Thursday, July 30, 2009

The Right to be Assisted to Die (Assisted Suicide)

The last case to be decided by the House of Lords before the Judicial Committee of the House of Lords is replaced by the new Supreme Court takes over its functions has been determined today.

Unfortunately the case is "the assisted suicide" case: Purdy v Director of Public Prosecutions.

Debbie Purdy, who has multiple sclerosis, won a landmark victory in the House of Lords today in her fight to allow her husband to help her commit suicide.

The judges backed her call for a policy statement from the Director of Public Prosecutions on the circumstances in which a person such as her husband might face prosecution for helping a loved one end their life abroad.

This is despite the fact that Parliament recently refused to accept an amendment to the Suicide Act 1961 which would have allowed persons to escape prosecution for cases for assisting suicide abroad, the House of Lords has decided that the DPP must set out the circumstances in which it would prosecute in such cases.

In effect the law has been changed when Parliament recently voted not to amend the law on this important point

The full judgement can be read here.

Unfortunately no account seems to have been taken of Article 2 of the European Convention on Human Rights which protects the right of every person to their life.

In certain circumstances Article 2 imposes a duty on States to take positive action and active measures to save lives.

In particular it would seem to run counter to the decision of the Suropean Court of Human Rights in Pretty v. the United Kingdom (Judgment of 29 April 2002) when it considered both Articles 2 and 8.

In that case Mrs Pretty was paralysed as a result of a degenerative and terminal illness, and sought a guarantee from the Director of Public Prosecutions (DPP) that her husband, if he helped her to commit suicide, would be immune from prosecution. Her intellect and capacity to make decisions remained unimpaired by the illness. She emphasised her determination to control how and when she died, but her disease prevented her from committing suicide which is legal under UK law.

The Court declined to hold that the present system was in breach of the ECHR.

In that case the European Court said of the present system:

"It does not appear to be arbitrary to the Court for the law to reflect the importance of 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.

Nor in the circumstances is there anything disproportionate in the refusal of the DPP to give an advance undertaking that no prosecution would be brought against the applicant’s husband. Strong arguments based on the rule of law could be raised against any claim by the executive to exempt individuals or classes of individuals from the operation of the law.

In any event, the seriousness of the act for which immunity was claimed was such that the decision of the DPP to refuse the undertaking sought in the present case cannot be said to be arbitrary or unreasonable."

Already the Director of Public Prosecutions has made it clear that his new guidelines will be published as soon as possible.

Further that the guidelines will cover all assisted suicides not simply those suicides committed abroad in jurisdictions where suicide is legal.

Of course, it will not be long before people start to campaign that the law should be changed to reflect the then administrative practice. And the argument will be difficult to resist.