Are lawyers in right-to-die cases breaking the law?

31 January 2012 by

Debbie Purdy

Philip Havers QC of 1 Crown Office Row is representing Martin in the judicial review proceedings.  He is not the author of this post.

Albert Camus famously wrote: ‘there is but one truly serious philosophical problem and that is suicide.’  However profound a philosophical problem, the question of suicide or, more precisely, assisted suicide is proving quite a legal conundrum.

It is a well-known fact that, at present, it is lawful in England and Wales to commit (or to attempt to commit) suicide but unlawful to help someone else to do so.  Encouraging or assisting suicide is an offence under section 2 of the Suicide Act 1961, carrying a maximum penalty of 14 years’ imprisonment.  On a literal reading of the Act, even obtaining information about euthanasia for someone who plans to commit suicide could constitute a breach of section 2.

The Director of Public Prosecution’s (“DPP”) latest guidance on prosecuting cases of assisted suicide contains a section entitled “Public interest factors tending in favour of prosecution”.  Factor 14 reads:

‘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.’

Accordingly, the Medical Protection Society, which provides legal advice and insurance for doctors, instructs doctors to be “extremely cautious when providing help or advice to patients who are considering assisted suicide”.  The Medical Defence Union is even more prudent, advising that “doctors approached by patients for advice about suicide should not engage in discussion which assists the patient to that end.”

It is understandable, then, that the lawyers acting for ‘Martin’, a man in his 40s who is suffering from “locked in” syndrome and wants to end his life, were concerned about the legality of their involvement in the case.  Could gathering evidence from Dignitas, doctors, and others about the process, methods, and logistics of committing suicide amount to ‘encouraging or assisting suicide’?  Could finding out if anyone is willing to help Martin travel to Switzerland constitute a criminal offence?  While the likelihood of prosecuting Martin’s lawyers was probably low, it is a gamble that few people who value their liberty would accept.

The Bar’s Code of Conduct does state in that most noble of passages that a barrister “must promote and protect fearlessly the lay client’s best interests and do so without regard to his own interests or to any consequences to himself” but it also adds that this must be achieved by “proper and lawful means” [paragraph 303a].  The lawyers thus sought a declaration from the High Court, asking for protection for themselves and third parties during the preparations of Martin’s judicial review proceedings.

Before his stroke in 2008, Martin was a keen cyclist and rugby player.  The stroke spared his mind but not his body.  Able only to move his eyes, he requires constant care.  Using a special eye-operated computer, he wrote a statement to the Court expressing his love for his wife and family.  He also described his life as so undignified, distressing and intolerable that he no longer wished to live.

Martin, through a judicial review claim, is seeking to amend the DPP’s guidance so that professionals who help him find the easeful death for which he yearns would not face criminal or disciplinary charges.  Whilst family members motivated by compassion are less likely to be prosecuted than professionals falling under factor 14, neither his wife nor any of his family members are willing to assist Martin.  He is reliant on others for help.

Unsurprisingly, the Court granted the declaration.  It did so in the following terms:

the solicitors may obtain information from third parties and from appropriate experts for the purpose of placing material before the Court and that third parties may co-operate in so doing without the people involved acting in any way unlawfully.

As Lord Justice Toulson noted in his oral judgment, the declaration avoids the “unjust and absurd result that Martin would be unable to place before the Court material that he needs in order to determine his rights”.  Martin’s lawyers could hardly have acted in his best interests while the sharp sword of the DPP was dangling ominously over their heads.

The judicial review can now proceed.  It will of course be of great importance to Martin, his loved ones, and those sympathetic professionals willing to help him, but its relevance extends far wider.  In developed countries, the issue of assisted dying looms ever larger as life expectancy rises and medical knowledge keeps alive those who, only years ago, would have died swiftly.  Yet, as Martin’s case illustrates, the issue affects not just the old but those injured in accidents, armed conflict and, perhaps most frightening of all, by the sheer bad luck of an ill-placed blood clot.

Daniel Sokol is a pupil barrister at 1 Crown Office Row and an Honorary Senior Lecturer in Medical Ethics at Imperial College London.

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