Assisted Suicide: A Better Alternative

The new DPP Alison Saunders has clarified the Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide issued by the previous DPP, Keir Starmer, in 2010. This has led to claims by right to life groups that assisted suicide will be available in the UK. This is, I argue, false. Assisted suicide remains a crime. I argue a better alternative under current law is Voluntary Palliated Starvation. This could render unconscious patients who embark on suicide by starvation and dehydration, such as the recent tragic case of Mrs Jean Davies. This could be lawful under current law and acceptable to doctors who do not wish to kill, but wish to relieve suffering.

On October 16, the Director of Public Prosecutions clarified the CPS Policy on cases of encouraging or assisting suicide:

“In considering the section which indicates the likelihood of prosecution of health care professionals, the DPP has made it clear that this refers to those with a specific and professional duty of care to the person in question.

The relevant paragraph offers guidance on cases where the suspect is “acting in his or her capacity as a medical doctor, nurse, other healthcare professional, a professional carer [whether for payment or not], or as a person in authority, such as a prison officer, and the victim was in his or her care”.

During earlier proceedings in the Court of Appeal, the then Lord Chief Justice interpreted this guidance to mean that if a person operating in one of the prescribed professions had cared for a victim to the extent that they were in a position of authority, and may have been able to use that authority to exercise undue influence over the victim, then this may be considered as a factor tending in favour of prosecution. In his view it was not to be interpreted as meaning that professionals brought in to help from outside the family circle should be more likely to be prosecuted simply because of their professions.

Therefore the DPP has confirmed that the words “and the victim was in his or her care” will be highlighted to prosecutors. The following footnote will also be added: “For the avoidance of doubt the words ‘and the victim was in his or her care’ qualify all of the preceding parts of this paragraph. This factor does not apply merely because someone was acting in a [professional] capacity described within it: it applies only where there was, in addition, a relationship of care between the suspect and the victims such that it will be necessary to consider whether the suspect may have exerted some influence on the victim.”

This has been interpreted to open the door to assisted suicide in the UK For example, The Daily Mail reports, under the title, “Doctors and nurses who help terminally ill patients to die will be LESS likely to be prosecuted under new guidelines for assisted suicide”,

“In future, she said lawyers at the Crown Prosecution Service should only bring charges when the doctor or carer ‘may have exerted some influence on the victim’.

Her order to CPS lawyers brought furious condemnation from anti-euthanasia campaigners who accused Mrs Saunders of legalising assisted suicide and opening the way for suicide hospitals in Britain on the model of the Dignitas clinic in Zurich.

The Care Not Killing group said: ‘She is effectively at a stroke of her pen decriminalising assisted suicide by doctors and other health care professionals as long as they don’t have an existing relationship with the patient.’

The DPP was also accused of changing the law to allow doctors to help suicides without reference to Parliament or even the courts.

This interpretation is, sadly, incorrect. The new DPP Alison Saunders’ clarification relates to the Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide issued by the previous DPP, Kier Starmer, in 2010. It was issued partly as a response to uncertainty about the legal status of people who assist the travel of individuals wishing to commit suicide at the Dignitas clinic in Switzerland. It outlines when the Crown Prosecution Service is likely to mount charges against someone involved in a the suicide of another, and when it is likely not to.

It is certainly true that such directives have often preceded assisted dying legislation. For example, prior to formal legalisation of euthanasia in the Netherlands, prosecution services indicated that they would tolerate certain kinds of assisted dying and not prosecute doctors involved in them.

However, the Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide and its clarification on Oct 16 is unlikely to open the doors to euthanasia or assisted suicide, as opponents claim.

The clarification relates to only one item of 16 relating to public interests factors in favour of prosecution. It essentially means that merely being a doctor will not put one at elevated risk of being prosecuted for assisted suicide. However, the current guidance does not indicate any kind of passive toleration of medically assisted suicide.

The policy begins:

“A person commits an offence under section 2 of the Suicide Act 1961 if he or she does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and that act was intended to encourage or assist suicide or an attempt at suicide. This offence is referred to in this policy as “encouraging or assisting suicide”. The consent of the Director of Public Prosecutions (DPP) is required before an individual may be prosecuted.

The offence of encouraging or assisting suicide carries a maximum penalty of 14 years’ imprisonment. This reflects the seriousness of the offence.
Committing or attempting to commit suicide is not, however, of itself, a criminal offence.”

Giving a patient access to lethal interventions when that patient has requested them with the intention of suicide  could only be interpreted as “assisting suicide” so it is hard to imagine how this clarification opens the door to Dignitas-style clinics in the UK.  Indeed, the policy explicitly states:

“This policy does not in any way “decriminalise” the offence of encouraging or assisting suicide. Nothing in this policy can be taken to amount to an assurance that a person will be immune from prosecution if he or she does an act that encourages or assists the suicide or the attempted suicide of another person.”

However, to be liable for prosecution,

“The prosecution must prove that:

•  The suspect did an act capable of encouraging or assisting the suicide or attempted suicide of another person; and
•  The suspect’s act was intended to encourage or assist suicide or an attempt at suicide.”

I have previously described what I called Voluntary Palliated Starvation or VPS. This describes the practice of starving or dehydrating oneself to death as a way of ending one’s life. A recent case occurred in Oxfordshire:

A GRANDMOTHER has starved herself to death over five weeks, claiming it was the only way she could legally exercise her right to die.

The former maths teacher said she had resorted to the protracted death because the government’s failure to reform the law on assisted suicide meant she had no legal alternative. Her GP agreed to treat her to alleviate the symptoms of starvation and dehydration. He visited hours before her death on October 1.

Four weeks into her fast, Jean Davies, 86, told The Sunday Times: “It is hell. I can’t tell you how hard it is. You wouldn’t decide this unless you thought your life was going to be so bad. It is intolerable.”

Davies did not have a terminal illness but suffered from a range of medical conditions.

VPS describes what happened in this case – voluntary palliated starvation. It is not clear what is meant by “alleviating the symptoms” but I have argued that such patients who choose to end their lives by starvation or dehydration are entitled to do so under law and ethics, and are entitled to a full range of palliative care to relieve the suffering associated with dying.

Indeed, it is instructive to ask how far could doctors go legally and ethically in relieving suffering? The most extreme version of relief of suffering is anaesthesia or deep sedation rendering the person unconscious.

Imagine that Jean Davies had expressed her desire to die to her GP. Her GP tries to dissuade her, perhaps pointing out the finalitude of death and the fact there would be nothing but oblivion after. Still she persists in wishing to die and is competent and understands the nature of her condition. Indeed, she refuses food and fluids. This continues for several days and she begins to suffer.

Her GP at this stage demonstrates compassion for her suffering. He offers her a range of ways of relieving her suffering as she dies from starvation and dehydration. He outlines various options, from simple analgesia, to mild sedation and analgesia, all the way to deep sedation with a propofol infusion.

She elects the last – unconsciousness until she dies. She meets with her family and has her last moments with them, before the infusion is commenced.

Would this be legal under the Policy?

I am not a lawyer but there are reasons to think it would be.

The GP’s intention is not cause death but alleviate suffering. Her intention is not to assist suicide, but to relieve suffering with the foreseen consequence of assisting suicide.

The doctrine of double effect or intention-foresight distinction is well established and accepted in law – it supports the administration of life shortening agents at the end of life when the intention is to relieve suffering, foreseeing the shortening of life.

Unconsciousness is not death – so the end point of the doctor’s action is not the death of the patient.

The Policy states:

A prosecution is less likely to be required if:

1. the victim had reached a voluntary, clear, settled and informed decision to commit suicide;
2. the suspect was wholly motivated by compassion;
3. the actions of the suspect, although sufficient to come within the definition of the offence, were of only minor encouragement or assistance;
4. the suspect had sought to dissuade the victim from taking the course of action which resulted in his or her suicide;
5. the actions of the suspect may be characterised as reluctant encouragement or assistance in the face of a determined wish on the part of the victim to commit suicide;
6. the suspect reported the victim’s suicide to the police and fully assisted them in their enquiries into the circumstances of the suicide or the attempt and his or her part in providing encouragement or assistance.

So, provided that this GP reported the suicide to the police, there appear to be little ground to fear prosecution. All of the 6 requirements would be met, except perhaps the third as such an action arguably does not fall within definition of intentionally assisting death.

Such a policy also has psychological advantages. Even if assisting suicide were to be legalised, many doctors would not psychologically be able to or wish to end a patient’s life, or be involved in it. But the practice of VPS is one of relieving suffering, not terminating life. In this way, it may be more psychologically attractive to doctors, as appears to have been the case with Mrs Davies.

Thus, it is sad that Mrs Davies had to find her death a hell. If she had been heavily sedated during the course of her dying, she would have experienced nothing.

VPS, with palliation all the way to deep sedation, is a better alternative for doctors in the UK than full blown assistance in suicide given current policy and the psychology of doctors.

What would be better is clear legislation legalising the intentional shortening of life. The recent clarification does not introduce that. Until we have that, or further elaborations by the DPP, VPS is the most attractive option for doctors wishing to support patients like Mrs Davies who wish to die.