It has been reported this week that a 46 year old man, known legally as Martin, is seeking clarification from the High Court that a professional (such as a doctor or a lawyer) would not be prosecuted for assisting him to commit suicide. Martin suffered a severe stroke three years ago, leaving him paralysed, apart from small movements of his eyes and his head. Using his eyes and a computer screen, he is able to communicate and has repeatedly expressed his wish to die. However he is physically unable to commit suicide on his own and his wife is unwilling assist him.
According to the Suicide Act 1961, encouraging or assisting a suicide is a crime, punishable by up to 14 years imprisonment. The Suicide Act gives the Director of Public Prosecutions (DPP) discretion over whether to prosecute cases of assisting or encouraging suicide - a decision is taken as to whether prosecution is in the public interest. Following a number of legal challenges, the DPP was asked to clarify the circumstances in which somebody who assists another person to commit suicide is likely to be prosecuted, codifying the public interest factors for and against prosecution. The policy indicates that an individual who assists someone else to commit suicide, and is wholly motivated by compassion, is less likely to be prosecuted. However one of the 16 public interest factors in favour of prosecution reads: ‘Suspect acting in their capacity as a health or social care professional, or was another person in authority, e.g. prison officer.’
Therefore with the law as it currently stands, including the prosecuting policy, Martin’s wife would less likely be prosecuted if she assisted in his suicide, while a doctor or other professional would be more likely be prosecuted. The case being brought to the High Court will ask the court to decide whether compassionate assistance should extend to healthcare and legal professionals, with assistance constituting actions including providing Martin with information about options for palliative care should he decide to stop eating and drinking, 'identifying professional carers who would be willing to accompany AM to the Dignitas facility in Switzerland' and 'Making the necessary arrangements for AM to travel, with his wife and the helpers, to Switzerland.'
The policy has been widely critiqued. Professor Penney Lewis, for example, has noted how the policy seems concerned with ‘ensuring that assistance remains an amateur activity carried out by inexperienced individuals without the assistance of either medical professionals or non-medical organisation.’ Concerns have also been raised over exactly what would and wouldn’t constitute assistance. The Medical Protection Society, for example, in their evidence to the Commission on Assisted Dying asked: ‘What is assistance? Writing a report, knowing that somebody is going to be travelling to Switzerland for that particular purpose, we advise would probably be considered as assistance. But of course it is not direct assistance, it is just a cog in the wheel and the law may define that actually the doctor isn’t providing assistance in those circumstances.’
Legal ambiguities also exist around patient’s rights to refuse medical treatment and sustenance. Whilst the legal right of a patient to refuse treatment, including food and fluids, was firmly established following the Bland case in 1993, as Mary Warnock and Elisabeth McDonald point out in their insightful book Easeful Death, ‘if fluids are not offered [by a carer]…this may be read as coercion to proceed with the process.’
Whilst the DPP’s policy has certainly brought some clarity to the issue, this still remains an unresolved public policy issue. Whatever the outcome of the case, further clarity around what constitutes assistance and by whom, is long-overdue.