The Department of Public Prosecutions must uphold Parliament's view that assisting suicide is a serious crime and not necessarily an act of mercy, says Professor John Keown.
“Assisted dying” is a euphemism for the crimes of murder and assisting suicide. The Voluntary Euthanasia Society, now itself euphemistically rebranded as Dignity in Dying, has been campaigning since the 1930s for these crimes to be diluted to allow doctors to kill patients (euthanasia) or to help patients kill themselves (physician-assisted suicide). Their arguments have been exhaustively examined, not least by the House of Lords. They have been repeatedly, recently and rightly rejected.
Having failed to persuade Parliament, the campaigners are now pressuring the prosecutors. Spearheading the campaign is Debbie Purdy. She has MS and says at some point she may (or may not) want her husband to assist her to commit suicide by helping her travel to Switzerland (where assisting suicide is permitted). She asked the Director of Public Prosecutions (DPP) to publish his policy on when it is in the public interest to prosecute assisting suicide. He refused. She sought judicial review.
Astonishingly, the Law Lords granted her application. Their ruling, reversing the Court of Appeal, was unprecedented and unsound, if not unconstitutional. As the Lord Chief Justice had wisely observed in the Court of Appeal, granting her application would in effect create exceptions to the crime. Creating exceptions was something only Parliament could do, and it had not chosen to. (Indeed, it has repeatedly chosen not to.) The Law Lords, by contrast, seemed to think it a proper function of the judiciary to help someone evade prosecution for the future commission of a serious crime. Their ruling looks even odder when seen against Parliament’s contemporary effort, culminating in the Coroners and Justice Act 2009, to expand the crime.
Last September the DPP put out an interim prosecution policy for public consultation; his finalised policy is imminent. If England is not to follow the Dutch down the slippery slope to legalised euthanasia, his final guidelines must meet three important objections to the interim guidelines.
First, they should state in terms that, notwithstanding the Law Lords’ decision in Purdy, assisting or encouraging suicide remains a serious crime to which only Parliament can create exceptions.
Secondly, the interim guidelines assume that the cases which will raise public interest issues in future will be similar to those in the past, like the case of Daniel James. Daniel was the paralysed and determined young man reluctantly accompanied to Switzerland by his loving parents. But given that Purdy may well be misinterpreted by many as opening the door to assisting suicide, and given that some are already trying to force that door by testing the limits of prosecutorial discretion, the guidelines must leave no doubt that prosecution will be the rule unless the circumstances are wholly exceptional. This they signally fail to do.
For example, they misleadingly state that the question is whether prosecution ‘is needed’ in the public interest. But the current Code for Crown Prosecutors makes it clear that if there is enough evidence of a crime to provide a realistic prospect of conviction "a prosecution will usually take place" unless there are public interest factors tending against prosecution which "clearly outweigh" those tending in favour. To ask whether prosecution "is needed" in the public interest reverses the Code’s presumption in favour of prosecution.
Further, several of the factors the interim policy lists against prosecution – such as that the deceased had a severe and incurable physical disability; or had previously attempted suicide and was likely to do so again; or was helped by a spouse or close relative – are objectionable.
Lord Carlile has aptly commented: "This is discriminatory against the sick, the disabled and the suicidal: the proposals fly in the face of the principle that the law must afford equal protection to all, irrespective of age, gender, race, religion – and state of health". As the Royal College of Psychiatrists noted in their evidence to the DPP, depression is strongly associated with wanting assisted suicide and when it is treated 98-99 per cent change their mind. Lord Carlile has also cautioned that the assumption that family members invariably have the deceased’s interests at heart is belied by everyday experience. Former senior judges Lord Mackay and Baroness Butler-Sloss have joined him in warning that the interim guidelines pose ‘serious dangers for public safety’.
Thirdly, the guidelines should state that the presence of any one of the major factors listed in favour of prosecution (such as the deceased having had no "clear, settled and informed wish to commit suicide") should generally result in prosecution, irrespective of the number of factors against.
The stakes of getting the guidelines right could hardly be higher, as the dire experience of The Netherlands confirms. There, voluntary euthanasia and physician-assisted suicide have been practised for a quarter of a century. The sorry saga began in 1984 with ‘guidelines’ drawn up by the Dutch medical establishment, endorsed by prosecutors and courts and defended by the government. Foreign concerns about the risks of abuse were brushed aside with assurances that euthanasia remained ‘illegal’ and that doctors would be prosecuted unless they complied with these ‘strict’ guidelines. The assurances soon proved vain.
The claim that only those who pressed for euthanasia with an "explicit request" would get it has been exploded by Dutch research revealing that euthanasia has been pressed on thousands of patients incapable of making a request. Indeed, Dutch patients are now advised to make it clear while they are still competent if they do not want euthanasia should they become incompetent.
In 2002 the Dutch passed a statute, based on the guidelines, openly legalising voluntary euthanasia and physician-assisted suicide. Their experience shows how easily prosecutorial exceptions can become statutory rules. Former Dutch minister of health and architect of legalisation, Dr Els Borst, recently admitted that they had given too little attention to palliative care and had permitted euthanasia "far too early".
If we are not to slide, greased by euphemism, down the Dutch slippery slope and if equal protection of the law is to be guaranteed to all (not least the most vulnerable), the duty of the DPP is clear: resolutely to uphold Parliament’s clear prohibition on assisting suicide.
Justice should be tempered by mercy, not frustrated by it.
Professor John Keown of Georgetown University is the author of Euthanasia, Ethics & Public Policy (Cambridge University Press).