3 September 2015
Appointments with Death
By John Watson
Prosecutions for assisting or encouraging suicide are very rare indeed and Sir Keir Starmer’s remark that during his tenure as Director of Public Prosecutions (2008-2013) there was only one of them says much about the way in which the strict letter of the law has been mitigated by official commonsense. In some ways that is a good way of dealing with it, an offence carrying fourteen years imprisonment to dissuade the villainous, offset by guidelines (published by Sir Keir himself) to ensure that prosecution will only occur when in the public interest. The guidelines look at a number of factors, the most significant being whether the person doing the assisting is motivated entirely by compassion. I don’t think anybody would argue that they are other than sensible; but we are in an age where people like things to be tied down and the Assisted Dying Bill, which ran out of road in the last Parliament, will be debated again before the year is up. It is worth looking at some of the issues which will regulate that debate.
The hurdles which have to be jumped
As the law of England has changed over the years, with the formality of the common law giving way to equitable doctrines of fairness, one area has stood out against the tide. That is the formalities required to make a will. There, it is not enough that the testator ought to have made a will, meant to make a will, would like to have made a will, made the will but forgot to have it witnessed or didn’t comply with the rules due to some other accident. If the formalities have not been observed there is no will and the estate must pass under the intestacy rules. The reason for taking such a strict view is that by the time any dispute over a will arises the main witness, the testator, is inevitably dead and, since the dishonesty, greed, viciousness and hatred displayed in probate disputes is almost unique outside the world of prize vegetables, it is crucial that the courts take an approach which is not much swayed by the testimony of those fighting over the estate. Much the same can be said about assisted dying where it could become all too easy for those who see “family assets” in the hands of the old, the vague and the weak to help things along a bit.
It is for this reason that the Assisted Dying Bill requires a number of hurdles to be jumped. For assistance to be legal, the victim must be terminally ill – that means they must be reasonably expected to die within six months and the doctors must believe that their condition cannot be reversed. They must have decided to end their own lives and have executed a declaration to that effect. Their decision must be voluntary, informed and without coercion. Under the original bill the decision was to be monitored by doctors, but amendments were put suggesting that approval should be given by a High Court Judge of the Family Division.
The thin end of the wedge?
That seems to involve about all the safeguards you can imagine, but the proposals as a whole are the thin end of a wedge, and before embarking on the journey we should think about where it will end. Let’s start with the requirement that the person who wishes to commit suicide is within six months of death. That restricts the assistance to an “easing of the final passage”, the ultimate enema, I suppose. What about the person who faces years of being unable to move or to communicate? Should they be obliged to go to Switzerland? In due course one would expect the six month rule to be replaced by something which covers the prospect of years of pointless suffering.
Then what about the person whose brain is so damaged by a car crash or stroke that they lose their capacity to make a decision? Must they live on? No doubt at some stage a mechanism will be introduced allowing you to elect that if there is no chance of recovering sufficiently to make a decision you will be regarded as having decided on the termination route. Perhaps it will eventually go further so that you have to opt out.
These are all variants on the current theme and will probably find public support in due course. Where then is the line likely to be drawn? Here you need to go back to the reasons for all this. Suicide itself is not an offence and the idea is to let those who cannot physically kill themselves enjoy the choice which is afforded to others. There is no need to allow people to give assistance to the able bodied. If they decide to kill themselves they must just get on with it and those who help or encourage them, often not such different things, should be eligible for the 14 years which many of them will have richly deserved. Society may give people who would otherwise be unable to commit suicide the opportunity to make their decision. It should not condone encouragement to suicide generally.
Tablets of stone
“Why” you may ask, “should society discourage suicide as if the hex against it were written in stone?” The short answer to that is that it is, and not the Edstone either but the rather more impressive tablets handed down by the Almighty to Moses on Mount Sinai. There we have it, Commandment number 6: “Thou shalt not kill” and that rule, which is generally taken to cover killing yourself, underpins morality and legal systems throughout the Western world. To abandon it would undermine the way we think but there have always been exceptions and qualifications. The changes contemplated now are unlikely to undermine the edifice.
It is difficult stuff and needs debating properly; if the politicians seem to move at a snail’s pace, for once they are right to do so.
