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DPP consultation on assisted suicide EHRC Response FINAL - EHRC - Home

By Lawrence Duncan,2014-04-18 07:01
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DPP consultation on assisted suicide EHRC Response FINAL - EHRC - Home

Equality and Human Rights Commission

    response to DPP’s Consultation on Assisted Suicide

Consultation details

    Interim Policy for Prosecutors in respect of Title:

    cases of assisted suicide

    Director for Public Prosecutions Source of consultation:

    21 December 2009 Date:

    For more information please contact Name of EHRC contact providing response and their office address:

    Nony Ardill, Senior Professional, Legal Policy Team

    0203 117 0394 Telephone number:

    Mobile number:

    Nony.Ardill@equalityhumanrights.com Email address:

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    Introduction

    1. The Equality and Human Rights Commission (the Commission) has a statutory duty to promote equality and diversity, work towards the elimination of discrimination, promote human rights and build good relations between and among groups. The Commission is a non-departmental public body established under the Equality Act 2006 accountable for the use of its funds, but

    independent of Government. The Commission has responsibilities in seven areas of equality: age, disability, gender, gender identity, race, religion or belief and sexual orientation, as well as human rights. It has a statutory Disability Committee, established under Schedule 1 Equality Act 2006, with a decision-making role in relation to certain disability matters.

    2. The Commission welcomes the opportunity of responding to the Director of Public Prosecution’s (DPP’s) consultation on his interim policy for prosecutors in cases of assisted suicide. In considering our response, we have had particular regard to Section 9(1) of the Equality Act 2006, which requires us to promote awareness, understanding and protection of human rights, and encourage public authorities to comply with Section 6 Human Rights Act 1998 (HRA). We have also had regard to our duties under Section 8(1) of the Act, which require us to promote awareness and understanding of rights under the equality enactments and work towards the elimination of unlawful discrimination.

    3. Section 9 (2) of the Equality Act defines human rights as meaning rights under the European Convention on Human Rights (‘the Convention’) together with other human rights instruments. In preparing this consultation response, the Commission has also taken particular note of the UN Convention on the Rights of Persons with Disabilities.

    4. Under Section 2(1) Suicide Act 1961, a person commits an offence if he or she aids, abets, counsels or procures the suicide of another, or the attempt by another to commit suicide. Section 2(4) requires the DPP’s consent for the prosecution of such an offence. The background to the present consultation lies in the judgement

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    of the House of Lords the case of R (on the application of Purdy) v Director of Public Prosecutions [2009] UKHL 45. Their Lordships directed the DPP to promulgate an offence-specific policy identifying the facts and circumstances to be considered in deciding whether or not to prosecute in any individual case. The interim policy, published in September 2009, seeks to identify and prioritise these facts and circumstances.

    5. The Commission would like to emphasise that the position taken in our response to the DPP’s consultation relates only to the proposals under consideration. We do not, as yet, have a concluded policy position on any future moves to legalise assisted dying and nothing in this response should be taken as indicating our views on this. We have considered some of the background sources and materials that have addressed the question of whether assisting suicide should be decriminalised in particular circumstances, including evidence that informed debates relating to Lord Joffe’s Assisted Dying for the Terminally Ill Bill.

    Background sources and materials

    6. In responding to this consultation the Commission has taken into account the judgment of the European Court of Human Rights (ECtHR) in the case of Pretty v The United Kingdom (2002). Diane Pretty, who was in the advanced stages of motor neurone disease, brought a challenge to the refusal of the Director of Public Prosecutions (DPP) to give an undertaking not to prosecute her husband should he assist her to commit suicide in accordance with her wishes. The ECtHR decided that the state had no obligation under Article 2 (the right to life) to recognise someone’s right to be

    assisted to take his/her own life. Nor did the state have any positive obligation under Article 3 (freedom from inhuman and degrading treatment); sanctioning actions intended to terminate life was not ‘treatment’ within the meaning of this Article.

    7. However, the ECtHR concluded that Article 8, the right to respect for private life, could be seen as extending to personal autonomy relating to decisions about one’s own life and death. The court

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    accepted that preventing someone from exercising the choice to avoid a distressing and undignified end to their life might constitute an interference in this right. However, in Diane Pretty’s case, the interference was in pursuit of the legitimate aim of safeguarding life and was proportionate to the legitimate aim pursued. It therefore satisfied Article 8(2) that is, as being in accordance with the law and necessary in a democratic society. In a key passage, the Court said (paragraph 76):

    ‘The Court does not consider that the blanket nature of the ban

    on assisted suicide is disproportionate. The Government has

    stated that flexibility is provided for in individual cases by the

    fact that consent is needed from the DPP to bring a prosecution

    and by the fact that a maximum sentence is provided, allowing

    lesser penalties to be imposed as appropriate….. It does not

    appear to be arbitrary to the Court for the law to reflect the

    importance to the right to life, by prohibiting assisted suicide

    while providing for a system of enforcement and adjudication

    which allows due regard to be given in each particular case to

    the public interest in bringing a prosecution, as well as to the fair

    and proper requirements of retribution and deterrence.’

    8. The Commission has also carefully noted the reasoning of the House of Lords in the Purdy case, cited above. Deborah Purdy, who suffers from primary progressive multiple sclerosis, anticipates that at some point in time she will want to seek the assistance of her husband to travel to a country where assisted suicide is lawful in order to end her life. She brought her case, not to seek a guarantee of immunity from prosecution for her husband, but understand the circumstances in which the DPP would prosecute in order to help her take a decision affecting her private life.

    9. Lord Hope of Craighead, who gave the leading judgment, drew on the ECtHR judgment in Pretty v UK. He accepted Ms Purdy’s case engaged that the right to respect for private life under Article 8(1) of the Convention. On the question of whether the interference in her private life from Sections 2(1) and 2(4) Suicide Act 1961

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    satisfied Article 8(2), he concluded that the law was not sufficiently accessible or foreseeable; the general Code for Crown Prosecutors offered almost no guidance either to members of the public or to prosecutors themselves as to how the DPP’s discretion to prosecute should be exercised. This was not a point that had been argued before the ECtHR in case of Pretty v UK.

    10. In preparing this response, the Commission has also taken account of the Report of the House of Lords Select Committee on 1 This Committee was the Assisted Dying for the Terminally Ill Bill.

    set up to examine Lord Joffe’s second Bill on assisted dying, the provisions of which were limited to terminally ill patients. The Committee’s detailed and wide-ranging report examined the ethical

    principles underlying this issue; practical questions such as the availability of palliative care and the problem of accurately predicting death; overseas experiences (in Oregon, The Netherlands, Switzerland and Belgium); and surveys of public attitudes. It concluded with a series of recommendations for any future bill on assisted dying. (In May 2006, the Bill itself was defeated on its second reading in the House of Lords by 148 votes to 100.)

    11. In addition, the Commission has been able to draw on its own recent work in Scotland. In March 2009, our Scottish office organised a ‘Question Time’ style event designed to debate the main issues surrounding voluntary euthanasia and assisted suicide. The debate was a particularly topical one, in the light of MSP Margo MacDonald’s proposal for a private members bill on this 2issue, currently being considered by the Scottish Parliament. The

    four speakers on the panel represented contrasting views on this issue, as did participants in the discussion that followed. The event allowed a wide range of concerns to be aired, analysed, and countered by opposing responses. A discussion paper based on 3this event is available on the Commission’s website.

     1 HL Paper 86-1, published 4 April 2005 2 End of Life Choices (Scotland) Bill 3 Equal to the end? www.equalityhumanrights.com/scotland/projects-and-campaigns-in-scotland/scottish-

    debates-series-8217/

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    12. The Commission has had the opportunity to see the response of

    Not Dead Yet UK Network (NDY UK), a group of disabled people

    who campaign against assisted dying and assisted suicide. The

    starting point of their response is a clear opposition to policies that

    ‘single out individuals for legalised killing based on their medical

    condition or prognosis’. Although we neither endorse nor oppose

    the Network’s stance on this issue, we have found their draft

    response useful and our own response has drawn from it in certain

    respects.

The Commission’s response

    13. The Commission recognises that the debate about assisted

    suicide turns on the question of the victim’s personal autonomy.

    The principle of autonomy underlies Article 8 of the Convention

    and is important in the interpretation of its guarantees; as has been

    noted above, it was central to the judgment of the EctHR in Pretty

    v The UK. Individual autonomy is also recognised under Article

    3(a) of the UN Convention on the Rights of Persons with

    Disabilities as one of its general principles.

    14. However, as was accepted by both the ECtHR and the House of

    Lords (in the Purdy case), the principle of autonomy and the right

    to make choices about one’s own body must be reconciled with the

    need to protect individuals who may be coerced into ending their

    life prematurely. The danger of people internalising negative

    constructs of disability, hence feeling under pressure to choose

    death to avoid becoming a burden on family, friends or society in

    general, was recognised by participants in the event organised by

    our Scotland office; the same point is argued strongly in the draft

    response of NDY UK. Similar concerns have been expressed by

    Age UK, who contend that pervasive ageism undermines the value 4given to the lives of older people.

    15. The Commission understands and accepts these concerns.

    However, in responding to this consultation, we have felt it

     4 Age Concern, Policy position paper on dying and death, February 2008

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    important to keep in mind the legal context in which the DPP’s guidance will be finalised:

    ; Neither the House of Lords judgment in the Purdy case, nor the

    DPP’s interim guidance, alters the underlying legal position that

    assisting suicide remains a criminal offence.

    ; The DPP is acting under the direction of the House of Lords and

    thus has no option but to publish guidance on the facts and

    circumstances to be taken into account in deciding whether to

    prosecute in assisted suicide cases.

    ; Even after the guidance has been finalised, there will be no

    immunity from prosecution for this offence and the DPP will be

    unable to give advance assurances that any individual act of

    assisting suicide would not lead to a prosecution. ; The written guidance cannot be fully conclusive; in the words of

    Lord Neuberger (at paragraph 101 of the Purdy judgment):

    ‘Inevitably, as a matter of common sense as well as a

    matter of law, each case will have to be decided by

    reference to its own particular facts, and the contents of

    such a policy could not conceivably be exhaustive.’

    ; In cases where the DPP, following his own guidance, decides to

    prosecute, this will not necessarily lead to a conviction or, if it

    does, the court will have discretion as to sentencing.

    16. It is also important to recognise that, in finalising his guidance, the DPP might effectively signal that prosecutions should have been seriously considered in certain previous cases of assisted suicide, when they were not brought at the time. However, we do not believe that constructing the guidance around previous prosecution practice if that is how the interim policy has been arrived at

    would be the correct approach.

    17. Our primary concern about the interim guidance is that the criterion relating to the physical condition of the victim has been too widely drawn. We would argue that Factor 4 against prosecution should be limited to the victim having a terminal illness. To include ‘having a severe and incurable physical disability, or a severe

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    degenerative physical condition’ suggests that the life of a disabled person who is not terminally ill is worth less than the life of a person who is not disabled. This was illustrated by the public and media perceptions of the case of Daniel James, a severely depressed tetraplegic who persuaded his mother to facilitate his suicide in Switzerland. As the NDY UK states in its draft response:

    ‘…. his wish to die was considered acceptable because he was

    a disabled man. The same desire to die in a non-disabled

    person of either sex or any age would be considered to be

    unreasonable and a sign of mental illness.’

    18. We recognise that including terminal illness as a factor against prosecution raises difficulties of definition of ‘terminal’. On this question, the discussions and debates prompted by Lord Joffe’s second Bill are helpful. The Bill defined terminal illness as ‘an illness which in the opinion of the consulting physician is inevitably progressive, the effects of which cannot be reversed by treatment… and which will be likely to result in the patient’s death 5within a few months at most.’ The House of Lords Select

    Committee on the Bill heard medical evidence that accurate prognosis of when someone was in the last six months of life, other than for malignant conditions such as cancer, presents challenges; prognosis was particularly difficult for someone suffering from a degenerative disease such as motor neurone disease or emphysema. On the basis of this medical evidence, we do not think that it would be helpful to specify that the victim should be within a specified number of months from death. However, the prosecution criterion should instead refer to the victim being in the ‘terminal stages’ of his or her illness.

    19. The Bill also required the attending physician to have concluded that the patient was ‘suffering unbearably as a result of that 6terminal illness;’ unbearable suffering was defined as meaning

    suffering by reason of pain or otherwise which the patient finds so severe as to be unacceptable and which results from the terminal

     5 Clause 1(2), Assisted Dying for the Terminally Ill Bill 6 Clause 2(2)(c), Assisted Dying for the Terminally Ill Bill

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     7illness. Because of the subjective nature of suffering, this

    requirement cannot provide a completely robust safeguard, but it

    goes some way towards refining the criterion of ‘terminal illness’.

    We suggest that unbearable, or unrelievable, suffering should be

    considered as an additional factor against prosecution.

    20. We are broadly in agreement with most of the other factors that

    are proposed although with several qualifications. We think it

    would be helpful for the final version of the guidance to distinguish

    between the factors that relate to circumstances that are

    objectively verifiable, and those that relate to the victim’s or

    suspect’s state of mind. There is also some overlap between

    different factors, and it might reduce confusion if these were

    consolidated; for example, Factors 4 and 5 in favour of prosecution.

    21. Below, we have reproduced the DPP’s list of public interest factors

    both in favour of and against prosecution, indicated our agreement

    or otherwise (except where our answer is qualified rather than a

    straightforward ‘yes’ or ‘no’) and added comments to some of our

    responses. We have not suggested any additional factors either

    in favour of, or against, prosecution. With regard to the ranking of

    factors, we have indicated where we think this should be different.

     FACTORS IN FAVOUR Y/N COMMENTS

    OF PROSECUTION

    1 The victim was under 18 Yes We agree with this factor, which

    years of age. appears to be broadly in keeping

    with domestic and international

    law

    2 The victim’s capacity to Yes We agree that victims who lack

    reach an informed mental capacity should be given

    decision was adversely additional protection. More difficult

    affected by a recognised questions could arise when the

    mental illness or learning victim’s judgment is affected by

    difficulty. depression as the symptoms of

     7 Clause 1(2), Assisted Dying for the Terminally Ill Bill

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    this illness may not be recognised

    either by the victim or by those

    around him/her.

    3 The victim did not have a Yes It is important that the victim had a clear, settled and settled and informed wish to informed wish to commit commit suicide. If the suspect suicide; for example, the knew, or should have known, that victim’s history suggests the victim’s wish to commit suicide that his or her wish to was only temporary, this should commit suicide was be a factor in favour of temporary or subject to prosecution.

    change.

    4 The victim did not indicate Yes It would certainly be a factor in unequivocally to the favour of prosecution if the suspect that he or she suspect had presumed to know wished to commit suicide. the mind of the victim without

    unequivocal communication of

    his/her wish to commit suicide.

    5 The victim did not ask Yes We agree that prompted requests personally on his or her for assistance, or requests relayed own initiative for the through a third party, should be assistance of the suspect. indicators in favour of prosecution.

    6 The victim did not have: No For the reasons explained in > a terminal illness; or Paragraph 17 above, we think that > a severe and incurable the sole criterion (within this physical disability; or factor) should be whether or not > a severe degenerative the victim was in the ‘terminal physical condition; stages of an illness’. Because from which there was no certain diseases present possibility of recovery. difficulties with accurate

    prognosis, the additional test of

    ‘unbearable suffering’ should be

    considered.

    7 The suspect was not No Using presence or absence of wholly motivated by compassion as a factor is likely to compassion; for example, present serious difficulties. the suspect was Motivation from compassion can

    motivated by the prospect be misguided; compassion for the that they or a person victim may be genuinely felt, but

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