My Lords, the DPP guidelines on prosecution for assisted suicide are in general the most just and compassionate that the DPP could draft in the light of the current law. That is why the law needs to be changed to prevent suffering.
In paragraph 11, the DPP draws attention to the issue of mental capacity, the law on which was carefully analysed by Dame Elizabeth Butler-Sloss—the noble and learned Baroness, Lady Butler-Sloss—in 2002 in the case of Ms B v An NHS Hospital Trust. She concluded that,
“a mentally competent patient has an absolute right to refuse to consent to treatment for any reason, rational or irrational, or for no reason at all, even where that decision may lead to his or her own death”.
The learned judge then added:
“There is a serious danger, exemplified in this case, of a benevolent paternalism which does not embrace recognition of the personal autonomy of the severely disabled patient”.
It is accordingly clear that even a patient with the most serious physical disabilities, but who has mental capacity, has the same right to make decisions about his or her life as any other terminally ill patient.
Another issue often raised by opponents of assisted dying is the well worn legal maxim that hard cases make bad law. The response of Lord Justice Denning, one of England’s most respected judges, to this maxim was:
“It is a maxim that is quite misleading. It should be deleted from our vocabulary. It comes to this: ‘Unjust decisions make good law’: whereas they do nothing of the kind. Every unjust decision is a reproach to the law or to the Judge who administers it”.
Lord Denning, in this case—Vandervell’s Trusts 1974—was talking about the use of equity to mitigate the rigours of the common law. Parliamentary intervention can and should fulfil the same role in the case of other areas of the law such as assisted dying, which needs to be changed in order to prevent unnecessary suffering and to conform with the views of society. It is for society as a whole, rather than doctors, to decide this matter through the parliamentary process.