Memorandum submitted by Dignity in Dying
I am writing to outline my concerns around the
Coroners and Justice Bill, in my capacity as Chief Executive of
Dignity in Dying. Dignity in Dying is the leading organisation
campaigning for greater choice at the end of life. Our campaigns
focus on giving people choice, control and access to high quality
end-of-life care services. We represent 100,000 members and supporters.
In summary, we are very concerned that the revised
definition of the partial defence to murder of diminished responsibility
in the Coroners and Justice Bill will have a significant and negative
impact on those people that might be termed genuine "mercy
killers": those who have actively helped a seriously ill
loved one to die, in response to persistent requests for help
to end their life. By changing the definition of diminished responsibility
it is likely that "mercy killers" who have acted rationally
in response to persistent requests from a seriously ill loved
one will face custodial sentences.
Under the current law, anybody who ends the
life of another can be convicted of murder and receive a life
sentenceeven if the act is a compassionate response to
a dying person's request for help to die (a "mercy killing").
At the request of the Home Secretary in 2004, the Law Commission
undertook a review of the partial defences to murder. On "mercy
killing", the report stated, "at present, in such cases,
a conviction for murder, with consequent mandatory life sentence,
can only be avoided by a `benign conspiracy' between psychiatrists,
defence, prosecution and the court, to bring them within diminished
responsibility ... It is however a blight on our law that such
an outcome has to be connived at rather than arising openly and
directly from the law".
Dignity in Dying does not endorse "mercy
killing" or the current "benign conspiracy". However,
"mercy killings" are taking place, and it is necessary
that the law addresses these cases appropriately. We are extremely
concerned that the revised definition of diminished responsibility
will actually make things worse for genuine "mercy killers"
and seriously impact upon their human rights.
The proposed new definition of diminished responsibility
set out in the Coroners and Justice Bill requires that to use
the defence, the defendant must have a "recognised medical
condition" ... "at the time" of the act. In addition,
for the defence to apply, the recognised medical condition would
need to be shown to have substantially impaired "the defendant's
ability to understand the nature of their conduct, to form a rational
judgment, or to exercise self-control". The new definition
would not help the person who eventually concedes to persistent
requests from a terminally ill loved one to help them die, if
their help can be shown to be rational, for example, if they understood
the consequences of their action, and do not suffer from depression
or some other mental abnormality. Clearly such a person will have
acted rationally, in a controlled fashion and in the full knowledge
and understanding of the implications of her/his conduct, which
will make it extremely difficult to apply the defence.
The likely effect therefore, is that many genuine
"mercy killers" will be given custodial sentences. This
would seem to go against the wider spirit of the proposed changes,
which are intended to make the Law of Murder more just. It is
particularly surprising, and deeply concerning, that the impact
that changes to diminished responsibility will have on the practice
of the law in "mercy killing" cases was not considered
by the Ministry of Justice in its recent consultation on changes
to murder law.
While the current law may allow the courts to
connive to treat genuine "mercy killers" compassionately,
it is clear that the revised definition will put a stop to this.
What little protection "mercy killers" currently have
against harsh sentencing, and potentially, mandatory life sentencing,
will be completely removed. As such, the proposed change to diminished
responsibility will have a significant and potentially damaging
impact on a particular group of offenders: Government has a responsibility
to thoroughly investigate this before making any changes, and
I would urge the Joint Committee on Human Rights to investigate
this important issue.
29 January 2009
36 The Law Commission Report No. 290, Partial Defences
to Murder, August 2004, page 17. Back