Thus, in the current context, the recent DPP guidelines on whether someone might be prosecuted for assisting a suicide, in my opinion, still leave a vulnerable individual open to both exploitation by relatives and also the possibility of a bungled, amateurish suicide attempt. Yet under the current DPP guidelines a disinterested third-party doctor is more likely to be prosecuted 15 even if the doctor offered better objective assessment of all the possible alternatives including better palliative care symptom control and, if needed, a better performed, more painless death by euthanasia.
The problems with leaving the law as it currently stands is that the UK is currently exporting its most problematic cases to countries such as Switzerland which allow offering assisted suicide to foreigners [17]. This is causing some concern in Switzerland, which may eventually close its doors to the Germans and English who are the two largest groups of non-Swiss people who go to the Dignitas Clinics.16
Passive euthanasia and acts of omission in medical practice Acts of omission which may shorten life are generally also allowed if the medical treatment offered is futile in that it has no realistic prospect of restoring a patient to a previous acceptable state. 15
Mr Starmer said: ‘Following the instructions of the Law Lords in the case of Debbie Purdy, I am today clarifying those factors of public interest which I believe weigh for or against prosecuting someone for assisting another to take their own life. Assisting suicide has been a criminal offence for nearly fifty years and my interim policy does nothing to change that. There are also no guarantees against prosecution and it is my job to ensure that the most vulnerable people are protected while at the same time giving enough information to those people, like Ms Purdy, who want to be able to make informed decisions about what actions they may choose to take.’ The public interest factors in favour of prosecution, as identified in the interim policy, include that: 1) the victim was under 18 years of age; 2) the victim's capacity to reach an informed decision was adversely affected by a recognised mental illness or learning difficulty; 3) the victim did not have a clear, settled and informed wish to commit suicide, for example, the victim's history suggests that his or her wish to commit suicide was temporary or subject to change; 4) the victim did not indicate unequivocally to the suspect that he or she wished to commit suicide; 5) the victim did not ask personally on his or her own initiative for the assistance of the suspect. Mr Starmer’s guidelines continue: 7) the 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; 8) the 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; 9) the suspect persuaded, pressured or maliciously encouraged the victim to commit suicide, or exercised improper influence in the victim's decision to do so; and did not take reasonable steps to ensure that any other person did not do so. The public interest factors against a prosecution include that: 1) the victim had a clear, settled and informed wish to commit suicide; 2) the victim indicated unequivocally to the suspect that he or she wished to commit suicide; 3) the victim asked personally on his or her own initiative for the assistance of the suspect; 4) the victim had a terminal illness or a severe and incurable physical disability or a severe degenerative physical condition from which there was no possibility of recovery; 5) the suspect was wholly motivated by compassion; 6) the 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; 7) the actions of the suspect, although sufficient to come within the definition of the offence, were of only minor assistance or influence, or the assistance which the suspect provided was as a consequence of their usual lawful employment. Mr Starmer continued: ‘As this policy states, assessing the public interest is not simply a matter of adding up the number of factors on each side and seeing which side of the scales has the greater number. Each case must be considered on its own facts and its own merits. Prosecutors must decide the importance of each public interest factor in the circumstances of each case and go on to make an overall assessment. "I also want to make it perfectly clear that this policy does not, in any way, permit euthanasia. The taking of life by another person is murder or manslaughter – which are among the most serious criminal offences’ (http://www.cps.gov.uk/news/press_releases/144_09/ accessed 23 May 2010). 16 Dignitas was founded in 1998 by Ludwig Minelli, a Swiss lawyer. Dignitas ensures that it acts as an entirely neutral party by proving that, aside from non-recurring fees, it has absolutely nothing whatsoever to gain from the deaths of its members. Dignitas had thus far assisted 840 people to die, 60% of them Germans and also approximately 100 British citizens. People considering suicide need to be assessed by a doctor. There are considerable criticisms of the Dignitas model, including a lack of transparency and also a disturbing report in allowing a healthy person to commit suicide when she forged a doctor’s letter stating that she had a terminal disease. (http://en.wikipedia.org/wiki/Dignitas.
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Journal of Observational Pain Medicine – Volume 1, Number 1 (2012) ISSN 2047-0800