Assisted suicide and Euthanasia

The appellants (M, N and L) appealed against a decision EWHC 2381 concerning the illegality of assisted suicide and euthanasia. M, N and L wished to die but were incapable of ending their own lives without the assistance of a third party or euthanasia carried out by the third party. It was likely that those who provided such assistance would be guilty of assisted suicide under the Suicide Act 1961 s. 2(1), whilst those who carried out euthanasia would be guilty of murder.

The court was required to determine whether (i) to grant a declaration, as sought by L, that necessity should be a defence to a charge of euthanasia and assisted suicide where certain conditions were met; (ii) the blanket legal prohibition on providing assistance to those wishing to die constituted a disproportionate interference with the European Convention on Human Rights 1950 art.

The DPP should set out in greater detail, as sought by M, how he would exercise his discretion to initiate prosecution in cases of assisted suicide in order to make the law more accessible and foreseeable. L’s sought issue could not be resolved for the following reasons:

(a) the sanctity of life was a fundamental principle of common law. There was no self-evident reason why it should give way to the values of autonomy or dignity;

(b) there was no right to commit suicide. One of the 1961 Act merely conferred immunity from the criminal process for those who actually committed suicide;

(c) it was not appropriate for the court to fashion a defence of necessity in such a complex and controversial field, it was a matter for Parliament, Airedale NHS Trust v Bland;

(d) A question was raised of how the courts could develop a defence to assisted suicide when Parliament had stated in unequivocal terms that it was a serious criminal offence carrying a maximum sentence of 14 years’ imprisonment.

The decision in Pretty v United Kingdom made it clear that a blanket ban on assisted suicide was fully compatible with European Convention on Human Rights 1950 art. There was no doubt that as a matter of domestic law the current blanket prohibitions were compatible with art. 8. M had no right to require the DPP to desist from prosecuting a carer or doctor who helped him to die, and the DPP could not be required to identify a category of cases where a prosecution would not be initiated because to do so would infringe art.

 It was decided that the DPP’s policy was, in certain respects, not sufficiently clear to satisfy the requirements of art. 8(2) in relation to healthcare professionals. The policy should give some indication of the weight that the DPP accorded to the fact that the helper was acting in his capacity as a healthcare professional and the victim was in his care, Gross v Switzerland and Purdy considered. A family relationship was given no specific weight either way in the DPP’s policy.

The policy was sufficiently clear to enable M, or anyone who assisted him, to make an informed decision about the likelihood of prosecution. In conclusion, the court refused to create a defence of necessity to a charge of murder or assisting suicide. The blanket legal prohibition on providing assistance to those wishing to die was not a disproportionate interference with the European Convention on Human Rights 1950 art. 8. However, the DPP’s policy concerning the factors to be taken into account when deciding whether to prosecute such cases was insufficiently clear in relation to healthcare professionals.