By Rebecca Limb.

Assisted dying is unlawful in England and Wales. To end or assist in the ending of another’s life out of compassion for and/or at the direction of the victim is not a defence to murder. A suspect will be prosecuted where there is sufficient evidence and it is in the public interest to do so. With regards to the public policy requirement, the policy for ‘prosecutors in respect of cases of encouraging or assisting suicide’ directs prosecutors to carefully consider the facts of each case and weigh up a list of factors to determine whether they tend against or in favour of prosecution. The factors include but are not limited to:

1. The motivations of the suspect: are they acting purely out of compassion or is the suspect motivated by the prospect that they stand to gain financially, personally, or otherwise from the victim’s death?
2. The characteristics and desires of the victim: is the victim aged over 18?; Before their death had the victim reached and/or communicated a voluntary, clear, settled, and informed decision to end their life?; Had they sought assistance from the suspect?; Were they able to end their own life without assistance?
3. The nature of the victim’s and suspect’s relationship: is the relationship familial or professional?; Did the suspect end the victim’s life whilst acting in their capacity as a healthcare professional, police or prison officer, or a member of an organisation or charity?

On the 5^th October 2023, the CPS issued an update to their Code for Crown Prosecutors inserting within this document a new factor tending against prosecution in cases of ‘mercy killings’. The section reads:

They [the victim] must have the freedom and capacity to make such a decision. This decision must have been made sufficiently close in time to their death and independently reached by the victim and not influenced by pressure, control or coercion by the suspect or anyone else. This requires thorough scrutiny and critical examination of the suspect’s account, on its own and when placed in the context of the evidence as a whole. Prosecutors should consider what access the victim had to health care professionals including discussions about treatment and support options.

Although “nothing in this policy can be taken to amount to an assurance that a person will be immune from prosecution…” this section, when read in tandem with the entire policy, indicates that the CPS is less likely to prosecute someone suspected of unlawfully ending another’s where evidence points to the victim being an adult with full capacity. If, shortly before their death and after consulting relevant healthcare professionals, the victim had freely and voluntarily sought assistance to end their life—likely because their medical condition’s progression prevented them from doing so on their own—it further suggests prosecutorial restraint. For some, this update may be considered progressive and a step towards the long campaigned for legalisation of assisted suicide respecting the autonomy and dignity of persons living with life-limiting medical conditions. Conversely, for commentators arguing against the legalisation of assisted suicide this policy is a threat to existing law in effect permitting assisted suicide through the back door by making it increasingly more unlikely that a suspect will be prosecuted where they take the life of another person out of compassion or ‘mercy’ for the victim.

As the factors tending against prosecution for assisted suicide increase and the fear of prosecution decreases, more families may consider the practice of assisted suicide. As the latest figures reveal, assisted suicide is already happening. Between 1 April 2009 and 31 March 2023 there were 182 suspected mercy killings referred to the CPS for consideration. 125 were not prosecuted and a further 35 cases were withdrawn by the police. An argument in favour of the legalisation of assisted suicide is that the practice, that is already happening in people’s homes, can be regulated. By not legalising assisted suicide yet increasing the factors where prosecution is unlikely, the new policy is in effect keeping assisted suicide behind closed doors and away from regulators and organisations that could implement safeguards to protect the most vulnerable. It is argued that legalising assisted suicide would lead to the enactment of safeguards that limit access of assisted dying to truly autonomous adults.

A fear associated with the legalisation of assisted suicide is that despite the most robust laws, there will come a time where the life of one or many persons will be taken who did not make an autonomous decision to end their life. Perhaps they will be unduly pressured by their family and friends, appeared to have capacity to make the decision when in fact they did not have capacity or they made the decision to prematurely end their life because of their extreme suffering which could have been alleviated had all palliative care options been explored.

Supporters of legalised assisted dying have long argued that it is possible to create robust safeguards to protect against such eventualities, however, despite the careful drafting of the Assisted Dying Bill 2015 and 2021 both were critiqued for insufficient safeguards and ultimately did not become law. Regulated or otherwise, the practice of assisted suicide will continue. The additional factor tending against prosecution in cases of assisted suicide may even make more people contemplate assisted suicide as the fear of prosecution is less. Worryingly, hidden from view, people will engage in the practice without appropriate safeguards, and it will remain unknown how many of the cases of mercy killing the CPS do not prosecute involved victims who were not truly autonomous and/or had not exhausted all palliative care options.

Thus, these recent changes to CPS policy ought to concern all sides of the debate.

Author: Rebecca Limb

Affiliations: University of Southampton

Competing interests: None declared