Select Committee on Assisted Dying for the Terminally Ill Bill Minutes of Evidence

Memorandum from the Attorney General



  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.


  3.  There are three relevant offences: murder, manslaughter and complicity in suicide.


  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 medicine—the restoration of health—could 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.


  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."


  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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