My Lords, I welcome this opportunity to question the Government about their current position on this very difficult and sensitive area of criminal law. This debate is extremely timely. It is exactly four years since the then Director of Public Prosecutions, Keir Starmer QC, issued his policy for prosecutors in cases of encouraging or assisting suicide. At the moment, the Supreme Court is considering two cases which challenge those guidelines. Nine Supreme Court judges heard these cases last December and their judgment is due very shortly. Naturally, I do not expect the Minister to anticipate their findings tonight, but it is relevant to this debate to recognise that is widely expected that the Supreme Court will say, as so many other judgments have, that it is ultimately Parliament’s responsibility to determine the law on assisted dying.
Perhaps I may very briefly outline the law as it stands today. The Suicide Act 1961, which makes assisting suicide a criminal offence liable to 14 years in prison, is still in force. Under this Act, the DPP has always had discretion about whether to prosecute in particular cases, but until five years ago, when Debbie Purdy won her appeal to the Law Lords seeking clarity, that prosecutorial discretion has often been shrouded in obscurity and ambiguity. The Law Lords instructed the DPP to produce new, specific guidance, and after public consultation the existing guidelines were published in February 2010.
I must make clear at the outset that I very much support the introduction of those guidelines, and in general I commend the way they have operated. I think the guidance has been particularly useful in making clear that when a relative or friend who is wholly motivated by compassion gives assistance to a person who themselves has made informed decisions about the end of their life, the relative or friend is very unlikely indeed to be prosecuted. On the other hand, someone with malicious or selfish intentions who helps a suicide will almost certainly feel the full force of the criminal law.
Opponents of making any further change find this situation perfectly satisfactory. In their view—and I have heard this expression quite often—the law now has a “stern face but a kind heart”. It is a very elegant phrase, but I do not think that it accurately reflects reality. The existing guidelines, welcome though they are, do not give overall coherence to the law on assisted suicide. They do not offer sufficient legal protection and, most importantly, are inadequate to prevent unnecessary suffering at the end of life.
I have several concerns which I would like to raise with the Minister this evening. The most significant is the position of healthcare professionals. The guidelines state in general terms that prosecution is more likely if a healthcare professional, rather than a relative or friend, helps someone to die. However, the nature of any professional assistance is not defined. We can assume, I am sure, that if someone prescribed lethal drugs, that would result in a prosecution. But to what extent can a doctor or a nurse give counsel to a dying patient who wants to end their life, or, for example, advise and assist them to seek help abroad? These questions are not addressed in guidance and, consequently, considerable ambiguity remains.
Healthcare professionals can often feel unsure of their position. A bizarre illustration of this was told to me recently by Cameron Brown, whose 87 year-old mother was asked to leave her care home when it was discovered that she was a member of the campaign group Dignity in Dying. It was feared that if she did take her own life, the care home could be criminally liable.
It is not surprising, therefore, that suffering patients can be left to sometimes dubious solutions that they access on the internet, or to stop drinking and eating in order to bring forward an inevitable death. Of course, the hard-hearted answer to that, which we also sometimes hear, is that a dying person can always kill themselves without any assistance, and therefore without any possible legal threat to anyone.
Frankly, I have heard too many cases like the recent one of Kevin Davis to find that a remotely acceptable position. Kevin Davis, a middle-aged man with terminal renal cancer, received very good palliative care but was still suffering badly. He knew that he could not ask his health team for help to end his life and so, one evening, having been at home by himself, he was found by his family dead at the bottom of the staircase, I am afraid to say in a pool of blood. Afterwards his family said that Kevin was angry that he could not choose a dignified death at a time when his suffering became too much, and so had taken a rather sad and lonely way out. Of course, the paradox is that if his family had helped him, they probably would not have been prosecuted. But surely this is not a satisfactory position. The key question is whether it is sensible for the Government and Parliament effectively to condone compassionate amateur assistance to die while prohibiting professional medical assistance which might be equally compassionate and more skilfully gentle.
I am also concerned about how the guidance deals with the issues of mental capacity and decision-making. The guidelines say that to avoid prosecution, it must be established not only that the motives for assistance are compassionate but that the person who dies, referred to as the victim, must have made a settled and informed decision to do so. But obviously, as these are prosecuting guidelines, the investigation of the circumstances of death occurs only after the fact—after a person is dead. It is worth saying that even in the cases where a prosecution is not pursued, a police inquiry does take place. In an earlier debate introduced by my noble friend Lord Dubs, the noble Lord, Lord Blair of Boughton—who sadly regrets that he had to withdraw this evening due to the re-timing of the debate—described from his police experience the stringent way in which these criminal investigations proceed. As he said, the police treat such a case as a possible homicide. Family and friends are treated as suspects, and the process enormously increases the sadness and stress which follows any death.
However, the fundamental legal problem is this, as the guidelines themselves say:
“It may sometimes be the case that the only source of information about the circumstances of the suicide and the state of mind of the victim is the suspect”.
This seems to be a potentially absurd situation. Does the Minister agree that that kind of after-death investigation offers absolutely no protection to potentially vulnerable people whose relatives could both lie about their own motives and the deceased person’s state of mind? Surely it would be much safer to have a statutory law which allows assisted dying for mentally competent terminally ill adults in restricted and safeguarded circumstances—circumstances which could then be established and assessed while the person is still alive.
My third concern about the present legal framework is that the terms of prosecutorial discretion rest exclusively with the lawyer who holds the office of Director of Public Prosecutions. There is no certainty that the prosecution guidance could not be altered by successive DPPs. As far as I am aware, the newly appointed Director of Public Prosecutions, Alison Saunders, has not indicated that she intends to make any changes, but that is not a permanent guarantee.
The simple truth is that Parliament should act. Parliament should take the lead and not leave this complex legal and moral issue solely in the hands of the courts and the lawyers. At the very least we need an official assessment of the prosecution guidelines on assisted suicide and how they are working.
Undoubtedly the guidance has clarified how the law is applied in certain circumstances, but it still causes distress to those who assist compassionately and forces those who cannot get assistance to suffer against their wishes. Beyond this, the statutory law still requires a crime to be committed before any post hoc investigation can take place.
I always say in my role as chairman of your Lordships’ Select Committee on the Constitution, “I am not a lawyer—but”. My “but” this evening is that this situation seems to me to be both incoherent and inadequate, and, more importantly in policy terms, unworthy of our open, ethically humane, 21st century society which does reflect individual rights. I look forward to the debate and the Minister’s response.