Posts Tagged ‘Assisted suicide’

Assisted suicide: the law and the role of doctors

By Andrea James - 1st October 2012 11:42 am

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:

The law

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.

Outcome

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.

Conclusion

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.

‘Locked-in’ man to have right-to-die case heard

BBC Health - 12th March 2012 12:35 pm

Tony Nicklinson, who is paralysed and wants a doctor to be able to lawfully end his life, should be allowed to proceed with his “right-to-die” case, a High Court judge has ruled.

The 58-year-old from Melksham, Wiltshire, has “locked-in syndrome” following a stroke in 2005 and is unable to carry out his own suicide.

His is seeking legal protection for any doctor who helps him end his life.

Read more at BBC Health.

Assisted suicide: “Strong case for legalisation”

BBC Health - 5th January 2012 2:31 pm

There is a “strong case” for allowing assisted suicide for people who are terminally ill in England and Wales, a group of experts says.

The Commission on Assisted Dying - set up and funded by campaigners who want to see a change in the law - said the current system was “inadequate”.

It said it was possible to allow assisted dying within a strict set of rules to ensure it was not abused. But the report has had a mixed response. Critics say it is biased.

The commission was chaired by Lord Falconer, a barrister and former justice secretary, and included a wide range of experts including doctors, an ex-police commissioner and a former president of the GMC.

Read more at BBC Health.

Top surgeon offers support to right-to-die campaign

PA - 11th January 2011 9:57 pm

One of the UK’s top surgeons has backed the right-to-die campaign by insisting that he would be willing to help terminally ill patients end their lives.

Sir Terence English, who performed the UK’s first heart transplant, has offered his support to an influential steering committee that backs assisted dying.

Sir Terence told The Sunday Times: “A doctor has responsibility first to the patient and, if I knew that patient was terminally ill, was of sound mind and hadn’t been got at by friends and relatives, I would be prepared to assist him or her.”

His comments come after director of public prosecutions Keir Starmer last year clarified the legal position on assisted dying. The move was interpreted by many as a clear indication that friends and family were unlikely to face prosecution if motivated by compassion to help a relative or close friend with a “clear, settled and informed” wish to die.

Read more at Press Association.

Religious beliefs shape end-of-life decisions

By Mike Broad - 27th August 2010 12:16 pm

Atheist or agnostic doctors are almost twice as willing to take decisions that they think will hasten the end of a very sick patient’s life as doctors who are deeply religious, research reveals.

The study in the Journal of Medical Ethics also suggests that doctors with a strong faith are less likely to discuss this type of treatment with the patient concerned.

Nearly 4,000 doctors responded to the survey and they were asked about the care of their last patient who died, if relevant, including whether they had provided continuous deep sedation until death, whether they had discussed decisions judged likely to shorten life with the patient, their own religious beliefs, ethnicity, and their views on assisted dying/euthanasia.

The specialties targeted included those in which end of life decisions would be particularly likely to arise, such as neurology, elderly care, palliative care, intensive care and hospital specialties, and general practice.

Specialists in the care of the elderly were somewhat more likely to be Hindu or Muslim, while palliative care doctors were somewhat more likely than other doctors to be Christian, white, and agree that they were “religious”.

But, overall, white doctors, who comprised the largest ethnic group among the respondents, were the least likely to report strong religious beliefs.

Ethnicity was largely unrelated to rates of reporting ethically controversial decisions, although it was related to support for assisted dying/euthanasia legislation.

Specialty was strongly related to whether a doctor reported having taken decisions, expected or partly intended to, end life. Doctors in hospital specialties were almost 10 times as likely to report this as palliative care specialists.

But irrespective of specialty, doctors who described themselves as “extremely” or “very non-religious” were almost twice as likely to report having taken these kinds of decisions as those with a religious belief.

The most religious doctors were significantly less likely to have discussed end of life care decisions with their patients than other doctors.

These attitudes were reflected in support for assisted dying/euthanasia legislation, with palliative care specialists and those with a strong faith more strongly opposed to it. Asian and white doctors were less opposed to such legislation than doctors from other ethnic groups.

The author Professor Clive Seale, from Barts and The London School of Medicine and Dentistry, concludes that the relationship between doctors’ values and their clinical decision making needs to be acknowledged much more than it is at present.

He said: “One potential response to the findings about the influence of religious faith is to suggest, as other have done, that religious doctors disclose their moral objections to certain procedures to patients so that patients can choose other doctors if they wish. This assumes that religiosity is the ‘exception’ to be set against the non-religious ‘norm’. It is equally plausible to argue that non-religious doctors should confess their predilections to their patients.

“After all, the data show some religious faith is held to by almost half of the medical population and approximately two-fifths of the general population. Whether religious or non-religious, it would seem advisable that doctors become more aware of how broader sets of values, such as those associated with religiosity or a non-religious outlook, may enter into their decision-making in end-of-life care.”

Read the full study.

Doctors risk prosecution over assisted suicide

By Mike Broad - 3rd March 2010 2:13 pm

Doctors face a greater risk of prosecution for assisting a patient’s suicide following new guidance, defence body MPS has warned.

The director of public prosecutions, Keir Starmer QC, has created six mitigating factors against an individual being prosecuted for assisting the suicide of another.

However, the MPS warned doctors to be extremely cautious when providing help or advice to patients who are considering assisted suicide.

The guidance, called Policy for prosecutors in respect of cases of encouraging or assisting suicide, includes a specific reference to the suspect acting as a doctor, nurse or other health professional as a factor in favour of prosecution.

In the interim policy, a suspect providing assistance to a victim in the course of their usual job was a factor against prosecution. This has been deleted from the final copy, which is now effective.

Dr Nick Clements, head of medical services (Leeds) at MPS, welcomed the clarification into the factors that will be taken into consideration when deciding whether to prosecute cases.

But he added: “We believe that the final policy on assisted suicide places doctors in a much more risky position than before. While we recognise that the law on assisted suicide has not changed, the factors for and against prosecution send a clear signal that the actions of health professionals will be carefully scrutinised and may well set a lower threshold for bringing prosecution against them.”

The MPS is concerned that doctors could face prosecution who were involved quite indirectly in an assisted suicide.

He said: “For instance, we have been contacted by doctors whose patients have requested medical or fitness to travel reports so that they can gain access to clinics such as Dignitas.

“The patient may not have initially made it clear to their doctor why they wish to have these reports but the doctor may harbour a suspicion. A doctor who helps a patient with these requests may leave themselves open to a criminal investigation and prosecution.”

Doctors are being advised by defence bodies to not to comply with requests for medical or travel reports if they suspect the patient may be planning an assisted suicide. The MPS is calling for greater clarity around the position of doctors. 

Read the full document.

Assisted suicide: families can still face prosecution

The Guardian - 26th February 2010 3:00 am

Family members involved in “mercy killings” will still face criminal charges despite the publication today of new guidelines to clarify the rules on assisted suicide.

After one of the most widespread public consultations ever carried out, the director of public prosecutions, Keir Starmer QC, has created six mitigating factors against an individual being prosecuted for assisting the suicide of another.

One of the other key changes is the removal of any reference to the condition of the victim - whether they are terminally ill or near death - as a mitigating factor. Instead, the focus has switched to examine the motivation of a suspect when considering whether to prosecute anyone for assisted suicide.

Starmer made it clear that relatives who actively help a terminally ill individual to die are not covered by the guidelines and individuals could be expected to be charged with murder or manslaughter.

The distinction means people like Kay Gilderdale - who was prosecuted for the attempted murder of her daughter who had ME - could still face criminal charges. A judge last month criticised the Crown Prosecution Service for charging Gilderdale and a jury found her not guilty in less than two hours.

Crucially Starmer has removed one key mitigating factor from his original draft guidelines published last September - the fact that the person assisting is a family member. Starmer said it had been removed after a public response raised concerns that family members could be “manipulative” or even “antagonistic” towards the individual who was sick.

Read more at The Guardian.

Third of doctors act to shorten lives of dying patients

The Guardian - 24th October 2009 12:55 pm

Around a third of doctors say they have given drugs to terminally ill patients or withdrawn treatment, knowing or intending that it would shorten their life, research reveals.

A study of doctors in charge of the last hours of almost 3,000 people finds decisions almost always have to be made on whether to give drugs to relieve pain that could shorten life and whether to continue resuscitation and artificial feeding.

In 211 cases (7.4%), doctors say they gave drugs or stopped treatment to speed the patient’s death. In 825 cases (28.9%), doctors made a decision on treatment that they knew would probably or certainly hasten death. One in 10 patients asked their doctor to help them die faster.

What doctors do varies according to their religious beliefs, according to Prof Clive Seale, of Queen Mary, University of London, who carried out the research. But, he said, there was no evidence of a “slippery slope”: that deaths of the most vulnerable, such as very elderly women and those with dementia, are being hastened more than others.

“People sometimes say if you legalise assisted dying, then very elderly people in care homes will be pushed towards death,” Seale said. “But the paper is fairly reassuring on that.”

His survey of 3,733 doctors, published online in the journal Social Science and Medicine, finds that only 242 people out of 2,855 who died (8.5%) were given no drugs for pain or other symptoms and did not have treatment withdrawn or withheld.

In the largest proportion of deaths (1,577 or 55.2%), doctors had given pain relief or withdrawn or withheld treatment, but said it had not shortened life.

Read more at The Guardian.

New guidance clarifying assisted suicide launched

BBC Health - 24th September 2009 8:21 am

New guidance has been issued to clarify the law on assisted suicide in England and Wales - but it offers no guarantees against prosecution.

Instead the director of public prosecutions has spelled out the range of factors that will be taken into account when deciding on cases.

These include whether there was a financial motive, and looking into how the decision to die was made.

The guidance does not represent a change in the law. Assisting suicide is illegal and carries a jail term of up to 14 years.

However, more than 100 Britons with terminal or incurable illnesses have gone to the Swiss centre Dignitas to die and none of the relatives and friends involved in the cases has been prosecuted.

Read more at BBC Health

No real change for doctors on assisted suicide

By Ian Barker, solicitor at MDU - 23rd September 2009 6:26 pm

The Director of Public Prosecutions, Keir Starmer QC, launched his interim policy guidance on prosecuting cases of assisted suicide today. It explains for the first time what public interest factors are relevant when deciding whether or not to prosecute the offence of assisted suicide. The guidance is in general terms and not specific to medical practitioners, though of course it can apply to them.

It lists 16 public interest factors in favour of prosecution including that the ‘victim’ was under 18 years of age; that the victim did not have a clear and settled wish to commit suicide; and that the suspect was not wholly motivated by compassion. The DPP identified eight of these 16 factors as potentially carrying less weight, including: that the suspect was not the spouse, partner, close relative, or close personal friend of the victim; that the suspect was paid by the victim for the assistance; or that the suspect was paid to care for the victim in a care/nursing home environment.

Those public interest factors which might weigh against prosecution include the victim having a clear, settled and informed wish to commit suicide; had indicated unequivocally to the suspect that he or she wished to commit suicide; and that the suspect had sought to dissuade the victim.

The new interim policy guidelines follow a decision by the Law Lords in July this year to allow the appeal of Debbie Purdy. Purdy, who has multiple sclerosis, was considering going to Switzerland in order to have an assisted suicide, but was unwilling to expose her husband to the risk of being prosecuted for helping her. The Law Lords unanimously decided that the DPP was required to publish an offence-specific policy identifying the facts and circumstances to be taken into account in deciding whether to give consent to a prosecution.

Purdy’s case was the latest in a series of high profile cases involving patients, often terminally ill, who wished to travel to a jurisdiction where assisted suicide is legal, such as Switzerland. Because in many cases the patient would be unable to travel without help, patients, family members and friend were concerned they might face prosecution for aiding and abetting a suicide. Within the medical profession too, concerns have been raised about the position of doctors who were approached by patients for advice about ending their lives with the help of assisted suicide groups abroad.

And yet, despite what might be seen by some as a softening in approach, it is important to stress that today’s announcement does not change or provide any significant clarification to the Suicide Act 1961. This created a new statutory offence of assisting a suicide, stating that “a person who aids, abets, counsels or procures the suicide of another” may be liable to imprisonment for up to 14 years, although a prosecution may not be brought without the consent of the DPP.

As Keir Starmer made clear in a statement this morning nothing in the DPP’s guidance changes the law in any way: assisting a suicide remains illegal in England, Wales and Northern Ireland. Neither does it give a guarantee that prosecution will not take place.

In addition, the guidelines do not apply to the GMC, which may decide to investigate a doctor’s fitness to practice, whether or not a prosecution is brought.

It follows that the MDU’s guidance to members must remain unchanged. Doctors approached by patients for advice about suicide should not engage in discussion, which assists the patient to that end. Doctors could still face a criminal investigation if alleged to have assisted with the act - even if that assistance was only in the form of advice to the patient.

Members who are faced with requests for help from patients, including for example the provision of medical reports, should contact the MDU for advice.

The DPP has called for public participation in a 12-week consultation on the interim guidelines. The consultation closes on 16 December and the finalised policy is due to be issued in Spring 2010.