26 Feb, 10 | by Iain Brassington
The Director of Public Prosecutions published his guidelines on assisted suicide yesterday, after consultation on the provisional guidelines that I discussed here. The most recent publication is slightly different from the consultation version and the full list of considerations is available here. Most of the considerations strike me as being well-intentioned, and pretty inoffensive – indeed, I’m quite pleased to see that there’s no mention of terminal illness or suffering criteria. Still, there’s a couple of quibbles. One has to do with the way in which the dead person is referred to as a “victim” – I know what’s meant, but the term is morally loaded, and there’s no reason why a suicide really has to be seen as a victim. Some of my quibbles are less esoteric, though.
Take, for example, the fact that one of the factors in favour of prosecution is that
[t]he victim was physically able to undertake the act that constituted the assistance himself or herself.
What this seems to mean is that, if I can kill myself but you help me nonetheless, you’re more likely to be prosecuted than you would be had I been, say, quadriplegic. This seems hard to justify for a couple of reasons. For one, suicide attempts are frequently failures: it’s perfectly coherent to imagine someone who wants to end their life and yet is worried about getting it wrong and ending up worse off than before. They might be perfectly physically able, but want to make sure that they get it right. If we’re going to concede that not all assistance in suicide will attract prosecution, it’s not easy to see why the physical ability of the would-be suicide makes all that much of a difference. Moreover, we might imagine someone who is physically able, and who is a thanatological expert, but who simply wants to ensure that noone has the unpleasant surprise of finding his body after the event. ”Assistance” could, I assume, stretch to the provision of a place to commit suicide – indeed, one of the other considerations in favour of prosecution is that
[t]he suspect was acting in his or her capacity as a person involved in the management or as an employee (whether for payment or not) of an organisation or group, a purpose of which is to provide a physical environment (whether for payment or not) in which to allow another to commit suicide.
- but making such a provision seems as though it could actually be admirable. (Granted, a consideration in favour of prosecution isn’t a guarantee of prosecution – but I think the point stands.)
Another consideration in favour of prosecution is that
[t]he suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional, a professional carer (whether for payment or not), or as a person in authority, such as a prison officer, and the victim was in his or her care.
This, too, is odd. One of the reasons for the oddity follows from the previous point: the guidance seems to say that a competent person helping you to die in a professional capacity is more worrisome to the law than a family member who has no physiological, pharmacological or thanatological insight helping you. Yet it seems to me that we do have a reason to trust professionals on this, and worries about mixed motives – say, in respect of the will – seem more acute in relation to family members than to professionals (and the guidelines do emphasise that compassion must be the only motivation). Another reason is one at which I hinted in my earlier post: the guidance seems to be discriminatory, inasmuch as it makes suicide harder the more isolated you are. For example, an elderly person may find that their doctor is the person whom they see most, whom they trust most, and so on. The doctor may be the only person who could help.
On the other hand, there are considerations against prosecution. These seem welcome, but they’re potentially unclear. For example, saying that
[t]he suspect [must have been] wholly motivated by compassion.
seems difficult to assess, and we might well wonder what a consideration to the effect that
[t]he actions of the suspect, although sufficient to come within the definition of the crime, were of only minor encouragement or assistance
actually means. What’s the criterion of a minor or major encouragement or assistance? And what’s encouragement doing there at all, given (a) the expectation that
[t]he suspect had sought to dissuade the victim from taking the course of action which resulted in his or her suicide.
and (b) the rather more workaday expectation that there’s something a bit rum about encouraging suicide at all – I don’t think anyone is advocating encouragement.
The DPP is to be praised for having at least attempted to clarify the considerations behind prosecutions… but I foresee more, not fewer, arguments to come.