Anna Mandel, Boston College '11 currently studying law in London, discusses the impact of recent clarifications to the United Kingdom's Suicide Act of 1961...
Assisted suicide has become a controversial and provocative legal topic around the world, particularly in the European Union. JURIST has reported on assisted suicide law and policy in the United Kingdom since 2006, and scholars, legal practitioners, and the public have commented extensively on the new assisted suicide guidelines for England and Wales released on February 25, 2010. These guidelines were made public by the Director of Public Prosecutions of England and Wales (DPP), Keir Starmer, as the result of consistent pressure from citizens seeking clarification of the law. Prior to the introduction of the new guidelines, public confusion existed over when people would face criminal prosecution for assisting in another's suicide under the Suicide Act of 1961 ("the Act"). The DPP's role in criminal prosecutions for assisted suicide cases is critical because his permission is required for a case to be brought before the court for prosecution.
Nearly fifty years ago, the Act legalized suicide, yet codified assisting in another's suicide as a crime punishable by up to 14 years in prison. The Act is unique in criminalizing behavior closely tied to a legal activity by making it illegal to assist someone in attempting or completing a legal action. Other European countries take a different approach. In Luxembourg, for example, assisted suicide is not illegal because suicide itself is legal. The Act, therefore, stands apart from other criminal legislation that Europeans may be familiar with.
Section Two of the Act, which has been debated in British Parliament for several years, states that "a person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be [criminally] liable." Over the past decade, many terminally ill individuals in the United Kingdom have sought clarification of the meaning of "aids, abets, counsels or procures" and of the factors that prosecutors consider when deciding whether an assister will be held liable. Terminally ill patients sought these clarifications in order to assess how, with whom, and where to plan their deaths when their illnesses became unbearable. Since June 2008, for example, Debbie Purdy, a British woman suffering from multiple sclerosis, has fought for clarification of the law by seeking judicial review of the Act and asking for specific explanations from the DPP. Her efforts, along with those of thousands of other UK citizens, encouraged the introduction of the rules released in February. Purdy sought to ascertain the likelihood of her husband facing criminal prosecution were he to help end her life when her illness became too debilitating. Her efforts, and those of other similarly-situated individuals, came to fruition with the publication of the new guidelines, which provide prosecutors, patients, and potential assisters with essential information for determining criminal liability. Further, while the February rules only apply in England and Wales, Northern Ireland has a statute that is nearly indistinguishable from the Act.
Although the DPP stressed that potential prosecutions will be analyzed on a case-by-case basis, he emphasized that a particular focus will be placed on the assister's motivation, such as compassion for a loved one, self-interest, or a "darker motive." However, this does not preclude other factors from being taken into consideration when deciding whether to criminally prosecute individuals. Interestingly, even if the assister would benefit slightly from the victim's suicide, a benevolent motive would very likely relieve him of criminal liability under the new rules. Other factors that prosecutors will now consider include the victim's mental state, whether the suicide and the assister's role was reported to law enforcement officials, whether there was a discussion between the assister and the victim of options other than suicide, the victim's age, the degree of assistance provided, the relationship history of the assister and victim, and the persistency of the victim's demands. Importantly, the new guidelines clarify the likelihood of prosecution where the assister is a family member or the victim's close friend, to assure terminally ill patients that their family members will probably not be prosecuted for assisting their suicides. In Purdy's case, the new rules increased her peace of mind because she felt she could wait to seek her husband's assistance at a later point, rather than being forced to plan suicide alone and while still physically able. Despite their importance, the new rules are but one of several changes to assisted suicide law in the United Kingdom.
Some groups, including disabled and elderly care advocacy groups, such as the Scope Charity in the UK, are opposed to the new principles, arguing that they implicitly legalize euthanasia and subject vulnerable, ill patients to unnecessary pressure. Groups opposed to the new rules argue that the changes reduce obstacles to ending a person's life without his consent, and could persuade an ill or disabled patient to commit suicide rather than continue to consume medical resources. Other groups, including Dignity in Dying, strongly support the new guidelines as being respectful of personal autonomy, human dignity, and an individual's right to be free from emotional and physical pain. Groups in favor of the new regulations further argue that they alleviate terminally ill individuals' monetary and time concerns, since they can seek assistance at home rather than traveling to foreign jurisdictions where assisted suicide is legal, such as Switzerland. Still others argue that the new rules do not change the letter of the law at all and are therefore unremarkable.
It is uncontested that the new principles clarify the existing law as enshrined in Section Two of the Act. They also represent a growing public need for elucidation of existing law so that citizens understand how to avoid potential punishment. In Scotland, for example, suicide is not a crime, but the law on assisted suicide is unclear and lacks legal certainty, just as in England and Wales. This may lead to a growth in the Scottish public's desire for legal clarifications, as it did in England over the past ten years. The DPP's clarification for England and Wales promotes legal certainty and prevents ex-post facto judgments, thereby supporting legal fairness, as well. No matter one's political views respecting assisted suicide, the importance of fairness and legal certainty is uncontested in a democratic society and should be welcomed. While Parliament has not amended the substantive letter of the law or the Act, despite recent attempts, the jurisdictional elements for bringing a criminal case in the first place have been publicly disclosed and outlined.
Since the new jurisdictional elements for initiating a case focus heavily on the assister's motivation rather than the victim's characteristics, they may also signal a slow trend toward decriminalizing assisted suicide in England and Wales in cases where the assister is deemed "innocent". This trend would bring UK law into closer alignment with other European countries' laws on the subject, such as those of Switzerland, Belgium, Luxembourg, and the Netherlands. These countries emphasize the assister's mens rea, and are more liberal than in the UK by permitting assisted suicide under certain enumerated conditions. Swiss law, for instance, provides that "a person who, for selfish reasons, incites someone to commit suicide or assists that person in doing so" will be held liable if the suicide is attempted or completed. If the assister shows "decent" motives, however, and does not commit the killing act but only facilitates the victim's death, the assister will not be held liable. In principle, this is similar to the new UK clarifications, under which an assister's motives are closely scrutinized. The difference between these laws, however, is that one explicitly codifies the law in statute while the other couples legislation with non-exhaustive guidelines for prosecution.
The February guidelines appear to focus more on prosecutorial discretion than on the substantive law of assisted suicide. Indeed, it is unlikely that the Act itself will be amended in the near future, as public opinion in the UK is divided and amendment would entail political consequences for members of both houses of Parliament. Yet, while providing legal certainty and fairness and satisfying the public desire to understand the law, the new guidelines have also brought UK law into further de facto, if not de jure, alignment with other European assisted suicide laws. Perhaps in the future, attempts will be made to codify the February guidelines to some extent, similar to the clarification of prosecutorial guidelines in Swiss law. This would be a positive step towards increasing legal certainty and public awareness of the law on both sides of the debate.
Mentioned in this article:
Suicide Act of 1961
Code pÃ©nal suisse, Articles 114-115 (Swiss Penal Code, in French)
Dignity in Dying [UK advocacy website]