Assisted Dying

Baroness Jay of Paddington Excerpts

Monday 13th February 2012 Lords Chamber

Asked by

[Baroness Jay of Paddington]

To ask Her Majesty’s Government how they assess the application of the Director of Public Prosecutions’s Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide.

[Baroness Jay of Paddington]

My Lords, I am grateful for the opportunity to ask the Government this important and timely Question. On 25 February, it will be two years since the Director of Public Prosecutions published his Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide. I think that it is fair to say that those new guidelines were generally welcomed. They relate to a criminal offence which carries a maximum prison sentence of 14 years and, of course, to the general issue of assisted suicide, which, as your Lordships are aware and as we see from the speakers list tonight, continues to be of great interest and concern. Until this evening, the guidelines have not been debated in Parliament, so this is a very appropriate moment to hear the Government’s assessment of how they are working, not least because there have been two more recent publications which are pertinent.

In January, the expert Commission on Assisted Dying, chaired by my noble and learned friend Lord Falconer of Thoroton concluded after 12 months’ work that the,

“legal status of assisted dying … is inadequate and incoherent”.

The commission proposed an entirely new legal framework. I am very pleased that the noble Baroness, Lady Young of Old Scone, who was one of the commissioners, is speaking in this debate. Just last week, the General Medical Council published new draft guidelines dealing with the circumstances in which a doctor is alleged to have assisted a suicide. Those guidelines are now out for consultation.

As your Lordships can see, this is a very live current issue, but perhaps I may remind the House of the background. The Suicide Act 1961 explicitly gives the Director of Public Prosecutions discretion over whether to prosecute cases of assisted suicide. Over the years, this has led to complicated and difficult ambiguities in a particularly sensitive area. In 2009, the case of Debbie Purdy, who is suffering from progressive multiple sclerosis, came to the House of Lords. She was seeking clarity about her husband’s future legal position if he helped her to commit suicide. The Law Lords ruled that the Director of Public Prosecutions must as a result of this case create what they called a “custom-built” statement, indicating the various factors for and against prosecution. I am delighted that the noble Lord, Lord Pannick, who represented Mrs Purdy in that case, is speaking this evening.

The resulting policy guidelines, which we are discussing tonight, included 16 factors where the DPP will be more likely to judge that it is in the public interest to prosecute and six where prosecution is less likely. The six factors weighing against prosecution are: the victim had reached a voluntary, clear, settled and informed decision to commit suicide; the suspect was wholly motivated by compassion; the actions of the suspect were of only minor encouragement or assistance; the suspect tried to dissuade the victim from committing suicide; the suspect was reluctant to assist; and the suspect reported the victim’s suicide to the police and fully assisted them in their inquiries. I should note that many people object to the use of the terms “victim”, meaning in this case the person who has died, and “suspect”, the assister in this context, but I understand that the DPP feels that these are unavoidable in the criminal law.

As so often, it is probably more helpful to look at individual cases; for example, that of Geraldine McClelland. Last December, Geraldine McClelland died in Switzerland, having been accompanied to the assisted suicide organisation, Dignitas, by both her brother and her sister. Geraldine, who was terminally ill, made clear her desire to control her own death to the extent that she wrote an open letter to the public, telling us:

“I am 61 years old and am dying from lung and liver cancer … I have chosen to travel abroad to die … I am not sad that I will die today … I feel sure this is the right decision for me and I am relieved that I won’t be forced to suffer any more”.

Frankly, I cannot imagine anyone thinking that it would be in the public interest to prosecute Geraldine’s brother and sister, who accompanied her.

It is worth recording that it is estimated that more than 180 Britons have travelled to Switzerland to die in the past decade, but, to date, no one has been prosecuted for accompanying them or assisting with arrangements. Interestingly, it does not look as though the existence of the new prosecuting guidelines since 2010 has led to an increase in the number of Britons going abroad to die. The media have reported that there were fewer in 2011 than in 2010. On the other hand, the Crown Prosecution Service reports an increase in the cases reported to the authorities—50 between January 2009 and December 2011 compared with only eight in the five years between 2003 and 2008. The greater willingness to come forward seems to have been prompted, in part at least, by the new prosecution policy and is certainly to be welcomed. Overall, the legally sanctioned clearer and more flexible approach to what are often emotionally and practically difficult, sad situations is a great step forward.

However, there are two significant problems with the policy as it now stands and I should be grateful for specific comments from the Minister on them. The first and perhaps most obvious is that, although Debbie Purdy brought her landmark case in the hope of protecting her husband from criminal charges—that is, if he helped her in the future to die—the new policy maintains the position that there can be no negotiated immunity before a crime is committed. It would be much more humane and realistic to establish that, when someone has, in the words of the new guidelines,

“reached a voluntary, clear, settled and informed decision to commit suicide”,

their circumstances could be investigated before they die. Apart from anything else, if their intention was known in advance, the person wanting to die might be offered alternative care and treatment options, and might even change their mind.

A change in the law or extension of the custom-built guidelines to achieve this would also open up the possibility of involving medical assistance, because the second failing of the guidelines is the lack of advice to doctors and nurses. Indeed, the policy explicitly states that those with professional caring responsibilities are more likely to be prosecuted if they assist a suicide than a lay relative or friend. This is one of the 16 factors which tend to lead to prosecution. There is growing evidence, though, that this creates practical problems for health professionals looking after patients at the end of life. We are in danger of creating a paradox here. Doctors and nurses think that they are still actively precluded from any involvement in assisted suicide, but, on the other hand, patients and their families today feel encouraged to discuss it with the professionals whom they trust. It would be extremely helpful if there could be clear understanding about the nature and limits of any assistance that a healthcare professional might give. To take an example, is a doctor equally liable to prosecution if he prescribes lethal drugs or, on the other hand, he supplies medical records for a patient who has made the decision to travel abroad to die and asks his medical practitioner for them? I very much welcome the General Medical Council's initiative in consulting on legal issues for the medical profession as it is doing now and I hope that the council gives valuable guidance when that process is completed later this year.

Overall, the prosecuting policy has produced positive effects, which are widely supported by the public where polling suggests that more than 80 per cent are in favour of not prosecuting those who help a relative or close friend to die. I am very grateful to all the distinguished Members of the House who will take part in what may be a slightly breathless debate tonight. The number of speakers who have decided to take part indicates that this House takes this issue very seriously and we should perhaps be asking for government time to discuss it more fully soon. I look forward to the Minister's reply and particularly his opinion on whether the present policy is regarded as a permanent solution and settled, or whether it may need amendment and extension in the future.