Appeal to publish guidelines on Scotland's assisted suicide prosecution policy rejected

The Inner House of Scotland's Court of Session has rejected an appeal to publish guidelines on its assisted suicide prosecution policy.

Gordon Ross, who had Parkinson’s disease, died in January of pneumonia and other medical conditions.

Last year, he had tried to force the publication of assisted suicide prosecution policy, wishing to know whether someone helping him to commit suicide would be prosecuted for doing so. Although he did not wish to end his life at the time, he believed he may wish to if his condition deteriorated.

Currently, no such guidelines are published in Scotland, which the country's highest prosecutor, the Lord Advocate, is seeking to maintain.

Mr Ross' application for judicial review was rejected in September by the Court of Session's Outer House.

In December, he appealed to the Inner House, but the Court has now rejected this appeal.

Policy is 'consonant with the rule of law'

Mr Ross sought a Judicial Review last May, following the overwhelming defeat of the Assisted Suicide Scotland Bill.

At the time, Gerry Moynihan QC, counsel for Scotland’s chief prosecutor, the Lord Advocate, rejected the call for publication of such a policy, saying:

"People are entitled to know the Lord Advocate's policy is he will prosecute...

"To say anything else is to give people a false expectation of immunity from prosecution. That is an illusion."

Lord Doherty, in the judgment rejecting Mr Ross’ application, declared the existing Crown policy to be lawful, saying:

"The policy is consonant with the rule of law. The public know what his policy is and there is no suggestion that that it is being applied inconsistently."

Protection of disabled people

In Mr Ross' appeal to the Inner House of the Court of Session, he maintained that the current state of affairs is discriminatory:

"I remain convinced that I am being unfairly discriminated against on account of my disability which is why I am appealing against that decision."

At the time, Christian Concern's Chief Executive Andrea Williams commented:

"Far from discriminating against those who are disabled, maintaining the Lord Advocate’s position to uphold the law as it stands in cases of assisted suicide protects disabled people."

Andrea has welcomed the judgment from the 19th February, rejecting Mr Ross’ appeal.

Challenge to assisted suicide law in England

In England, guidelines on assisted suicide prosecution policy were first published in 2009, following the case of Debbie Purdy.

These guidelines were altered in 2014 by the former Director of Public Prosecutions (DPP) Alison Saunders, in such a way that makes the prosecution of healthcare professionals in assisted suicide cases less likely.

Christian Legal Centre clients and disability campaigners Merv and Nikki Kenward are challenging this alteration.

Nikki Kenward was left paralysed in 1990, at the age of 37, by Guillain-Barre Syndrome, and for several months was only able to wink her right eye.

Now, she remains wheel-chair bound and cannot hold a needle or tie her shoe-laces.

Despite this, Mrs Kenward strongly opposes any liberalisation of assisted suicide law.

Explaining why she brought the case, she said:

"It may appear a subtle change, but it is substantive and highly significant. It makes it less likely that doctors and other healthcare workers will be prosecuted if they encourage or assist suicide.

"People need to be able to trust that doctors will always protect life, not help to take it. This change undermines that trust. It is liberalisation by the back-door.

"The law is there to protect, but if it is to protect in practice, it must be enforced. The DPP quietly changed the policy without consultation. She must be held to account. Her action puts vulnerable people at risk from dodgy doctors."

Scotland has made 'right decision'

Andrea Williams commented:

"Scotland’s Court of Session has made the right decision in refusing to publish guidelines on assisted suicide prosecution policy.

"We have seen that in England, publishing the policy has only created more ambiguity. Our clients, the Kenwards, are rightly challenging this, as the loosened guidelines do not adequately protect the vulnerable."