Unfinished business

Despite the publicity surrounding it, assisted suicide remains rare in the United Kingdom. Anonymous surveys of doctors suggest that it is non-existent, although voluntary euthanasia is carried out by doctors in a very small fraction of cases. There are cases of assistance by non-professionals, resulting in a small number of prosecutions for assisted suicide '“ 16 since April 2005, according to the DPP.

The DPP's new interim guidance on assisted-suicide prosecutions, published last week, sets out a list of public interest factors in favour of and against prosecution, to be applied when there is sufficient evidence to provide a realistic prospect of conviction. The presence of this prosecutorial 'flexibility' was considered favourably by the European Court of Human Rights in support of the proportionality of a blanket ban on assisted suicide under article 8(2) of the European Convention in Pretty v UK (2002) 35 EHRR 1, [76].

The 'ideal' scenario envisaged by the DPP is encapsulated in one of the factors against prosecution: 'The actions of the suspect may be characterised as reluctant assistance in the face of a determined wish on the part of the victim to commit suicide.'

The most important factors in the interim guidance focus on the validity of the victim's consent, the suspect's motives and the possible exercise of undue influence (which might cast doubt on the validity of the victim's consent) and the requirement of a request from the victim.

No expert involvement

Another less important group of factors seem concerned to ensure that assistance in suicide remains an amateur activity carried out by inexperienced individuals without the assistance of professionals or amateur organisations (as in Switzerland). Thus, factors in favour of prosecution include the fact that the suspect was not the spouse, partner or a close relative or a close personal friend of the victim (or was paid to care for the victim in a care/nursing home environment) or gave assistance to more than one victim who were not known to each other; or was a member of an organisation or group, the principal purpose of which is to provide a physical environment (whether for payment or not) in which to allow another to commit suicide.

Unlike all of the other jurisdictions which permit assisted suicide '“ and, in the Netherlands and Belgium, euthanasia as well '“ where the activity is carried out in whole or in part by physicians, here the involvement of a physician will remain unusual, unless the victim is fortunate enough to have someone with medical expertise among his or her family or close friends who is willing to provide expert assistance.

The DPP's consultation document does not explain the thinking behind any of the factors. The reasons for the privileged status of the reluctant amateur over the expert professional are unclear. Why is there a greater public interest in the prosecution of health care professionals than family members, if both are motivated by compassion? If assisted suicide is thought to be incompatible with the professional role, surely this is a matter for the General Medical Council and the Nursing and Midwifery Council, rather than the DPP?

Whether intentionally or not, this aspect of the guidance is likely to keep the number of assisted suicides which take place entirely within the UK relatively low. There will still be an incentive to travel to Switzerland, when physically and financially possible, where such expertise is available. Those without supportive friends and family may commit suicide earlier than they would have wished, or travel to Switzerland when they are still able to do so on their own.

Measuring the extent of suffering

Another important public interest factor relates to the victim's condition and the extent of his or her suffering. If the victim had no possibility of recovery from a terminal illness, a severe and incurable physical disability or a severe degenerative physical condition then this will count as a factor against prosecution. 'No possibility of recovery' is a difficult standard to meet given the inherent difficulties associated with medical prognosis. What will constitute a 'recovery'? Will it be a cure, remission, or an improvement in the victim's condition?

An interesting factor against prosecution is that '[t]he victim has considered and pursued to a reasonable extent recognised treatment and care options'. This goes some way to providing a palliative filter, which is a requirement that the patient be provided with advice by a palliative care team prior to consideration of a request for assisted suicide. Lord Joffe included a variant on such a filter in his Assisted Dying for the Terminally Ill Bill. There is no clear indication of what is required here. Is it a palliative care consultation, or must the victim try palliative care? What if the victim has turned down a burdensome treatment option with a small chance of success?

Finally, can such a flexible approach to prosecution, which has been used in the UK for many years, withstand the public scrutiny associated with the publication of the DPP's guidance, or will the pressure for legalisation and regulation push Parliament into action, as the law lords attempted to do in Purdy?