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Assisted suicide and the law

The MDU's Ian Barker says patients wishing to die may ask GPs to provide medical records or reports.

Increasing numbers of patients have attended the Dignitas suicide clinic in Switzerland
Increasing numbers of patients have attended the Dignitas suicide clinic in Switzerland

The issue of assisted suicide seems to have been rarely out of the headlines of late.

Not only have there been a number of high profile cases of people travelling to Dignitas, the Swiss assisted suicide clinic, to commit suicide with the help of others but the director of public prosecutions (DPP) for England and Wales, Keir Starmer, recently finalised his policy for prosecutors on the issue.

GPs need to be aware of the legal position should patients considering assisted suicide approach them for advice, to request a copy of their records or ask for a medical report.

Encouraging suicide
The DPP's final guidance, Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide, was published in February 2010 and can be read on the Crown Prosecution Service (CPS) website. The policy was intended to clarify what factors the CPS would take into account when considering a prosecution for assisting a suicide.

The DPP was required to produce a policy specifically dealing with the offence of assisting a suicide as a result of a ruling by the law lords in the case of Debbie Purdy. Ms Purdy, who has MS, wanted to make sure, as far as possible, that her husband would not be prosecuted if he helped her to travel to Dignitas.

The policy applies to England and Wales although the DPP for Northern Ireland has published similar guidance.

In Scotland, the offence of assisted suicide does not apply but, depending on the particular facts and circumstances, the law of homicide may apply.

Doctors singled out
The policy differs from that proposed in the consultation in one key respect: a factor tend- ing in favour of prosecution, which was not available for comment during the consultation was added. This is that 'The suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional ... and the victim was in his or her care.'

The MDU believes this is unfortunate for GPs as it may increase the likelihood of a doctor being investigated for assisting a suicide.

This points clearly to the potential for prosecuting doctors. But it did not feature in the interim policy published in 2009 for consultation in which there was no special mention of doctors being singled out as a group (for other factors, see the box below).

What the law says
We will have to wait to see what, if any effect, the DPP's policy has on the number of doctors investigated and even prosecuted for assisting a pat-ient to commit suicide. In the meantime, it is important to be aware that the guidelines do not change the law on assisted suicide in any way. Nor do they give a guarantee that there will not be a prosecution.

In spite of the new policy and recent changes to the law on assisted suicide in England and Wales, assisting a suicide remains a criminal offence.

Section 2(1) of the Suicide Act 1961 states that a person who does an act capable of encouraging or assisting the suicide or attempted suicide of another, where that act was intended to do so, commits an offence and could be liable to imprisonment for up to 14 years. Unusually, the offence requires the consent of the DPP for any prosecution to be brought.

Discussions with patients
The MDU's advice to members remains that doctors approached by patients for advice about suicide should not engage in discussion that could assist the patient to that end.

Doctors could face a criminal investigation if it is alleged they have assisted with the act - even if the assistance given was only in the form of advice. It is also worth bearing in mind that the DPP's policy has no application to the GMC.

The latter may decide to investigate a doctor's fitness to practise whether or not a prosecution is brought.

Doctors are usually, though not always, legally obliged to provide reports and/or medical records when a patient requests them, and this is where some difficulty may arise.

If you suspect a patient is making a request for a report or their records or is simply asking for general advice because they are contemplating an assisted suicide, you should contact your medical defence body (or professional indem-nity provider) for advice before acting.

  • Ian Barker is a solicitor at the Medical Defence Union, www.themdu.com
FOR AND AGAINST PROSECUTING

Factors in favour include:
The suspect

  • Was acting in their capacity as a medical doctor, nurse, other healthcare professional ... and the victim was in their care.

The victim

  • Was under 18 years old.
  • Lacked capacity.
  • Had been pressurised by the suspect, or
  • Had not clearly and unequivocally communicated the decision to commit suicide.

Factors against include:
The suspect

  • Was wholly motivated by compassion.
  • Had sought to dissuade the victim.
  • Had given 'reluctant encouragement'.
  • Had reported the victim's suicide to the police and assisted with their investigation.

The victim

  • Had reached a voluntary, clear, settled and informed decision to commit suicide.

 

Take note
  • Helping someone to commit suicide remains illegal in England, Wales and Northern Ireland. In Scotland, depending on the circumstances, the law of homicide may apply to assisted suicide.
  • The DPP for England and Wales and the DP for Northern Ireland have recently published policies on prosecution, but the law has not been softened.
  • The new policy singles out the involvement of doctors as a factor in favour of their prosecution. This may make investigations and prosecutions more iikely against members of the medical profession.
  • GPs who believe a patient may be planning to travel abroad to commit suicide should not engage in discussion which assists a patient to that end, but should phone their medical defence body [or professional indemnity provider) for advice.

 

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