Decision on prosecution – the death by suicide of Daniel James, 9 December 2008. The detailed statement made by the Director of Public Prosecutions (DPP) in December 2008 that the family of Daniel James, who died in the Swiss clinic Dignitas in September 2008, would not face criminal charges marks a milestone in the development of the law as it applies in practice to assisted suicide. The DPP and, more recently, the judiciary 1 are arguably contributing to the tacit acceptance of assisted uicide abroad.
Assisting a person to commit suicide is still a criminal offence, the Law Lords insisted when they granted Debbie Purdy's appeal. As Lord Hope explained, it was not their job to change the law. "Our function as judges is to say what the law is and, if it is uncertain, to do what we can to clarify it." And that is just what they did.
Assisted suicide after the Lords’ decision in Purdy v DPP [2009] UKHL 45 remains a criminal offence under section 2(1) of the Suicide Act 1961. Whether the assisted suicide itself takes place within or outside the UK, assistance provided within the UK could be the subject of criminal prosecution. Any such prosecution would need the consent of the DPP. The House of Lords has asked the DPP to produce a policy structuring the discretion he exercises when deciding whether to consent to such a prosecution.
Last week, the European Court of Human Rights decided in the case of Haas v. Switzerland (judgment in French only) that the right to private life is not violated when a state refuses to help a person who wishes to commit suicide by enabling that person to obtain a lethal substance. The applicant in the case, Ernst Haas, had for two decades been suffering from a serious bipolar affective disorder (more commonly known as manic depression). During that time he attempted to commit suicide twice. Later, he tried to obtain a medical prescription for a small amount of sodium pentobarbital, which would have allowed him to end his life without ain or suffering. Not a single psychiatrist, of the around 170 (sic!) he approached, was willing to give him such a prescription. This would have been necessary, under Swiss law, which allowed for assisted suicide if it was not done for selfish motives (in the opposite case, the person assisting could be prosecuted under the criminal code).
The Court of Appeal has given its judgment in the Tony Nicklinson, Paul Lamb and 'Martin' cases, involving three physically disabled men who challenged the laws that make euthanasia and assisted suicide illegal. The ruling is unlikely to provide much comfort to Tony Nicklinson's family, who are continuing his fight for lawful euthanasia in the courts following his death in August 2012, or to Paul Lamb, who has taken Nicklinson's place in the judicial review proceedings. Part of Martin's appeal, which was argued on different grounds to that of Nicklinson and Lamb, was successful.