An argument about Assisting Dying – matters of life and death need to be properly regulated by law, and not by official discretion

I almost did not publish the post below.

The online (and no doubt offline) debate about this topic is heated and often abusive, and as one gets older one loses usually loses the taste for such confrontations.

So this post is offered as a respectful contribution to the debate on this subject.

However, other equally sincere views are available.

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Let us start with the people at the centre of these cases.

The following passages are from the leading legal cases on the topic of assisted dying.

These case reports are often lengthy and detailed but what is striking about each case is that the material facts can be succinctly stated.

(I have broken some of the paragraphs up for ease of reading on a screen.)

Please take the time to read these passages carefully, rather than a quick skim-and-scroll, because these are the people who should be central to the debate.

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From the 2001 House of Lords case of Diane Pretty:

“She suffers from motor neurone disease, a progressive degenerative illness from which she has no hope of recovery. She has only a short time to live and faces the prospect of a humiliating and distressing death. She is mentally alert and would like to be able to take steps to bring her life to a peaceful end at a time of her choosing.

“But her physical incapacity is now such that she can no longer, without help, take her own life. With the support of her family, she wishes to enlist the help of her husband to that end. He himself is willing to give such help, but only if he can be sure that he will not be prosecuted under section 2(1) of the Suicide Act 1961 for aiding and abetting her suicide.”

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From the 2009 House of Lords case of Debbie Purdy:

“The position in which Ms Purdy finds herself can be stated very simply. She suffers from primary progressive multiple sclerosis for which there is no known cure. It was diagnosed in 1995, and it is progressing.

“By 2001 she was permanently using a self-propelling wheelchair. Since then her condition has deteriorated still further. She now needs an electric wheelchair, and she has lost the ability to carry out many basic tasks for herself. She has problems in swallowing and has choking fits when she drinks. Further deterioration in her condition is inevitable.

“She expects that there will come a time when her continuing existence will become unbearable.

“When that happens she will wish to end her life while she is still physically able to do so. But by that stage she will be unable to do this without assistance. So she will want to travel to a country where assisted suicide is lawful, probably Switzerland. Her husband, Mr Omar Puente, is willing to help her to make this journey.”

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From the 2024 Supreme Court of Nicklinson and others:

[Tony Nicklinson]

“The first appeal arises from the fact that Mr Nicklinson suffered a catastrophic stroke eight or nine years ago, when he was aged 51. As a result, he was completely paralysed, save that he could move his head and his eyes. He was able to communicate, but only laboriously, by blinking to spell out words, letter by letter, initially via a perspex board, and subsequently via an eye blink computer. Despite loving and devoted attention from his family and carers, his evidence was that he had for the past seven years consistently regarded his life as “dull, miserable, demeaning, undignified and intolerable”, and had wished to end it.

“Because of his paralysed state, Mr Nicklinson was unable to fulfil his wish of ending his life without assistance, other than by self-starvation, a potentially protracted exercise, involving considerable pain and distress. His preference was for someone to kill him by injecting him with a lethal drug, such as a barbiturate, but, if that was not acceptable, he was prepared to kill himself by means of a machine invented by Philip Nitschke, an Australian doctor.

“This machine, after being loaded with a lethal drug, could be set up so as to be digitally activated by Mr Nicklinson, using a pass phrase, via an eye blink computer.

“Because he was told that it would be unlawful for someone to kill him or even to assist him in killing himself, Mr Nicklinson applied to the High Court for (i) a declaration that it would be lawful for a doctor to kill him or to assist him in terminating his life, or, if that was refused, (ii) a declaration that the current state of the law in that connection was incompatible with his rights under article 8 of the Convention. […]”

[Paul Lamb]

“Because it was feared that there might be a challenge to Mrs Nicklinson’s right to pursue an appeal, Paul Lamb was added as a claimant in the proceedings before the hearing in the Court of Appeal. Since a catastrophic car crash in 1990, Mr Lamb has been completely immobile, save that he is able to move his right hand.

“He requires carers 24 hours a day, suffers pain every day, and is permanently on morphine. His condition is irreversible, and he wishes a doctor to end his life, which he regards as consisting of a mixture of monotony, indignity and pain.

“He therefore applied for the same relief as Mr Nicklinson had sought, and it was similarly refused by the Court of Appeal.”

[“Martin”]

“The second appeal arises from the fact that Martin (who wishes to be so described in order to maintain his privacy) suffered a brainstem stroke in August 2008, when he was 43. He is almost completely unable to move and can only communicate thorough slow hand movements and via an eye blink computer.

“His condition is incurable, and, despite being devotedly looked after by his wife and carers, his evidence is that he wishes to end his life, which he regards as undignified, distressing and intolerable, as soon as possible.

“Apart from self-starvation, Martin’s only way of achieving this is by travelling to Zurich in Switzerland to make use of the Dignitas service, which, lawfully under Swiss law, enables people who wish to die to do so. However, he first needs (i) to find out about this service, (ii) to join Dignitas, (iii) to obtain his medical records, (iv) to send Dignitas money, and (v) to have someone accompany him to Zurich.

“For understandable reasons, his wife does not want to be involved, and he does not want to involve any other member of his family, in this project. So, as he says, he needs assistance from one of his carers or from an organisation such as Friends At The End.”

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To say that the five people above, and others in their predicament, should be central to the discussion is not to say that their wishes should be, in and of themselves, determinative. These are decisions in a legal and political context. But it is to say that their predicaments should be the starting point.

These are five examples of people with full mental capacity who want to do something which, in and of itself, is not a criminal offence: that is to bring their life to an end in a manner and at a time of their own election. But which they cannot do without assistance.

If they were able to do this without assistance, there is nothing in the law to stop them doing so. But the law prevents them from doing so, because they cannot do it for themselves. The law means that they should instead suffer horribly as described in the passages above, because they cannot do a lawful act by themselves.

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The criminal law in respect of suicide is distinctive, perhaps unique, in its nature.

Usually there is what we can call a principal offence – say murder or theft – and then ancillary to that offence are other offence such as assisted murder or theft, or attempted murder or theft.

Those secondary offences are normally punished less harshly than the principal offence, for perhaps obvious reasons. But you can see why those secondary offences exist – because the principal offence exists.

But in England and Wales the law relating to suicide is such that we have the rare (if not only) instance where there is what would normally be regarded as an ancillary offence but without a principal offence.

This is because of the Suicide Act 1961:

The offence of committing suicide was “abrogated” – and so thereby was the offence of attempted suicide.

But the offence of assisting a suicide was explicitly made an offence:

The reason for this express provision was presumably that when an offence is abolished then all the ancillary offences disappear too, and so to retain the assisting offence then express provision had to made.

Indeed it was no longer even an ancillary offence, as Lord Hope described in the Purdy case (paragraphs again broken up, emphasis added):

“Assisting a person to commit suicide is a crime in this country.

“Section 2(1) of the Suicide Act 1961 provides: “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 on indictment to imprisonment for a term not exceeding fourteen years.”

“As Lord Judge CJ said in the Court of Appeal, this provision is clear and unequivocal: […].

“The offence which it describes is an offence in itself. It is not ancillary to anything else.

[…]

“Furthermore it does not permit of any exceptions.”

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And it is because the provision was and is indeed “clear and unequivocal” that there have been unsatisfactory work-arounds.

I described this in a post at Prospect.

What has happened is that the practice – as opposed to the law – of assisted suicide is such that it now rests entirely on prosecutorial discretion.

The Crown Prosecution Service (CPS) – as is well-known – has two tests in deciding to prosecute: the evidential test and the public interest test.

In respect of assisted suicide, the published position is that there will be factors against there being a public interest in prosecutions:

The full guidance, including the factors in favour of a prosecution, can be read here.

That is very detailed guidance – and it is perhaps some of the most detailed guidance published by the CPS about any public interest test.

And not a word of it is in the Suicide Act.

This cannot be a satisfactory position: it is legalisation in practice by the back door of guidance, rather than the law of the land.

At Prospect I sought to turn the usual argument against any reform of assisted suicide on its head – that it is “a slippery slope” – by pointing out that the current situation was the slippiest of slopes.

As long as you can get the CPS to nod-along with your version of events they will find that there is not a public interest in prosecuting. And as the CPS get used to not prosecuting, the boundaries of what is effectively, if not legally, permitted will tend to get wider.

It is difficult, if not impossible, to see how the current informal permissiveness of assisted suicide is preferable to actually setting out what is allowed and not allowed by Act of Parliament.

And as one purpose of law is to enable people to regulate their actions so that they can comply with the law in advance, that would be preferable to a blanket but practically ineffective prohibition, just for the sake of it.

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Law is not magic, and Acts of Parliament are not spells.

Just by “prohibiting” a thing does not make the unwanted thing disappear: it just means that any instances of it may be attended by different legal consequences.

This, of course, does not mean that many prohibitions do not have a purpose: it may be socially preferable to have those legal consequences. There is a public good in many things being prohibited at law, even if they carry on in reality.

But what it does mean is that prohibiting a thing rarely, in and of itself, makes the unwanted thing go away. Think about abortion or drugs policy.

There will still be a demand, it will just be met in a different manner.

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When a person is in the predicament of the five individuals in the cases quoted above, they can seek to go to Dignitas or elsewhere abroad, or to choreograph their assisted deaths so as to meet the CPS public interest guidance.

And many do.

The “clear and unequivocal” terms of the Suicide Act make no difference in this fundamental respect.

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What the the Suicide Act does do is make this matter of life and death a matter for official discretion, rather than a legal certainty.

That it is matter of crossing-fingers, or getting a good lawyer.

And as it is a matter for post-event prosecutorial decision-making, the actual people at the centre – those in the five cases quoted above – do not have the certainty that their demise will not bring unwanted legal consequences for those who assisted them to do something which otherwise would be completely lawful.

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On the basis of the above, there is an argument that the law in this area should be amended so that those at the centre of these situations can have the peace of mind that those assisting them do not face the possibility of criminal liability by the discretion of the CPS.

If the objection is that this would be a “slippery slope” then this objection perhaps overlooks the current slippery slope.

And there are many areas of law where the legislature has had to strike a balance between what should be done and what should be avoided.

That there is a hard decision to be made does not release those elected to make hard decisions from making those decisions.

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There is force in the objection of the well-regarded former judge Sir James Munby that there should not be the involvement of the courts.

Munby is no doubt right: there is perhaps no necessary role for court orders.

(One suspects the court orders requirement was put into the current draft legislation merely so to show that there were safeguards.)

The analogy with the Bland line of cases, where life support is to be ended, is inexact. Those are cases where the person has no capacity – but in cases like the five quoted above there is capacity.

The historic and proper role of the courts is to step in and protect the rights of those without the capacity to make decisions for themselves.

There is a role for the courts to ascertain if a person indeed has that capacity – but once that capacity is found then it is entirely a matter for that person what they do with that capacity.

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In an ideal world presumably no person would elect to end their own life.

But this is not an ideal world, and there are those such as the five cases quoted above who want to elect to do this lawful act, but cannot do so without assistance, and the law prevents them from having the peace of mind that those assisting will not be prosecuted.

That cannot be right, especially as the practice in the real world is actually for the CPS to find “public interest” factors to not prosecute after the event.

The bill currently before parliament is far preferable to the current evasive situation – even if the bill still needs substantial amendment.

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This is therefore the argument I put forward in favour for the bill.

In essence: not because assisted suicide is right, on which views differ, but because like many other matters of life and death it needs to be properly regulated by law, and not by mere official discretion.