Dana M. Cohen, Looking for a Way Out: How to Escape the Assisted Suicide Law in England

• Publication year: 2010
• Citation: Vol. 24 No. 2

LOOKING FOR A WAY OUT: HOW TO ESCAPE THE ASSISTED SUICIDE LAW IN ENGLAND

INTRODUCTION

Debbie Purdy, a forty-six year old British citizen with debilitating multiple sclerosis, has a single dying wish: to kill herself.¹Under current British law, this would be perfectly legal, as neither suicide nor attempted suicide have been crimes since the passage of the 1961 Suicide Act nearly fifty years ago.²

Still, Purdy has a problem. She suspects that by the time she is ready to end her life, she will no longer be physically able to carry out the suicide, as she is rapidly losing her ability to move.³With this in mind, she has decided that she will need her husband, Omar Puente, to assist her.⁴However, the law in England is clear. It is a crime for a person to assist another person's suicide, and Puente will face up to fourteen years in prison if convicted.⁵

Purdy understands the law and realizes that she and Puente will need to travel to another country, such as Switzerland, where assisted suicide is legal.⁶

However, legal counsel has advised Purdy that her husband could be prosecuted and convicted under section 2 of the 1961 Suicide Act for any acts performed in England that constitute "assistance," which include arranging to use the services of the Swiss death clinic, Dignitas.⁷Section 2(1) of the 1961

Suicide Act reads: "[a] person ("D") commits an offence if-(a) D does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and (b) D's act was intended to encourage or assist suicide or an attempt at suicide."⁸The Act goes on to state "[a]n offence under this section is triable on indictment and a person convicted of such an offence is liable to imprisonment for a term not exceeding 14 years."⁹While Puente is willing to face the fourteen-year prison sentence to help his suffering wife, Purdy will not allow her husband to submit himself up for prosecution.¹⁰

Assisted suicide is definitely illegal.¹¹However, there is nothing definite about when and why such assistance will actually lead to prosecution. In fact, as of November 18, 2009, 132 Britons had traveled to the Dignitas death clinic to end their lives,¹²and while many of their "assisters" met the standard for prosecution, not a single assister has been prosecuted.¹³In light of the lack of prosecution resulting from this so-called "suicide tourism,"¹⁴Debbie Purdy asked the House of Lords for clarification on when a person would likely be prosecuted for helping another travel abroad to commit suicide.¹⁵

The House of Lords, which was then the highest Supreme Court in the United Kingdom,¹⁶noted the "obvious gulf" between the current assisted suicide law and the way it has been applied in practice.¹⁷The Lords recently stated, "The cases that have been referred to the Director are few, but they will undoubtedly grow in number."¹⁸The Lords consequently ordered the Director of Public Prosecutions ("DPP"), the official who determines whether to prosecute, "to promulgate an offence-specific policy identifying the facts and circumstances which he will take into account in deciding . . . whether or not to consent to a prosecution under section 2(1) of the 1961 Act."¹⁹Less than two months after this opinion, the DPP published the Interim Policy for Prosecutors in Respect of Cases of Assisted Suicide, which contains a list of factors intended to clarify when prosecution will be considered "in the public interest."²⁰On February 25, 2010, the final policy was published, titled Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide.²¹

In a press release accompanying the interim policy, Keir Starmer, the current DPP, stated that "[a]ssisting suicide has been a criminal offence for nearly fifty years and my interim policy does nothing to change that."²²Only Parliament, which includes both the House of Lords and the House of Commons, has the power to legalize assisted suicide.²³But carefully analyzing the factors in the policy reveals that the DPP's policy actually makes prosecution for assisted suicide very difficult. While Starmer may claim that he does not intend to change the law, his policy contains expansive factors against prosecution, which speak to the contrary. Essentially, the policy makes it nearly impossible to ever convict someone of assisted suicide, and therefore defeats the purpose of section 2 of the 1961 Suicide Act.

This policy, taken in conjunction with the 132 Britons left unprosecuted, demonstrates the DPP's overt attempt to subvert the 1961 assisted suicide law. In addition to confusing British courts about when a prosecution will arise, the discord between the DPP's lack of prosecutions and the current law is also a violation of the doctrine of parliamentary sovereignty. Parliamentary sovereignty, arguably the most important part of the U.K. Constitution, empowers Parliament alone to be the "supreme legal authority" in the United

Kingdom.²⁴It logically follows that "no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament."²⁵The DPP's policy, as it currently stands, is incompatible with Parliament's 1961 law criminalizing assisted suicide. For example, the policy allows the act of assisted suicide to occur on British soil, while the 1961 Act clearly forbids assisted suicide in Britain.²⁶In light of the DPP's overextension of its powers and the inconsistency between the strictly prohibitive law and the DPP's forgiving attitude, Parliament is faced with two options: change the law to be consistent with the DPP's policy, or maintain the current law and substantially amend the DPP's policy.

Presently, assisted suicide is legal in three U.S. states, Mexico, Switzerland, Belgium, the Netherlands, and Luxembourg.²⁷Based on the emerging Western trend of legalization,²⁸Britain's past cases, and the DPP's favored policy, it seems that Parliament may choose to repeal section 2(1) of the 1961 Act. However, while legalizing assisted suicide would clear up the cloud of confusion that has plagued the British courts, legalization is not necessarily the most likely, or the most desirable, answer to Britain's situation.²⁹This Comment advocates the second option, which is to keep the law as it is, but to substantially amend the policy. The revised policy would focus on the number of steps the assister took along with each step's importance in furthering the suicide. Additionally, protecting the vulnerable from untimely and premature deaths will require that the revised policy have various safeguards incorporated in the public interest factors. Moreover, to the extent that the 1961 Suicide Act states that assisted suicide is a crime in

England,³⁰the acts that constitute assistance cannot all occur on British soil without prosecution ensuing. The law states that assisted suicide is a crime in England-that part is clear.³¹If amended correctly, the DPP's policy could achieve the goals the House of Lords requested: clarification and consistency with the law.

This Comment advocates that the DPP's policy should undergo substantial revision so as to peacefully coexist with, and enhance, the 1961 Suicide Act. The people of Britain deserve to have their laws upheld and to have those who violate the laws be prosecuted. In Part I, this Comment explores the emergence of the 1961 Act, which decriminalized the act of suicide but criminalized the act of assisted suicide. This Comment then discusses how a prosecution is brought in Britain and why the DPP cannot simply remake the law. Further, this Comment analyzes the main cases that led the House of Lords to order the DPP to create this policy and the common theme throughout the cases-that assisted suicide is a crime in England. In Part II, this Comment presents the substance of the policy before critically assessing its factors in Part III. Part III elucidates the current policy's consequences, including the possibility of inadvertently sending certain Britains the message that it is okay to give up on their hopes of recovery. Finally, Part IV evaluates Parliament's options in light of this controversial policy and considers the likelihood and costs of legalizing assisted suicide. Parliament's second option, significantly revising the policy to focus on the assister's steps, will provide British citizens with a workable standard for understanding the current law on assisted suicide and the protections the law affords.

I. BACKGROUND TO THE INTERIM POLICY

Assisted suicide has been a codified crime in England since 1861.³²The

1961 Suicide Act was passed 100 years later, which decriminalized the act of suicide but maintained that assisted suicide was still a crime.³³While section

2(1) of the 1961 Suicide Act clearly states the illegality of assisted suicide in England, the English courts have recently been flooded with the relatively unprecedented issue of suicide tourism.³⁴Three cases in particular-Diane Pretty, Daniel James, and Debbie Purdy-exemplify the complexity of prosecuting suicide tourism.³⁵Because of the uncertainty surrounding this issue, the House of Lords, previously the United Kingdom's highest Supreme Court, ordered the Director of Public Prosecutions to create a more specific policy to clarify when a prosecution would be in the public interest.³⁶On September 23, 2009, the DPP published the interim policy,³⁷followed by the final policy on February 25, 2010.³⁸

A. Prosecution on Assisted Suicide: History

Prior to 1961, English common law dictated that the act of suicide, or "self- murder,"³⁹was a felony.⁴⁰Therefore, a person who was present at another person's suicide and assisted or encouraged the suicide was guilty of being an accomplice to murder as an accessory before the fact.⁴¹These laws suggested that if the assister was not present when the suicide was committed, then the assister could be an accessory before the fact and could be prosecuted as an accomplice to the suicide.⁴²However, this...