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:
-
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
-
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.
