Case Note: Assisted Suicide (Purdy)
R (on the application of Purdy) v DPP (UKHL)
by Louise Cheung
Somewhat appropriately, the very last case to make it to the appellate committee of the House of Lords (now the new UK Supreme Court) concerned the issue of death and dying. More specifically, this case concerned assisted suicide. The controversial issue at the heart of this case concerned whether the husband of Debbie Purdy (an MS sufferer) could assist in her suicide and not fear prosecution on the basis of contravention of s. 2(1) of the Suicide Act 1961. In this instance, assistance was in the shape of her husband travelling with her to Switzerland for the purpose of assisted suicide.
The organisation Dignitas in Switzerland aids those who wish to commit suicide. This institution is unique, as it allows for “suicide tourism” so that terminally ill people who want to commit suicide but have no affiliation with Switzerland can still visit Dignitas for assistance.
Suicide itself is not illegal; however, to “aid, abet or procure” suicide is illegal. This has proven to be a moot point. Debbie Purdy argued that when she becomes too weak to commit suicide herself, the law will discriminate against her a disabled person, thus affecting her right to end her life. She argued this using Article 8 of the European Convention on Human Rights, which gives the right to respect for private life, giving a (qualified) guarantee that there will be no interference by a public authority with the exercise of this right.
Ms Purdy wished to seek clarification on whether loved ones who assist suicide will be prosecuted. The court saw that various factors are important in determining whether prosecution would be in the public interest. For example, whether the person wishing to commit suicide has a severe and incurable disability and whether the people who assist will gain a financial advantage by doing so.
This landmark case is ground-breaking in two ways. Firstly, it demonstrates how “public interest” is paramount when judges decide cases. IT is important that decisions reflect public morality. Secondly, this case should be of interest to constitutional lawyers, since it demonstrates the fusion of the separation of powers. Before this case came to the House of Lords, on the 7th of July 2009, the issue of the Swiss suicide defence was debated in the legislative arm of the House of Lords before being rejected.
Interestingly, the Debbie Purdy decision on the 30th of July has only required the DPP to explain the position on prosecution, which has since yielded a consultation on the discretion of prosecutors. This demonstrates that, even where the legislative arm has decided not to legislation on an issue, the courts will have to fill the vacuum left and ensure that there is some degree of clarification and certainty in the law.
Debbie Purdy has won a significant legal victory in the House of Lords which lawyers are describing as a turning point for the law on assisted suicide.
Purdy, 46, from Bradford, West Yorkshire, who has primary progressive multiple sclerosis, succeeded in arguing that it is a breach of her human rights not to know whether her husband, Cuban jazz violinist Omar Puente, will be prosecuted if he accompanies her to Swiss clinic Dignitas where she wishes to die if her condition worsens.
The decision – the last ever by the law lords before they recommence work as justices of the new supreme court in October – went further than expected in Purdy's favour, lawyers say.
Ordering the director of public prosecutions to issue a policy setting out when those in Puente's position can expect to face prosecution, the court ruled that the current lack of clarity is a violation of the right to a private and family life.
"It's a complete victory," said Saimo Chahal, partner at Bindmans who represented Purdy. "I always knew we would have to go to the House of Lords to get a judgment that was reasoned and considered."
Purdy's two previous attempts to request a policy from prosecutors failed after the courts said the current situation was lawful.
Despite at least 115 British people already known to have travelled abroad for an assisted suicide, with an average of two a month since 2002 and despite scores of police investigations, not a single family member has been prosecuted.
A report last month from campaign group Dignity in Dying, which has supported Purdy's case, warned that a further 34 Britons were in the final stages of travelling abroad for the same purpose.
Earlier this month renowned British conductor Sir Edward Downes, 85, and his wife Joan, 74, joined those who have ended their lives at Dignitas. Their death, watched by their children Caractacus, 41, and Boudicca, 39, is still the subject of a police investigation.
In a further development last year, DPP Keir Starmer published a decision not to prosecute the relatives of 23-year-old rugby player Daniel James even though there was enough evidence, because it was not in the public interest.
Campaigners welcome today's victory for Purdy as a recognition of rights for those who wish to die in a manner of their choosing, and say that what is ultimately needed is a change in the law.
"Parliament urgently needs to acknowledge the fact that people are travelling overseas to die – and this trend shows no sign of stopping", said Sarah Wootton, chief executive of Dignity in Dying.
"It's time the 1961 Suicide Act was brought up to date to reflect what's really going on in UK courts".
Parliament has so far resisted attempts to change the law, with the latest proposals defeated in the House of Lords by 194 votes to 141 this month. But campaigners say today's ruling will place unprecedented pressure on parliament to act.
"This case means the DPP will have to publish the factors for and against prosecuting those who assist suicide abroad, but it would only be retrospective," Wootton said. "But it sends a clear message that the law can distinguish between different types of behaviour, and saying that compassionate assistance is not a crime. Surely parliament will need to react to that."