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Assisted Suicide in the U.K.: From Crime to Right?

Wales, reflecting a common Christian morality that condemned the act as self-murder. With the Suicide Act of 1961, Parliament formally decriminalized the act of suicide. It also asserted that while providing assistance in another person’s suicide attempt should remain a criminal offense, no prosecution could be brought for assisting a suicide except by, or with the consent of, the Director of Public Prosecutions (the “DPP”). The law has remained formally the same in the intervening fifty years; Parliament has enacted no changes. Unfortunately, judicial alchemy in the last year has radically altered the law’s social and moral significance, transforming what had unequivocally been a crime subject to condemnation into a right worthy of respect. In July 2009, Britain’s top judges, the Law Lords, decided in Regina (Purdy) v. DPP to require that the DPP publish the facts and circumstances that would be considered when deciding whether to bring, or consent to, a prosecution for assisted suicide. An interim policy was produced by the DPP on September 23, 2009, and this was replaced, following a consultation process, by a Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide, which took effect on February 25, 2010. Under this policy, where there is sufficient evidence to justify a prosecution, prosecutors must go on to consider whether a prosecution is required “in the public interest.” The policy sets out sixteen factors said to weigh in favor of prosecution, and six factors that would weigh against. But these factors are not an exhaustive list, nor is the exercise a mechanical one: each case must be decided in light of its own facts and on its own merits. In general, the list encourages the prosecutor to consider such issues as the vulnerability or suggestibility of the suicide, the motivation of the person providing assistance, and the nature of the parties’ relationship. For example, the prospect of reaping financial gain from the death points toward prosecution, whereas evidence that compassion was the only motivation will indicate that prosecution is not in the public interest. One matter conspicuously absent from the policy guidance is any mention of the victim’s mental or physical health. Questions of whether the individual was terminally ill, was in untreatable mental or physical pain, or had an irredeemably poor quality of life are not explicitly among the factors to be taken into account in deciding on prosecution. The main issues seem to be simply whether the person had made a voluntary, clear, settled, and informed decision to commit suicide, and whether the person assisting him acted solely out of compassion. Although the DPP guidance declares that the decision of the House of Lords in the case of Purdy did not change the law on assisted suicide—something only Parliament can do—Parliament has been unwilling to set out in any statute when and how one might lawfully assist in another’s suicide. Instead, the Coroners and Justice Act of 2009 simply extended the existing prohibition against assisted suicide to those who set up Web sites promoting suicide. The House of Lords decision in Purdy was not universally welcomed. Many thought that the existing approach—outlawing assisting suicides while providing for discretionary enforcement and adjudication of the law in any individual case—combined the virtues of justice and mercy. It proclaimed the sanctity of life but also recognized the complexities of existence. In the case of Pretty v. UK, it had even been found by the European Court of Human Rights, as recently as 2002, to be compatible with the requirements of the European Convention on Human Rights. In ordering an explicit policy on when the DPP would prosecute those who assist suicides, the judges have significantly altered the symbolic value of the law. The order presumes that individuals already have a moral right to choose death rather than life, and that the state should respect that choice. In the name of respect for personal autonomy, the executive is now required to set out how individuals may realize, with such assistance as they may need, their choice of when or how to die. In time, this change might well prove to be significant for the United Kingdom, marking it out unequivocally as a post-Christian polity—all the more reason why Parliament should have made it, not the Law Lords. perspective