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.
In 2004, Mrs Carol Savage was one of 165 who took their own life while receiving treatment as a psychiatric in-patient.1 With the trial yet to take place, few facts are presently known. The day after voluntarily attending Runwell Hospital, she was detained for treatment under section 3 of the Mental Health Act 1983 (‘the 1983 Act’) with a diagnosis of paranoid schizophrenia. Having made a number of attempts to leave the open acute psychiatric ward, checks on her whereabouts were prescribed for every 30 minutes. Believed to be at low risk of suicide, Mrs Savage was allegedly left unsupervised on hospital grounds from which she was able to flee, walking 2 miles to Wickford railway station before fatally jumping in front of a train. A coroner's jury concluded that the preventive precautions in place were ‘inadequate’. And her daughter, Ms Anna Savage, claimed that the hospital had breached her mother's right to life by allowing her to escape.
The issue in this case is not uncommon. P is an adult who has an unresolved medical condition, in this case epilepsy. His primary carer, however well motivated, does not accept the diagnosis nor the treatment proposals. P may object to treatment (whether his own view or prompted by his carer). In order to determine what is in P's best interests, since he cannot decide for himself, it is necessary to observe him, and not to rely upon what is relayed about his condition by his carer. To that end, a period in hospital for assessment and treatment is necessary.
In September 2008, the European Court of Human Rights and Fundamental Freedoms (ECtHR) upheld a breach of Article 13 of the European Convention of Human Rights (ECHR), in that the UK failed to provide RK and AK with an effective legal remedy for the removal of their child from their care as a result of medical misdiagnosis. The case throws into focus the approach the domestic UK courts have on the rights of third parties, in particular, the rights of parents where their children are subjected to negligent medical treatment.
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.
This note analyses Yearworth v North Bristol NHS Trust, in which the Court of Appeal accepted the existence of property interests in parts or products of the human body and considered the applicability of chattel torts where interference with such interests occurs. The writer questions whether the Court's decision to extend the law of bailment in the case was necessary, or whether the law of conversion or negligence should be available as the more appropriate causes of action.
This case note examines the implications of the House of Lords decision to order the DPP to issue offence specific guidelines allowing those contemplating assisting terminally ill persons to commit suicide to know the risk they face of prosecution under section 2(1) of the Suicide Act 1961. On the assumption that these guidelines will be law, and binding upon the DPP as well as the CPS, does this represent a change in the law, or a situation in which it may be unlawful to enforce the law, or even generate a legal right of disobedience to law?