Healthcare briefing – Assisted dying: The final choice
On 16 May, the States of Deliberation of the Island of Guernsey will be asked to consider whether they agree in principle to the development of a suitable legal regime to permit assisted dying in Guernsey. It would be subject to the development of appropriate and effective capacity legislation and any other legislation which may be required.
The ‘Assisted Dying Requête’, which is the subject of the debate, was lodged on 26 February 2018 with the required 7 signatory deputies. If an agreement is reached to move forward Guernsey may become the first place in the politically connected British Isles to permit assisted dying.
The law on assisted death in the UK
So what is the position in the UK as regards assisted death? Under Section 2 of the Suicide Act 1961, encouraging or assisting a suicide is a crime, carrying a maximum sentence of 14 years in prison. Suicide ceased to be a crime in 1961. The taking of life through the intervention of or with the help of a third party continues to be proscribed. There is corresponding law in Northern Ireland and no specific law in Scotland.
Attempts to change the law
There have been a number of challenges in recent years to whether the prohibition on assisted suicide is compatible with human rights laws and in particular the right to respect for private and family life under Article 8 of the European Convention of Human Rights.
The case of Diane Pretty in 2002 established that the right to private life relates to the manner in which life is conducted, not the manner in which a person departs from life. It was stated that whilst Article 8 protects the physical, moral and psychological integrity of the individual, including rights over one’s own body, there is nothing to suggest that it confers a right to decide when or how to die.
The case of Debbie Purdy who campaigned for the ‘right to die’ in 2008/2009 led to the publication of CPS guidance in February 2010 intended to clarify when helping someone to end their life will result in prosecution. The Director of Public Prosecutions (DPP), Keir Starmer QC, said that debate about mercy killing made it important to draw a line between those who help a loved one to kill themselves and those who have ended someone else’s life. The guidance makes it clear that the case of Purdy did not change the law and that only Parliament can change the law on encouraging or assisting suicide.
Assisted Dying Bill
In 2014, Lord Falconer introduced an Assisted Dying Bill. The Bill proposed to allow terminally ill, mentally competent adults in England and Wales, with fewer than 6 months to live, to have an assisted death after being approved by two independent doctors. A High Court judge would review each case.
The Bill failed as there was not enough time for it to be adequately debated before the end of Parliament and the general election.
Revised guidelines for prosecutors in cases of assisted suicide were issued in October 2014 by DPP Alison Saunders. The DPP has discretion on whether to prosecute.
Disability rights campaigners Merv and Nikki Kenward were granted permission to proceed with a judicial review of the changes to the DPP policy. They were concerned that the wording in the guidance made it less likely that healthcare professionals would be prosecuted for assisting suicide. In December 2015, however, the High Court dismissed the application for judicial review. In January 2017 the Court of Appeal dismissed an application to contest the High Court decision.
In 2014 the Supreme Court delivered its reasons in the case of Tony Nicklinson who was seeking a declaration that the law on assisted suicide was incompatible with his right to a private life under Article 8 ECHR. The decision against making a declaration of incompatibility referred to Parliament’s legislative authority.
In September 2015 Rob Marris MP introduced an Assisted Dying Bill based on Lord Falconer’s earlier attempted legislation. This failed on 11 September 2015 following an overwhelming majority vote against changing the law.
European Court of Human Rights
In July 2015, the European Court of Human Rights (ECofHR) handed down its decision in the joined cases of Nicklinson and Paul Lamb on the law of assisted suicide, declaring it inadmissible for the Court’s consideration. The ECofHR recognised that the UK Parliament had considered the law on assisted dying several times in recent years. It said that the majority of the Supreme Court had dealt with the substance of Nicklinson’s claim, taking into account Parliament’s views. As a result, the ECofHR declared that case inadmissible, which meant that it would not consider the merits of the case.
Paul Lamb’s case was also declared inadmissible. This was on the basis that he had not presented his case i.e. that there should be a judicial procedure to authorise voluntary euthanasia to the UK Supreme Court. He had, therefore, not exhausted all available domestic remedies and the ECofHR would not rule on a matter which the UK courts had not had a chance to consider.
In January 2018 in the case of Noel Douglas Conway the Court of Appeal gave permission to appeal against the decision of the Divisional Court which had refused permission for Mr Conway to judicially review the criminalisation of physician assisted suicide under the Suicide Act 1961.
The Divisional Court had held that that Parliament had recently examined the issue following the Supreme Court decision in the 2014 Nicklinson case, and two out of three judges concluded that it would be ‘institutionally inappropriate’ for a court to declare that s.2(1) of the Suicide Act was incompatible with the right to privacy and autonomy under Article 8 of the ECHR.
Mr Conway’s appeal is expected to conclude this week.
Medical professionals continue to debate physician-assisted suicide.
Assisted suicide prosecutions are rare.
Throughout Europe there are a number of countries which allow assisted dying either under strict circumstances or in specific scenarios or in very broad terms (including voluntary euthanasia and physician assisted suicide).
Switzerland has permitted assisted suicide since 1942. It has been reported that at the end of 2017 one British person travelled to an assisted death in Zurich (where Dignitas is based) every 8 days at an average cost of £10,000.
If Guernsey decides to progress ‘right to die’ legislation this may lead to a constitutional clash with Britain as a result of its devolved powers and open up the debate further in this country about assisted dying.
For more information or guidance, please contact:
T. 020 7227 6758
 Pretty v United Kingdom (2346/02)  ECHR 423 (29 April 2002)
 R (on the application of Purdy) v DPP  UKHL45
 R (Nicklinson) v Ministry of Justice; R (on the application of AM) v The Director of Public Prosecutions  UKSC 38
 Nicklinson and Lamb v the United Kingdom (application nos. 2478/15 and 1787/15)
 Conway v The Secretary of State for Justice  EWCA Civ 16 (18 January 2018)
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.