The law of England and Wales – Scotland’s law is not in all respects the same – has come a long way in my 82 years. Absurdly and cruelly, until the 1961 Suicide Act was passed it was a crime to kill yourself. While those who succeeded were beyond the law’s reach, those who tried and failed could be sent to jail. In the 1920s the home secretary had to release a Middlesbrough woman with fourteen children who had been given three months in prison for trying to kill herself. There is a Pythonesque sketch waiting to be written about a judge passing a sentence of imprisonment for attempted suicide: ‘Let this be a lesson to you and to any others who may be thinking of killing themselves.’ In fact, by the mid 19th century the law had got itself into such a tangle that a person injured in a failed attempt at suicide could be indicted for wounding with intent to kill, an offence for which Parliament had thoughtfully provided the death penalty.
I mention this lugubrious piece of history for two main reasons. One is that it illustrates the grip theology has had on MPs. The criminalisation of suicide reflected the theological view that killing oneself was murder – a sin sufficient to deny offenders a Christian funeral and burial, to the enduring shame of their families. The theological interdictions were not limited to the belief, spoken or unspoken, that all terminal suffering, whatever its degree and duration, was God’s will and not to be curtailed. Anaesthesia was for years opposed on the same ground. It was Hume who argued that if it was a sin to shorten life, it must also be a sin to prolong it. An Anglican divine, Canon Peter Green, pointed out about a hundred years ago that it wasn’t easy for a society that sanctioned capital punishment to maintain that only God could give or take life. And so the hypocrisies went on. In one form or another they still do. And so do the anomalies. For instance, the age-old common law of trespass to the person entitles a competent adult to refuse invasive treatment – intubation, injection, transfusion – even if their refusal is irrational, the treatment is simple and painless, and the result of refusal is that they will die. Yet the ability of a rational individual in unbearable and untreatable distress to opt for terminal medication remains beyond the pale of the law.
The other reason is that the historical anathema lives on in the undifferentiated crime of assisting a person to commit suicide. The present-day offence fails – signally – to differentiate between the intervener who, out of self-interest or perversion, helps to ensure that a suicide attempt succeeds, and the individual who, out of compassion, gives a rational fellow being the help he or she needs to end a life that has become medically unbearable. This is what the 1961 Suicide Act, having first decriminalised the act of suicide, goes on to say:
A person (‘D’) commits an offence if –
a) D does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and
b) D’s act was intended to encourage or assist suicide or an attempt at suicide.
It operates, in other words, by conflating encouragement – which is plainly unacceptable – with assistance, without considering the variety of reasons, from compassion to malice, for which such assistance may be given. Rather than recognise this fundamental difference, the law continues to inhibit the entitlement of a sane individual to draw a line under a life that may well have been fulfilling and worthwhile but has now become unbearable, by threatening to prosecute and jail anyone who – regardless of motive – gives them the help they need to end it.
Not only this; if the helper – a spouse, say – would have inherited the deceased person’s estate, the law may step in to disinherit them. Whether it actually does so depends on the applicability of forfeiture legislation, which itself defers to what it recognises as a principle of public policy – that is to say, a principle developed and applied by the courts – that denies a wrongdoer the fruits of his or her own crime ‘in certain circumstances’, as the statute reticently puts it. What these circumstances are is nowhere spelled out: do they for instance include manslaughter by reason of diminished responsibility? A dependant who helps a patient die may escape prosecution but end up penniless.
In principle, the law continues to treat as a criminal anyone who, albeit out of compassion, provides the assistance needed by someone in unendurable pain to die. But, as every lawyer knows, not every crime requires prosecution: the director of public prosecutions has the power to withhold consent to a prosecution which in his or her judgment would not be in the public interest. In 2009 the Appellate Committee of the House of Lords (the predecessor of the Supreme Court) accepted that Debbie Purdy was entitled, as an aspect of her legal right to respect for her private life, to choose a dignified death as a release from the accumulating pain and indignity of multiple sclerosis. Because they could do nothing directly to amend the law which forbade anyone to help her, the law lords required the director of public prosecutions (at that time the current leader of the Labour Party, Keir Starmer QC) to publish a policy delineating the intended use of his power, so that individuals considering helping a friend or relative, or doctors considering helping a patient, to die a rationally chosen death would know the likely consequence.
These bland words cover a deep pit of uncertainty. In the ordinary way a crime is defined by law, and anyone against whom there is admissible evidence can expect to be prosecuted. Until Debbie Purdy’s case, any decision made by the DPP to pursue or not to pursue a prosecution for assisting suicide was taken on the facts of the particular case because it was recognised as a unique class of offence. But because such a practice is almost guaranteed to produce arbitrary and inconsistent outcomes over time, a policy was needed, and if it was to be of any value in regulating people’s conduct it needed to be published.
In modern public law the value of policy as a way to blunt the sharp corners of the law without sacrificing consistency has been recognised by the courts as creating a legitimate expectation that published policies will be adhered to. But none of this constitutes an alchemy that can turn policy into law. This has consequences that I will come to.
It may first be helpful to summarise the position the courts of England and Wales have reached. They have recognised that the blanket criminalisation of assisted suicide constitutes a denial of the autonomy vouchsafed, through the Human Rights Act, by Article 8 of the European Convention on Human Rights. The Strasbourg court, a substantial number of whose judges are Catholics, has put it this way: ‘In an era of growing medical sophistication combined with longer life expectancies, many people are concerned that they should not be forced to linger on in old age or in states of advanced physical or mental decrepitude which conflict with strongly held ideas of self and personal identity.’ ‘All are agreed,’ the Supreme Court justices said in 2018 when they decided against hearing the case of Noel Conway, ‘that the ban on assisting suicide is an interference with the right to respect for private life protected by Article 8.’ But both the Supreme Court and the lower courts have made it plain that whether and how to refine the law, in particular by differentiating between cases where assistance would be permissible and cases where it would not, is for Parliament to decide.
To this extent the courts, including the Supreme Court, must be right, for if they are to declare Section 2 of the Suicide Act incompatible with the European Convention on Human Rights, they will have to decide to what extent and in what circumstances this is so. Nobody suggests, for example, that it is objectionable to criminalise the malicious or manipulative encouragement of an individual to take his or her own life. But elaborating a code of criminality that recognises such distinctions is the role of legislators, not judges or public officials.
It’s here, too, that the principal legislative alternative to the present blanket prohibition on assisting suicide – the six months to live test – encounters a tripwire. As the Court of Appeal pointed out in Noel Conway’s case, the prospective lifespan of a terminally ill patient is not a fact capable of exact ascertainment: it is inevitably an educated guess. Most of us know of cases where a patient has died within days of, say, a one-year prognosis, and of other cases where the patient has long outlived the prediction. This is one reason the proposal to confine assisted suicide to patients with six months or less to live – in other words, to reduce it to a right to an accelerated death – has become a hostage to fortune, bogging the argument down in wrangles about predictability and enabling its opponents to sidestep the bigger issue of the right of a rational patient to put an end to indefinite and unbearable suffering.
What is more immediately harmful is the wording of Section 2 of the 1961 Suicide Act which, in a single blow, criminalises both assisting and encouraging a suicide by linking them with the word ‘or’. There is all the difference in the world between the two. To deliberately encourage a person to take their own life when they might otherwise not have done so will, save in the rarest circumstances, merit prosecution. To assist someone who has independently decided they want their life to end is morally and ethically quite different. But it will not necessarily be permissible because this class of case – assisting though not encouraging suicide – will cover both suicidally disturbed individuals who might desist if they are not helped to carry out their intention, and others whose rationality in wishing to exercise their right to bring unendurable suffering to an end is beyond doubt. The former class is not within the ambit of any defensible assisted dying policy. It is the latter class with which I am concerned.
‘A prosecution is less likely to be required,’ the DPP’s cautiously phrased policy begins, if:
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 inquiries into the circumstances of the suicide or the attempt and his or her part in providing encouragement or assistance.
Two problems stand out. One is that the policy makes no attempt to disentangle assistance from encouragement – rather the reverse. The other is that the second criterion – acting ‘wholly’ out of compassion – appears to be intended to disqualify the people best placed and qualified to help: medical professionals, acting not as executioners but as prescribers, leaving the coup de grâce to the voluntary act of the patient.
Any discussion of this question nowadays takes place in the shadow of Dr Shipman. But while the risk of serial killing in the guise of treatment has to be taken seriously, it should also be recognised that most doctors have for generations been prepared to err on the side of shortening life if that is a consequence of relieving suffering. The DPP’s assumption appears to be that assistance given by a doctor to a rational patient who desires an end to their suffering will be given, at best, out of a sense of obligation. But why might it too not be attributed to compassion? To found prosecutorial policy on such a distinction is in effect to legislate where Parliament has failed to do so; and to do so on the basis of a false antithesis between obligation and compassion.
This is not the only problem. A policy by which the DPP, who holds a public office under the Crown, is prepared to waive or abandon a particular class of prosecution is the exercise of what is known in constitutional law as a dispensing power – a power of disapplying statute law that was expressly taken away from the Crown by the Bill of Rights of 1689. Since the publication of the DPP’s policy on assisted suicide has been followed by policies on other sensitive subjects – the protection of journalists’ sources, sexual abuse of children, sexual transmission of disease – the constitutional problem not only remains but has grown, making it all the more important for Parliament to step definitively into an arena from which it is now apparent that the courts have withdrawn and in which a prosecutorial policy can be no more than a stopgap.
I say this because while a statute will, or should, make clear what will and will not afford a defence to a charge of assisting suicide, a policy may well fail to do so. Take compassion. A defendant – whether doctor or relative – may find that a defence of compassionate assistance is rejected by the Crown prosecutor. The case proceeds to trial, where the defendant wants to put the same defence before the jury. But in a court of law no such defence exists. ‘Look at Section 2 of the Suicide Act,’ the judge says. ‘How does it allow me to leave the issue of compassion to the jury? The knowing giving of assistance is the beginning and the end of the case: the statute says so, and a prosecutorial policy can neither expand nor diminish what it says. If compassion has a bearing, it is not until I come to pass sentence.’
This is by no means the only problem thrown up by the DPP’s policy. Possibly even more serious than its laying of a false trail signposted ‘compassion’ is the fact that non-prosecution may depend on self-incrimination. This is something the common law has for centuries set its face against and that has for more than a century informed the standard police caution (‘You are not obliged to say anything …’). Yet the sixth of the DPP’s criteria for non-prosecution concerns self-reporting and co-operation. If it is decided, despite this, to proceed with a prosecution, it will be on the basis of evidence furnished almost entirely by the accused in the expectation of clemency. There is something both medieval and arguably unlawful about such a system.
A host of other issues need attention. Among them is the persistence of parts of the media in calling assisted dying ‘euthanasia’, which it is not, and the false antithesis of care and killing. Dismissing all compassionate assistance as killing seeks to pre-empt the very issue under debate. Nobody, by contrast, doubts the importance and worth of palliative care, or the entitlement of individuals to hold whatever belief they choose about suffering, even if it consigns them to a lingering death. What they do not have is a right to force it on others.
It’s relevant here to say a word about safeguarding. Nobody doubts the need for a robust system of checking the genuineness both of the patient’s condition and wishes, and of the intended helper’s motives. Such a system is likely to involve certification by more than one clinician and independent authorisation – something similar to the system devised by the common law for withdrawing life support from patients in what is not very sensitively called a persistent or permanent vegetative state. But the repeated resort by doctrinal opponents of assisted dying to the need for safeguarding tends to be directed not to resolving any difficulties but to amplifying and complicating them to the point of obstruction – the kind of argument which, as Gore Vidal once put it, gives intellectual dishonesty a bad name.
Let me conclude with a simple but realistic case. Parkinson’s disease slowly erodes first the body, frequently the mind. It does not kill: as the neurologist will reassure the patient, you die with it, not of it. But before that happens, the patient may have lost all mobility and intelligible speech. She (to pick a pronoun at random) can no longer write and has difficulty reading. Her sense of smell and taste is long gone. Her limbs are racked by an unremitting tremor. Her face carries a wooden expression. Untroubled sleep is a distant memory. She may be experiencing the onset of dementia. There is nothing that those who love her and care for her can do to alleviate it. She knows her illness is a burden which they too carry, and does not wish it to be prolonged, for her family or for herself, by transfer into long-term care.
Let us suppose she has lived a productive and worthwhile life that she wants her children and grandchildren to look back on with pleasure and perhaps pride. Above all, she wants them to remember her not as a tremulous and inarticulate wreck but as a whole person. I will argue while I still have breath that the law should allow such a person the assistance she needs, whether from someone close to her or from a compassionate doctor, to bring that life – a life which is the property neither of the state nor of some capricious deity but is hers alone – to a decent and peaceful close.
It’s worth bearing in mind that by no means all religions postulate an interventionist deity who predetermines when and how each human being is to die (and who, in at least one major faith, can be persuaded by intercession to change his mind). Some theologies regard life as a process of better or worse moral choices on which judgment may eventually be passed; but until then such choices are an exercise of an autonomy which is itself taken to be God-given. In such a universe, the power to end one’s own life is not a gateway to sin but an aspect of the human condition.
It has for many years been a crime in this country to cause an animal unnecessary suffering. Perhaps we need to turn our attention to the desire of human beings to be similarly spared, if that is their reasoned wish. There is no need to counterpose the legislative scheme for permitting accelerated death for people with six months or less to live against the more harrowing cases of patients wishing to end a condition of indefinite and unbearable pain and distress. Both need to be provided for with necessary safeguards. If Parliament cannot bring itself to do what we know more than 80 per cent of the public want it to do, it has expedients at its disposal: not, one would hope, an elephantine royal commission but a citizens’ jury of the sort that has proved an unexpected success in the Republic of Ireland: 99 people chosen at random and empowered by legislation to call for evidence before reporting on the constitutional issue confided to them. And there is Jersey, where a jury of 23 islanders recently made positive recommendations on assisted dying. One can hope that such a jury would do a better job than MPs, many of them seemingly haunted by doctrine or by fear, have so far done.
If MPs do nothing and the present porous and unpredictable regime is left in place, the passage of time may bring about something far worse: attenuated health and care services which slip imperceptibly into a practice of abandoning or neglecting lives deemed not worth prolonging, or – at the opposite extreme – a rigid regime of enforced survival for those in unbearable distress, with voluntary termination outsourced for the few who can afford it. Those who doctrinally oppose assisted dying in all circumstances might do well to remember something of which they are always ready to remind others: the proverbial fate of those who sow the wind.