The DPP, Keir Starmer QC, has recently aired his Interim Policy Guidance on prosecuting cases of assisted suicide. Although this interim guidance arose from concerns that those who travel abroad to a suicide clinic might place accompanying relatives at risk of prosecution under the Suicide Act, the guidance is general in scope, and is intended to apply in all circumstances where consideration of such a prosecution arises. The same guidance, therefore, applies in cases of alleged physician assisted suicide.
Kerrie Wooltorton, who killed herself by drinking antifreeze, died in the presence of her physicians, who elected, on legal grounds, not to provide life-saving treatment. The jury is still out on whether an omission – not providing treatment – amounts to complicity (and so potential liability). What light – if any – can the DPP’s Interim Guidance throw on this matter?
While it throws little direct light (no question of prosecution currently exists), it does nonetheless throw an indirect light. The DPP lists a number of public interest factors that should in general terms sway the case in favour of prosecution; factors which, as it were, tip the scales in the direction of suppositional wrongness; and that as a result prosecution should proceed. How does Wooltorton appear in the light of these factors?
The DPP lists sixteen public interest factors that favour prosecution (the DPP struggles a bit with terminology: in the guidance the suspect is the person(s) who are alleged to have assisted the suicide (the doctors in this case), and the victim, for want of a better word, is the person who has committed (or attempted to commit) suicide. Those factors in italics would appear to apply to Wooltorton; supporting reasons are given in square brackets:
(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. [we cannot know whether that was the case, but it was probable]
(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. [we know as a matter of fact her wish to kill herself fluctuated]
(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.
(6) 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. [none of Wooltorton’s diagnoses meet these stringent criteria]
(7) 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. [the suspects were motivated by legal arguments]
(8) 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.
(9) The victim was physically able to undertake the act that constituted the assistance him or herself.
(10) The suspect was not the spouse, partner or a close relative or a close personal friend of the victim. [they were her professional medical attendants]
(11) The suspect was unknown to the victim and assisted by providing specific information via, for example, a website or publication, to the victim to assist him or her in committing suicide.
(12) The suspect gave assistance to more than one victim who were not known to each other.
(13) The suspect was paid by the victim or those close to the victim for their assistance.
(14) The suspect was paid to care for the victim in a care/nursing home environment. [they were paid employees of the hospital]
(15) The suspect was aware that the victim intended to commit suicide in a public place where it was reasonable to think that members of the public may be present. [a hospital is a public place with the public present]
(16) The suspect was a member of an organisation or group, the principal purpose of which is to provide a physical environment [whether for payment or not] in which to allow another to commit suicide.
In most cases, the DPP adds, factors (1) to (8) above will carry more weight than the other factors in deciding that a prosecution is needed in the public interest.
The DPP also makes it clear that a decision on whether to prosecute should not be a simple point counting exercise, but that each case should be considered on its own facts and merits.
That said, and recognising the circumlocutious nature of his argument, Dr No does find it striking that no less that half of the more heavily weighted factors apply, as do a further three of the less heavily weighted factors.
It therefore seems quite possible that, were a prosecution for assisted suicide be considered against the doctors involved, then it might well go ahead.