Thursday, July 30, 2009

Debbie Purdy, Dignitas and the DPP

WARNING: This post may contain traces of moral issue. These are murky waters for a lawyer, and I cling gratefully to a liferaft of certainty, and the only thing I am qualified to discuss in the whole affair; today's judgment from the House of Lords. I would apologise for the length of this post, but I feel the importance of the issue merits thorough discussion. Plus, I run the show, so I can do what I like.

The House of Lords have just handed down their judgment in the case of Debbie Purdy. My first attempt at typing that last sentence actually included the name "Diane Pretty" in place of "Debbie Purdy".

For those of you who have been living under a rock, Debbie Purdy suffers from a debilitating motor neurone disease that is not currently curable. She says that it will eventually reduce her quality of life to the point where she will commit suicide rather than live on. To do so, she plans to travel to the Dignitas clinic in Switzerland, which provides lethal cocktails of barbituates to people in her position.

For those of us subject to this jurisdiction, assisting suicide is a crime. Many Britons have travelled to Switzerland to end their lives in the Dignitas clinic, and most travel with family members. Of these family members, none has been prosecuted.

The Code for Crown Prosecutors contains two tests, which can be paraphrased thus: Is there sufficient evidence to give a realistic prospect of conviction? Is it in the public interest to prosecute? Of the cases submitted to the CPS by various police forces, we have declined to prosecute on the basis of the evidential test on a number of occasions, but have declined to prosecute on the basis of the public interest test only twice.

Once, in the case of a paralysed but otherwise healthy young man, the DPP made the decision personally, and made his written reasons public. He has, however, refused to issue guidelines in relation to prosecuting this particular offence. This case is the final stage of Debbie Purdy's long-running legal battle to force him to do just that. And she won.

To quote from the judgment (at some length):

"[Debbie Purdy] wants to be able to make an informed decision as to whether or not to ask for her husband’s assistance. She is not willing to expose him to the risk of being prosecuted if he assists her. But the Director has declined to say what factors he will take into consideration in deciding whether or not it is in the public interest to prosecute those who assist people to end their lives in countries where assisted suicide is lawful. This presents her with a dilemma. If the risk of prosecution is sufficiently low, she can wait until the very last moment before she makes the journey. If the risk is too high she will have to make the journey unaided to end her life before she would otherwise wish to do so".

So, the law lords duly concluded that offence-specific guidelines should be published, as a failure to do so left such a grey area that the uncertainty effectively interfered with Debbie Purdy's right to life, accorded by article 8 of the European Convention of Human Rights. I commend the judgment to you in its entirety, it is worthy reading, not least because Lord Phillips of Worth Matravers took the opportunity to remind people of a judge's role:

"It must be emphasised at the outset that it is no part of our function to change the law [...]. We do not venture into that arena, nor would it be right for us to do so. Our function as judges is to say what the law is and, if it is uncertain, to do what we can to clarify it."

Well said, my Lord, well said.

For those who care, my personal view is that anyone who travels to a foreign country knowing that their loved one holds only a one-way ticket is a brave soul indeed. To be present at the moment of their death is horrendous enough, but to contemplate it for weeks or months before the appointed day arrives, and then to hold to their lips the fatal draught, is beyond my contemplation, and I pray that I never have to make such a journey.

At the risk of opening a king-sized can of worms, I would be curious to know what my readers make of this.

28 comments:

  1. 'Debbie Purdy's right to life, accorded by article 8 of the European Convention of Human Rights.'

    That should be the right to respect for personal and family life.

    Enjoying the blog btw.

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  2. I need to think a bit more about this, but for some light relief ...

    At para 27, Lord Hope of Craighead said "the law, as it stands, could not be clearer. It is an offence to assist someone to travel to Switzerland"

    It seems that he may have - I hope unwittingly - created a common law offence of assisting travel to Switzerland (quite regardless of any intended suicide or indeed any intent or recklessness to do anything else).

    Those readers who have booked family holidays in Geneva may wish to reconsider, just in case the DPP has a sudden rush of blood to the head.

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  3. To say that Debbie Purdy has a "debilitaing motor neurone disease" could be confusing. She has Multiple Sclerosis and although debilitating, it is not MND.

    Anyway, good on the Lords for their sensible judgement.

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  4. Also enjoying the blog, welcome and keep up the good work.

    Personally I would draw a distinction (split hairs?) between assisting with travel and taking part in the final act.

    BHJP

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  5. Perhaps part of the problem is uk courts extending their juristiction over events in other countries which have their own judicial system.

    Why shoukd a uk court have any juristiction over events in Switzerland, which are not in breach of Swiss law

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  6. Well said Anonymous at 2:13AM.

    Also, the ins and outs of the law be damned, surely as a matter of principle the state has no business interfering with a person if they take the well-thought-through decision to kill themselves.

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  7. Surely the problem is that the law as it stands is patently cruel but unambiguous? Faced with the decision of whether or not to prosecute after the event, I think it would almost never be in the public interest to do so (though I'm surprised to see the CPS have usually found other grounds not to do so).

    However, when asked in advance, the DPP has a duty to uphold the law. To give people permission to defy the law (albeit subject to carefully defined circumstances) would appear to usurp the role of Parliament.

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  8. "Why should a UK Court have any jurisdiction [sic]over events in Switzerland, which are not in breach of Swiss law" It doesn't and doesn't try to- the UK court claims and asserts jurisdiction over British citizens. The acts of British citizens are (potentially)subject to review by UK courts...just because you do an illegal act in another jurisdiction where the act may not be illegal, doesn't change that... b/t/w kudos...great blog- keep up the good work!!

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  9. Although I think we should wait and see what the DPP advises I tend to agree with polonius. I am wary of anything that would make, or appear to make, assisting with suicide lawful. It would quickly lead to an acceptance of euthanasia and then to pressure, real or imagined, for old folk to remove themselves.

    I think the current law and its implementation is a reasonable compromise. If one is going to assist an ill person to end their life one has to consider the possibility that one will be prosecuted. Certainly likely to give pause for thought which, IMHO, is good. With prosecution effectively at the discretion of the DPP there is IMHO a deterrent against anyone applying pressure to an ill person to end their life whilst "overlooking" humanitarian assistance.

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  10. I am certain that the proposed action in this case should not be punished and fairly certain that it should not be prosecuted, but less certain whether or not it should be a crime. I suspect that potential defendants would be satisfied with the conclusion that they have in fact committed a crime but for good and justifiable reasons.

    But it seems to me that between them Parliament, the courts and the DPP have got themselves in a bit of a twist.

    I understand Parliament’s reluctance to fiddle with the statute, but the same arguments apply to fiddling with the guidelines – and it puts the DPP in a quasi-judicial role of making-law-without-actually-making-law which constitutionally he should not have.

    I am reminded of the mess that is the Sexual Offences Act 2003. Consensual kissing between 15-year olds is illegal, but it is not in the public interest to prosecute. Nonsense. It is not wrong and it should not be a crime – and a discretionary decision not to prosecute is not an adequate substitute for properly-drawn law. Otherwise we are all criminals.

    Now, back on point, it seems to me that there are various other ways of dealing with this issue.

    One would be to extend the relevant statute to say something like ‘without just cause and express consent’ or some other words. It doesn’t really matter what they are so long as they are such that in a case like this no reasonable jury would convict.

    Then the DPP’s decision to prosecute would be based not on the rather vague ‘public interest’ test but on the ‘reasonable prospect of conviction’ test, which is far easier to codify – indeed it is probably already adequate to the task. That should satisfy everybody.

    Another way would be for the courts to extend the defence of ‘duress of circumstance’ to this case and others like it. A bit messy perhaps, and it might have unwelcome consequences elsewhere.

    Another way would be to resuscitate the idea of a Royal Pardon in advance.

    I approve of their Lordships judgment so far as it goes, but it is an unfortunate consequence of the way the system works that we have been pushed into the unsatisfactory tampering with the public interest test.

    (Sorry if this makes no sense – it is late at night)

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  11. I'm grateful to Anonymous who has pointed out that Debbie Purdy has MS, and not MND. A neat demonstration of my lack of qualification to discuss the particular niceties of this particular issue.

    As for article 8 being known as "right to life", lawyers are notorious for truncating things we have to talk about on a regular basis, so "right to respect for his private and family life, his home and his correspondence", becomes "right to life". Trips off the tongue a little better, no?

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  12. Truncation to "right to family life" I'd accept but to simply "right to life" is confusing when the right to life is it's own seperate human right covering a totally different area.

    I think the distinction is particularly important in this case where the case could have been considered under either Art 8 or Art 2.

    You mention that it is Art 8 afterwards, this does clarify it but only to those of us familiar with the ECHR.

    It's a minor point but one I (unexplicably) feel strong about. Moving on...

    It annoys me when some reports (generally tabloids, for example: http://www.mirror.co.uk/news/top-stories/2009/07/31/i-ve-got-my-life-back-115875-21560487/) omit any mention of the fact that Debbie Purdy won this case because of human rights arguments.

    Yet there is 'outrage' in cases where the defendent plans to appeal on a HR basis (http://www.dailymail.co.uk/news/article-1176968/Baby-P-killers-human-rights-outrage-sadist-set-appeal-rape-conviction-girl-2.html) regardless of his chances of success.

    I think HR has an undeserved bad reputation amongst the general public. If any case is able to turn this reputation around it is a case like Debbie Purdy's. It's just a shame that the public oftens only hears the bad about HR.

    I do however feel that this case is a step in the right direction as far as the law on assisted suicide is concerned.

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  13. It is an immensely difficult subject that is impossible to comprehend for anyone who has not personally had to deal with terminal illness.
    No one would want there to be free rein to permit euthanasia where no consent is in place, but where someone has of their own free will decided on that course of action, then prosecution of surviving relatives seems innappropriate.
    We treat human life as totally sacrosanct, regardless of the suffering that may be involved by prolonging life, and just as you would not allow a pet to suffer unneccessarily, sometimes it must be right to extend that courtesy to humans if they so wish.

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  14. I see that a man is being posecuted because he gave his dying father at hand gun to shoot himself. Surely taking a person abroad to comit suicide or giving him the means here are effectively the same thing.

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  15. Danny -- You are of course right, and lawyers should be more careful to avoid confusion. Relying on context to identify which article you're talking about is a recipe for disaster.

    Brian E -- that man gave his weak and sick father a loaded gun, and his father shot himself in the middle of a hospital ward. The risks of such an act are obvious, and the need to prevent such behaviour is, in my view, clear, even if on a very simplistic level, it amounts to the same thing.

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  16. “ ....and then to hold to their lips the fatal draught”

    Not so. The patient (victim, dieee?) must administer the draught himself and without assistance. To do otherwise would contravene Swiss law.

    I am a member of Dignitas. If I need to use their services, and knowing my family, the existence, or otherwise, of legal sanctions will not prevent my family from accompanying me if they so wish. In such circumstances, the law ceases to function as it is intended. This is bad law. Debbie Purdy has taken a small step to improving it.

    I have seen people die slowly. I have no confidence in palliative care. I have no wish to be the grey, emaciated, suffering semi-corpse in the back bedroom to which the grandchildren are dutifully presented.

    I pray that those who oppose a change in the law may never have to make such a decision, but I would defend their right to suffer as much as they like.

    I demand the right, as far as possible, to die at a time and in the manner of my choosing with my loved ones around me if they so wish. It is not for anyone else to decide the merits of my last minutes. It is my decision and mine alone.

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  17. Judges do make Law.

    It follows from Separation of Powers.

    The key issue is how they do so.

    The policy making tribunal should consider all the implications of the Law they are making. Openly and not pretend they are not Law making as this impairs good decision making.

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  18. Advocatus DiabolisAugust 11, 2009 at 7:05 AM

    The West Australian newspaper in the last week gave extensive coverage to the case of a nursing home which had applied for directions from the WA Supreme Court if it should continue to feed a paraplegic man or comply with his wished to allow him to die.

    With the baby boomer generation fast approaching its last days it is going to be a continuing area of angst.

    Exellent blog, please keep it going.

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  19. No, I have not read their LL'ships speeches! Where I have difficulty is with the limitation in the prosecutorial discretion.

    The German Prinzip which, if I correctly understood it, requires prosecution if there is complaint (Klage) and evidence seems wrong to me, but, unless DPP's sophistry is of a high order he will have difficulties in giving guidelines which are definite enough to satisfy the HL, but flexible enough to cope with the infinite varieties of human agony.

    I write as a retired prosecutor in a specialised jurisdiction.

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  20. Prosecutorial discretion is a marvellous thing. I'm glad to have it on an almost daily basis. The guidelines which already exist here, for some of the more serious or obscure offences, are not really that precise, they simply set out factors to consider when deciding whether to prosecute. There'll still be plenty of wriggle room post-guidelines, I would think...

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