and only had a short time left to live;
- She did not believe that her daughter was old enough to be told about the diagnosis/prognosis;
- She was concerned that informing her daughter of the diagnosis/prognosis would have had a detrimental impact on her daughter’s mental health and would have led to her daughter ‘giving up’ on life (it is worth noting that Rachael actually lived for a further 3 and a half years before finally succumbing to her illness).

This is a really interesting case which raises all sorts of legal and ethical questions in my mind, not least of all relating to the rights of children to be involved in decisions affecting their health along with broader issues surrounding those situations where a medical professional decides not to disclose certain information to a patient on the grounds that such a disclosure might harm the patient mentally and/or physically. In both cases we are witnessing paternalistic judgments about whether disclosure would be in the affected party’s best interests.

I look forward to hearing the thoughts of those who read this blog on this case, and indeed any of the other cases covered in this post.

DPP to Publish Guidance on Assisted Suicide Prosecutions

The Director of Public Prosecutions, Kier Starmer announced on 'The Andrew Marr Show' (Sunday 20th September 2009) that new guidelines explaining when people are likely to be prosecuted for the offence of assisted suicide under s.2(1) Suicide Act 1961 are likely to be published on Wednesday 23rd September 2009.

You can view Kier Starmer's interview with Andrew Marr at http://news.bbc.co.uk/1/hi/uk/8265386.stm. A transcript of the interview can be found at http://news.bbc.co.uk/1/hi/programmes/andrew_marr_show/8265292.stm.

The new guidelines are, of course, being published following the House of Lord's ruling in July (which, incidentally, will go down in history as the last ever judgment handed down by the House of Lords) in the case of R (on the application of Purdy) v Director of Public Prosecutions [2009] UKHL 45 in which their Lordships held that the Director of Public Prosecutions needed to clarify the circumstances under which he would recommend prosecution for the offence of assisted suicide.

A copy of the Purdy judgment can be found at http://www.publications.parliament.uk/pa/ld200809/ldjudgmt/jd090730/rvpurd-1.htm