The life guard

As both a solicitor and a practising psychotherapist, the dual perspective can sometimes be challenging '“ law and medicine tend to see things differently.

This is certainly the case with assisted dying. It is not a topic many people find easy to think about, and they certainly present serious difficulties in law making. Indeed, in practice, the attitudes I have encountered towards suicide, assisted suicide and voluntary euthanasia vary widely.

Contemplation of dying and preparation for death, however it happens, may present all those involved with challenging issues and emotions. Suicide or assisted dying are likely to affect not only the individuals contemplating this but also their friends, family, work colleagues and social groups who may have deep feelings about the bereavement and the manner of the death. For this reason, any rules made must have sufficient flexibility to cover all the wide variety of situations that may present themselves.

Under the Suicide Act 1961, suicide or attempted suicide is not in itself a criminal offence. In the case of Diane Pretty v Director of Public Prosecutions [2001] QBD 18 October 2001, the court referred to section 3(1) of the Human Rights Act 1998 and articles 2 and 3 of the European Convention on Human Rights '“ the right to life and the right to decide what to do with one's own body. But, although protecting life and preserving the dignity of life, they do not protect the right to procure one's own death or confer a 'right to die'. The right to the dignity of life, therefore, has been interpreted by the courts as the right to live with as much dignity as could possibly be afforded until that life reaches its natural end.

In the case of Debbie Purdy v Director of Public Prosecutions [2009] UKHL 45, the claimant suffered from primary progressive multiple sclerosis. She wanted to know what factors the Director of Public Prosecutions (DPP) would take into consideration in deciding whether a prosecution should be brought under section 2 of the Suicide Act 1961 if her husband helped her to travel to a country, such as Switzerland, where assisted suicide is currently lawful.

She proposed that the prohibition in section 2(1) of the Suicide Act 1961 constituted an interference with her right to a private life in the absence of an offence-specific policy by the DPP setting out the factors that would be taken into account under section 2(4).

Having considered the case of Pretty, the court departed from that decision, holding that article 8(1) was engaged, and that the principle of legality in article 8(2) required the court to consider, inter alia, whether the law was sufficiently accessible and sufficiently precise to enable a person affected by it to understand its scope and foresee the consequences of his actions so that he could regulate his conduct.

The DPP policy

Following public consultations, in February 2010 the DPP issued a policy for prosecutors to apply in respect of cases of assisted suicide. The policy applies to all acts of assistance to suicide or assistance to attempted suicide which are committed in England and Wales, irrespective of where in the world the eventual suicide occurs.

Under section 2(4) of the Suicide Act 1961, the criminal offence of assisting suicide occurs when it is proved that 'the victim' committed or attempted to commit suicide and that 'the suspect' assisted them to do so. The term 'assisting' suicide is interpreted as aiding, abetting, counselling or procuring the suicide or attempt to commit suicide.

I don't like the term 'victim' because the person contemplating suicide might simply be a person with full mental capacity who is not mentally ill and who may be making a free choice in response to what they see as an intolerable situation. I'd have preferred neutral wording; for example, 'the deceased'.

The DPP has to consider a number of factors in making a decision as to whether the public interest is served by a prosecution, and the CPS policy (at www.cps.gov.uk) sets out separate lists of factors for and against prosecution which will have to be taken into consideration in each case.

The dilemma

At the moment, the prosecutors and the courts are carefully avoiding tackling the salient issues. It currently remains illegal to actively assist a person to commit suicide, but prosecutions do not necessarily always follow.

Even with the CPS policy about decisions to prosecute assisted suicide offences (or not) both the person wishing to die and any person assisting them currently remain uncertain about whether a prosecution will follow or not.

If the law is changed to allow assisted dying, legality would then be given to the direct actions of another person, causing or contributing directly to a death. It would remove the uncertainty, but clearly safeguards would be needed if this becomes the law.

Among the public interest factors against prosecution are the existence (or absence) of the victim's 'voluntary, settled, clear, and informed decision' to commit suicide, which could be evidenced by an unequivocal indication that he or she wished to commit suicide. Evidence of this may be difficult to find or prove in the absence of any documented statement of intention.

This problem might be avoided if the person contemplating suicide has considered and discussed their wishes and intentions in advance with a professional; for example, their solicitor, doctor or counsellor.

This could establish clear evidence that the person contemplating assisted dying has the mental capacity to make their own decisions and their wishes are formally recorded. Alternatively, their wishes and intentions might be expressed to an objective external body and a record made of that decision, in the same way perhaps as an advance directive regarding resuscitation.

Where a person has a terminal illness from which there was no possibility of recovery, there is a further issue of the impairment of their cognitive capacity through mental or physical illness or through disability. The CPS policy on assisted suicide does not specifically address this issue of capacity.

It is arguable that severe illness or disability might in some circumstances detract from the mental capacity to make an important decision, particularly the decision to take one's own life, and a psychiatric or a professional opinion of similar weight may be helpful in cases where disability or physical or mental illness may influence cognitive capacity.

An important factor is whether the person contemplating suicide requested, was offered, or had access to medical or psychological assistance before making the decision to end their life. Relatives or carers should be expected to allow or enable a person contemplating suicide to obtain psychological or counselling help, if they want it.

On the other hand, therapeutic help might be offered (perhaps suggested by relatives or by a GP) but refused by the person contemplating suicide for fear that they will be 'talked out of it' or that they may be in some way prevented from carrying out their wishes, and this is an issue which would have to be addressed by professional guidelines in the context of therapy.

It is possible that, with therapeutic help, the client may decide to continue living, but alternatively, following exploration in therapy, the client may reiterate their firm decision to end their life. In either situation, any record made of the therapy may provide vital evidence of the person's wishes, feelings and intentions or decisions made.

The CPS policy would benefit from being considered and tested by a multi-disciplinary board. An example of its present lack of clarity is the criterion of an exclusive motivation of compassion. One can envisage situations in which close relatives or friends of the person committing suicide may act entirely out of compassion, yet also be beneficiaries from the death.

In the event of a consideration of prosecution, therapists might be asked to assist the DPP in investigating assisted suicide cases. If the client had given consent for disclosure there is no difficulty in this.

If there is no explicit client consent for disclosure, therapists might be asked to breach client confidentiality to assist the police in an enquiry about the victim's state of mind, or to explain or justify their own actions. This would put therapists in a difficult ethical and legal position.

Guiding light

Once the law on assisted dying has been clarified, professional organisations may wish to consider issuing specific guidance on ethical and legal issues for therapists in this situation.

At the moment, the CPS policy is open to a wide range of potential interpretations. The clarity about the perametres of immunity from prosecution which is sought by Purdy and others may not be achieved unless some important issues are given further consideration.

If the person contemplating assisted dying had the opportunity to consider and discuss their wishes and intentions with their doctor or with a specially convened objective professional body, their wishes could then be ascertained and formally recorded.

An appropriate professional might include a psychiatrist or psychological adviser, medical doctor, lawyer and perhaps also a lay adviser. Such boards could be constituted locally or nationally as necessary.

Each case must be decided on its individual merits. Clear evidence would be helpful. This recommendation would fulfil the need for establishing mental capacity, a rationale for wishing to die, the absence of duress or coercion and clear recorded evidence of intention.