By a majority of 2-1, the Court of Appeal has ruled that the Director of Public Prosecutions’ Policy on prosecuting cases of assisted suicide does not allow professionals such as doctors, nurses, carers and social workers to foresee the consequences of providing such assistance. The DPP has therefore been asked to revise the Policy. He has however announced his intention to appeal to the Supreme Court.
In the Policy, a group of factors in favour of prosecution are designed to ensure that assistance in suicide remains an activity carried out by inexperienced individuals without the open assistance of professionals or amateur organisations (as in Switzerland):
(11) the suspect was unknown to the victim and encouraged or assisted the victim to commit or attempt to commit suicide by providing specific information via, for example, a website or publication;
(12) the suspect gave encouragement or assistance to more than one victim who were not known to each other;
(13) the suspect was paid by the victim or those close to the victim for his or her encouragement or assistance;
(14) 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;
(16) the suspect was acting in his or her capacity as a person involved in the management or as an employee (whether for payment or not) of an organisation or group, a purpose of which is to provide a physical environment (whether for payment or not) in which to allow another to commit suicide.
The problem highlighted by counsel for ‘Martin’ at [132] is that those acting in a professional capacity who would therefore engage one or more of these factors in favour of prosecution, may also engage many or all of the factors against prosecution, which are:
(1) the victim had reached a voluntary, clear, settled and informed decision to commit suicide.
(2) the suspect was wholly motivated by compassion.
(3) the actions of the suspect, although sufficient to come within the definition of the offence, were of only minor encouragement or assistance.
(4) the suspect had sought to dissuade the victim from taking the course of action which resulted in his or her suicide.
(5) the actions of the suspect may be characterised as reluctant encouragement or assistance in the face of a determined wish on the part of the victim to commit suicide.
(6) the suspect reported the victim’s suicide to the police and fully assisted them in their enquiries into the circumstances of the suicide or the attempt and his or her part in providing encouragement or assistance.
The majority of the Court of Appeal was persuaded that:
it is not sufficient for the Policy merely to list the factors that the DPP will take into account in deciding whether to consent to a prosecution under section 2(1). A list of factors which contains no clue as to how the discretion to grant or withhold consent will be exercised is not sufficient to meet the requirements of Article 8(2). . . . If a list of relevant factors does not enable the person concerned to foresee, to a degree that is reasonable and adequate in the circumstances, the consequences of his action, then the Article 8(2) requirement is not satisfied.
In the Interim Policy, a subset of each list of factors was designated as “carry[ing] more weight than the other factors” in most cases. In the Final Policy, the designation of some factors as having greater weight was dropped. The Court of Appeal now wants a revised version of the Policy to “give some indication of the weight that the DPP accords to the fact that the helper was acting in his or her capacity as a healthcare professional and the victim was in his or her care.” Of course the DPP’s answer to this request may be that this factor carries significant weight, thereby further discouraging healthcare professionals from providing any assistance in suicide. The Court of Appeal thus recognises that the Policy may be changed to discourage the very assistance ultimately sought by Martin (at [137]).
How might the Policy be changed?
If the Court of Appeal’s decision is upheld by the Supreme Court (or if the DPP is not granted permission to appeal), how might the Policy be changed? The Divisional Court had quoted (at [130]) from the DPP’s evidence to the Commission on Assisted Dying:
it was important to distinguish between as it were one off acts of support or compassion and those that were engaged in the delivery of professional services or a business that would routinely… bring them into conflict with the law, because of the broad prohibition on assisted suicide.
This might eventually mean that ‘Martin’ would need to seek assistance only from individuals who have never before been involved in providing such assistance. It would also ensure that organisations like Dignitas could not be established in England and Wales.
How should the Policy be changed?
The advantages of open medical involvement in assisted suicide are manifold, and include a lower risk of botched suicides and suffering during the suicide or attempted suicide (as illustrated in the Gilderdale case) and the possibility of screening for possibly hitherto unknown mental disorders including depression. At present, the expertise necessary to achieve a safe, peaceful assisted death is concentrated in healthcare professionals, and they are the main gatekeepers of the medications needed to accomplish this. A Policy under which those seeking assistance in dying cannot access this expertise, even in the form of advice, nor the appropriate medications, and where others are prevented from developing and disseminating such expertise, is undesirable. Allowing assistance from healthcare professionals only on a “one off” basis would frustrate the development of expertise in assessing the validity of requests for assistance. It should be possible to assign weight to the relevant factors that would not prevent compassionate, professional and expert assistance while still avoiding what the Lord Chief Justice has termed “profiteering” (at [184]-[186]).
