Assisted dying in court

The logic of the “assisted dying” Bills now on the table in Scotland and England and Wales is in some ways straightforward – the aim is to decriminalise an act that can currently lead to prosecution. There is no law against assisting suicide in Scotland so the relevant immunity is against charges of murder, culpable homicide or some related offence. In England and Wales the Suicide Act (1961) is relevant in criminalising assisted suicide, and Falconer’s Bill proposes an amendment to that Act so that a person compliant with the terms of his Bill has no criminal liability. (Digression – nobody explains why you need to change the law on assisting suicide if assisted dying isn’t assisted suicide).

Who is the primary target for assisted dying legislation? Is it family members or carers who might be insensitively charged for an act driven by compassion or desperation? Or health professionals willing to help out with somebody who didn’t know the best way to kill themselves?

To evaluate the effect of these law changes, at least in respect of criminal charges, we need to know – what’s the baseline of prosecutions? In Scotland the answer is “zero”. Even Liam McArthur, the Bill’s promoter, acknowledges an “absence of prosecutions in modern times”. In England and Wales the answer is provided by a report from the Crown Prosecution Service in April this year. From more than 72,000 suicides in the 15 years 2009-2024, 187 (about a third of 1%) were referred to the CPS; 19 were eventually prosecuted with 4 convictions, 1 acquittal, 6 pending (at the time of the report) and 8 “referred onwards for prosecution for homicide or other serious crime”.

The CPS figures hardly suggest a major problem with over-zealous prosecution, especially given the number of potentially serious offences uncovered during investigation of the few cases they do take further. To prosecute, the CPS needs to establish that the case passes the evidential test and then decide that it is in the public interest to proceed. Guidance to solicitors from the CPS gives an indication of the sort of tests applied in making the decision that prosecution is in the public interest. The tests are non-trivial and the conviction rate suggests the courts agree.

If the case for changing the law does not reside very obviously in the need to avoid unreasonable prosecutions of family members or close others for assisting suicide, then what? Here are the possibilities that occur to me.

One rationale might be that following legislation a general air of destigmatisation will prevail, encouraging people who otherwise would have to rely on their own amateur efforts to seek professionally supervised suicide. Since a quarter of all suicides have a major physical illness you would expect such a shift to show in the statistics, but what evidence there is suggests that suicide rates stay the same or increase in jurisdictions where assisting suicide becomes legal. For example there has been a 25-30% increase in suicides (excluding assisted suicides) in Oregon in the last two decades. This isn’t a huge surprise to me – the characteristics of people who die by unassisted suicide do not generally point towards the sort of person who would readily engage in a bureaucratic process such as exists in even the slackest jurisdiction that allows assisted suicide.

More plausible is that the real risk to be averted is prosecution of health professionals – for assisting suicide, or for homicide if the line is crossed from “assisting self-administration” to “administering” lethal drugs, especially when so-called medical devices are the chosen means of administration. And the risk here is not just to the prescribing clinician but to the healthcare professionals who will be attending the death. The idea is presumably that health professionals will participate who were otherwise put off by the possibility of legal sanctions. In truth very small numbers of registered practitioners respond – it is presumably unease about the role rather than the response of the law that drives the main lack of willingness. In Washington DC fewer than 10 and in Oregon in 2023 only 167 (1.1%) of >15,000 practitioners prescribe. However, only a small number of activists is needed for the system to work; in Oregon one clinician issued 76/560 (14%) of all prescriptions in 2023.

Another light is shed on the question of legal liability by the intriguing observation that McArthur’s Scotland Bill (but not Falconer’s) includes a provision of freedom from civil liability for assisting another’s death. Why this might matter is touched on by a discussion in the Law Society of Scotland’s written evidence on McArthur’s assisted dying Bill. Here the question is raised whether a solicitor’s involvement (in this case, in signing a declaration as proxy for somebody too disabled to do it themselves) establishes a solicitor-client relationship that brings responsibilities for the solicitor that go beyond ensuring the signature is valid. In the same way I wonder, would the average person expect that a clinician assessing somebody’s request for assisted suicide take the same care and be as comprehensive and searching as they would in assessing somebody with plans for unassisted suicide? If so, then there ought to be space in civil action to question whether an involved clinician acted competently (non-negligently) and in the person’s best interest when they do far less than that.

I am sure that the aim with these Bills is to create a situation in which there is no feasible legal action that can be used to prevent the normalisation of assisted suicide on request. The place of the courts then becomes, in due course, to serve as the platform for the next phase of the campaign which is to extend the eligibility for assisted suicide – in the name of overturning discriminatory practice. That’s the road this is taking unless it can be stopped.