Legal rules are no match for compassion
The ‘clarification’ of the law on assisted suicide only casts more suspicion on those struggling with end-of-life decisions.
What should we make of the decision by the UK director of public prosecutions, Keir Starmer, to issue guidelines on which cases of assisted suicide should be prosecuted and which should not?
On Wednesday last week, Starmer listed 13 factors that could influence the authorities not to prosecute. These include the person assisting a suicide being motivated by compassion; the deceased clearly wanting to die; and the deceased being terminally ill, severely physically disabled or suffering from an incurable degenerative disease.
However, Starmer also listed 16 factors that might influence the authorities to pursue a prosecution, including assisting the suicide of a minor, mentally incompetent person, someone who had not clearly expressed a wish to die or someone without the medical conditions listed above.
Rather than clarifying the law in relation to assisted suicide, Starmer seems to have plunged us all into further confusion. Whereas some greeted the guidelines as effective decriminalisation of assisted suicide, Penney Lewis, professor of law at the Centre for Medical Law and Ethics at King’s College London, complained that the guidelines ‘close down any kind of movement toward physician-assisted suicide’ and ensure ‘that it doesn’t become a professional activity conducted by doctors or would-be suicide advisers’.
In general, though, assisted-suicide advocates must be pleased with the guidelines because they undermine the existing law. Some have suggested that the guidelines have come about because of a plot by a few advocates in the House of Lords to grant the request of Debbie Purdy, who suffers from multiple sclerosis, for ‘clarity’ and assurance that her husband will not be prosecuted for accompanying her to the Dignitas headquarters in Switzerland without bothering with a parliament reluctant to deal with the issue.
Rather than a democratic decision (no matter what one thinks of legalisation of euthanasia in Oregon and Washington, at least it was decided upon by the people of those states), Starmer’s guidelines, though within his remit, do circumvent parliament and other democratically accountable institutions. Starmer certainly seems to be relishing his new status as the centre of attention; a fawning article in the Guardian told us that he was a former radical leftie who supports Arsenal and whose parents run a donkey sanctuary.
Starmer’s decision may well spell the beginning of the end for the existing law against assisted suicide in England and Wales. The 1961 Suicide Act, which makes assisting a suicide illegal, with a punishment of up to 14 years in prison was itself a compromise regarding a difficult situation. Parliament wished to decriminalise suicide, but made it clear that decriminalising suicide did not mean approval of the act. Hence, the possible 14 years in prison for anyone convicted of ‘aiding, abetting, procuring or counselling’ suicide despite the fact that suicide is not an offence. Ironically, in light of many hysterical attacks on it today, the law was never meant to terrorise relatives of suicides; there has been not one successful conviction under the act in the nearly 50 years of its operation. Its purpose was compassionate, removing the necessity for prosecution of failed suicides or harassment of the families of successful ones, but maintaining societal disapproval of suicide.
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Does Starmer’s action alleviate, at least, the worry that those who accompanied their loved ones to the Dignitas clinic in Switzerland might be prosecuted? Yes and no. Yes, because they might feel that, having nothing to hide, they will have the threat of prosecution lifted. No, because it was hardly there in the first place. Not one relative of a suicide has been successfully prosecuted under the act. Debbie Purdy herself was given personal assurances that her husband would not be prosecuted if he accompanied her to Switzerland. None of the relatives of the 117 Britons who have travelled to Switzerland have been prosecuted.
But Starmer’s legal ‘clarifications’ do accomplish two things. First, by defining the conditions under which those assisting a suicide will not be prosecuted, they effectively condone suicides for those specific people. Interestingly, unlike the existing rulings in Oregon and Washington, where assisted suicide is legal only for those with six months or less to live, Starmer said that the severely physically disabled may commit suicide without the risk of those assisting them being prosecuted. He probably had in mind the case of Daniel James, the 23-year-old paralysed by a rugby accident who committed suicide with the aid of his parents in 2008. Rather than simply deciding not to prosecute the parents in this tragic case and treating it as an individual situation, Starmer’s regulations suggest that suicide for the severely disabled is understandable.
Not only does this effectively create two legal categories, dividing those with worthwhile lives and the hopeless (this must be disturbing for disabled people), it underlines an important point about assisted suicide – like affirmative action, the list of conditions under which suicide is deemed understandable will only expand. If we accept reasons for suicide in certain circumstances because someone’s life is wretched, how can we deny them to someone else who feels their life to be wretched and not worth living? Rather than the inapt ‘slippery slope’ metaphor, legalising assisted suicide gives suicide a foot in the door.
Second, by spelling out the specific situations where prosecutions should occur, might these guidelines obligate the authorities to ensure that none of the 16 criteria for prosecuting have been breached? This emphasis on the letter rather than the spirit of the law may in the end be worse for the suicide’s loved ones. Starmer’s conditions include one concerning those who financially gain from a loved one’s suicide, but family and friends will often be included in a will. Must they now be investigated? There may well be a requirement for evidence that a suicide really wanted to die and was compos mentis or for medical records showing how far a disease had progressed.
No one – even those most radically opposed to a change in the law – would want the friends and relatives of suicides like Daniel James to be prosecuted. But to detail the stipulations under which prosecution will not take place is a step in the direction of legitimating suicide and increasing regulation of the end of life.
Kevin Yuill teaches American studies at the University of Sunderland in England, and is author of Richard Nixon and the Rise of Affirmative Action. Read a review of the book here, or buy it from Amazon(UK) or Amazon(USA).