Assisted Suicide: A Step Towards a More Compassionate Law?

A review of R (on the application of Purdy) v DPP [2009] UKHL 45

On 30 July 2009 the House of Lords unanimously decided in favour of Ms Debbie Purdy and directed the Director of Public Prosecutions (“DPP”) to publish a statement of guidance in relation to assisted suicide.  The guidance is to contain factors the DPP will take into account when deciding whether it is in the public interest to prosecute those who assist people to end their lives in countries where assisted suicide is legal.

In the immediate aftermath of the case, Ms Purdy referred to this judgment as a “huge step towards a more compassionate law” which enables her to “make an informed choice” about the way she ends her life.  Now the dust has settled it appears the House of Lords’ decision was far less of a landmark than Ms Purdy had initially proclaimed and it remains to be seen how insightful the DPP’s guidance will be for Ms Purdy and other people in her position.

Background

According to section 2(1) of the Suicide Act 1961 (the “Act”) it is a crime punishable by up to fourteen years in prison to aid, abet, counsel or procure the suicide of another, or an attempt by another to commit suicide.  The offence is subject to a statutory discretion granted to the DPP by section 2(4) of the Act which states that the DPP must consent to any proceedings brought for such an offence.  When dealing with this ethically sensitive offence the DPP has clearly used its discretion as to date no one has been convicted under section 2 of the Act even though approximately 115 Britons have ended their life at the much publicised Dignitas facility in Switzerland.

Ms Purdy suffers from primary progressive multiple sclerosis, an incurable disease, and wishes to travel to a country where assisted suicide is lawful to end her life when her health deteriorates to such an extent that her condition becomes unbearable.  Ms Purdy sought information from the DPP as to whether her husband, Mr Puente, would be prosecuted if he helped her to end her life in this way.

The DPP refused to say what factors, other than the general factors contained in the Code for Crown Prosecutors (the “Code”), it would take into account when deciding whether it was in the public interest to prosecute those who assisted people to commit suicide in countries where suicide is lawful.

Ms Purdy sought judicial review of this decision and argued that:

• the prohibition in section 2(1) of the Act constituted an interference with her right to respect for her private life under Article 8 of the European Convention on Human Rights; and
• this interference was not in “accordance with the law” as required by Article 8(2) as the discretion of the DPP under section 2(4) of the Act and the lack of guidance regarding the factors the DPP takes into account when exercising its discretion made the law unforeseeable and inaccessible to the public.

Application of section 2(1) of the Act

In its judgment the House of Lords considered whether an act in this jurisdiction that helped a person to travel to another country in order to commit suicide fell within the remit of section 2(1) of the Act.  Although Lord Phillips considered the matter was best left unresolved until it fell within the context of prosecution, it was apparent that the House felt the critical issue was the jurisdiction in which the assistance took place rather than the jurisdiction where the final act of suicide took place.  In Lord Hope’s view “it would surely be absurd if the offence which section 2(1) creates could be avoided by aiding or abetting someone who was contemplating suicide to travel elsewhere from Berwick upon Tweed so that he could commit the final act”. 

In line with this reasoning, it was held that there was a substantial risk that the acts which Ms Purdy wished her husband to perform to help her travel to Switzerland would give rise to a prosecution in the UK.

Engagement of Article 8

The House of Lords followed the Starsbourg court’s decision in Pretty v United Kingdom [2002] 2 FLR 45 ECHR and found that Article 8(1) was engaged.  When addressing this point, Lord Hope stated that Article 8 relates to the way a person lives and that “the way she chooses to pass the closing moments of her life is part of the act of living, and she has the right to ask that this too must be respected”.

As Article 8 was engaged and the House of Lords considered there to be a substantial risk that the acts of Mr Puente could lead to a prosecution under section 2(1) of the Act, the final issue to consider was whether the discretion afforded to the DPP under section 2(4) of the Act was in accordance with the law as required by Article 8(2).

DPP Discretion

As Lord Hope highlighted, “there is already an obvious gulf between what section 2(1) says and the way that the subsection is being applied in practice in compassionate cases of that kind”. According to Article 8(2) the discretion afforded to the DPP under section 2(4) of the Act had to be certain enough to enable an individual to foresee the scope of the offence under section 2(1) of the Act so that they could regulate their conduct without breaking the law.  The House of Lords acknowledged that the element of discretion alone did not make the law unclear but that sufficient guidance as to how the DPP would exercise such discretion was required. 

The unique nature of the offence in question was cited as a reason why the general Code was not sufficient guidance.  Assisted suicide is one of only two crimes  in which the action which is being assisted is not in itself a crime and Lord Brown thought that on occasion it would be possible to regard the conduct of the aider and abetter as “altruistic rather than criminal” and conduct pursuant to “an intending suicide’s rights under Article 8” rather than conduct to be “discouraged so as to safeguard the right of life of others under Article 2”.  Owing to the unique nature of the offence the House of Lords felt that “very few, if any, of the factors listed in the Code were of any real assistance”.

Much was made by the DPP of the publication on 9 December 2008 of its decision in the case of Daniel James, the young rugby enthusiast whose parents were not prosecuted for helping him travel to Switzerland to end his life.  The DPP argued that the publication of its decision in the James case provided sufficient guidance as to how decisions were likely to be made in cases of this kind in the future.  However, the House of Lords dismissed the James case publication as falling short of what is needed to satisfy the accessibility and foreseeability tests under Article 8(2) and commented that it underlined the inappropriateness of the Code for assessing offences under section 2(1) of the Act.

Judgment

Given the inappropriateness of the Code and the Article 8(2) requirement for clarity, Lord Hope concluded that the DPP should produce an “offence-specific policy identifying the facts and circumstances which they will take into account in deciding, in a case such as that which Ms Purdy’s case exemplifies, whether or not to consent to a prosecution under section 2(1) [of the Act]”.

Although many may see this judgment as ground breaking, in Lord Hope’s opinion the DPP ought to be able to “confine the class that requires special treatment to a very narrow band of cases” so that the Code will continue to apply to all those cases that fall outside it.  This observation coupled with the House’s appreciation that “decisions in this area of law are highly sensitive to the facts of each case” calls into question how specific and clear the guidelines will be.

A more compassionate law?

Ms Purdy and others unfortunate enough to be in a similar position will hope the new guidelines, when published, are prescriptive enough to confirm that their loved ones will not be prosecuted if they assist them to end their life. This would follow the school of thought of Lord Brown who noted that to deny suffering individuals the assistance to end their life “will thus interfere with their Article 8 right to personal autonomy and self determination”. 

On inspection of the House of Lords official transcript this is an optimistic view.  Lord Hope unequivocally said, “it is no part of our function to change the law in order to decriminalise assisted suicide”.  A more realistic expectation is that the new guidance will be narrow in scope covering only a very specific offence, referring to the need to consider each case on its own facts and containing a list of general factors which the DPP will consider.  If this transpires, the new guidance will be vague enough to avoid the effective decriminalisation of assisted suicide which the House of Lords was so keen to evade.  This will not enable Ms Purdy and others to foresee with any greater certainty whether their loved one’s will be prosecuted under section 2(1) of the Act after they have passed away.  Instead, the fate of the loved ones left behind will continue to be subject to the compassionate discretion of the DPP.

Update – Interim Policy for Prosecutors in respect of Cases of Assisted Suicide

On 23rd September 2009, the DPP published an Interim Policy, which is to take effect immediately. The Policy is under consultation until 16th December 2009. The DPP emphasises that only Parliament can change the law, and that the Policy is not an assurance in advance of committing a crime that a prosecution cannot be brought. The Policy sets out factors favouring prosecution and factors against prosecution, to be considered in addition to the factors laid out in the Code for Crown Prosecutors, in cases of assisted suicide. In addition it gives an indication as to which factors are to be given more weight than others, and suggests that one factor may outweigh many others. Many legal commentators believe that the guidance does not provide any further certainty than is currently found in the law and states nothing but the obvious. Others suggest that the guidance is helpful, but does not go far enough. Unfortunately, it appears that, as feared, loved ones left behind continue to be subject to the compassionate discretion of the DPP.

The Policy can be viewed on the DPP's website by clicking here.