Patients asking their doctors for help to end their lives or travel to Dignitas is becoming more and more common. Few can also have been unaware of the Tony Nicklinson and ‘Martin’ cases which made headlines recently. The following is an analysis of the law on assisted suicide, GMC guidance on the matter and the issues raised within the Nicklinson and ‘Martin’ cases:
Prior to 1961 it was a crime for a person to commit suicide. That was abolished with the Suicide Act 1961. However, it became (and remains) an offence for a person to encourage or assist the suicide or attempted suicide of another person. Such offences are punishable by up to 14 years imprisonment.
In 2009, Debbie Purdy famously pursued legal proceedings to force the Director of Public Prosecutions (‘DPP’) to publish a policy clarifying when and when not persons would be likely to face prosecution for encouraging or assisting a suicide. This resulted in the February 2010 Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide. Whilst nothing in that policy decriminalises encouraging or assisting suicide, or guarantees that someone will be immune from prosecution in certain circumstances, it does set out a long list of factors tending in favour of and against prosecution.
Factors tending in favour of prosecution include the victim being under 18, the victim lacking capacity, the suspect standing to gain from the death and (of particular importance from your perspective) the suspect acting in a professional capacity such as being a doctor, nurse or other healthcare professional. Factors tending against prosecution include the victim having reached a voluntary, clear, settled and informed decision to commit suicide, the suspect having acted wholly motivated by compassion and the suspect reporting the suicide to Police and fully assisting Police enquiries.
What does the GMC say about assisted suicide?
In May 2010 the GMC published its own guidance Treatment and Care Towards the End of Life: Good Practice in Decision Making. This makes clear that “an act by which the doctor’s primary intention is to bring about a patient’s death would be unlawful” and “decisions concerning treatment must start from a presumption in favour of prolonging life”.
The guidance is otherwise silent on the issue of assisted suicide, save to highlight that there is “no defence of mercy killing or euthanasia in English law”. The GMC expects doctors to act within the law at all times and therefore, when patients raise the issue of assisted suicide, to explain that they cannot discuss it in case that discussion could be construed as them committing a criminal offence. Such refusals are difficult to impart without leaving patients feeling abandoned or compromising your obligation to act with compassion. Further helpful guidance is available from the NHS National End of Life Care Programme.
The Nicklinson and ‘Martin’ cases
Few will be unaware of the story of Tony Nicklinson, who died on 22 August aged 58. Nicklinson was an athletic, outgoing man until he suffered a catastrophic stroke in 2005, which resulted in him suffering from ‘locked-in syndrome’. He pursued legal proceedings seeking either (i) a declaration that it would be lawful for his GP, or another doctor, to terminate his life or (ii) a declaration that the law on murder and/or assisted suicide as it stands contravened his right to respect for private life until Article 8 of the European Convention on Human Rights (ECHR).
Nicklinson’s legal proceedings were joined with those of ‘Martin’ (not his real name). Martin, age 47, suffered a catastrophic stroke in 2008 which left him with only slightly more functionality than Nicklinson. He sought an order that the Director of Public Prosecutions should clarify the policy on prosecutions for encouraging or assisting suicide so that persons outside Martin’s family, such as doctors or solicitors, who would be willing to assist Martin to commit suicide, would know in advance whether they would be likely to face criminal prosecution. In the alternative, if Martin failed in his claim against the Director of Public Prosecutions, he wanted a declaration that Section 2 of the Suicide Act is incompatible with Article 8 of the ECHR.
Whilst the cases attracted widespread media attention, there was little mention of the fact that the GMC was named as a Defendant to the proceedings alongside the Director of Public Prosecutions, Solicitors Regulation Authority and Ministry of Justice. In relation to the GMC, Martin specifically sought a declaration that a doctor who played a part in helping him to commit suicide should not be exposed to the risk of professional disciplinary proceedings.
Both Nicklinson’s and Martin’s claims failed. Although the GMC defended the claim against it, unfortunately the court did not go so far as to set out or comment upon the terms of the GMC’s defence. As the court held that it would be wrong for it to depart from the long-established position that voluntary euthanasia is murder, that Article 8 of the ECHR did not afford a possible defence to murder and that the DPP was not obliged to publish any further clarification of its policy on prosecutions following suicide, it stated simply that it followed the claim against the GMC also failed.
In a statement issued following the case, the GMC clarified that, in its view, “it is not part of the GMC’s role to take a view on whether the law should be changed - that is a matter for Parliament to determine”.
Of note, the GMC also stated that it is currently working on guidance for its case examiners (the people who decide how fitness to practise complaints against doctors should be dealt with) to help them decide what action to take if a doctor is alleged to have assisted or encouraged a suicide. The guidance is expected by late 2012.
Sadly, Tony Nicklinson died of natural causes within days of the judgment. However, Martin’s case goes on. On the day of Nicklinson’s death, his solicitors confirmed that he will appeal the judgment to the Court of Appeal.
As at the date of writing, (October 2012), it remains a criminal offence to encourage or assist the suicide of another person. Being a doctor or other healthcare professional makes it especially likely that you will fact prosecution if you do encourage or assist a suicide. The GMC is clear that doctors must act within the law, whatever that says about suicide, and that any doctor convicted of a serious criminal offence is likely to be erased from the medical register.
Andrea James is Head of Healthcare Regulatory at George Davies Solicitors LLP, former in-house solicitor to the General Medical Council and specialises in defending healthcare professionals. For further information click here.