The word Euthanasia4 has got its origin from the Greek language eu signifies “good” and thanatos signifies “death”. One meaning assumed to the word is “the intended end of life by another at the unequivocal wish of the person who dies.” Assisted suicide is one aspect of euthanasia, a canopy expression covering a different set of circumstances and characteristics that may have ethical correspondence, but can nonetheless be understood to have very diverse legal features. A sharp distinction is drawn in criminal law between mercy killing, death occasioning from removal of treatment, suicide and assisted suicide. It is hard to mark firm guidelines when comparing the behaviour of a person who assists by obtaining the approach by which another may commit suicide with that of a person who does not act when provoked with the awareness of intended suicide. Similarly, terminating someone’s life at her request by assisting in the form of administering a noxious poison is difficult to distinct; nevertheless, the legal position of these acts is far away from equivalent5.
In Airedale NHS Trust V Bland6, Justice Goff of the House of Lords wrote:
“[T]o cross the Rubicon which runs between on the one hand the care of the living patient and on the other hand euthanasia – actively causing his death to avoid or to end his suffering. Euthanasia is not lawful at common law.”
By the commencement of the Suicide Act 1961, committing, or attempting to commit, suicide ceased to be a criminal offence in England and Wales. In line with wariness for assigning liability for omissions to act, a criminal offence is not recognized if there is a failure to stop someone from committing suicide, excepting insofar as it can be held amounting to an offence as defined below. Likewise, a treatment can be withheld at the request of the patient or at the patientâ€™s best interest7.
Despite the legalization of suicide, it is likely to invoke criminal liability where there is active involvement of another. The involvement to kill someone voluntarily, will amount to a homicide in the absence of any other justification or excuse8 even though the personâ€™s wish was to be killed. The incident will be dissimilar where the person only renders assistance to the person wishing to die rather than actually causing death9. Under s. 2(1) of the Suicide Act 1961, â€˜assisted suicide’ is recognized as an offence under the law of England and Wales s. 2(1) of the Suicide Act 1961 provides that: A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction or indictment to imprisonment for a term not exceeding 14 years and substantively revised by the Coroners and Justice Act 2009. The s.2(1) offence theoretically covers a very extensive series of conduct of variable stages of culpability and is now concerned with acts capable of assisting or encouraging the suicide or attempted suicide of another person but the DPP’s permission is necessary for a prosecution to be instituted, and the DPP has published his written Policy in respect of charging individuals with the s.2(1) offence. Prosecutorial decision-making has therefore presumed a dominant part in relation to this offence, as it may lead to a decision being taken not to prosecute, even though in strict terms the elements of the s.2 (1) offence are made out.
The law in relation to euthanasia is appreciated as being controversial. In recent period there have been a series of high profile cases taken before the UK courts and the European Court of Human Rights in which individuals with terminal illnesses and/or severe disabilities have challenged the law and the DPP’s policy in relation to the s. 2(1) offence.
The distinctive difficulties impersonated by the offence of assisted suicide were cited by Lord Neuberger in Purdy v DPP:
The very unusual features of this crime are that it involves the offender assisting an action by a third party which
is not itself a crime
the third party who is being assisted is also the victim
the victim will almost always be willing
indeed will very often be the positive instigator of the crime
the “offender” will often be a relatively reluctant participator
and will often be motivated solely by love and/or sympathy
the potential offender is not the person, or at least is not the only person, whose Convention rights are engaged
it is the victim whose article 8 rights are engaged, and he or she will almost always be unusually vulnerable and sensitive10.
Thus, where there is an assisted suicide, both the rights of the person desiring to commit suicide and those assisting them to do so are involved: a â€˜right to assistâ€™ is the unavoidable consequence of a â€˜right to dieâ€™. On these matters, there is a relative absence of jurisprudence, the subject only gaining prominence and receiving in-depth treatment with the case of Diane Pretty.
The objective of the Interim Policy is to offer direction as to when a prosecution will or will not be taken pursuant to s. 2 of the Suicide Act 196111. In determining its recommendations, the Interim Policy refers to the person who is assisting as the â€˜suspectâ€™ and the person who is being assisted to die as the â€˜victimâ€™.
No further guidance is demonstrated in case of evidential standard to be a prosecution for s. 2 offence12. Some straightforward and un-contentious ideas are revealed with regard to evidence supporting the grounds upon which public interest factors will be measured.
Paras 19 and 21 of the Interim Policy contain the public policy factors in favour and against prosecution. Most of the “anti-prosecution” factors are related (but in a positive way) to the perceived autonomy of V. In most of the cases, the factors against prosecution mirror and strengthen those in support of it (for instance, para. 19(5) states: â€˜The victim did not ask personally on his or her own initiative for the assistance of the suspectâ€™; para 21(3) reflects this: â€˜The victim asked personally on his or her own initiative for the assistance of the suspectâ€™). The document makes it explicit that not all factors will be operational or pertinent in every case. Other issues and circumstances must be given weight on its own facts and merits13.
Factor 1 to 5, of para. 19 mirrored as â€˜public interest factors against prosecutionâ€™ deal with the choice made by the person being assisted. The opening two factors follow to reveal that the person was capable to decide, eliminating the â€˜rightâ€™ to assistance from minors and the mentally incapable; whilst the rest attend to confirm that the desire to die was firm and well proved14.
Factor 6, of para. 19 effectually confines the accessibility of assistance to those people who are with an incurable physical disability or terminally ill or degenerative physical condition (this reflects in para. 21(4)15; the magnitude to which this effectually confines any autonomy right of the â€˜victimâ€™.
Factors 7 to 10 of para. 19 (and para. 21(5) and (6)) are principally dealt with the relationship between the suspect and the victim, considering to the motivation of the suspect and allowing prosecution more likely if there remains any indication of undue influence, or where the suspect is likely to benefit from the victim’s death16. Although factors (5) to (8) of para. 21, resembles this17. However factors 9 to 12 of para. 21 enhance a further aspect, requiring that the suspect made attempt to discourage a victim who was considering treatment, had attempted suicide previously and it was a reluctant assistance. The need for this kind of ethical judgement is unclear.
Factors 7 to 16 of para. 19 deters to the operation of establishment such as Dignitas in England and Wales. This is revealed straight in factor (16), which specifies that prosecution is more likely where: â€˜The suspect was a member of an organisation or group, the principal purpose of which is to provide a physical environment [whether for payment or not] in which to allow another to commit suicideâ€™. Nevertheless, there seems to be a small discrepancy of approach if it is scrutinized together with the second part of factor (7) of para. 21, which advocates against prosecution where â€˜the assistance which the suspect provided was as a consequence of his or her usual lawful employmentâ€™.
THE DPP’S FINAL POLICY ON ASSISTED SUICIDE:
In the Final Policy the DPP emphases on the “public interest” test, though some legal explanation has also been offered.
The structure of the “public interest” aspect of the policy is comparable to that of the “general” Code. Factors listed would tend to recommend that prosecution is likely, examined by a list of factors that specify the other way, but the component of one list is in no sense the reverse of the other18. Undoubtedly there are sixteen “pro-prosecution” factors but just six “anti-prosecution” factors., No less than eight “pro-prosecution” factors assign to the vulnerability or perceived absence of independence of V, for instance young age or suspected mental capacity, or because communication regarding decision was not made or the assistance of the accused had not been sought “on his or her own initiative”, or was pressured by D (or by another, to the knowledge of D). Rest of the pro-prosecution factors are related to unscrupulous or someway “professional” defendants. They might be unknown to their victims or might have assisted more than one victim, or received payment for their assistance, or provided an atmosphere which lets someone to commit a suicide. These pro-prosecution factors are the reflection of the Interim Policy. Possibly the two utmost significant accompaniments in the Final Policy are the factors that D had a history of violence or abuse against V19 (which is seemed to be further relevant to V’s autonomy, at least in relation to D) and that D was acting in a professional capacity (nurse, doctor, care professional etc.)20. This later factor seems to identify that a component of breach of trust magnifies the offence, even if D was driven by compassion for a particularly desperate individual.
However, surprisingly the list of the “anti-prosecution” factors, were reduced to just six in the Final Policy from a proposed thirteen in the Interim Policy. In the Final Policy all the previous victim-oriented factors which originated from the Interim Policy were reduced into just one factor (albeit that it appears at the top of the list), namely that “the victim had reached a voluntary, clear, settled and informed decision to commit suicide”21. Rest of five factors are related to the suspect, including that he was motivated “wholly” by compassion, that he should have pursued to dissuade V from committing suicide and, resonating the DPP’s explanations for not prosecuting the family of Daniel James, that “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”22. This move was foreshown in the publicity and the DPP was under impression that “the policy is now more focused on the motivation of the suspect rather than the characteristics of the victim”23. It was independently clarified in the Summary of Responses that whereas only a minority of respondents to the consultation paper arising from the interim policy believed that any of the victim-oriented mitigating factors were applicable, by contrast, a clear majority of respondents had favoured all of the suspect-oriented factors that found their way into the Final Policy.
It needs to be mentioned that whilst only the one victim-oriented mitigating factor (that “the victim had reached a voluntary, clear, settled and informed decision to commit suicide”) remains, it is precisely the one which their Lordships in Purdy had thought to be crucial24. The CPS in its Summary of Responses can say little more than that it disagrees with the 62 per cent of respondents who had objected even to this being regarded as relevant to prosecutorial policy25. The rest victim-oriented factors that had enhanced the interim policy were each approved by the CPS to be unacceptable. On consultation it was extensively assumed that the lives of the disabled were generally less worthy of protection under the Suicide Act26. Thatâ€™s why the possible suffering by V from a terminal or degenerative condition as an “anti-prosecution” factor was dropped. There was a separate objection to the factor that V may try to take his own life before (apparently on the basis that some unsuccessful attempts are in fact cries for help rather than representations of a settled wish to die) 27. The factor that V should have been a family member or close friend to D was also dropped from the Final Policy because of concerns that families may also have the most influence (including malign influence) over suicidal persons28. This is another instance of irregularity in the Final Policy; it is assumed not to be an “anti-prosecution” factor in itself that V and D may have had a very close relationship but it is a “pro-prosecution” factor that they should be unknown to each other.
However, the removal of all of these factors does provide pause for thought. For instance, one might contemplate whether, even if each of the objections to those factors is comprehensive in itself, cumulatively the factors appear likely to offer dominant mitigation. Accordingly, if V is dying or in a deserted physical condition and has already tried suicide (unaided) and is then â€‰assisted by a close friend or family member to do so, then it may seem to be going too remote to enhance all the isolated objections in order to neglect the complete scenario which seems to appear. So an accumulative arrangement to these factors might have been one way to reserve the significance of a factual unification which had prejudiced the DPP in the James case. The most significant difficulty is that there is no guidance in the Final Policy as to how theâ€‰DPP would regulate the existence of the two most apparently29 substantial anti-prosecution factors, explicitly that V made a “voluntary, clear, settled and informed decision” to commit suicide and that D was motivated to assist “wholly through compassion”. Possibly an earlier suicide attempt by V, apparently immaterial in itself, will nevertheless assistance in determining that V had made a “settled and clear” decision. It appears particularly probable that the intimacy of the relationship between D and V, and the nature of V’s irreparable physical disorder, each apparently immaterial in themselves, will help to justify a prosecutor that D acted through compassion. It may be postulated that a prosecutor would only willingly accept that D acted wholly through compassion for someone who was seriously ill or dying (does not the word “compassion” involve relief from suffering?). It must be noticed that whilst these factors are omitted from the list of “anti-prosecution” factors in the Final Policy, nothing is essentially mentioned about their supposed inappropriateness either. So arguably their existence may still be believed to be pertinent when applying the main tests of a “voluntary, clear, settled and informed decision by V” and “acting wholly through compassion by D”. Otherwise, it appears to be exposed to prosecutors to indicate them straightaway as miscellaneous public interest factors, since the list of such factors in the Final policy is believed to be “not exhaustive”30.
Therefore the Final Policy is not as transparent as it could have been. There may be arguments that the Policy is meant to all sections of the public and that its governing values should be appreciatively comprehensible to all. Hence “V’s terminal illness is not significant itself but may provide indication of D’s concerned motivation” would be too confusing for most proletarians. If this is the case then it would be very difficult for prosecutorial “public interest” guidelines to be clear and accessible, because clarity might tend to arise at the expense of obscuring significant nuances and thus weakening the access. It is an attribute of flexible consequences that they are applied within a comparatively refined context, where factors are appropriate for some purposes but not others, or applicable not in themselves but only as indication of something else, and so on. The purposes of prosecutorial policy cannot satisfactorily be accomplished if these points are assumed to be too hard to clarify. Lady Hale advised that “the factors which tell for and against such a genuine exercise of autonomy free from pressure will be the most important”. It can barely be thought that this advice has been revealed by a single sentence that it is an “anti-prosecution” factor that V made a “voluntary, clear, settled and informed decision” to commit suicide, without further definition or explanation.
It may be understood, dissimilar to the argument here, that many proletarians do appreciate the importation of the Policy. Mrs Purdy welcomed the importance on D’s compassionate motives in the Final Policy (though she believes that legislative amendment is the best way of providing clarity) 31. If Mrs Purdy is under the impression that the path is clear for her husband to assist her as appears to be the case, then this fetches us to the important concern. Is it appropriate for the prosecutor at all to be heard to propose that certain violations of the criminal law will generally not be prosecuted? The crucial outcome from the Policy is that if (albeit seldom) all the anti-prosecution factors are there and all the “pro-prosecution factors” are not present in any case, then there will be no prosecution. On this point DPP cannot be criticised as he had attempted to resist having to produce it. So now the decision of their Lordships in Purdy requiring DPP to produce such a policy will be accessed.
THE STATUTORY CRITICISMS OF PURDY
In this segment the main criticism of the decision in Purdy will be outlined, precisely that embracing a policy which proposes that non-prosecution can be in the public interest largely based on the circumstances of the offence itself defeats traditional views of the rule of law. Furthermore, all the statutory tribulations of such policies i.e. their limits in approaching wider concerns in the fundamental law and the concealed obstacles in adapting and applying their elements do exist in Purdy. Lastly, it is not proper to assume that anything of the kind might have been prerequisite by interpretation of the route in Pretty v United Kingdom where it was noted by the European Court that for the overall compatibility of the assisted suicide offence with art. 8 it was important that we must have “a system of enforcement and adjudication which allows due regards to be given in each particular case to the public interest in bringing a prosecution”.
It is generally expected that the DPP would apply the law of the land, as it is assumed to be. This does not necessarily signify that he is likely to prosecute each possible case. Factors such as the condition of the defendant, the benefit of the victim or merely his own departmental resources could be taken into account, where the offence is negligible and not likely to be repeated while applying his discretion to discontinue in the public interest, though he may not do so on the point that the question of law is not worth imposing. However, DPP might not be entitled to reject to consider a prosecution within the class, even if though he puts the prosecution of the less serious instances of an offence “on the back burner”. This seems to mean that the police and the DPP should have been actually regularly discontinuing convincing cases such as that of the family of Daniel James. Undeniably,â€‰DPP had preferred to go public with his explanations for not prosecuting the James case indicates that the law would not be applied in other such cases albeit without precisely indicating so. The reason he resisted the Purdy litigation was that it would expose him to the criticism that he was openly (though indirectly) rewriting the law32. In fact, on December 1, 2009 an Early Day Motion signed by 63 MPs was laid before Parliament to withdraw the Interim Policy on the ground, inter alia, that it overrode the will of Parliament33.The fact that the law would be efficiently redrafted for some types of cases should Mrs Purdy succeed, notwithstanding all the warnings that might be given in any resulting policy about each case being considered on its own facts and about there being no guarantees of non-prosecution34, had been recognised in the Court of Appeal. The Lord Chief Justice had said that:
“Without giving what in reality would amount either to immunity from prosecution or the promulgation of a policy which would effectively discount the risk of a prosecution in this particular case (which it is accepted cannot be provided) Mrs Purdy cannot achieve her true objective.”
But regarding rule of law, nothing was said by the House of Lords in Purdy. We are not told either to what extent to go if the traditional notion of it is altered. However, their decision reminds us of our obligation to consider exactly what the rule of law objections might be, at least in cases such as this, where many would agree that the substantive law is very widely drawn and where Parliament has seemed to rely on extensive use of prosecutorial discretion (for in this case, it seems that objections based on the “sovereignty of Parliament” are relatively weak). But it seems that even here, constitutional difficulties remain.
One of the shortcomings of the prosecutorial policy is the limitations in applying comprehensibly to the substantive law all together. In some cases DPP’s Final Policy hover ambiguity on the borderline between assisted suicide and murder, though it is restricted to cases of assisted suicide. For instance if D puts in the overdose of pills by opening V’s mouth for her (which V is unable to do) and then swallowed voluntarily by V35. Since in Purdy, DPP was not anticipated to broadcast prosecute policy of murder cases concerning autonomous and willing victims, nothing was mentioned albeit in some cases it may be relevant where families wish the assistance desperately. For instance in a case involving one Mrs Gilderdale theâ€‰DPP opinions that in case of such allegation, it amounts in law to murder or at least attempted murder and in that case he will not apply his â€‰assisted suicide policy, even if all the anti-prosecution factors in his policy would appear to have been relevant36.
There are other distinguishable challenges. For example, where D does not call for medical support for V after Vâ€™s attempted suicide, involving duty of care relationship regardless of the reluctance of V to obtain treatment37, and with serious concerns, gross negligence manslaughter is arguably committed and the Final Policy on assisted suicide would not apply though it would be applied if D had actively assisted V’s suicide in the first place instead of not calling medical support and no prosecution would be brought. This would amount to indefensible and anomalous.
These illustrations clearly demonstrate that a comprehensive legislative modification is rather what is desirable. They too remind the limitations of human rights law in restructuring the substantive criminal law38. The fact that the assisted suicide offence involves suicidal personsâ€™ right to respect private life which would be unlikely in case of the law of murder or manslaughter. Consequently the Final Policy is only applicable to the prior offence and therefore worsens current anomalies in the substantive law.
It is imaginable that the court might have regarded to the sui generis nature of the DPPâ€™s Policy when it was asked to review the Policy (or a modification to it) and including Purdy itself, the intention was to give effective rights (more generous than would normally apply in ordinary public law doctrine) to defendants or to treat the Final Policy as a de facto replacement for statutory modification, and that since D would have been able to rely on a statutory defence that was effective at the time of his conduct, albeit consequently cancelled, so too should he be able to rely on this particular Policy but this seems exceedingly hypothetical.
COMMISSION OF LORD FALCONER:
The final report of Lord Falconer Commission accompanied by former justice secretary and a wide range of experts on Assisted Dying which was ordered by the law Lords after ruling Purdy was published on the 5th of January 2012. Evidence was collected from 1,300 sources during its year-long inquiry.
According to the commission, to be considered for assisted suicide under its proposals a person first of all would have to be terminally ill and that person must have less than 12 months to live and should also be acting under their own steam and not be mentally impaired in any way while dementia patients and a person with significant physical impairment, such as locked-in syndrome, would not be able to avail it as they would have longer than 12 months to live. However a cancer patient with a prediction of nine months would be eligible by meeting other criteria. It is recommended that the administration of medicine as euthanasia must be done by the patients themselves and administration by others is not allowed. They would then have to be assessed by two independent doctors to ensure they met the eligibility criteria. With all these factors, the commission favoured strong propositions for euthanasia. The commission was not set up by government and, therefore, carries no official weight. The government has already said there are no immediate plans to change the law.
However, according to critics the report is said to be biased and lacking in transparency and is seriously flawed. The British Medical Association is not in favour of assisted dying as majority of doctors do not want to legalise assisted dying.
In order to render the law available and clear, enforcement of prosecutorial guidelines should be unprecedented. It does not even clarify to what extent a gradational construction of reasoning can be made to be available. There has been an absence of political motivation to modify the law to mirror prevalent public view and to broaden the situations in which assisted suicide will be permissible; the House of Lords has made it clear that this is a role that lies out with the courts, and Parliament remains recalcitrant on the issue. It has thus been left to prosecutorial policy to navigate a path, making pragmatic decisions nominally based on insufficient direction contained in the Code for Crown Prosecutors.
The actual issue in Purdy was that the applicant and others in her situation was not comfortable about being at the mercy of prosecutorial discretion. But the response to that was not to necessitate an offence-specific policy. In its place, the appropriate approach should be applied to require a prosecutorial system in assisted suicide cases, not in order to make the offence “accord with law” (which is rather needless) but in order to render its effects proportional to the requirement to defend the vulnerable. Under such a system, the DPP would have a choice of prosecution approaches, which may fluctuate over time. He might therefore prosecute some circumstances in which he was pleased of the victim’s autonomy; but in those circumstances, the victim’s autonomy for sentencing purposes should be accepted and be willing to cease if the defendant appears really incapable to cope with the prosecution procedure with condition that any such approach is continuously applied until there is no genuine ground for complaint. However the approach to the suspect as well as its application in the instant case may be required to be explained by the prosecutor. One can hope that such a scheme would please the victim who intends requesting for assistance, but that is not the essential fact. A policy which recommends monotonous discontinuance is not permissible under the justification of rule of law and was not expected as a protection in Pretty v United Kingdom or Purdy v DPP.
However, the approach of efficiently undermining statutory provisions by way of prosecutorial policy also gives rise to the questions of constitutional legitimacy, particularly as the DPP does not have a mandate to legislate criminal law. That the promulgated policy is in direct conflict with the substantive criminal law also raises human rights issues. Without any doubt it can be said that passing legislation would be the most righteous way to resolve the issues relating to uncertainty and clarity of euthanasia law as Lord Morris has held: ‘In criminal matters it is important to have clarity and certainty’39.