The Director of Public Prosecutions has today published interim guidelines on prosecutions for assisted suicide in England and Wales – they’re available here (and Northern Ireland will get its own consultation process). I’ve not had time to consider them in full, but there’s a number of things that stand out to me as worthy of comment.
First, and most importantly, the guidelines do not make any difference to the legal status of assisted suicide in England and Wales. What they do is make clear the considerations that determine whether or not it’s in the public interest to proceed with a prosecution, on the understanding that not every formal transgression of the law merits judicial attention (much less punishment). That strikes me as being exactly how things’ve always been anyway, and how they should be. The criminal law should be concerned with punishing wrongful action, but it’s inevitably going to be the case that some actions are not wrong even though they contravene the law; others may be wrong, but still not the kind of thing that it’s in the public interest to pursue. Assisted suicide could fit into either of these boxes.
There’s a couple of more specific points that draw my attention.
One of the factors in favour of prosecution is that
[t]he victim did not have a terminal illness; or a severe and incurable physical disability; or a severe degenerative physical condition from which there was no possibility of recovery
This is very different from the proposals in the Joffe Bill a few years ago: Joffe had proposed that assisted dying should be legalised for those who were suffering unbearably from a terminal illness. As far as I can see, the DPP makes no allusion to unbearable suffering – and this is to be welcomed, for a few reasons. In the first place, we’d presumably want a request for assisted suicide to be clear-headed, and insisting that a person be suffering at all, let alone unbearably, seems to make this less likely. Second, there might be times when a person foresees that he will suffer unbearably, and prefers not to have to suffer at all. This seems like a reasonable preference, and to insist that you should have to be suffering unbearably before assistance is available is a bit like telling a gambler that he must stay at the roulette wheel until he’s lost his house. Third, I don’t see why suffering is important. For sure, I can’t imagine why anyone who isn’t suffering and doesn’t expect to would want to die right now – but I can’t see why anyone’d want to watch Strictly Come Dancing either; yet they do, and it’s their choice.
The DPP also says that prosecution is still an option if
[t]he suspect was not wholly motivated by compassion; for example, the suspect was motivated by the prospect that they or a person closely connected to them stood to gain in some way from the death of the victim
– and this seems fair enough. However, he also suggests that prosecution is less likely if
[t]he suspect was the spouse, partner or a close relative or a close personal friend of the victim, within the context of a long-term and supportive relationship.
Again, I can see the thinking in this, but I’d be inclined to treat it gingerly. Most obviously, just because it’s spouses, partners, or close friends and relatives who’re most likely to benefit from a person’s death, these two points of consideration seem to be in tension. Obviously, it’s possible for a person to be motivated wholly by compassion even though they know that they stand to benefit, and I’d like to think that if I was ever in the position of being asked to assist with the suicide of someone from whose death I would benefit it’d be compassion rather than lucre that did all the moral work in my deliberations. (Hello, Mum! Hello, Dad!) All the same, people aren’t always the best judges of their motivations, and it might be difficult to ensure that the competing motivations that a person may feel are kept in the right box. (I’m perfectly aware, after all, that it’s hard for people not to think of their inheritance, even though they might not like the fact that they’re thinking about it and might genuinely believe that they oughtn’t to be. Hello, Mum! Hello, Dad!) The paradox is that, since the closer the relationship, the higher the chance of benefit, it follows that the closer the relationship the more reason we have to distrust the motivation of the suspect.
Another point about this criterion is that it could be interpreted as ageist, inasmuch as the older you are, the more likely you are to be socially isolated; for some people, a doctor might be the person to whom they turn, just because there’s noone particularly close. It’d be unfortunate if a consequence of the DPP’s guidelines were that it was only the young and popular who could captialise on them, and if doctors felt that they couldn’t assist with the genuine request of an elderly patient.
Granted, the guidelines are only that, and rightly so. Anyone who treats them as a set of boxes to be ticked has misinterpreted them, and is probably so lacking in compassion that I wouldn’t want them within a hundred metres of me if I was considering suicide anyway. There’s to be further consultation, though; it’ll be interesting to see how things shake out.