DPP faces new legal challenge for ‘clarifying’ guidelines on prosecutions for assisted suicide

Perhaps surprisingly, the Sunday Times has been the only broadsheet newspaper to cover a landmark case (£) which challenges the powers of the crown prosecution service.

The CPS head Alison Saunders (pictured), Director of public prosecutions (DPP), is already in considerable hot water over her failure to prosecute Lord Janner for alleged sex abuse, an action she justified on grounds of him not being capable of standing trial because of dementia. This new development may add considerably to those difficulties. 

Sadly this latest case lies behind the Sunday Times paywall which has somewhat restricted it coming to the wider public attention that it deserves, so I will quote some of the article in this post. 

‘A woman who was once so paralysed she could only wink her right eye will this week launch a High Court challenge against “liberal” guidelines on assisted suicide brought in by Alison Saunders, the embattled director of public prosecutions (DPP).

Nikki Kenward, 62, will on Tuesday seek a judicial review after doctors and nurses who help severely disabled or terminally ill people to take their own lives were told that they are now less likely to face criminal charges.’

Kenward, a former theatre manager, was struck down by Guillian-Barre syndrome in 1990, aged 37.

She was initially fully paralysed for more than five months, and has been in a wheelchair since. She cannot tie her laces or hold a needle, but had a play staged last year and campaigns against euthanasia and assisted suicide through the Distant Voices pressure group. Her case is backed by the Christian Legal Centre.

Lawyers for Kenward will argue that Saunders exceeded her powers with a what she called a ‘clarification’ to the guidelines on prosecution for assisted suicide which she made last October (see my previous article here).

They will argue that she has entered a policy realm that should properly be a matter not for her but for parliament. They will also say that the attorney-general has failed in his duty to ‘superintend’ the DPP. In other words they will claim that she has gone beyond her remit which is to uphold the law and not to make the law.

To quote the Sunday Times again:

‘They are expected to argue Saunders’s guidance will “enable healthcare professionals operating on an ideological or other premise to offer their services to a person wishing to commit suicide . . . this is crossing the Rubicon”. They will add: it will “make any prohibition on a Dignitas-style of assisted suicide difficult to resist”.

“[It] weakens the protection given by parliament to people . . . coming under pressure to commit assisted suicide.”’

The fuller background to this case deserves unpacking.

Back in 2009, as a result of the Supreme Court judgement in the Debbie Purdy case, the DPP was required to make public the criteria by which he (then Keir Starmer) decided whether a prosecution in a given case of assisted suicide was in the public interest.

He published an interim policy and put it out to public consultation. After the consultation was completed he modified this interim policy and published his definitive policy in February 2010.

The summary of responses received and the responses themselves are still in the public domain.

The interim policy did not contain a paragraph about the role of medical professionals but as a result of the consultation one was included in the definitive policy.

It now says that a prosecution is more likely to be required if…

14. ‘the suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional, a professional carer [whether for payment or not], or as a person in authority, such as a prison officer, and the victim was in his or her care;’

Keir Starmer gave his reasons for including the new clause here.

Saunders, Starmer’s successor, subsequently ‘clarified’ the words in bold last October as follows:

‘For the avoidance of doubt the words "and the victim was in his or her care" qualify all of the preceding parts of this paragraph [43.14]. This factor does not apply merely because someone was acting in a capacity described within it: it applies only where there was, in addition, a relationship of care between the suspect and the victims such that it will be necessary to consider whether the suspect may have exerted some influence on the victim.’

The key questions raised by Kenward’s case are whether this amounts to a change in the policy or merely a clarification and whether the DPP should have made the change without consulting anybody.  

My own view is that DPP has actually crossed the line in both instances.

The relevant factors as I see it are as follows:

1. The ‘clarification’ makes it clear that doctors who do not have ‘a relationship of care between the suspect and the victims such that it will be necessary to consider whether the suspect may have exerted some influence on the victim’ are now not within the scope of this clause. This surely means that people like Philip Nitschke and Michael Irwin, who have made a name for themselves by assisting suicides in various ways whilst not being the patient’s primary care giver, are less likely to be prosecuted. This is real change in my view.  Irwin, who welcomed it as ‘a wonderful softening’ agrees with me. I think it is also clear from the current General Medical Council (GMC) guidance and Medical Defence Union (MDU) guidance (see also here) that these bodies did not understand the guidance in the way that Alison Saunders has now re-interpreted it. See below

2. Assisted suicide is contrary to all historical codes of medical ethics including the Hippocratic Oath, the Declaration of Geneva, the International code of medical ethics and the Statement of Marbella – which was reaffirmed by the World Medical association (WMA) as recently as 2013. The latter reads, ‘Physician-assisted suicide, like euthanasia, is unethical and must be condemned by the medical profession. Where the assistance of the physician is intentionally and deliberately directed at enabling an individual to end his or her own life, the physician acts unethically.’ So a strong argument could be made that this new ‘clarification’ is morally corrupting for the medical profession  as it makes possible their direct involvement in an unethical practice with far less possibility of prosecution.

3. Assisted Suicide is opposed by the British Medical Association, the World Medical Association, the Association for Palliative Medicine, the British Geriatric Society and virtually every Royal Medical College including the RCGP and the RCP.

4. The GMC makes it clear in its guidance on assisted suicide that ‘encouraging or assisted suicide’ is against the law. It makes no mention of any mitigating factors and warns doctors strongly against any involvement. It certainly does not convey the impression that doctors like Irwin, Nitschke etc are exempt. It is precisely this understanding of the law which led to Tony Nicklinson  and  Paul Lamb trying unsuccessfully to change it through the courts. Saunders seems now effectively to have done that at the mere stroke of a pen.

5. It is precisely people like Nitschke and Irwin who will push the envelope rather than ordinary GPs in a relationship of care with patients, although the ‘clarification’ does also give scope to GPs to do a little assisted suicide on the side with patients who are not ‘in their immediate care’. This clarification appears to give them free rein. 

6. The phrase ‘In their care’ can be interpreted in several different ways. One might argue that any doctor using his skill and expertise to help a patient kill themselves is actually involved in ‘care’ even if he is not their primary doctor.

7. The reason people responding to the original consultation pushed for the inclusion of the doctor clause in the first place was because of concerns about the unique position of doctors. Doctors possess the sort of knowledge and power that could easily be abused.  We have seen already how they push legal boundaries with abortion and how prosecutors are very unwilling to hold them accountable. This is why doctors need strong guidance and laws in place to ensure that some of them do not end up becoming the most dangerous people in the state. It is also why they should not be involved in assisted suicide.

8. As the doctor phrase (clause 14 quoted above) was introduced into the DPP guidance after, and as a direct result of, a lengthy public consultation (34% of respondents supported its inclusion) surely it should not be changed, or redefined, at a whim by the DPP without a similar public consultation. Simply asking medical bodies for their opinion would be inappropriate and inadequate – rather like asking the police about guidance on prosecuting policemen. This is why the GMC now has a strong lay membership because as a result of the Shipman case and others it was decided that doctors were not  capable of regulating themselves.

It seems to me that the DPP has not merely ‘clarified’, but actually changed the meaning and scope of the guidance. Furthermore she has made the change without apparently consulting anybody at all. 

I await the result of Kenward’s legal challenge with great interest.

 

The DPP needs to explain to Parliament why she has effectively decriminalised physician assisted suicide

In an astounding about face for the Crown Prosecution Service, the Director of Public Prosecutions, Alison Saunders (pictured), has today rewritten her prosecution policy so that doctors can now be involved in assisting suicide without fear of prosecution, provided they don't have a professional relationship with those they 'help' (See Daily Mail here and here,  Daily Telegraph, Yahoo, Premier, CT, ES).

The move has not surprisingly been welcomed by euthanasia campaigner Michael Irwin, and will also be music to the ears of Philip Nitschke.

Both Irwin and Nitschke are medical practitioners who have become media celebrities through their high profile campaigning for the legalisation of assisted suicide, and high profile assistance to those wanting to end their own lives.

Now it will be much easier for them to do so without a backward glance.

Michael Irwin was found guilty of serious professional misconduct by the General Medical Council in 2005 and was struck off the medical register after admitting supplying sleeping pills to help a friend kill himself. He now claims to have helped at least 25 people to die at the Dignitas facility in Switzerland. 

Irwin, nicknamed 'Dr Death' for his activities, said the change was a 'wonderful softening' that would 'make life easier' for people like him. 

Nitschke, who travels the world instructing people in how to end their lives using barbiturate drugs and nitrogen, is currently being investigated by police in every Australian state over his possible role in nearly 20 deaths in the past three years. 

Both men will now be able to sleep more easily in their beds and to continue their activities in Britain with considerably more peace of mind. And the DPP will no longer have to explain why she hasn't so far made moves to prosecute them.

Under the Suicide Act 1961, assisting or encouraging suicide remains a crime attracting a custodial sentence of up to 14 years.

But in order to be prosecuted any given case must pass two tests applied by the Crown Prosecution Service. The evidence test requires that there be enough evidence to bring a successful prosecution. The public interest test involves the application of 22 criteria, 16 making prosecution more likely and 6 making it less likely.

Up until now a suspect ‘acting in his or her capacity as a medical doctor, nurse, other healthcare professional, a professional carer [whether for payment or not]’ was more likely to be prosecuted.

But the DPP has now amended this criterion so that it only applies if the victim was in his or her care.

In other words, it will not apply in the case of doctors like Irwin and Nitschke who are assisting the suicide of people who are not actually their own patients.

This is very concerning indeed. The Director of Public Prosecutions is effectively at a stroke of her pen decriminalising assisted suicide by doctors and other health care professionals as long as they don’t have an existing professional care relationship with the patient.

This weakens the protections for sick and vulnerable people and effectively gives a green signal to anyone in Europe wanting physician assisted suicide that Britain is open for business. It also opens the door to a Dignitas style death ‘clinic’ being set up in the UK.

Alison Saunders’ new guidance is an invitation to doctors who wish to push the boundaries and assist people to kill themselves to have free rein and go ahead.

The DPP’s job is actually to administer the law, not to usurp the democratic authority of Parliament, which ironically (or was it by design?) is due to discuss this issue in just a couple of weeks’ time.

The DPP has justified her position by reference to a highly contentious statement by one of the judges in last June’s Nicklinson/Lamb judgement in the Supreme Court.

But in so doing she has run roughshod over the original meaning of her own prosecution guidance.

The original prosecution guidance, developed in 2010, made it abundantly clear that any doctor or other health professional who assisted with a suicide was running the risk of prosecution.

Furthermore the General Medical Council (GMC) has warned that such doctors risk censure, including being struck off the medical register (see details of DPP and GMC guidelines here). 

Medical defence agencies have interpreted it in this same way in their advice to doctors and it has provided a strong deterrent to doctors abusing their powers.

But now the DPP has swept all of this aside with the mere stroke of a pen. In so doing she is acting way beyond her brief by effectively decriminalising physician assisted suicide by stealth.

When the guidelines were originally drafted by the former DPP, Keir Starmer, they were made subject to lengthy and rigorous public consultation. 

But Alison Saunders, rather than fulfilling her duty of upholding the law, has effectively chosen to rewrite it without apparently consulting anyone at all.

By doing this just weeks before Parliament is due to debate the matter she is raising two fingers to British democracy.   

In May 2012, the Solicitor General said in a parliamentary debate that if ‘a future DPP overturned the guidelines, (s)he would be judicially reviewed for behaving in a rather whimsical way'. 

I hope that such a judicial review will now indeed take place. 

But more than that I hope rather that the DPP will be forced to go in front of Parliament to explain why she has rewritten the current law, ignored the will of MPs and peers and put at risk the lives of many vulnerable people in our country.

Government blocks attempt by pro-euthanasia lobby to fetter DPP in bringing prosecutions for assisted suicide

Last night the House of Lords discussed assisted suicide.

The one hour dinner debate, in which 30 peers spoke, was focused on the role of the Director of Public Prosecutions in cases of assisted suicide.

The DPP’s current prosecution policy for assisted suicide was published in February 2010 following Debbie Purdy’s successful appeal to the Law Lords for clarity on which cases of assisted suicide are likely to lead to a prosecution.

Purdy, who has multiple sclerosis, had sought to achieve an assurance that her husband would not be prosecuted should he accompany her to the Dignitas facility in Switzerland to end her life.

The pro-euthanasia lobby had hoped that this case would lead to an increase in the number of assisted suicides in Britain but actually since the policy was put in place the numbers have remained constant at about 20 per year. All that has changed is that more cases are now referred to the DPP!

In all, about 180 Britons have gone to Switzerland to end their lives, but whilst only 8 were referred to the DPP in the years 2003 to 2008, there were 50 referred between January 2009 and December 2011.

The debate, which is well worth reading in full, featured all the usual arguments from both sides, but was important for two reasons.

First it revealed the hand of the pro-euthanasia lobby ahead of a more important debate on assisted suicide next month in the House of Commons. Second it told us where the government stands on the issue.

So what does the pro-euthanasia lobby actually want?

Baroness Jay, a vice-chair of the All Party Group on Choice at the End of Life (aka the parliamentary wing of ‘Dignity in Dying’, the former ‘Voluntary Euthanasia Society’), laid out her agenda.

1.Negotiated immunity from prosecution for people intending to assist a suicide before the act has actually been committed (currently the assessment is made after the act)

2.More scope for doctors and nurses to help someone commit suicide (currently they are likely to be prosecuted under the DPP’s policy)

And how did the government respond?

Lord Wallace (pictured), replying on behalf of the government gave both these suggestions short shrift. He also very helpfully explained the respective roles of parliament and the DPP more clearly.

Lord Wallace said that we need to understand the distinction between the law on assisted suicide (which is set by parliament and is always subject to a conscience vote) and the DPP prosecution policy (which is set by the DPP within the general framework set by parliament).

The DPP is superintended by the Attorney General and through him is accountable to parliament but for parliament to alter the DPP’s guidelines would be to interfere inappropriately with his role.

‘There is a distinction, however, between that accountability (through the Attorney General), which is quite proper, and having guidelines and policies approved by Parliament that in some respects could fetter the independence of the decision of the prosecutor.’

It was never the intention that every case of assisted suicide would lead to a prosecution. Instead the role of the law is to act as a strong deterrent whilst the prosecution policy allows the DPP to show compassion on a case by case basis.

Lord Wallace explained that suspected cases need first to be investigated by the police and then referred to the DPP who would then decide whether there was enough evidence to bring a prosecution and whether it was in the public interest to proceed with one.

With regard to would-be assisters being granted immunity from prosecution by the DPP ahead of time, he said that this was beyond the DPP’s scope of authority.

‘Prospective immunity has never been granted. The DPP told (Lord Falconer’s) commission that,

“the position of the prosecutors has been historically that we won’t indicate in advance whether conduct is criminal or not. Various rulings of the courts have indicated that that would be a wrong position for the prosecutor to adopt and therefore we haven’t done that”.

Indeed, it goes beyond the DPP’s power because the police are responsible for deciding when an investigation should be instigated. Obviously, if there was no alleged crime, that would not be possible.’

With regard to a person ‘acting in his or her capacity as a medical doctor’ to assist a suicide, the DPP guidelines make clear that such a person is more likely to face prosecution.

To confer ‘blanket immunity’ on such people ‘would be wrong’ because this ‘would not only fetter the discretion of the Director of Public Prosecutions who needs to look at the individual circumstances of every case but would be tantamount to a change in the law’ which ‘is for Parliament to determine’.

As for ‘families and doctors discussing end-of-life options’, he said that this was ‘a matter which would more appropriately require a change in the law rather than indicating, ahead of a potential crime being committed, that there was immunity for it’.

So in summary Lord Wallace made it very clear that the government intends to let the DPP get on with his job without interfering. It is not for parliament to decide on a case by case basis who should be prosecuted or to usurp his role by amending his prosecution policy.

There was no vote at this debate, but it has set the groundwork for a further debate in the House of Commons next month, when there will be a vote. However, it is pretty clear that if the pro-euthanasia lobby wishes to get immunity for people assisting suicides ahead of time, or involve doctors as assisters without the fear of prosecution they are not going to do it by trying to get parliament to dictate to the DPP what he should and should not do. That would be to usurp his role.

If they want a change in the law they will have to change the law itself and not try to interfere with the DPP’s prosecution policy which is his responsibility, and not parliament’s, to set and administer.

What will it take for the Director of Public Prosecutions (DPP) actually to prosecute someone for assisted suicide?

The Director of Public Prosecutions (DPP), Keir Starmer, whose job it is to prosecute people who break the law, announced last Friday that he did not consider it to be in the public interest to bring a case against former GP Michael Irwin (pictured), for assisting the suicide of pancreatic cancer sufferer Ray Cutkelvin in 2006.

It was not that he lacked evidence to do so. Irwin had literally begged the DPP to put him away so that he could become a martyr for the pro-euthanasia movement. He had even provided documentary evidence of his involvement in terms of a £1,500 payment towards paying for Cutkelvin's visit to the Dignitas Suicide facility in Zurich.

In fact, Irwin, previously chairman of the Voluntary Euthanasia Society (now euphemistically rebranded Dignity in Dying) has helped no less than nine people kill themselves, and had even been struck off by the General Medical Council in 2005 for a past attempt.

But nonetheless, the DPP judged that although he had clearly done the deed, it was not in the public interest to make him stand trial.

His justification for this was that Irwin’s case did not fulfil enough of the 22 ‘prosecution criteria’ that he had made public at the request of the Supreme Court ruling on the case of Debbie Purdy last July.

Assisted suicide remains illegal in Britain and still carries a custodial sentence of up to 14 years for convicted offenders. But of over 130 British citizens who have so far travelled to Switzerland to be helped to kill themselves, none have even been tried, let alone convicted.

And the three most recent cases (Downes, Bateman and Rees) have all been let off on the grounds that they were ‘wholly motivated by compassion’ – a mitigating factor seemingly open to liberal interpretation and not easily testable in court (especially given that the key witness in all cases is dead and unable to give evidence).

It appears a pattern is emerging. The police seem reluctant to investigate. The DPP looks to be unwilling to prosecute. Juries are reticent to convict and judges, for those very few cases that do reach this stage, are giving light sentences.

This sort of ‘legal sanction’ is exactly what first happened in the Netherlands and led eventually to an eventual change in the law in that country - legalisation by stealth.

Holland now reports over 1,000 cases of involuntary euthanasia a year, an annual increase in cases of voluntary euthanasia and dozens of disabled children being ‘put down’ under the so-called Groningen protocol.

No wonder that disability rights leaders in this country have just launched a Resistance Campaign asking MPs to sign a charter supporting better care and services for elderly and disabled people and no change in the law.

So far Parliament has stood firm, as have professional groups like the British Medical Association, believing that any change in the law would be a threat to public safety.

One wonders however what it will take for the DPP, the very person appointed to uphold the law, actually to prosecute someone. If he wants the current law to act as an effective deterrent against abuse he will at some point have to be willing to show some teeth.

But the impression he has given with this latest judgement, is that any would-be assisters may go at least as far as Dr Irwin has thus far, without any fear of legal repercussion.

DPP guidelines due out soon - will they just be a licence for legalisation of assisted suicide by stealth?

Attempts in the House of Lords both in 2006 (Joffe) and 2009 (Falconer) failed to legalise assisted suicide in this country. The medical profession (BMA and Royal Colleges), faith groups and disability groups also remain firmly opposed to a change in the law.

However we are now seeing fresh attempts to change the law in Scotland with Margo MacDonald’s End of Life Assistance (Scotland) Bill and we expect new attempts from Westminster after the election in May.

The greater immediate danger however is legalisation by stealth through the legal system.

The pro-euthanasia lobby have tried to make a case for ‘clarification’ of the law through the Debbie Purdy case. This led to a Supreme Court Judgement last summer requiring the Director of Public Prosecutions to produce prosecution guidance for assisted suicide. His draft guidance was published on 23 September 2009 and a consultation on it closed on 16 December. The definitive guidance is due any day now.

This guidance is expected to make it less likely that assisters who are ‘motivated wholly by compassion’ or are ‘loved ones’ will be prosecuted. In addition it is less likely that cases involving ‘victims’ who are terminally or chronically ill or disabled will end up in court.

If so the result will be that some of Britain's most vulnerable people will have less legal protection than others and that it will be easier for family members and 'friends' with an interest in a person's death to get away with subtle coercion to assisted suicide on the basis that they were acting compassionately.

The whole process could very easily lead to euthanasia by stealth. The general pattern we are now beginning to see (most clearly evidenced in the cases that have gone to the Dignitas clinic) involves police not investigating, the CPS not prosecuting, juries delivering perverse verdicts and judges giving light sentences.

All this has been fuelled by a toxic cocktail of emotive hard cases, media hype, celebrity endorsement and ill-informed public opinion.

This is exactly the same pattern that we hve seen in the Netherlands over the last 30years with judges initially either not prosecuting or bringing light sentences (eg the Postma case), a set of guidelines which if followed meant doctors could effectively escape prosecution, and a later law change giving statutory force to this earlier legal sanction.

The rates of assisted suicide and euthanasia (both voluntary and involuntary) were thereby already high in the Netherlands long before the law was eventually changed.

There is a real danger that we will see exactly the same process operating in the UK.

DPP draft guidance on prosecutions for assisted suicide comes in for serious criticism

On 30 July the Law Lords, ruling on the Debbie Purdy case, required the Director of Public Prosecutions (DPP) Keir Starmer (pictured) to publish the facts and circumstances he would take into account in deciding whether to bring a prosecution under the Suicide Act. Under the Suicide Act 1961 assisting with suicide carries a sentence of up to 14 years, but there have so far been no prosecutions brought in any of the 120 cases of British people travelling to the Dignitas suicide facility in Zurich, Switzerland to end their lives.

The DPP published his interim draft guidelines on 23 September and these have been out for consultation. The consultation closed on 16 December and definitive guidelines will be published before 10 March 2010.

The interim guidelines were welcomed by the pro-euthanasia lobby which saw them as sanctioning assistance by family members with the suicide of mentally competent, seriously ill, terminally ill or disabled people who had a settled wish to end their lives.

But they have not surprisingly attracted serious criticism for being discriminatory (removing legal protection from sick and disabled people), naïve (about physical and financial abuse by so called ‘loved ones’), vague (about the status of assisting healthcare professionals) and betraying an ignorance of medical realities (in that a settled wish to commit suicide is often indicative of underlying mental illness).

Overall they have been attacked for changing the DPP’s role from one of upholding and enforcing the law to one of arbitrating between positive and negative prosecuting criteria and encouraging a tick box approach to prosecution that some have called ‘a murderer’s charter’.

The Care Not Killing Alliance, representing almost 50 organisations, has said that the draft guidance ‘is not fit for purpose in its current form’ and that there are ‘serious defects both in its underlying principles and in several of the specific prosecution criteria proposed’. It has called for a substantial revision.

The Christian Medical Fellowship, warning that similar guidelines in the Netherlands led to progressive abuse and the effective legal sanctioning of euthanasia, has called the guidance ‘fundamentally flawed in principle’. ‘The existence of published prosecution criteria will weaken perceptions of prohibition and by incremental drift lead to legalisation by administrative process rather than by the will of Parliament’, they said. ‘Consequently, we cannot in conscience collude with the consultation process by completing the artificial tick-in-the-box questionnaire’.

A group of senior lawyers in the House of Lords led by Lords Carlile, MacKay and Lady Butler-Sloss wrote to the Times expressing concern that the guidelines risked ‘being misinterpreted as implying that breaches of the law will not be prosecuted if certain prescribed boxes are ticked’. Not Dead Yet, an alliance of disability rights groups, said that those supporting the guidelines were ‘seeking to change the law by the back door by creating the impression that those who assist in a suicide will be immune from prosecution’.

The All Party Parliamentary Group on Dying Well argued that the guidelines provided ‘a checklist for potential offenders’ that would lead to ‘legalised killing’.

We hope that the DPP will take these serious criticisms on board and substantially amend his guidance by the time he issues his revision in 2010.