Advances in psychiatric treatment (2014), vol. 20, 369–377 doi: 10.1192/apt.bp.113.011668 Crossing the Rubicon? Legal ARTICLE developments in assisted suicide† Susan F. Welsh Current law and assisted suicide Susan Welsh is a consultant SUMMARY psychiatrist for older people in UK law on assisted suicide and euthanasia is very In England and Wales, at common law, suicide Cambridge and, until recently, was clear: it is unlawful. However, there have been used to be a criminal offence. Although a person a member of the Special Committee for Professional Practice and Ethics successive proposals for changes to legislation who actually died by suicide would be beyond the (SCPPE) at the Royal College of in this area (in England and Scotland) and a series reach of the criminal justice system, this was not Psychiatrists. She studied for an of individual challenges to current legislation in true for those who survived a suicidal act: they MPhil in Medical Law as part of the courts. This article does not seek to debate risked being prosecuted, as under common law it her higher specialist training, under the profound ethical arguments that surround was an offence to attempt to commit a crime. Professor Sheila A. M. MacLean, and is currently studying part-time this emotive subject, but instead to portray how The Suicide Act 1961 changed this situation: the law, through court judgment and legislative for an LLB. Her interests are mainly in the area of medical law and pro posals, has wrestled with opposing views, ‘the rule of law whereby it is a crime for a person to commit suicide is hereby abrogated’ (section 1). ethics pertaining to psychiatry. particularly over the past decade or so, as the Correspondence Dr Susan impact of the Human Rights Act has presented However, section 2 of the Act as originally enacted F. Welsh, Beechcroft, Fulbourn unique challenges. Some of our closest European states: Hospital, Cambridge CB21 5EF, UK. neigh bours have diverse legislation that could Email: [email protected] ‘a person who aids, abets, counsels, or procures influence our own legislature, and, from across the suicide of another, or an attempt by another the Atlantic, the Oregon Death with Dignity Act to commit suicide, shall be liable on conviction †For a commentary on this article, is being mir rored in proposals to change the law on indictment to imprisonment for a term not see pp. 378–379. in the UK. exceeding 14 years’. LEARNING OBJECTIVES Section 2 has since been amended by the • Be able to recognise the impact of the Human Coroners and Justice Act 2009 in response to Rights Act on challenges to legislation relating to legal challenge (see below). This Act, together with assisted suicide. guidance for the prosecutors (Director of Public • Understand proposals for statute. Prosecutions 2010) setting out factors favouring • Appreciate how certain other countries legislate and against prosecution, clarifies the law. There in this area. have been high-profile media reports (both before and after these clarifications were made) of DECLARATION OF INTEREST individuals being accompanied to the Dignitas None. clinic in Switzerland for the purpose of assisted Nowhere are opinions more polarised in BOX 1 Euthanasia contemporary medical law and ethics than in the debates about voluntary euthanasia (Box 1) and • Euthanasia and assisted suicide are illegal under assisted suicide. Recent challenges in the English English law. Euthanasia is regarded as manslaughter or courts, and a Private Member’s Bill tabled in the murder, punishable by law with a maximum penalty of House of Lords in May last year by Lord Falconer life imprisonment (House of Lords 2013), ensure that the subject • Voluntary euthanasia is where a person makes a retains centre stage in the public arena. Lord Goff conscious decision to die and asks for help in this confirmed in Airedale NHS Trust v Bland [1993] • Non-voluntary euthanasia is where a person is unable AC 789 that: to give consent ‘it is not lawful for a doctor to administer a drug to • Active euthanasia is deliberately intervening to end his patient to bring about his death, even though someone’s life that course is prompted by a humanitarian desire • Passive euthanasia is where a person causes death by to end his suffering, however great that suffering withholding or withdrawing treatment that is necessary might be […]. So to act is to cross the Rubicon which runs between on the one hand the care of the living to maintain life patient and the other hand euthanasia […]’. 369 Welsh The Court decided, however, that she was BOX 2 The European Convention on Human unable to show that the DPP’s refusal to guarantee Rights that her husband would not face prosecution (if The UK was one of the first countries to sign up to he helped her to take her own life) under section the European Convention on Human Rights (ECHR) in 2 of the Suicide Act 1961 amounted to a breach 1951, after it was drawn up by the Council of Europe of her rights under the ECHR, concluding (R in 1950. It came into force in 1953. It has been ratified (on the application of Pretty) v Director of Public by all 47 member states of the Council of Europe. It is a Prosecutions [2001] UKHL 61) that: requirement for any member state of the European Union (EU), therefore all 28 EU member states are signatories. • under article 2 (the right to life), there is no negative aspect, i.e. it does not include a right to die • under article 3 (the prohibition of torture and suicide (Crown Prosecution Service 2008; Powell inhumane treatment), the State is under no 2009), and of such acts occurring closer to home obligation to sanction acts that lead to death (Burns 2010) without any prosecutions taking • under article 9 (freedom of conscience), there was place. Earlier this year the media reported on the no interference with this freedom case of a woman who helped her elderly parents in • under article 14 (the prevention of discrimi- England to take lethal drugs that she had ordered nation), the law was justified in failing to over the internet, at their request. Her parents had distinguish between those who were capable of been rejected by Dignitas because of her mother’s ending their own life and those who were not. dementia. The mother’s psychiatrist gave evidence at the inquest into their deaths that her patient did Article 8, however, was more complex, with not have capacity and was susceptible to coercion. article 8(1) stating that ‘everyone has the right to The Crown Prosecution Service (CPS) decided respect for his private and family life, his home it was not in the public interest to prosecute the and his correspondence’, which means that people daughter (Urquhart 2014). have a right to self-determination. Article 8(1) is The law on assisted suicide in Northern Ireland not an absolute right, but a qualified right. Article is the same as the law in England and Wales. 8(2) further specifies that: In Scotland there is no specific crime of assisted ‘there shall be no interference by a public authority suicide, but people who assist in the suicide of with the exercise of this [article 8(1)] right except such as is in accordance with the law and is necessary another may be liable for prosecution for the crime in a democratic society in the interest of national of culpable homicide. security, public safety, or the economic wellbeing of the country, for the prevention of disorder or Case law challenges crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’ The Human Rights Act 1998, which incorporated (emphasis added as pertinent to later discussion), the European Convention on Human Rights thus limiting article 8(1) in certain clearly speci- (ECHR) (Box 2) into UK law in 2000, has led to a fied circumstances, and any limitation must be series of legal challenges to the Suicide Act 1961, proportionate, i.e. must not go beyond what is the first by Dianne Pretty in 2001. absolutely necessary to achieve the aim under The case of Dianne Pretty article 8(2). In the case of Pretty [2001] Lord Bingham Ms Pretty was suffering from motor neuron stated: disease, and took civil proceedings in the English courts by means of judicial review (Box 3) of a ‘I would for my part accept the Secretary of State’s submission that Mrs Pretty’s rights under decision by the Director of Public Prosecutions article 8 are not engaged at all. If, however, that (DPP) on the criminal law matter of complicity in conclusion is wrong, and the prohibition of assisted suicide and its compatibility with the ECHR. suicide in section 2 of the 1961 Act infringes her convention right under article 8, it is necessary to consider whether the infringement is shown by the BOX 3 Judicial review Secretary of State to be justifiable under the terms of article 8(2)’. A mandatory order, prohibiting order and quashing And furthermore (in referring to the Suicide order are remedies for individuals who successfully Act 1961), challenge acts of public officials or public authorities in ‘the power to dispense with and suspend laws the Administrative Court of the High Court in England and and the execution of laws without the consent Wales. of Parliament was denied to the Crown and its servants by the Bill of Rights 1689’. 370 Advances in psychiatric treatment (2014), vol. 20, 369–377 doi: 10.1192/apt.bp.113.011668 Crossing the Rubicon? with her rights under article 8(1).