Memorandum from the Attorney General
ASSISTED DYING FOR THE TERMINALLY ILL BILL
THE SELECT
COMMITTEE
1. I have agreed to provide assistance to
the Committee on the current legal position in relation to assisted
suicide and euthanasia, and the meaning and effect of the proposed
legislation, in accordance with my role of giving legal advice
to Parliament. My evidence will be limited to advice on the legal
questions and will not include any views on the merits of the
proposal and will not give any indication of government policy
in this regard.
2. The clerk to the Select Committee has
made it clear that the Committee would welcome assistance on the
following matters:
(i) The current statutory position in the
UK in respect of attempted suicide, assisted suicide and voluntary
euthanasia.
(ii) The current practice in relation to
the prosecution of people who are believed to have participated
in any of the above, including the position of people who go abroad
in order to procure assisted suicide or euthanasia.
(iii) The current state of the law in respect
of a patient's right to refuse life-prolonging treatment and to
the withholding or withdrawal of life-prolonging treatment without
a patient's consent, and the status in law of current medical
guidelines on these acts.
(iv) Interpretation of recent judgements,
under both national and international law, on cases involving
assisted suicide or euthanasia.
(v) Whether the enactment of legislation
allowing assistance with suicide for terminally ill people who
are suffering unbearably would be likely to have any implications
in law for the obligations placed on authorities, such as (for
example) prisons, to protect those in their charge (some of whom
might be deemed to be suffering unbearably) from self-harm.
(vi) The Bill before the committee provides,
inter alia, that a doctor who carries out assisted suicide
or euthanasia "shall be deemed not to be in breach of any
professional oath or affirmation" (Section 10(3)). The Committee
seeks assistance on whether a change in the law could affect professional
oaths or affirmations in this way.
I will respond to these questions at the Select
Committee, but provide this background paper on the current law
in advance for the assistance of Committee members.
THE CURRENT
LAW OF
HOMICIDE
3. There are three relevant offences: murder,
manslaughter and complicity in suicide.
Murder
4. Murder is defined as "unlawful killing
with malice aforethought". This is to be contrasted with
those forms of manslaughter which consist of killing without "malice
aforethought". The principal distinguishing feature between
murder and manslaughter is that murder requires an intention to
kill or to cause grievous bodily harm. The penalty for murder
is life imprisonment. In summary, deliberately taking the life
of another person, whether that person is dying or not, constitutes
the crime of murder. Accordingly, any doctor who practises mercy
killing can be charged with murder if the facts can be clearly
established.
5. The only exception is where the doctor
acts to do all that is proper and necessary to relieve pain with
the incidental effect that this will shorten the patient's life.
This was explained by Devlin J. in R v Adams [1957] Crim
L R 773. Doctor Adams was charged with the murder of a patient.
It was alleged that he had prescribed and administered such large
quantities of drugs that he must have known that death would result.
In his summing up to the jury, Devlin J. stated:
"If her life was cut short by weeks or
months it was just as much murder as if it was cut short by years.
There has been much discussion as to when doctors might be justified
in administering drugs which would shorten life. Cases of severe
pain were suggested and also cases of helpless misery. The law
knows no special defence in this category . . ."
However he went on to say:
". . . but that does not mean that a
doctor who was aiding the sick and dying had to calculate in minutes,
or even hours, perhaps, not in days or weeks, the effect on a
patient's life of the medicines which he could administer. If
the first purpose of medicinethe restoration of healthcould
no longer be achieved there was still much for the doctor to do
and he was entitled to do all that was proper and necessary to
relieve pain and suffering even if the measures he took might
incidentally shorten life by hours or perhaps even longer. The
doctor who decided whether or not to administer the drugs could
not do his job, if he were thinking in terms of hours or months
of life. Dr Adams's defence was that the treatment was designed
to promote comfort and if it was the right and proper treatment
the fact that it shortened life did not convict him of murder."
This introduced into English law the "double-effect"
principle, that is if an act has two consequences, one good and
one bad, the bad consequence may nevertheless be acceptable depending
upon the circumstances.
Manslaughter
6. Manslaughter is usually classified as
either voluntary or involuntary. Voluntary manslaughter consists
of those killings that would be murder, because the accused has
the relevant mens rea, but which are reduced to manslaughter
because of one of the three special defences provided for by the
Homicide Act 1957. These special defences are diminished responsibility
(section 2 of the Homicide Act 1957), provocation (section 3 of
the Homicide Act 1957), and killing in pursuance of a suicide
pact (section 4 of the Homicide Act 1957). Involuntary manslaughter
refers to those types of manslaughter where the accused lacks
the mens rea for murder. It encompasses killing by an unlawful
act likely to cause bodily harm and killing by gross negligence.
Killing in pursuance of a suicide pact
7. Section 4(1) of the Homicide Act 1957
provides: "it shall be manslaughter, and shall not be
murder, for a person acting in pursuance of a suicide pact between
him and another to kill the other or be a party to the other being
killed by a third person."
8. A suicide pact is defined in section
4(3) as: "a common agreement between two or more persons
having for its object the death of all of them, whether or not
each is to take his own life, but nothing done by a person who
enters into a suicide pact shall be treated as done by him in
pursuance of the pact unless it is done while he has the settled
intention of dying in pursuance of the pact."
9. The burden of proving that he was acting
in pursuance of a suicide pact is placed on the accused. He must
prove not only that there was in fact a suicide pact, but also
that at the time of the killing he had the intention of dying
himself.
10. Killing in pursuance of a suicide pact
is closely related to the offence of aiding and abetting suicide
under the Suicide Act 1961 (see below).
Abetting suicide
11. The traditional attitude of the common
law was to condemn suicide and it was regarded as a criminal offence
until the law was changed by the Suicide Act 1961 ("the 1961
Act"). The 1961 Act provided: "the rule of law whereby
it is a crime for a person to commit suicide is hereby abrogated."
One result of the 1961 Act is that it is no longer a crime
to attempt suicide. However, the 1961 Act continues to impose
a considerable measure of responsibility upon persons other than
the suicide or would be suicide. The 1961 Act makes it a statutory
crime to aid, abet, counsel or procure a suicide or attempted
suicide and the offence carries a penalty of up to 14 years' imprisonment.
12. The consent of the Director of Public
Prosecutions ("the DPP") is required to initiate proceedings
for the offence (Suicide Act 1961, section 2(4)). In R v Hough
(1984) 6 Cr. App. R. (S) 406, Lord Lane C.J. commented that
the crime of abetting suicide could range "from the borders
of cold blooded murder down to the shadowy area of mercy killing
or common humanity." In that case a 60 year old woman
was sentenced to nine months' imprisonment for aiding and abetting
the suicide of an eighty four year old woman who was partly blind,
partly deaf and suffered from arthritis. The accused had provided
the woman with tablets and, when the 84 year old woman became
unconscious, placed a plastic bag over her head.
13. In Wallace (1983) 5 Cr. App.
R. (S) 342, a sentence of 12 months' imprisonment was described
by the Court of Appeal as "at the extreme of leniency"
in a case where the offender pleaded guilty to aiding the suicide
of a 17 year old by buying her tablets and alcohol.
Elements of the offence
14. The offence is governed by the ordinary
rules which apply to aiding and abetting crime. "Aid"
and "abet" are generally considered to cover assistance
and encouragement given at the time of the offence, whereas "counsel"
and "procure" are more aptly used to describe advice
and assistance at an earlier stage. To procure is generally taken
to mean to produce by endeavour and the word covers the provision
of help to a person who wishes to commit suicide: R v Reed
(1982) Crim L R 189. In Reed the accused was convicted
of a conspiracy to aid and abet suicide and the Court of Appeal
stated that a person procures a thing by setting out to see that
it happens and taking the appropriate steps to produce that happening.
15. As a general rule aiding and abetting
requires proof of mens rea, and this is usually taken to
mean an intention to aid as well as a knowledge of the relevant
circumstances. For the purposes of the section 2 offence, the
accused must intend that someone commit or attempt to commit suicide.
This is made clear by the decision in Attorney-General v
Able [1984] 1 QB 795. In that case the accused, who were
members of the voluntary euthanasia society, published a booklet
entitled "a guide to self deliverance" for distribution
to members of the society. The booklet set out both the purpose
of the society, namely that it was to overcome the fear of the
process of dying and five separate methods of suicide. On the
Attorney-General's application for a declaration that the supply
of the booklet involved the commission of the offence, Woolf J.
held that before an offence can be established to have been committed,
it must at least have been proved:
"(a) that the alleged offender had the
necessary intent, that is, he intended the booklet to be used
by someone contemplating suicide and intended that person would
be assisted by the booklet's contents, or otherwise encouraged
to attempt to take or to take his own life;
(b) that while he still had that intention
he distributed the booklet to such a person who read it; and,
(c) in addition . . . that such a person was
assisted or encouraged by so reading the booklet to attempt to
take or to take his own life."
Jurisdiction
16. The general rule is that the English
courts do not accept jurisdiction over offences committed outside
England and Wales, even if the accused is a British subject. In
Treacy v Director of Public Prosecution [1971] AC 537, Lord Morris
stated: "the general rule as expressed by Lord Halsbury L.
C. in MacLeod v Attorney-General for New South Wales [18911 AC
455 at 458, is that "all crime is local" and that jurisdiction
over a crime belongs to the country where it is committed. Unless,
therefore, there is some provision pointing to a different conclusion,
a statute which makes some act (or omission) an offence will relate
to some act (or omission) in the United Kingdom."
17. In Re Z [2004] EWHC 2817 (Fam), Headley
J. expressed the view that the making of arrangements in England
to assist a person to commit suicide abroad fell within section
2(1) of the 1961 Act. This was clearly correct. In that case Mrs
Z was suffering from an incurable and irreversible illness. She
had become increasing disabled by her condition and would in due
course die as a result of it. In late 2003 she began to express
strong views about seeking assistance to commit suicide. She knew
that this could be arranged in Switzerland, where it is not unlawful
to assist suicide. Mr Z proposed to make all the necessary arrangements
and to accompany his wife for the assisted suicide. The Local
Authority sought to restrain Mr Z from removing Mrs Z from England
and Wales. The critical issue in the case was the extent of the
duty owed by a Local Authority when the welfare of a vulnerable
person in their area was threatened by the criminal or other wrongful
act of another. It was held that although the Local Authority
was under an obligation to investigate the position of a vulnerable
adult and to consider whether she was legally competent to make
and to carry out her decision and her intention, there was no
obligation to seek the continuation of an injunction to prevent
Mr and Mrs Z from travelling to Switzerland. Although the acts
of Mr Z could amount to an offence of aiding and abetting suicide
this was a matter for the police and the DPP to consider once
they had been informed of the facts. Headley J. noted that Parliament
"has committed to the DPP the discretion as to whether to
permit a prosecution" and that this militated strongly against
the intervention of the civil remedy of an injunction. He went
on to state: "This case affords no basis for trying to ascertain
the court's views about the rights and wrongs of suicide assisted
or otherwise. This case simply illustrates that a competent person
is entitled to take their own decisions on these matters and that
that person alone bears responsibility for any decision so taken.
That is the essence of what some will regard as God-given free
will and what others will describe as the innate right of self-autonomy.
It illustrates too that the civil court, and in this context,
especially the Family court will be slow to restrain behaviour
consistent with the rights of others simply because it is unlawful
where adequate powers are vested in the criminal justice agencies."
The Pretty Case
18. In R (Pretty) v Director of
Public Prosecutions [2002] 1 AC 800, it was held that a terminally
ill Claimant could not require the DPP to undertake not to consent
to the prosecution of her husband for assisting her proposed suicide.
It was further held that section 2(1) of the Suicide Act 1961
was compatible with Articles 2, 3, 8, 9 and 14 of the European
Convention for the Protection of Human Rights and Fundamental
Freedoms ("the European Convention").
19. In Pretty v United Kingdom
29 April 2002, the Strasbourg Court held that there had been no
violation of the Convention in Mrs Pretty's case. The Court did
not consider that the blanket nature of the ban on assisted suicide
was disproportionate. It accepted the Government's argument that
flexibility is provided for by the fact that consent is needed
from the DPP to bring a prosecution and by the fact that a maximum
sentence is provided allowing lesser penalties to be imposed as
appropriate.
Refusing Treatment
20. In Re T (Adult: Refusal of Treatment)
[1993] Fam 95, the Court of Appeal made it clear that an adult,
mentally competent patient enjoys an absolute right to refuse
medical treatment even where refusing treatment means certain
death. The legal position in England and Wales is often stated
adopting the words of Cardozo J. in Schloendorff v Society
of New York Hospital (1914) 211 NY 125: "every human
being of adult years and sound mind has a right to determine what
shall be done with his own body; and a surgeon who performs an
operation without his patient's consent commits an assault, for
which he is liable in damages."
21. This principle was recognised by the
Strasbourg Court in Pretty v United Kingdom: in
the sphere of medical treatment, the refusal to accept a particular
medical treatment might, inevitably, lead to a fatal outcome,
but the imposition of medical treatment, without the consent of
a medically competent adult, would interfere with a person's physical
integrity in a manner capable of engaging the rights protected
under Article 8(1) of the Convention.
22. The essential principle in English law
is that a doctor may only carry out a medical treatment or procedure
which involves contact with a patient if there exists a valid
consent by the patient or another person authorised by law to
consent on his behalf.
23. The exceptions to the general principle
are:
(a) children, where a parent or the court
may override the patient's refusal if that is in his best interests;
(b) here the treatment is for the mental
disorder of a patient detained under the Mental Health Act 1983;
(c) here the treatment is justified to the
extent that it is reasonable in the circumstances and where the
competence of the individual is unknown. For example, faced with
a patient in a casualty department who has taken a drugs overdose
a doctor would be entitled to entertain doubts as to the patient's
competence and so act out of necessity to save his or her life;
(d) as a matter of public policy the common
law may justify interventions against a competent person's wishes
in wholly exceptional circumstances. For example a patient may
not refuse measures designed to maintain basic hygiene in a hospital
ward where those measures are considered necessary in the interests
of other patients.
24. Consistent with the principle that a
competent adult patient has an absolute right to refuse consent
to any medical treatment, a patient's anticipatory refusal of
consent (a so called "advance directive" or "living
will") remains binding and effective notwithstanding that
the patient has subsequently become and remains incompetent.
25. In Miss B v An NHS Hospital
Trust [2002] EWHC 429 (Fam), a tetraplegic patient was found
competent to refuse life sustaining treatment (artificial ventilation)
and the court made a declaration that continued treatment was
unlawful. Dame Elizabeth Butler Sloss P, stated "The treating
clinicians and the hospital should always have in mind that a
seriously physically disabled patient who is mentally competent
has the same right to personal autonomy and to make decisions
as any other person with mental capacity."
The Bland Case
26. In Airedale NHS Trust v Bland
[1993] AC 789, it was held that where a patient was incapable
of deciding for himself whether to continue treatment, what could
lawfully be done to him depended upon whether the treatment was
in his best interests. The patient, aged seventeen was in a persistent
vegetative state. The medical opinion was that there was no hope
of any improvement in his condition or recovery. With the concurrence
of the patient's family, the authority responsible for the hospital
where he was being treated sought a declaration that they might
lawfully discontinue all life sustaining treatment and all medical
support measures designed to keep the patient alive. The House
of Lords held that the object of medical treatment and care was
to benefit the patient. Since a large body of informed and responsible
medical opinion was of the view that existence in the persistent
vegetative state was not to the benefit of the patient, the principle
of the sanctity of life was not violated by the ceasing of giving
medical treatment and, therefore, withdrawing the treatment was
lawful. The House of Lords went on to advise that before treatment
was discontinued in any other case, a declaration should be sought
from the Family Division to the effect that continued treatment
and care no longer conferred any benefit upon the patient. Details
of the procedure to be adopted in applications to the court are
set out in the Official Solicitors Practice Note [2001] 2 FLR
158. Where a patient is diagnosed as being in a persistent vegetative
state, the court, after careful consideration of the patient's
best interests, may authorise the withdrawal of artificial nutrition
and hydration on the basis that this constitutes medical treatment
and that such treatment is futile: the patient has no further
interest in being kept alive. The function of the court is to
verify the diagnosis of the patient as being in a persistent vegetative
state. The views of the patient's relatives or of others close
to the patient will be taken into account by the court but cannot
act as a veto. The question of the withdrawal of artificial nutrition
and hydration from a patient whose condition falls significantly
short of the persistent vegetative state has been left open for
future decision. The courts are unlikely to grant declarations
to permit or to sanction the withdrawal of treatment where there
is any real possibility of meaningful life continuing to exist
(Re D (Medical Treatment) [1998] 1 FLR 411).
The Burke Case
27. In R (on the application of Oliver
Leslie Burke) v The General Medical Council [2004]
EWHC 1879, the Claimant suffered from cerebellarr ataxia. He wished
to establish that he would receive food and water by artificial
means when the need arose. He contended that the relevant guidance
issued by the General Medical Council ("the GMC") on
the withholding and withdrawing of life prolonging treatments
was incompatible with his rights under Articles 2, 3, 6, 8 and
14 of the European Convention. In the course of his judgement
Munby J. stated at paragraph 213: "A failure to provide
life prolonging treatment in circumstances exposing the patient
to inhumane or degrading treatment will in principle involve a
breach of Article 3. Where the NHS has assumed responsibility
for treating a terminally ill patient's condition and he has become
reliant on the medical care he is receiving, there will prima
facie be a breach of Article 3 if that care is removed in circumstances
where this will reduce him to acute mental and physical suffering
and lead to him dying in avoidably distressing circumstances.
Moreover, even if the patient's suffering does not reach the severity
required to breach Article 3, a withdrawal of treatment in such
circumstances may nonetheless breach Article 8 if there are sufficiently
adverse effects on his physical or moral integrity or mental stability."
28. If the patient is competent, his decision
as to where his best interests lie and what life prolonging treatment
he should have is, in principle, determinative. If the patient
is incompetent, the test is whether the treatment is in the patient's
best interests. If the patient is competent or where incompetent,
and has made a valid advance directive, his decision to require
artificial nutrition and hydration is in principle determinative
and the withdrawal of such treatment before the patient finally
lapses into a coma would involve a breach of both Articles 3 and
8. Once the patient has finally lapsed into a coma there will
no breach of Articles 2, 3 or 8 if artificial nutrition or hydration
is withdrawn in circumstances where it is serving absolutely no
purpose other than the very short prolongation of the life of
a dying patient who lacks all awareness of what is happening.
In these circumstances it can properly be said that the continuation
of the treatment would be bereft of any benefit and would be futile.
29. Where it is proposed to withhold or
withdraw artificial nutrition and hydration and there is an issue
as to the capacity of the patient or the patient's best interests,
the prior authorisation of the court is required as a matter of
law.
30. This case is subject to appeal and the
Department of Health has now applied to join that appeal. There
is therefore a question mark over its effect on the right of patients
to demand any life prolonging treatment they wish, no matter how
untested, expensive or inappropriate. However, that does not affect
the issue before this Committee.
Medical Guidelines
31. The GMC has issued guidance entitled
"Withholding and Withdrawing Life Prolonging Treatments:
Good Practice In Decision Making." It was published in August
2002. The GMC believes that the guidance reflects, as so far established,
the broad consensus within the council, the professions and the
public as to what can be regarded as good practice in this area
of decision making. The status of this guidance was considered
by Mumby J. in the Burke case, who stated "the guidance
is not a legal textbook or statement of legal principles. It consists
primarily of professional and ethical guidance for doctors provided
for them by the professional body which is responsible for such
matters."
The Position Of Detained Persons
32. In Reeves v The Commissioner
of Police for the Metropolis [2000] 1 AC 360, the House of
Lords held that where police officers were aware that a prisoner
was a suicide risk they had a duty to take reasonable care not
to allow a prisoner to kill himself. Respect for personal autonomy
did not preclude the taking of steps to "control a prisoner's
environment in non-invasive ways calculated to make suicide more
difficult".
33. In Keenan v The United Kingdom
(3 April 2001) 33 EHRR 38, the applicant's mentally ill son
committed suicide in Exeter prison where he was serving a sentence
of four months' imprisonment for assaulting his girlfriend. Nine
days before his expected release date he had been given a disciplinary
punishment consisting of seven days in segregation in the punishment
block and an additional 28 days' imprisonment. Relying on Articles
2, 3 and 13 of the Convention, the applicant complained that the
prison authorities had failed to protect her son's right to life
and that he had been subjected to inhuman and/or degrading treatment
in the period before his death. The Court found that there had
been no violation of Article 2 but that there had been a violation
of Articles 3 and 13. In relation to Article 3, the Court held
that the lack of effective monitoring of Keenan's condition and
the lack of informed psychiatric input into his assessment and
treatment disclosed significant defects in the medical care provided
to a mentally ill person known to be a suicide risk.
34. An adult prisoner of sound mind and
capacity has a specific right of self-determination which entitles
him to refuse nutrition and hydration: Secretary of State for
the Home Department v Robb [1995] Fam 127. In that
case an adult prisoner began to refuse all nutrition. Medical
experts agreed that he was of sound mind and fully understood
the consequences of his decision to refuse food and that death
would result. The Home Secretary sought a declaration that the
physicians and nursing staff responsible for the prisoners might
lawfully observe and abide by the prisoner's refusal to receive
nutrition and might lawfully abstain from providing him with hydration
and nutrition for as long as he retained capacity to continue
to maintain his refusal. In the course of his judgement Thorpe
J. stated that the state interest in preventing suicide had no
application in such a case where the refusal of nutrition and
medical treatment in the exercise of the right of self-determination
did not constitute an act of suicide.
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