Analysis: More guidance needed on difficult legal area of right to die

THE High Court yesterday ruled against two patients with locked-in syndrome who asked it to consider their requests for the option of medical assistance to die.

The patient known as Martin had asked the court to clarify whether medical and legal staff, acting out of compassion, would be prosecuted if they assisted him with his wish to die.

He wanted to clarify whether a doctor providing him with information on what care might be available if he were to stop eating and drinking, for example, or providing assistance in making the arrangements to be assisted to die in Switzerland, were likely to result in prosecution.

Tony Nicklinson’s request was more radical and asked for the court to give permission for a doctor to directly administer life-ending medication to him, at his request. Both cases lost.

Under the current law it is illegal to assist another person to die, but in England and Wales acts of assistance to die are often forgiven by the law, if they are compassionate acts.

The factors considered when deciding whether to prosecute or forgive a person for assisting the death of another were published by the director of public prosecutions (DPP) in 2009 following Debbie Purdy’s legal victory in the House of Lords.

The DPP guidelines make it clear that amateur compassionate assistance to die is likely to be forgiven, but that those assisting in their capacity as healthcare professionals will be prosecuted.

The picture is slightly more complex in Scotland – there is no specific crime of “assisted suicide” but people who assist someone to die may be liable for prosecution under the law of culpable homicide. What remains unclear both north and south of the Border, even following yesterday’s legal judgment, is what counts as assistance to die and what is simply good practice and communication between a doctor and their dying patient.

To be clear, Dignity in Dying does not campaign for assisted suicide for non-terminally ill people or for voluntary euthanasia whereby the patient’s life is directly ended by another. We campaign for the choice of assisted dying for terminally-ill mentally-competent adults. While both of these cases fall outside of the remit of our campaign, they raise difficult legal and ethical issues.

About 80 per cent of the public want to see an assisted dying law passed, but the public are more evenly split when it comes to assisted suicide and voluntary euthanasia. Although this was clearly a difficult decision, I believe the courts have missed an opportunity to make things clearer for healthcare professionals and their patients. It’s crucial that parliamentarians don’t simply leave this to the courts.

• Sir Graeme Catto is chair of Dignity in Dying and an Emeritus Professor of Medicine at the University of Aberdeen.