Blog: Two Tests for an Assisted Suicide Law

Robert Preston

Robert Preston, of Living and Dying Well, an evidence-based think tank who are against proposed changes to the law on assisted-dying discusses the law as it stands both sides of the border.

We are seeing renewed pressures, on both sides of the English-Scottish border, to legalise physician-assisted suicide - that is, to license doctors to supply lethal drugs to terminally ill patients who are thought to meet certain criteria. Last week Holyrood’s Health and Sport Committee published its report on the late Margo Macdonald’s Assisted Suicide Bill: the committee was “not persuaded by the argument that the lack of certainty in the existing law makes it desirable to legislate to permit assisted suicide” and it considered that the Bill “contains significant flaws”.

The law in this area is different north and south of the border. In England and Wales the 1961 Suicide Act decriminalised suicide but made it a criminal offence to encourage or assist suicide. It also gave the Director of Public Prosecutions (DPP) discretion to review each and every case and to decide whether the circumstances warranted prosecution. In 2010 the DPP published, at the request of the Supreme Court, a policy explaining how such decisions are reached and listing various factors which might be seen as aggravating or mitigating the offence.

In Scotland there is no statutory offence of assisting suicide. Such acts are governed by the common law relating to homicide and a person assisting another’s suicide could be charged with murder or culpable homicide - probably the latter, according to the Health and Sport Committee, in cases where there is evidence of compassionate motivation. The committee was told by the Crown Office and Procurator Fiscal Service that “under the current Prosecution Code prosecutors are encouraged to have regard to a wide range of factors when determining the potential criminality of conduct, including the motive for the behaviour”.

While the definitions and processes differ north and south of the border, there appears to be a common underlying motif. In both countries, while it is recognised that people who attempt to end their lives should be treated with understanding and compassion, it is also accepted that suicide itself is not something to be encouraged or assisted. There is also a recognition that assisting a suicide might cover a wide range of criminality, from (at one end of the spectrum) malicious or manipulative assistance given for personal gain and accompanied by pressure to (at the other end) compassionate assistance given reluctantly and after much soul-searching.

There is a tendency these days, when confronted with a problem, to reach for the Statute Book. Sometimes legislation is needed and proves to be of benefit. But in the case of assisted suicide we should look before we leap. Proposals for changing the law need to pass two rigorous tests before being placed before legislators. The first test is to demonstrate that the law as it stands is not fit for purpose. Does it deter? Is it oppressive? Does it reflect social values?

If - and only if - that test is passed, it needs to be clearly shown that the new law would be better - better, that is, not just for those who might want to make use of it but for all of us. Are there adequate safeguards? And are the boundaries of the new law such that they will be resistant to expansion?

I have seen no convincing evidence produced to date on either count on either side of the border.  The incidence of the offence is small and those who act out of compassion are not being hauled through the courts and sent to prison. And the safeguards proposed are no more than broad generalisations.

Until these two tests are passed I will remain sceptical.