Human Rights and Assisted Suicide in England

For several weeks, law blogs and print media have been buzzing with discussions about the right to die at a time of one’s own choosing. There has been widespread speculation about the outcome of Debbie Purdy’s appeal to the House of Lords over the Department of Public Prosecution’s decision-making process regarding prosecution for assisting suicides abroad.

Many believed that because the decision in this case would be the last the House of Lords would make meant that it was an excellent time for them to force a radical change to the law. The media have suggested Ms Purdy’s appeal was “to clarify the law” but this is misleading. The appeal hinges less on a point of law in the normal sense, but instead on how the law is applied.

Section 2(4) of the Suicide Act 1961 states that no prosecutions for assisted suicide will be brought “except by or with the consent of the Director of Public Prosecutions” but Ms Purdy’s legal team has argued that this equates to interference in the private life of citizens by a public authority and so infringes Article 8(2) of the European Convention for Human Rights.

In Suicide in Switzerland: Complicity in England? [2009], Prof. Michael Hirst suggested that although assisting in a suicide was illegal in England & Wales, the prohibition does not extend to aiding and abetting a suicide abroad in a country where it is legal. However, in the case of Ms Purdy her husband’s actions may in the future have to go beyond simply aiding and abetting to the degree discussed by Prof. Hirst and he could then be left in a position where the DPP would have to consider whether to prosecute him under the 1961 Act.

It is the ‘could’ part that has lead to the case before the Lords, however. The Department for Public Prosecutions has steadfastly refused to document the factors that it will take into account when determining if a prosecution is necessary; leaving what can and cannot be done to assist a person to leave the country and die as they wish to uncertain. This is the “clarity” that the media has latched on to: not clarity of law, but clarity in its application.

Ms Purdy’s case has often been compared to that of Diane Pretty, but the fundamentals are quite different. Diane Pretty initially tried to have English law changed so that she could die at home with her family; which would have required the assistance of her husband. Her attempts were unsuccessful and resulted in a series of court battles in which she claimed that the 1961 Act contravened her human rights by preventing her from being able to die at a time of her own choosing. Her case eventually reached the House of Lords, which dismissed her appeal. In dismissing the appeal, Lord Bingham said: