healthcare update - issue 11
New prosecution guidelines on assisted suicide - comfort from clarity?
Last summer Debbie Purdy, who suffers from multiple sclerosis,
asked the House of Lords for clarification on whether her husband
would be prosecuted if he travelled with her to a Swiss ‘suicide
clinic’. Her case was heralded as a landmark victory after the Law
Lords acknowledged that the circumstances in which a prosecution
would be brought for assisted suicide were unclear. This February,
as a result of Debbie Purdy’s legal challenge, Keir Starmer QC, the
Director of Public Prosecutions, published guidelines setting out
the factors to be considered in determining whether a prosecution
should be brought under Section 2 of the Suicide Act 1961. Whilst
this clarification may provide some comfort to individuals like
Debbie Purdy and their loved ones, it also raises new
questions.
The guidance does not change the law. Assisted suicide is
illegal, carrying a maximum penalty of 14 years imprisonment.
However, the authorities have discretion over whether or not to
bring a prosecution. The new guidelines set out 16 public interest
factors in favour of prosecution and five factors against. There is
no mathematical formula to determine whether to prosecute or not
depending on the scorecard - prosecutors must use their discretion
to consider each factor and its importance to the facts of the case
before them.
The factors in favour of prosecution include:
- The victim was under 18 years of age
- The victim did not have mental capacity
- The victim had not reached a voluntary, clear, settled, and
informed decision to commit suicide
- The suspect was not wholly motivated by compassion, and stood
to gain
- The suspect was paid by the victim or was working for an
organisation which provides facilities for a person to commit
suicide
The public interest factors against prosecution include:
- The victim had reached a voluntary, clear, settled and informed
decision to commit suicide
- The suspect was wholly motivated by compassion
- The suspect had sought to dissuade the victim from taking the
course of action which resulted in his or her suicide
- The suspect fully assisted and co-operated with the police in
their investigation of the victim’s suicide
The factors focus on the motivation of the suspect rather than
the characteristics of the victim. Indeed, the reference to whether
the victim was terminally ill or suffering a severe incurable
disability, as a factor in favour of prosecution, was removed from
the guidance as it was thought that this would put vulnerable
people at an increased risk.
The guidelines make specific reference to healthcare
professionals. Whether the suspect was acting in his or her
capacity as a doctor, nurse, or other healthcare professional, and
the victim was in his or her care, is a factor in favour of
prosecution. This is likely to lead to close scrutiny of the
actions of medical practitioners who provide medical records,
advice or assistance to patients who are contemplating assisted
suicide. This creates a trap for the unwary and as ever careful and
clear notes, as well as keeping one's eyes open to what may be
going through the minds of patients and loved ones, will save much
heartache later for the health professional.
These guidelines do not provide any assurance that an individual
will be immune from prosecution, but they do give a clearer picture
of when a prosecution may be brought. Inevitably, as with any legal
development, the guidelines have raised new questions and it is
likely that these will only be answered when the guidelines are
tested in their application.
talk to us
save to PDF
The content of this update is provided for the purposes of
general interest and information. It contains only brief summaries
of aspects of the subject matter and does not provide comprehensive
statements of the law. It does not constitute legal advice and does
not provide a substitute for it.