A Right to Assist? Assisted Dying and the Interim Policy

AuthorBen Livings
Published date01 February 2010
Date01 February 2010
Subject MatterArticle
A Right to Assist? Assisted Dying
and the Interim Policy
Ben Livings*
Abstract There are few more controversial, or emotive, debates within
the criminal law than that which surrounds the topic of euthanasia,
questioning as it does the fundamental role of the law in regulating the
most intimate aspects of a person’s life and death. The acknowledgement
by the courts (notably in the cases of Diane Pretty and Debbie Purdy) that
this area engages a person’s rights under the European Convention on
Human Rights exacerbates the urgency of the problem, and further
nuances the debate as to the extent to which the autonomy of the person
is impinged upon, and whether this is a function legitimately exercised by
the state. In the wake of the announcement of new guidelines for prosecu-
tion in cases of assisted suicide, this article examines the state of the law
regarding assisted suicide in England and Wales, and the fragile position of
euthanasia within the criminal law. It will look to the various, and often
rights-based, challenges to the law, and in particular a potential challenge
through Article 7 of the European Convention on Human Rights.
Keywords Euthanasia; Assisted suicide; Prosecutorial discretion;
Human rights; Director of Public Prosecutions
This article begins by situating ‘assisted suicide’ within the criminal law,
and within the concept of euthanasia, and then explores some of the
challenges that have been raised by those calling for the relaxation of
the prohibition on assisted suicide. In doing so, recent cases, such as
those brought on behalf of Diane Pretty and Debbie Purdy, will be
examined.1On 23 September 2009, in response to the House of Lords
judgment in Purdy vDPP,2the Director of Public Prosecutions (DPP)
published the ‘Interim Policy for Prosecutors in respect of Cases of
Assisted Suicide’.3This came into effect immediately upon its release, is
of application to ‘all current and future cases’,4and incorporates a public
consultation document, soliciting views on aspects of prosecutorial pol-
icy. The place of the Interim Policy within the criminal law will be
appraised in the face of reluctance of Parliament to countenance relaxa-
tion of the prohibition on assisted suicide.
There have been various human rights challenges made to assisted
suicide, principally in the Pretty and Purdy cases; these have arisen under
Articles 2, 3, 8, 9 and 14 of the European Convention on Human Rights.
Additionally, it will be suggested here that the entrenchment of a policy
* Senior Lecturer in Law, LLM Programme Leader, University of Sunderland;
e-mail: ben.livings@sunderland.ac.uk.
1R (on the application of Pretty) vDPP [2002] 1 AC 800; Pretty v United Kingdom
(2002) 35 EHRR 1; Purdy vDPP [2009] UKHL 45.
2Purdy vDPP [2009] UKHL 45.
3 Hereafter referred to as the ‘Interim Policy’, available at http://www.cps.gov.uk/
consultations/as_index.html, accessed 29 November 2009.
4 Interim Policy, para. 27.
31The Journal of Criminal Law (2010) 74 JCL 31–52
of non-prosecution in the circumstances enumerated in the Interim
Policy may mean that the offence outlined under s. 2 of the Suicide Act
1961 has undergone a process of de facto decriminalisation. This, it will
be argued, raises the possibility of challenge under the prohibition on
retrospectivity enshrined in Article 7.
Euthanasia in the criminal law
Assisted suicide is just one facet of euthanasia, an umbrella term
encompassing a diverse array of situations and behaviours that may
have moral equivalence, but can nevertheless be seen to have very
different legal qualities.5The criminal law draws sharp distinctions
between suicide (and attendant inaction on the part of someone who
knew of an intention to commit suicide), mercy killing, assisted sui-
cide and death resulting from the non-provision or withdrawal of
treatment. Depending upon individual circumstances, any judgment
based on morality would necessarily be particularistic; it is difcult to
draw hard rules when comparing the conduct of a person who does not
act when confronted with the knowledge of intended suicide, with that
of a person who assists by procuring the means by which another may
commit suicide. Likewise, assistance rendered in the form of administer-
ing a deadly poison with the aim of ending someones life at her request
is hard to separate, morally, from the act of procuring a poison for that
person to administer herself, or even the withholding of a substance
that would cure her. However, as noted above, the legal status of these
acts is far from equivalent.6
With the coming into force of the Suicide Act 1961, committing, or
attempting to commit, suicide ceased to be a criminal offence in England
and Wales. In line with a reticence for ascribing liability for omissions
to act, there will also be no criminal offence in the event of failing to
prevent someone from committing suicide, except insofar as it can be
said to amount to an offence as described below. Similarly, a person can
lawfully withhold treatment, where this is at the request of the patient,
or where it is held to be in his or her best interests.7
Despite the decriminalisation of suicide, the active involvement of
another is likely to invoke criminal liability. Where that involvement is
to kill someone voluntarily, in the absence of any other justication or
5 The word euthanasia derives from the Greek, literally meaning a good death.
6 For discussions of the moral and legal arguments surrounding euthanasia, see
E. Pellegrino, The Place of Intention in the Moral Assessment of Assisted Suicide
and Active Euthanasia in T. Beauchamp (ed.), Intending Death: The Ethics of Assisted
Suicide and Euthanasia (Prentice Hall: New Jersey, 1996) 167; R. Dworkin, Life’s
Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom (Vintage
Books: New York, 1993) 71.
7 See Airedale NHS Trust v Bland [1993] AC 789, the leading case on this subject. See
also J. Keown, Restoring Intellectual Shape to the Law after Bland (1997) 113
LQR 481 for a critique, and D. Price, What Shape to Euthanasia after Bland?
Historical, Contemporary and Futuristic Paradigms (2009) LQR 142.
The Journal of Criminal Law

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