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24 January 2020

Katie Wheatley, Head of our Criminal Defence and Extradition Team, comments on the law of assisted dying following the debate in Parliament

3 mins

Last year 18 Police and Crime Commissioners wrote to the Secretary of State for Justice, calling for an inquiry into the impact of the current law on assisted dying and the law on assisted dying was debated in Parliament yesterday. This is the latest milestone on a campaign that has been gaining momentum since the beginning of last year, following the experiences of Geoff and Ann Whaley, who I had the honour of meeting as a result of acting for Ann in connection with an allegation that Ann had encouraged or assisted Geoffrey in his plans to travel to the Dignitas Clinic in Switzerland to end his life.  It was a particularly stark example of how the law relating to assisted suicide is letting families down because Ann was investigated in the last precious weeks leading up to Geoffrey’s death before he travelled to Switzerland.

Suicide is not a crime. Yet S62 of the Suicide Act 1961 exposes families to an unenviable choice in circumstances where one family member who is suffering from a terminal illness and who is fully mentally competent decides to take their life at a time of their choosing; Do their loved ones accept their choice and support them with loyalty kindness and compassion with the accompanying risk of investigation and prosecution for encouraging or assisting, or do they refuse because the law prohibits it? 

Leaving aside those cases, another wholly unintended consequence of the current law may be that people suffering at the end of their lives feel unable to be open about how they chose to die for fear of incriminating family members and they may also fear seeking medical advice about all the options, leaving them isolated lonely and in fear when they most need understanding support and peace.

S2 of the Suicide Act 1961 states that it is an offence to carry out an act that is capable of encouraging or assisting another person’s suicide. There must also be an intention to encourage or assist. However, a person’s motive is irrelevant; the law applies equally to someone who supports a loved one in complex medical circumstances at the end of their life at one end of the spectrum and those with wholly improper motives at the other. There is no legal defence that can be invoked in circumstances where a fully mentally competent terminally ill person takes their own life and another person is deemed to have done something that could have encouraged or assisted them. The only option for a person who has acted in these circumstances will be to convince the Director of Public Prosecutions (DPP) that it is not in the public interest to prosecute them in accordance with Guidance published by the DPP.  Their actions will be considered a form of criminal conduct even when prosecution is not required. 

In response to a question posed by Ann Whaley at one of the Reith Lectures last year, Lord Sumpton suggested that people are not morally obliged to follow the law. However with so many people now being subject to investigation for doing no more than loving and supporting their mentally competent relative, then it is time for a review of the law to find a way of continuing to protect the vulnerable while also acknowledging a mentally competent person’s right to self-determination and the need for peace and privacy for them and their families.

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