Critically Assess The Significance Of The House Of Lords’ Recent Ruling In R (On The Application Of Purdy) V Director Of Public Prosecutions  UKHL 45.
In the United Kingdom it is not against the law for someone to commit suicide. It is however unlawful to help (e.g. assist) someone who wants to commit suicide. Section 2(1) of the Suicide Act 1961 states; ‘A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years.’ Section 2(4) of the Suicide Act states; “no proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions”.
In April 2008 Ms Purdy started proceedings against the Director of Public Prosecutions (DPP) seeking judicial review of the refusal of the DPP to publish details of his prosecution policy in relation to offences committed under Section 2(1) of the Suicide Act 1961. Ms Purdy has primary progressive Multiple Sclerosis. As the term already suggests this is a progressive disease, with no known cure. Ms Purdy is currently in a wheelchair and has increasing difficulty carrying out Activities of Daily Living. Ms Purdy’s condition will inevitably deteriorate further. The time will come a time when the Multiple Sclerosis will have progressed to such a stage that her quality of life will no longer be of an acceptable quality to her. When that happens she wishes to end her life by committing suicide. She is however most likely to be unable to do so without the assistance from her husband once she has reached that stage. Ms Purdy is therefore planning on travelling to the Dignitas clinic in Switzerland to commit suicide there. Her husband wants to accompany to her Switzerland and will therefore help her in making this journey. The purpose of the judicial review was to seek clarification on what the likelihood was Mr Puente would be prosecuted upon his return to England after the suicide.
In Purdy v Director of Public Prosecutions it was argued that the DPP was acting unlawfully in one of two ways;
- either by not disclosing the policy which would be applied in the case of assisted suicide abroad
- or by not disclosing the specific criteria that would be applied based upon which the decision to prosecute would be taken.
Ms Purdy also argued it was unlawful as the failure of the DPP to do the above would constitute an interference with article 8(1) of the Human Rights Act 1998. This article states; “everyone has the right for his private and family life, his home and his correspondence.” Purdy lastly argued that it was neither “in accordance with the law” nor “proportionate in the absence of any policy setting out the circumstances in which a prosecution will be brought” as described in article 8(2) of the Human Rights Act 1988.
The Divisional Court of the Queen’s Bench Division dismissed her claim and the Court of Appeal (Civil Division) dismissed her appeal. Ms Purdy then appealed the Court of Appeal’s dismissal.
In July 2009 The House of Lords unanimously ruled in favour of her claim. The House of Lords stated that the present law did interfere with Ms Purdy’s right to respect for private life; “she has the right to determine how she wants to die which is part of the act of living.” Additionally the House of Lords required the DPP to formulate an offence-specific policy identifying the factors that would be taken into account by the DPP when deciding to exercise discretion on whether or not to prosecute.
On the 23rd September 2009 the DPP published an interim policy statement including 16 factors that might incline him to prosecute in cases of assisted suicide and 13 factors that might incline him not to do so. The interim policy is already in force but is the subject of a public consultation ending on the 16th of December.
Different figures are quoted by different sources but it seems safe to say that to date at least 100 people from the United Kingdom are known to have travelled to Dignitas in Switzerland to have an assisted suicide. These people were most likely accompanied and helped by family and friends at various stages of this process. Of these, possibly more than a 100 cases, only 8 have been referred to the DPP for a decision as to whether or not “the assistant” should be prosecuted. In 6 of these 8 cases the decision not to prosecute was taken on the grounds of “insufficient evidence”. In the remaining 2 cases, prosecutions had not proceeded on grounds that it was “not in the public interest to do so”.5
It is thought that currently more than 800 people in the United Kingdom are registered members of Dignitas.5 If each of these people is accompanied by at least one but possibly two people at the very least 800 people might be liable to prosecution in the future.
So what significance does the House of Lords ruling have in the Purdy case?
The ruling has not changed the current law; suicide remains legal but assisted suicide (physician or otherwise) is illegal. The statement issued by the DPP as a result of the ruling is helpful in providing clarification of the circumstances in which prosecution is likely or unlikely to proceed in cases of assisted suicide abroad. The DPP however has not clarified what will happen if the assisted suicide were to take place in Britain.
The Purdy case and its subsequent last and historic ruling of the House of Lords has re-stimulated the debate over assisted suicide. In the same way, the much publicised suicide of Daniel James, who was only 23 years of age, at Dignitas in September 2008 and the double suicide of Sir Edward Downes, the composer, and his wife at Dignitas in July 2009, have made more people become involved in the debate. Increasingly the question being raised is why people who are terminally ill should have to travel abroad instead of being able to die at home in the United Kingdom surrounded by the people they love. An opinion poll performed on behalf of the Times in July 2009 showed that 74% of people were in favour of physician assisted suicide in case of a terminal illness and 60% of people were in favour of changing the law to allow assisted suicide by someone close to the person expressing the wish to die. More specifically, it showed that 67% of people were in favour of assisted suicide in “certain circumstances” with these circumstances being described as; a terminal illness (95%), suffering extreme pain(56%), a degenerative condition (65%), severe physical disability (48%) or people who simply wish to die at the same time as a long-term spouse or partner who has a terminal illness (34%). Interestingly a recent survey performed amongst physicians showed that more senior doctors in England and Wales oppose steps towards the legalization of assisted dying than support this.
Organisations like “Care not Killing”, the British Medical Association (BMA) and The Church of England have expressed concern about the interim policy. They urge the DPP to clarify the regulations outlined in his interim policy as all concerned fear there is room for misinterpretation of the policy. Recently the BMA issued a statement in which they restated their position on assisted suicide; “to avoid actions that might be interpreted as assisting, facilitating or encouraging a suicide attempt”.The situation of people accompanying those who wish to commit suicide abroad was discussed by doctors at the 2009 Annual Representatives Meeting (the policy making body) of the BMA, however with a vote that was nearly 50:50 they decided not to make policy on the issue.
Clarification of the policy and legislation on assisted suicide in Britain is needed even more so now as Switzerland is proposing legislation to limit or even ban the practice of assisted suicide . The Swiss government has put forward two proposals, one would see assisted suicide banned altogether, while the second, and most likely to be approved, would limit the practice to the terminally ill. The option of banning assisted suicide altogether would, according to the council which drafted the proposals, ensure that the person committing suicide is doing so of their own free will and that the person assisting them is not driven by personal gain. The second proposal would make assisted suicide an option only for those suffering from a terminal illness. If either of these proposals are accepted, people suffering from a chronic illness and / or who have a mental illness can no longer commit suicide through assisted suicide.
Swiss Justice Minister Schlumpf argued in favour of an individual’s right to choose the moment of their death. She however ruled out the practice of foreigners arriving in Switzerland and dying within days.
So the debate after the Purdy case and inevitable after the ruling in Switzerland will, both inside and outside Parliament, turn to whether assisted suicide should be lawful in Britain or not.
Central to the discussion of assisted suicide is how assistance is defined. Does it mean assisting the actual act or does it mean assisting the person travelling to the place where the actual act of assisting suicide will take place as argued in Robert Millar (Contractors) Ltd and Baxter. In March 2009, Ms Belecciu, a member of the Australian organisation Exit International, died in a motel room in Melbourne (Australia) after drinking a lethal dose of the Euthanasia drug, Nembutal. Ms Belecciu had terminal cancer. A year previously, in January 2008, Ms Belecciu paid for two other elderly (one of whom was also terminally ill) Exit members to travel to Mexico to obtain Nembutal on her behalf. They returned with 3 bottles of the drug. Ms Belecciu was alone when she took her Nembutal and died. If Ms Belecciu lived in the United Kingdom would the elderly couple who went to Mexico to get the Nembutal be prosecuted? Possibly very soon Nembutal will be available to purchase online. Who would be assisting then, the supplier, the postman or possible even the internet provider?
Any new law that removes the criminal sanctions against assisted suicide runs into the extremely difficult question of how to distinguish between compassionate assistance and malicious encouragement. Child psychologist Tanya Byron’s recent report for government, Safer Children in a Digital World, identified websites promoting suicide as an area where there is some confusion about the application of the law to online activity. In 2009, three clauses in the Coroners’ and Justice Bill on assisted suicide focussed on the dissemination of information via the internet. In the notes accompanying the Bill it is made clear that a person posting information on the internet about suicide techniques commits an offence even if it is not read by anyone known to the author. The intention to provoke suicide, implied by the giving of the information, is enough. Often it is argued that legalising a practice will increase it, however research by van der Heide from the Netherlands has shown that the Dutch Euthanasia Act was followed by a modest decrease in the rates of euthanasia and physician-assisted suicide. Van der Heide thought that the decrease may have resulted from the increased application of other end-of-life care interventions, such as palliative sedation.
The law lords’ ruling makes it clear that the discretion of the DPP (action that so far has not been exercised) is not enough anymore where it concerns assisted suicide. The need for clarity is paramount.
Coroners and Justice Act 2009 c.25 s(59)
Human Rights Act 1998 s8(1)
Human Rights Act 1998 s8(2)
Suicide Act 1961 s2(1)
Suicide Act 1961 s2(4)
Baxter  1 Q.B. 1 CA (Crim Div)
Hasan v Bulgaria (30985/96) (2002) 34 E.H.R.R. 55;
Pretty v United Kingdom  2 F.L.R. 45
R (on the application of Purdy) v Director of Public Prosecutions  UKHL 45.
R. (on the application of Pretty) v DPP  UKHL 61
Robert Millar (Contractors) Ltd)  2 Q.B. 54 CA (Crim Div)
F. Gibb, ‘Historic last words that bring years of uncertainty and fear to an end’ Times Online (30 July 2009) < http://business.timesonline.co.uk/tol/business/law/article6733943.ece?token=null&offset=0&page=1> accessed 7 December 2009
S. Chahal, ‘Human Rights: clarifying the law on assisted suicide’ Law Society Gazette (20 August 2009) < http://www.lawgazette.co.uk/in-practice/human-rights-clarifying-law-assisted-suicide> accessed 10 December 2009
W. Lee, ‘Survey of doctors’ opinions of the legalization of physician assisted suicide. BMC Med Ethics. 2009 Mar 5;10:2
‘BMA comment on Director of Public Prosecution’s guidance on assisted dying’ British Medical Association (29 September 2009) < http://www.bma.org.uk/ethics/end_life_issues/dppassisteddying.jsp> accessed 7 December 2009
Mission and Public Affairs Council, Response to the Director of Public Prosecutions’ consultation on the interim policy for prosecutors on assisted suicide’ Church of England (November 2009) < http://www.cofe.anglican.org/protectinglife/dppnov09.pdf > accessed 7 December 2009
“Swiss crackdown on ‘suicide tourism’ could spell end of Dignitas clinic’ Mail Online (29 October 2009) accessed 10 December 2009
R Boyes, ‘Swiss crackdown on ‘suicide tourism’ could spell end of Dignitas clinic’ Times Online (29 October 2009) < http://www.timesonline.co.uk/tol/life_and_style/health/article6894726.ece> accessed 12 december 2009
‘Angy’s Choice – 57 year old Palliative Care Nurse Achieves a Peaceful Death’ Exit International (23 March 2009) < http://www.exitinternational.net/> accessed 12 December 2009
A. Van der Heide et al, ‘End-of-Life Practices in the Netherlands under the Euthanasia Act’ (2007) NEJM 356 (19), 1957-65
CNN, ‘Swiss plan controls on ‘suicide tourism’ ‘ CNN (29 October 2009) < http://edition.cnn.com/2009/WORLD/europe/10/29/assisted.suicide.switzerland/index.html> accessed 7 December 2009
‘Swiss crackdown on ‘suicide tourism’ could spell end of Dignitas clinic’ Mail Online (29 October 2009) accessed 10 December 2009
‘Swiss plan controls on ‘suicide tourism’ ‘ CNN (29 October 2009) < http://edition.cnn.com/2009/WORLD/europe/10/29/assisted.suicide.switzerland/index.html> accessed 7 December 2009
‘DANGER TO PUBLIC SAFETY’ Care not Killing (15 November 2009) < http://www.carenotkilling.org.uk/?show=855> accessed 10 December 2009
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