Assisted dying back in the news

WHEN David and Janice Hunter retired to Cyprus 20 years ago for a 'dream life abroad', they had no idea of what was to follow, nor the international furore it would cause.

In July of this year, 76-year-old David was convicted in a Cypriot court of causing the death of Janice, his wife of 52 years. Following Janice's diagnosis of terminal leukaemia, her health had deteriorated to the point where she found her symptoms intolerable. The situation was compounded by the isolation and difficulties in obtaining treatment caused by the Covid-19 pandemic. During his trial, David gave evidence that Janice had repeatedly begged him to end her "unbearable suffering" and that he had eventually acceded to her requests by using his hands to block her airways.

Euthanasia is prohibited by law in Cyprus, as it is in the UK, but David was ultimately convicted of manslaughter rather than the pre-meditated murder with which he had been charged. He was given a suspended sentence of two years imprisonment, but walked free from court following sentencing, given the time already served on remand. While emphasising that any ending of life remained a crime, the judge noted that: "Before us is a unique case of taking human life on the basis of feelings of love... with the aim of relieving the person of their suffering as a result of illness".

The case has given rise to extensive debate, both in the prevailing Greek Orthodox culture in Cyprus and back in the UK, on the ethics of euthanasia, assisted suicide and how the law should respond.

A recent Ipsos MORI poll shows that two-thirds of the UK public support the legalisation of assisted dying. There has also been a trend amongst professional bodies to drop their opposition to assisted dying and instead adopt a neutral position (the BMA, Royal College of Physicians, Royal College of Nursing and the Royal College of Surgeons of England have all taken this step in recent years). However, opposition remains steadfast and the debate is as intense as ever.

Clarity on the law

Many members will recall the harrowing journey of Debbie Purdy, from her diagnosis of primary progressive multiple sclerosis in 1995, all the way to a landmark decision of the House of Lords (now the Supreme Court) in 2009.

As her condition worsened, Purdy began to consider the eventual option of ending her own life at a Swiss assisted-dying clinic. Fearful that her husband might be prosecuted for helping her travel to the clinic, she sought clarity on the UK law on assisted suicide.

The Suicide Act 1961 makes it an offence in England and Wales to encourage or assist the suicide or attempted suicide of another person and carries a jail term of up to 14 years. But prior to Purdy’s case, some 101 Britons were known to have died with the assistance of Dignitas, an assisted-suicide charity in Switzerland, and none of their relatives had been prosecuted.

Purdy brought a case to court, arguing that it was against her human rights not to know if her husband would be prosecuted if he assisted her in going abroad to end her life. Both the High Court and Court of Appeal ruled that the courts could not change the law and Purdy’s case was eventually taken to the House of Lords.

The court ruled that the Director of Public Prosecutions (DPP) must clarify “what his position is as to the factors that he regards as relevant for and against prosecution” in cases of encouraging and assisting suicide. This landmark decision did not change the law – only Parliament has that power – but it did pave the way for the publication by the DPP in February 2010 of the Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide (updated in October 2014).

The guidance, which applies in England and Wales, provides a list of factors for prosecutors to consider in cases of assisted suicide – 16 in favour and six against. Some of these factors are clearly relevant for doctors.

In particular among those factors tending in favour of prosecution are:

• Victim under 18 years of age
• Victim did not have capacity (defined in Mental Capacity Act 2005) to reach an informed decision to commit suicide
• Suspect giving encouragement or assistance to more than one victim, and these victims being unknown to each other
• Suspect was paid by the victim or those close to the victim for his/her encouragement or assistance
• Suspect acting in his/her capacity as a medical doctor, nurse, other healthcare professional, a professional carer (whether for payment or not), or as a person in authority, such as a prison officer, and the victim was in his/her care
• Suspect was acting in his/her capacity as a person involved in the management or as an employee (whether for payment or not) of an organisation/group, a purpose of which is to provide a physical environment (whether for payment or not) in which to allow another to commit suicide.

Among factors tending against prosecution are:

• Victim had reached a voluntary, clear, settled and informed decision to commit suicide
• Suspect wholly motivated by compassion
• Actions of the suspect, although sufficient to come within the definition of the offence, were of only minor encouragement or assistance
• Suspect had sought to dissuade the victim from taking the course of action that resulted in his or her suicide
• Actions of the suspect may be characterised as reluctant encouragement or assistance in the fact of a determined wish on the part of the victim to commit suicide
• Suspect reported the victim’s suicide to the police and fully assisted them in their enquiries into the circumstances of the suicide or the attempt and his/her part in providing encouragement or assistance.

The position in Northern Ireland is regulated by the Criminal Justice (Northern Ireland) Act 1966, which extends the Suicide Act 1961 to Northern Ireland. Accordingly, “assisting or encouraging” another person’s suicide is illegal. The Public Prosecution Service (PPS) published a Policy on Prosecuting the Offence of Assisted Suicide in 2010. This contains a list of factors for and against prosecution, which echo the DPP guidance.

Scotland and assisted suicide

The Suicide Act 1961 does not apply in Scotland. Although assisting a suicide is not a statutory offence, it is still illegal north of the border. An individual suspected of this may be liable to prosecution under the common law of culpable homicide.

In 2016, a case was brought in Scotland by an individual, asking the Lord Advocate to publish prosecution guidelines equivalent to the DPP’s guidance (Gordon Ross v Lord Advocate). The action was unsuccessful, both at first instance and on appeal, but the judgment of the Inner House of the Court of Session is illuminating on the relevant law.

The court held that the criminal law in relation to assisted suicide in Scotland is clear. It is not a crime “to assist” another to commit suicide. However, if a person does something which they know will cause the death of another person, they will be guilty of homicide if that act is the immediate and direct cause of the person’s death. Whether the crime may be murder or culpable homicide would depend on the nature of the act and the individual circumstances of each case.

The court also clarified that other acts which do not amount to an immediate and direct cause are not criminal. The court explained that such acts (including taking persons to places where they may commit, or seek assistance to commit suicide) fall firmly on the other side of the line of criminality because they do not, in a legal sense, cause the death (even if that death was predicted as a likely outcome of the act). The court was clear that driving a person of sound mind to a location where they can jump off a cliff, or leap in front of a train, does not constitute a crime.

Each case would turn on its own facts and the test to be applied would be whether or not a prosecution is in the public interest.

Risks to doctors and healthcare professionals

So in what circumstances is a doctor likely to fall foul of the law?

Outside of Scotland, the DPP (and the PPS) guidance makes clear that each case must be considered individually on its own facts and merits and a prosecution must be deemed “in the public interest”. But these factors do seem to indicate that there may be a lower threshold for prosecution of doctors as a result of the guidance.

The most obvious circumstance is when a patient directly asks a doctor for assistance to commit suicide, for example the means by which to end his or her life. It is clear that a prosecution for encouraging or assisting suicide would follow if a doctor agreed to assist in these circumstances. This is very distinct from a request for a doctor to take action to end a patient’s life – in which case the offence of murder would be relevant.

The more likely scenario that doctors may encounter is a request to provide medical reports or copies of records in circumstances where they are aware that a patient may be contemplating assisted suicide. The DPP guidance may point towards a prosecution for the offence of assisted suicide, given the specific inclusion of a factor in favour of prosecution where the person providing assistance is a healthcare professional.

That said, since the guidance was introduced, we are unaware of any prosecutions of healthcare professionals, although we know of a few cases in which prosecution has been considered. One case involved a doctor who accompanied a patient with pancreatic cancer to a Dignitas clinic in 2007 and paid £1,500 as a "contribution" to the costs. The prosecutor in the case concluded that the patient was a strong-minded man with the capacity to make an informed decision and "clearly did so without any pressure from the doctor or anyone else".

Another case involved an 84-year-old retired GP named Libby Wilson – a founder of the pro-euthanasia group, Friends at the End (Fate). She was questioned by police on suspicion of aiding, abetting, counselling or procuring a suicide for a multiple sclerosis sufferer of many years who died at home after speaking to the doctor twice by phone. It was decided to be not in the public interest to proceed against the doctor as her involvement was found to be "minimal" and out of "compassion" contributing only to the suicide victim’s "preparations".

Given the potential implications, the advice to any doctor faced with such a request from a patient who (it is apparent) may be considering suicide must be to consult their defence organisation.

In Scotland, following through the logic of the court's judgment in the Ross case, it seems clear that a person is not guilty of an offence for taking a person to Switzerland and driving them to the Dignitas clinic. Accordingly, it cannot be the case that a doctor providing a set of medical records in response to a subject access request (even in the knowledge of the patient's intention to travel to an assisted dying clinic) is guilty of an offence, providing of course that the patient is of sound mind. The provision of the records would not be the 'immediate and direct' cause of the death in the eyes of the law in Scotland.

Despite the different legal positions, our advice to members practising in Scotland is the same as in the rest of the UK. Healthcare professionals should exercise caution when considering requests for medication, medical reports or copies of medical records, where there is a suspicion that the purpose of the requests is to gain the means or information with which to assist a patient’s suicide. MDDUS members are advised to contact us promptly for advice in such circumstances.

What does the future hold?

In the last decade, there have been multiple attempts across the UK to legislate in this arena, all seeking to regulate assisted dying in one form or another. All of these have been defeated, stalled, or fallen due to a lack of parliamentary time.

The latest attempt in Scotland, however, seems set to move forward. Following a consultation in 2021, an MSP has secured the right to introduce a Member’s Bill on assisted dying. If passed as law, this would enable mentally competent adults who are terminally ill to be provided with assistance to end their life at their request. A clear majority of respondents (76 per cent) were fully supportive of the proposal.

A Bill is expected to be introduced before the end of 2023. While it is anticipated that MSPs would not be obliged to vote along party lines, it may be noteworthy that both the first minister and the health secretary have expressed opposition to the Bill.

Developments are also moving apace in Jersey, where the States Assembly has become the first parliament in the British Isles to decide ‘in principle’ that assisted dying should be allowed and arrangements should be made for the provision of an assisted dying service. Proposals there are being refined, with law drafting expected to begin in March 2024 (if approved following debate).

We await these developments with interest, mindful of the significant impact on our members if the law were to be changed as envisaged.

Additional reading

• GMC: Patients seeking advice or information about assistance to die.
• GMC: Guidance for decision makers when considering allegations about a doctor’s involvement in encouraging or assisting a person to end their own life.

Joanna Jervis is practice development manager and a senior lawyer at MDDUS