Anthony Lester: End the legal uncertainty over assisted suicide

Citizens are entitled to know if their conduct is criminal

Sunday 23 October 2011 05:20

Whatever our religious faith or lack of faith, we all hope that we and our loved ones will have a happy, healthy long life. We all hope that, as our lives come to an end, we will be well cared for and will die peacefully and with dignity.

We all hope – but many know of others who have had "bad deaths" and fear a similar fate for themselves. We should celebrate life, and when death comes we should help the dying to end their lives as they wish, and with respect for their dignity.

The wonders of modern science have greatly prolonged the normal span of human life, but modern medicine has also created difficult ethical problems about how to balance the right to life and the patient's right to choose to accept or refuse medical treatment when life has become unbearable and death is imminent.

New techniques of palliative care have made it possible to relieve pain and suffering. The hospice movement does wonderful work in helping terminally ill patients to die with dignity. But not everyone wants to die in a hospice and not everyone wants doctors and nurses to strive to keep them alive.

The Suicide Act 1961 changed the law so that suicide is no longer a crime, but it remains a crime to encourage or assist suicide, and the current state of the law is not as certain as criminal law should be. Criminal liability depends on the way a particular Director of Public Prosecutions decides what is in the public interest.

Like many others, I believe that we need a legal framework which would allow doctors and nurses to be able lawfully to treat terminally ill patients to relieve their suffering as well as pain, even though it would be a virtual certainty that the treatment would shorten their lives.

Such a framework would need to include really stringent safeguards to respect the patient's right to life and to personal autonomy against coercion or pressure from health care professionals, family or friends, and to protect the freedom of religion and conscience of doctors and nurses. But that reform is not on the Government's agenda and will not happen in this Parliament.

There is a much more limited reform now available which would remove the present uncertainty and the fear of prosecution from those who accompany their loved ones to Switzerland to support them in their agonising decision to end their life. Lord Falconer, the former Lord Chancellor, seeks to amend the Coroners and Justice Bill to create a defence to a charge of encouraging or assisting suicide for someone who accompanies a terminally ill person to travel overseas for an assisted death.

Those who assist a terminally ill friend or relative in this way face the agonising uncertainty of whether or not they will be prosecuted. As a result, some who desperately need love and support travel abroad to die alone without their loved ones by their sides.

The Coroners and Justice Bill currently before the House of Lords modernises the language of the Suicide Act 1961, but the Bill does not address the current failure of the law to distinguish between those who maliciously encourage suicide and those who compassionately assist the death of a terminally ill, mentally competent adult. Unless the Falconer amendment passes, those who accompany a loved one abroad to die will still have to await the DPP's decision as to whether they will face a prosecution.

At least 115 people have travelled abroad to die at the Swiss assisted suicide clinic, Dignitas. In this sensitive area, the law should reflect the widespread sense of compassion and humanity and provide legal certainty. It is not sufficient to rely upon the way in which the DPP may decide what is in the public interest in any particular case. Citizens are entitled to know whether their conduct is or is not criminal. That is a fundamental principle of the rule of law.

Lord Falconer's amendment provides a very narrow, carefully drawn defence. It clarifies what is the current actual position and is accompanied by strict safeguards – certification by two medical practitioners and an independently witnessed declaration from the terminally ill person. Those who assist someone who is not terminally ill to die abroad will not be protected by the amendment which introduces safeguards to something that is already happening in a wholly unregulated way.

This moderate, practical, and humane proposal is likely to receive widespread support across the House of Lords and beyond. Public opinion is clearly in favour. Let us hope that the Upper House will once more be the catalyst for necessary law reform.

Lord Lester of Herne Hill QC is a Liberal Democrat life peer and practises at Blackstone Chambers. He also directs the Odysseus Trust

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