The law on assisted dying is "incoherent and unsafe" and must be changed, the former Metropolitan Police commissioner Ian Blair warns today, ahead of a landmark report on helping the terminally ill to take their own lives.
Lord Blair of Boughton, who spent four years as Britain's most senior police officer at the head of Scotland Yard, argues: "The law as it currently stands is failing both those whom it seeks to protect and those tasked with enforcing it."
Writing exclusively in The Independent on Sunday, Lord Blair argues the law "has not kept pace with modern life and modern science" and must be changed. He is a member of the Commission on Assisted Dying which will this week recommend significant changes to the way the terminally ill are treated and the legal threat faced by those who help them to die.
New figures released to Parliament last month reveal that police have referred 31 cases of suspected assisted suicide to prosecutors, but none has led to charges being brought since new guidelines were introduced by Keir Starmer, the Director of Public Prosecutions, in February 2010.
Lord Blair says the current arrangement means people must take a "leap of faith" that Mr Starmer "will respond compassionately" and not prosecute, "trading off their respect for a loved one's dignity against the fear of prison". He adds: "At a time when they should be grieving", the current system forces relatives of loved ones "into a world of uncertainty that leaves the police and prosecutors torn between good practice and natural human sympathy".
Last month, a former TV producer, Geraldine McClelland, 61, travelled to Dignitas to die, leaving a letter that said: "I don't believe that my brother and sister should have to break the law so that they can be with me when I die. Because of the cowardice of our politicians I can't die in the country I was born in, in my own home."
The commission, chaired by Tony Blair's first Justice Secretary, Lord Falconer, and set up by the think tank Demos, will publish its final report on Thursday. The 11-strong panel, including the Tory MP Penny Mordaunt, the Reverend Canon Dr James Woodward and Dr Carole Dacombe from St Peter's Hospice, took evidence from legal, medical and religious experts. Witnesses included Alan Cutkelvin Rees, who helped his partner Raymond Cutkelvin to travel to the Dignitas clinic in Switzerland to die in 2007, and Debbie Purdy, who has multiple sclerosis and has campaigned to know if her husband will be charged if he helps her travel to Dignitas. Mrs Purdy told the commission: "It's very hard to grieve for somebody when you've had your house turned over and you are on police bail for something."
Chris Broad, the former England Test cricketer, told how his wife, Michelle, who had motor neurone disease, committed suicide alone. "Michelle had organised the end of her life remarkably well – left little gifts for her tennis club members and notes for me and the children... And [the police] just swooped up all those things and took them away."
Lord Blair says the report will make many recommendations – and many caveats. "The creation of a humane, coherent and enforceable framework of law will be one of them." Prosecutors say that in most cases suspects are "most reluctant" for the person to commit suicide but want to "abide by the wishes of the individual". Giving evidence, Mr Starmer insisted that current guidance "works well", though he declined to say whether he thought the law should be changed.
He said the cases he has seen since the guidelines were issued are "broadly speaking... acts within a family... compassionate acts by individuals who very often lived with the deceased for a good period of time. Very often in a relationship; often in a strong, loving relationship".
Investigating officers are encouraged to discuss cases with the Crown Prosecution Service early. All case files are referred to the Special Crime and Counter Terrorism Division in London, then to the DPP, which decides whether there is sufficient evidence to provide a realistic prospect of conviction, and that it is in the public interest to proceed. A financial investigation is carried out to see if money could have been a motivation for someone to help a loved one to die. Police inquiries can take weeks or even months.
The new DPP guidance was drawn up after Mrs Purdy's legal challenge reached the House of Lords. The CPS insists the policy "does not change the law on assisted suicide, which remains a criminal offence". A spokesman added: "The guidelines... are transparent and ensure consistency in our approach, which has helped to build public confidence in the exercise and to ensure fair treatment of those most affected by the death of someone they love."
Lord Blair also raises concerns about the "lack of clarity" for doctors about what constitutes providing "assistance" to someone to take their own life. In the new year, the General Medical Council is to draw up new guidelines on the punishment doctors should face if they are alleged to have assisted in a suicide, say, by giving information on suicide or providing practical help to someone to travel to Dignitas.
In the five years to March 2011, the Medical Protection Society received nearly 70 calls and 30 requests for written advice on the issue of assisted suicide from doctors and nurses. "While this is a relatively small number, it is a source of significant anxiety," said Dr Stephanie Bown, MPS head of policy.
Sarah Wootton, chief executive of Dignity in Dying, hopes the report will "shed much-needed light" on the issue. "The real debate... should not focus on whether the law should change but how it should change. We shouldn't be dismissing a change outright in the face of our clearly untenable situation." Andrew Copson, chief executive of the British Humanist Association, said reform of the law "would be an important step to becoming a more compassionate and caring society".
Ludwig A Minelli, founder of Dignitas, said in a letter to the commission: "At a time in which lonely, unassisted suicides among older people, in particular, are increasing sharply – as a result of the significant increase in life expectancy and the associated health and social problems of many men and women who have become old, sick and lonely – careful and considered advice in matters concerning the voluntary ending of one's own life is gaining relevance. It is about time that the law makers in the UK (and other countries) respected the will of the people and implemented sensible solutions that allow individuals, who choose so, to have a dignified, self-determined end to life at their own home, surrounded by those close to their hearts."
Most senior politicians have refused to support calls for a change in the law. In 2006, David Cameron wrote a letter to pro-life campaigners that stated: "I do not think we should tread over this line and we should not allow doctors or others positively to accelerate death – because I think the long-term consequences of permitting such action are too likely to be dangerous for society." And shortly before the 2010 general election, Nick Clegg said it was an issue that should be decided by a free vote, but added he was "morally very uncomfortable" with the idea of changing the law.
A spokesman for the Ministry of Justice said: "The Government believes that any change to the law in this emotive and contentious area is an issue of individual conscience and a matter for Parliament to decide rather than government policy."
'The current law is there to protect the vulnerable'
Opponents of a law change have moved to dismiss the Commission on Assisted Dying's findings before they are published. Alistair Thompson, spokesman for the Care Not Killing pressure group, said the panel was dominated by known supporters of assisted suicide.
"It has been boycotted by many people," he said. "Where legalisation has happened elsewhere... we know the elderly and vulnerable have been preyed upon. The existing law is there to protect the vulnerable."
It is also feared legalisation would lead to private firms seeking to make money from offering assisted suicide.
A number of medical bodies did not take part in the commission. The British Medical Association said it is "opposed to assisted suicide and to doctors taking a role in any form of assisted dying". The Royal College of General Practitioners argues good clinical care can be provided within the current law, and that a change is not needed.
In evidence to the commission, Brian Rowney, the General Secretary of Independent Methodist Churches, said: "Many Christians view life as a gift from God, and the taking of life as taking what belongs to God. We should be directing a lot more resource into the hospice movement, which allows the seriously ill to live their last days in comfort and dignity."
Critics of moves to legalise assisted dying in the UK argue more focus should be placed on improving palliative care. At the launch of the commission, Jonathan Ellis, director of policy at the charity Help the Hospices, said: "For hospices, the issue is not the right to live or to die. It is about the right to be cared for."
David Congdon, head of campaigns and policy at the learning disability charity Mencap, added: "Too often, healthcare professionals make dangerous assumptions that people with a learning disability have very little 'quality of life' and so therefore are 'not worth' treating... We fear that the legalisation of assisted suicide would lead to a slippery slope with ultimately more people with a learning disability needlessly dying. We would be very disappointed if [the commission's] report takes the decision to legalise assisted dying."
Dr Raymond Tallis
Raymond Tallis was a doctor for almost four decades, and retired in 2006 as Emeritus Professor of Geriatric Medicine at the University of Manchester. As chairman of Healthcare Professionals for Assisted Dying, he supports the legalisation of assisted dying for terminally ill adults who are mentally competent and whose suffering is not relieved by palliative care.
"People have raised all sorts of arguments against, some of which I was once foolish enough to subscribe to. Palliative care can help in a very large majority of cases, but there is a significant number of cases of people whose symptoms cannot be relieved at all. They are in a state of utter and absolute misery, with an outcome that's inevitable. They are dying. It seemed to me utterly wrong that they should exist in a state of absolute suffering for days, weeks or sometimes months.
"Discontinuation of treatments – stopping antibiotics or insulin – is something that is conventionally done, or switching off a ventilator... The difference between switching off a ventilator and assisted dying seems to me a technical difference.
"There is hostility within the legislature. We have had courageous politicians who have run with this but many would see it as a threat to their chances of re-election. Denying somebody assisted dying when they do clearly want it for clear reasons when they are terminally dying – it is an abuse and cruel."
Michelle Clements, 47
Mrs Clements travelled to the Dignitas clinic in Switzerland in August last year where her husband, Tony, 69, who had suffered from Parkinson's for 30 years, took his own life by lethal injection, after his condition worsened. The procedure took two months to arrange and cost almost £10,000. The couple, from Kent, moved to the south of France three years ago.
"The Terry Pratchett documentary [Choosing to Die] was on in June, and that was when he [Tony] decided that was what he wanted to do. He couldn't take any more...
"People should be allowed to die: to kill themselves, peacefully. It's not for everyone. I knew nobody had been prosecuted, yet... I came back to England about a month after he died. The relief when I got to passport control was immense. Even in France I did think somebody would come knocking on the door.
"The sun shone that day [when Tony died]. It is a good ending. The alternative was unbearable. He was begging me to kill him here. [But] we had some good evenings. We sat outside with glasses of wine planning his memorial service. We had that in October at Brompton Garrison Church. It was packed with 150 people. His brother likened [Tony's death] to a soldier taking control at the end."
Q&A: In numbers
What is the law on assisted dying?
Under the Suicide Act 1961, it is an offence in England and Wales to encourage or assist the suicide or attempted suicide of another person. The offence carries a prison sentence of up to 14 years. There is no specific offence in Scotland. Euthanasia – killing someone to relieve suffering – is also illegal.
If assisted suicide is illegal, why are people not prosecuted?
The Director of Public Prosecutions, Keir Starmer, drew up new guidelines in February 2010 setting out six mitigating factors that could prevent prosecution, including the "victim" reaching a clear, voluntary decision to commit suicide, the "suspect" being motivated by compassion and the suspect reporting the suicide to police. Since then, no one has been prosecuted, although police have sent 31 cases to the DPP.
So what's the problem?
The police must investigate all cases of encouraging or assisting suicide, adding to their workload and causing anxiety to grieving relatives. Campaigners fear a different Director of Public Prosecutions could send more cases to court. Only people with the money and supportive friends or family are able to travel to a country where it is legal. The Association of British Insurers says assisted dying cases should be treated like all suicides, with some life insurance policies not paying out if suicide is the cause of death within one or two years of being purchased.
What happens in other countries?
The private Dignitas clinics have made Switzerland the most well-known country where assisted suicide is legal. Euthanasia is illegal in Switzerland. Elsewhere in Europe, assisted suicide is also legal in Holland, Belgium and Luxembourg. In 1998, Oregon became the first US state to allow assisted suicide. Doctors prescribe lethal drugs to patients but do not administer them. Assisted suicide has since been legalised in Washington and Montana.
Is legalisation likely in the UK?
No. David Cameron and Nick Clegg have previously spoken against a law change, but insist any legislation would be subject to a free vote, allowing all MPs to vote with their conscience. It means an MP or peer would have to bring forward a Private Members' Bill, which would likely be defeated.