Essay: The law on suicide and assisted suicide

Suicide ceased to be a criminal offence in England and Wales with the passing of the Suicide Act 1961 s(1) but the same Act made it an offence to assist in a suicide s(2), the punishment being 14 years imprisonment. The amended law relating to assisted suicide is now in s.59 of the Coroners and Justice Act, so that a person can be prosecuted for committing ‘acts capable of encouraging or assisting the suicide or attempted suicide of another person’. [ ]
The law is such that people who are suffering from incurable diseases and who wish to die cannot be assisted by others in their suicidal actions but this has recently been challenged around the world, seeking to achieve a change in the law so that assisting a person to die will not lead to criminal prosecution. The judges feel that this is an issue on which the courts should not be legislating because the law relating to assisting suicide can only be changed by parliamentary intervention since they cannot go against an act of parliament.
However, do you think that assisted suicide should be legalized? Imagine yourself in the position of those people. There is endless suffering and pain but there are no medications or procedures to cure you. You cannot commit suicide yourself and you fear to ask your relatives or friends because that might put them in serious troubles because the law bans the help. There have been reported cases explaining the pain people go through, like a case where a woman starved herself to death because there was no other way for her to die. In another case, a brother was forced to shoot his brother who was suffering from skin cancer for the past six months and his body was deteriorating further every day. The young man paid an enormous charge for releasing his brother from that distress that he was charged for murder. These are just some cases reported by the public, there are thousands of people who die suffering and the law rather than helping them, chooses to stay quiet. Very sick people are the ones that are the most vulnerable. They are exhausted from fighting the disease and pain and often become depressed from what is happening to them. In such a state they are often more ambivalent to committing suicide. America has a strong culture of independence and self reliance but their dependence becomes a source of shame when they get such an illness.
Under s.2(4) of the act ‘no proceedings shall be instituted except by or with the consent of the Director of Public Prosecutions'[ ], the Director of Public Prosecutions (DPP) has discretion to decide whether and when prosecution of such cases is in the public interest but there is no fixed criteria to decide that and the DPP along with the CPS decide the cases as they think fit. It was after this that Mrs Debby Purdy brought a case against the DPP seeking clarification about whether her husband would be prosecuted if he assisted her in dying.
Although it is illegal to help someone kill themselves, nobody has so far been prosecuted for helping a person travel abroad to do so. Many Britons have gone abroad (often to organisations such as Dignitas in Switzerland) for assistance in ending their own lives where assisted suicide is legal but because of the inconsistencies between domestic law and prosecution, people might still be prosecuted for this. Debby Purdy in 2009 launched a case to clarify whether or not her husband would risk being prosecuted if he helped her travel to a Dignitas clinic in Switzerland to die. Debby Purdy suffered from incurable and progressive multiple sclerosis. She appealed a decision that the absence of a crime specific policy identifying the facts and circumstances that the DPP would take into account when deciding whether to prosecute an individual for assisting another person to commit suicide did not make the operation and the effect of s2(1) SA 1961 unlawful and did not mean that it was not in accordance with law for the purpose of art 8 ECHR.
The House of Lords agreed that lack of clarity about how the DPP exercised his discretion infringed Article 8 and they said that the DPP should issue guidance that would help people to know the circumstances that would lead to someone being prosecuted for helping someone to end their life.
Purdy’s case ended on 30 August 2009 and it was after this case that the DPP published their policy in respect of charging individuals with assisting or encouraging suicide ‘ DPP, ‘Policy for Prosecutors in respect of cases of Encouraging and Assisting Suicide’ (2010) . This policy sets out the public interest factors tending in favour of or against prosecution. This policy applies where an act that amounts to assisting and encouraging suicide is committed in England and Wales even if the suicide takes place outside the jurisdiction.
This was also underlined in the case of a paralysed former rugby player, Daniel James 2010 whose parents, Julie and Mark James said the former England under-16 rugby player had never come to terms with his extreme physical incapacity, and repeatedly said he wanted to die and was determined to do so. The DPP said it was not in the public interest to prosecute Mr James’s parents even though there was sufficient evidence that they had helped their son to end his own life, in breach of the 1961 Suicide Act. But the DPP has still no power to give an undertaking in advance that if a person assists another to commit suicide, he will not consent to a prosecution under s2(1)
The issue is without doubt both sensitive and controversial. Many people view legally assisted suicide as an appalling concept which undermines the fundamental human right to life itself. On the other hand there are those, like Ms Purdy, who firmly believe that the right to life includes the right to end one’s own life when one can still do so with. Another such case was Pretty v UK (2002) Mrs Pretty died aged 43 of motor neurone disease in a Luton hospice in 2002. She had failed in her legal battle, which went all the way to the European Court of Human Rights, to obtain immunity from prosecution for her husband if he assisted her in dying. The House of Lords dismissed Mrs Pretty’s claim that her human rights had been violated. Mrs Pretty complained that her rights under ECHR art 2,3 and 8 were infringed when DPP granted and indemnity against the prosecution of her husband. The court held that none of the articles were infringed. The reasons were as follows as argued by the court that Art 2(right to life) could not be interpreted as right to die. Had the article included issues such as quality of life then this could be argued. Not allowing her husband to assist her in suicide was not a breach of Art 3(inhumane and degrading behaviour). Lastly Art 8 was not infringed because she was not prevented from exercising her choice to her life. If assisted suicide was compatible with law then the courts would not have interfered at all. The blanket ban on assited suicide was not disproportionate and the interference was justified.
The DPP guidelines included that Prosecution is more likely firstly if the person who died was under 18, had a mental illness or was not acting on their own initiative, the guidelines say. Secondly if the person was maliciously encouraged to commit suicide, did not have an incurable illness or physical disability, or had previously demonstrated indecision about wanting to commit suicide, their helper would be more likely to face prosecution. Thirdly Prosecutors would have to be satisfied the person aiding the suicide was wholly motivated by compassion and that they, or anyone close to them, had nothing to gain from the death. Fourthly cases less likely to be prosecuted include those where the person had a clear and expressed wish to commit suicide, was suffering from an incurable disease, and where the helper was motivated by compassion and was a partner, family member or close friend.
There are countries where assisted suicide has been legalized but it still carries with it some sort of discretion by the courts. In Gross v Switzerland 2013 it was provided that an individual was in a position freely to form his own judgement and to act accordingly, he himself has the right to decide when, where, how his life should end and it fell under art 8 of ECHR. In this case the complainant wished to be provided with a dose of sodium pentobarbital allowing her to end her life and the absence of such guidelines violated her art 8 right. The object of art 8 was to protect the individual against arbitrary interference by public authorities.
However in Haas v Switzerland 2011 , the complainant suffered from a mental illness and was refused access to a chemical substance for committing suicide. He argued that this was against article 8 of ECHR. The federal court stated that a psychiatric report would be required to determine whether his wish to end life was a mental illness that could be treated or an autonomous, considered and enduring decision of a person with capacity. The Swiss government argued that the right to self determination guaranteed by article 8 did not include the right of a person to be assisted in committing suicide and that the restriction on access to sodium pentobarbital was necessary to protect health and safety and to prevent crime. So there are even restrictions for the allowance of assisted suicide in countries where this has been legalized.
Another case is Kosh v Germany 2013 where the husband’s complaint about the refusal of authority to authorise his wife to acquire a lethal dose of medication was upheld. It was held that the husband’s relationship with his wife was expected away close and he could claim to have been directly affected the refusal of medicine. The institute’s refusal to reject the drug was an interference with the right under art 8 of the wife’s right and not that of the husband. Art 8 was of a non transferable nature and could thus not be pursued by a close relative or other successor of the immediate victim.
In (R (on the application of Nicklinson) v Ministry of Justice [2014] Mr Nicklinson had ‘locked-in’ syndrome which is a complete paralysis but the mind is working perfectly. In 2007 he decided to end his own life but he would only have been able to do so by refusing all food and liquids. He wanted a doctor to end his life, but that wasn’t allowed. Having failed to persuade the courts in various legal actions, Mr Nicklinson died of pneumonia in August 2012 after refusing nutrition, fluids and medical treatment. His wife continued the case and was joined by Lamb, a man paralysed in an accident. Another case heard at the same time was that of Martin who is unable to speak and virtually unable to move. He found his life intolerable and wanted to die. Because of his disability, he is unable to do so without assistance and is wholly reliant on his professional careers.
Martin argued that: 1. the DPP’s Policy is an unjustified interference with his Article 8 right of ECHR because the consequences of the policy are uncertain, and 2. the policy disproportionately interferes with his Article 8 right because it discourages the assistance Martin seeks. The DPP argued that the CPS policy is sufficiently clear and that it is not possible to guarantee that certain persons would not be prosecuted for assisting or encouraging someone to commit suicide. To do so would, allegedly, cross ‘the line of constitutional propriety’. The Supreme Court held that they did not have jurisdiction to change the law on assisted suicide. They also unanimously held that the DPP’s guidance on assisted suicide was lawful.
In January 2010 Kay Gilderdale was prosecuted for the attempted murder of her daughter Lynn, who had been suffering from a long-term illness, but the jury found Kay not guilty of attempted murder. Following her acquittal there was considerable criticism of the CPS for proceeding with the prosecution for attempted murder particularly since Gilderdale had already pleaded guilty to the lesser offence of aiding and abetting her daughter’s suicide. In February 2010, the CPS published a new policy on prosecution for assisted suicide. The policy sets out 16 public interest factors that would tend to be in favour of prosecution and five public interest factors that would tend to favour against prosecution. The policy was broadly welcomed as a response to the Purdy case. The DPP, Sir Keir Starmer, explained how the guide had worked: ‘The thrust of the final guidelines is reasonably clear … broadly speaking if the victim has a clear and settled intent to commit suicide and if the suspect is wholly motivated by compassion and has not persuaded the victim to commit suicide, the likelihood of a prosecution is low’.
However does that right to life import a right to die? No matter what others argue, assisting suicide is indeed murder. It’s killing the soul, and we all consider that murder, don’t we? Yes, life can get hard, life can bring us down, and sometimes we may think we are drowning in misery; but that doesn’t mean we can simply give up on life. There are ways to help and there are people who will listen; so let us stop murdering ourselves, shall we? Today if we legalize assisted suicide, what will be our next step? Law will be an open ended sword then. Mr Bainbridge, who set up his own estate agent business in 2011 said that, ‘If we allow people to give up hope, the investment in drugs, in technology, and in the hospice movement as well, will be curtailed.’
But then again if suicide itself is legal then why not assisted suicide? In my opinion if a person does not want to live and suffer the pain he is going through and had he been in a position to kill himself he would have definitely done so then why not allowing his family or friends to do the act when he himself is in a position in which he can’t even move? Should not helping people to live with dignity and purpose must surely be our priority. There have been attempts where bills have passed for legalizing assisted suicide but have been rejected by the parliament. At least what our legislation can do is to legalize physician assisted suicide so that only those people who the physician thinks are not going to coupe up with their illness can be assisted.