The Assisted Dying Bill: A decision for whom?

The Labour MP Kim Leadbetter has introduced the Terminally Ill Adults (End of Life) Bill. This is to be debated and voted on in the House of Commons on Friday 29th November.

The Bill makes provision for a person who is terminally ill and meets the eligibility criteria, to choose to request and lawfully be provided with assistance to end their own life.

MPs will be given a free vote on whether to support or oppose it. Few pieces of legislation in recent years have provoked such intense debate. The proposals have received a considerable amount of press attention, with a number of politicians – and celebrities – falling into opposing camps.

This article does not grapple with the ethics of such proposed legislation – whether it represents dignity in death or undermines the sanctity of life. Rather, it considers the current position and how it has operated in practice, and what would change under the new legislation.

The Current Law:

It is illegal in England and Wales to provide assistance to any person who wishes to end their own life. The Suicide Act 1961 makes it an offence for a person to do an act capable of encouraging or assisting the suicide or attempted suicide of another person. A person guilty of this offence is liable to imprisonment for a term of up to 14 years. Importantly, the consent of the Director of Public Prosecutions (DPP) is required before an individual may be prosecuted.

In the House of Lords decision in Purdy v Director of Public Prosecutions ([2009] UKHL45), the court required the DPP “to 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. Lord Hope stated that:

“[i]t has long been recognised that a prosecution does not follow automatically whenever an offence is believed to have been committed”

He endorsed the approach adopted by Sir Hartley Shawcross, the Attorney General in 1951, when he stated in the House of Commons that:

“[i]t has never been the rule… that criminal offences must automatically be the subject of prosecution”

Following Purdy, the CPS published guidance for prosecutors when considering cases of encouraging or assisting suicide. Prosecutors must apply the public interest factors set out in the Code for Crown Prosecutors and the factors set out in the specific guidance in making their decisions.

The guidance sets out a number of public interest factors tending in favour or against prosecution. Inevitably each case is decided by its own facts. There is a particular emphasis on the motivation of the suspect: they would be expected to have acted “wholly compassionately” and not for financial reasons. The guidance makes it clear that it does not decriminalise the offence of encouraging or assisting suicide.

“Nothing in this policy can be taken to amount to an assurance that a person will be immune from prosecution if he or she does an act that encourages or assists the suicide or the attempted suicide of another person.”

CPS figures show that from April 2009 up to March 2024, 187 cases have been referred to the CPS by the police that have been recorded as assisted suicide. Of these 187 cases 127 were not proceeded with by the CPS and 36 cases were withdrawn by the police. Four cases of encouraging or assisting suicide have been successfully prosecuted. 

Lord Falconer, who introduced a similar private member’s bill on this issue in 2014, describes the current law as having been “abandoned”:

“The DPP will not prosecute those motivated by compassion as long as they are not healthcare professions, despite the fact they are committing a crime to which they have no defence. This half-law brings unnecessary suffering. Those who love them who do help often face an investigation and then an agonising wait as the DPP decides whether they are to be prosecuted.”

Former Directors of Public Prosecutions have criticised this discretion. Sir Max Hill, Dame Alison Saunders and Lord Ken Macdonald of River Glaven have all backed the proposals. Although the DPP must give its consent to prosecutions for a number of offences, there is arguably no other category of cases which carry such heavy consequences in such emotive circumstances.  Alison Saunders describes “bursting into tears” when she was asked to review the first assisted suicide case in her tenure.

In a recent interview with The Times to mark his first year in post, the current DPP Stephen Parkinson refused to be drawn on his position regarding the proposed legislation,  but did emphasise that having considered “five or six cases” of assisted suicide, “in each case the decision was not to prosecute.” He went on to say:

“What I would say about the common law is that it requires the personal decision of the DPP. I’m not a robot. There’s an element of compassion that I’ve brought to my decisions, and I think that’s right. Our policy gives us guidance, but in the end I have to bring everything about myself to bear on the decisions I make.”

Parliament’s Role:

The courts have been consistent in their approach – where it said Parliament is the best place to decide the law:

Lord Steyn’s ruling in R (on the application of Pretty) v Director of Public Prosecutions has anchored the court’s approach:

“In our Parliamentary democracy, and I apprehend in many member states of the Council of Europe, such a fundamental change cannot be brought about by judicial creativity. If it is to be considered at all, it requires a detailed and effective regulatory proposal. In these circumstances it is difficult to see how a process of interpretation of Convention rights can yield a result with all the necessary inbuilt protections. Essentially, it must be a matter for democratic debate and decision-making by legislatures.”

The approach was reinforced in R (on the application of Conway) v Secretary of State:

“There can be no doubt that Parliament is a far better body for determining the difficult policy issue in relation to assisted suicide in view of the conflicting, and highly contested, views within our society on the ethical and moral issues and the risks and potential consequences of a change in the law.”

The first attempt of Parliamentary reform in the UK in this area was proposed in 1936. Legislation was debated in Parliament in 1969 and 1970 and a vote was taken in the House of Commons in 1997. The House of Commons has not voted on the issue since September 2015, when an assisted dying bill introduced by Lord Falconer was rejected by 330 votes to 118.

The International Opinion:

Assisted dying is now available to nearly 300 million people in 30 jurisdictions worldwide.

Perhaps most famously, Switzerland has allowed assisted suicide since 1942. Over 450 Britons have now ended their lives at Dignitas in Switzerland.

Three commonwealth countries allow for some form of assisted dying: Canada (2015), New Zealand (2019) and Australia (2017). Meanwhile, politicians in Jersey and the Isle of Man have already backed plans to introduce assisted dying and the process to bring in legislation is underway.

Key Aspects of Leadbeater’s Bill:

Supporters of the bill have championed the measures in place to safeguard against a person making the wrong decision in a time of crisis or being manipulated by others to do the same. It is worth noting some of the salient points of the bill:

1. A person is not terminally ill only because that person has a mental disorder or disability (Clause 2).
2. The starting for the person who seeks to end their life would be a requirement to make a declaration (Clause 5).
3. This declaration would be witnessed by a coordinating doctor, a specialist in this field, who would steer the person through various stages of the process.
4. The coordinating doctor would carry out the first assessment and if the criteria are satisfied, refer the person to an independent doctor for a second assessment (Clauses 7 and 8).
5. If the independent doctor is not satisfied that the criteria is made out, a second opinion from another independent doctor can be sought (Clause 10).
6. If the coordinating doctor and the independent doctor conclude that the criteria are satisfied, the person must then ask for the High Court to make a declaration. (Clause 12) This stage of the process requires intervention from the courts. The High Court may hear from the person in question, the doctors and any other person.
7. Once court declaration has been obtained, the person requesting assistance must then make a second declaration (Clause 13)
8. Cancellation of the declarations can be made at any time either orally or in writing (Clase 14)
9. Two periods of reflection are built into the process.
10. The person must self-administer the drug or other substance which may end their life (Clause 18). This must be prepared by the coordinating doctor.
11. A person who dishonestly coerces, pressures or induces another person to make a first or second declaration or to self-administer the drugs commits an offence punishable with up to 14 years imprisonment (Clause 26). This maximum penalty is identical to the maximum sentence that can be passed under the Suicide Act. 
12. Clause 24 amends the Suicide Act 1961 to ensure that the provision of assistance to a person in accordance with this Act is not an act which constitutes an offence under section 2 of that Act (criminal liability for complicity in another person’s suicide). The offence under section 2 of the Suicide Act 1961 will continue to operate for other cases where assistance is provided.

Competing Observations:

The powerful competing arguments on these proposals do not simply extend to the ethical issues.

Former senior prosecutor Sir Max Hill, supports the proposals on the basis that placing the discretion in the hands of one person is not the way such important decisions should be made:

“[The DPP alone is trying to] steer the right course between those cases that are murder or manslaughter those that do represent the criminal offence of assisted suicide and those where there should be no charge at all. That it strikes me, is one way of placing a heavy burden on a single public official.”

Yet as a counter-point, Sir James Munby the former President of the Family Division of The High Court from  2013 and 2018 has been highly critical of the legislation, focussing in on the provisions which govern judicial involvement. His most recent article amounts to a scathing attack on the bill. He challenges the lack of detail in the court procedure and the “astonishing” omissions in how it should operate in practice. But perhaps his most alarming observations focus on the incredible strain that judicial involvement will place on an already burdened court system.

“Only those who believe implicitly in judicial omniscience and infallibility – and I do not – can possibly have any confidence in the efficacy of what is proposed. So much for process.”

Friday’s vote will likely determine who will carry that burden.