How will Australia deal with assisted suicide?

115 people were noted by the Court to have travelled from England and Wales to countries where assisted suicide was not illegal.

Debbie Purdy suffers from progressive multiple sclerosis for which there is no known cure. She has lost her mobility and the ability to do many things for herself. She has choking fits when she drinks. Her condition is and will continue to get worse.

She wants to be able to die at a time of her choosing and on her own terms. She is concerned, however, that when she decides that it is time, she will be unable to travel unassisted to a Dignitas clinic in Switzerland. She is also concerned not to place the husband who helps her to achieve her objective of a death on her own terms in danger of prosecution. She does not want her husband to be prosecuted for providing her with assistance in England to die in Switzerland. The mere action of helping her on the plane and of travelling with her, potentially, amounts to the crime of assisting suicide even if the death occurs and is legal in another country.

Her case relied on the European Convention on Human Rights. Article 8 of the Convention preserves the right to respect for one’s private and family life. The Court held that choosing the nature of one’s last moments is as much a part of one’s private life as any other.

However, the Convention permits interference with the exercise of that right provide the interference is in accordance with the law and provided it meets a number of other criteria which were not in issue in the case.

Since it was a statute that made assisting suicide an offence (carrying a maximum of 14 years imprisonment), one might well think that the interference was in accord with the law. There is, however, a curious caveat to the 1961 Act: prosecution for the offence of assisting suicide can not be instituted except by or with the consent of the Director of Public Prosecutions.

The argument made by Purdy, and upheld by the House of Lords, was that unless the DPP set out the circumstances in which the discretion to prosecute would be exercised, no one could know whether their action in helping a loved one take their own life would be treated as criminal and result in prosecution - or whether the same action would be regarded as appropriate and protected from punishment.

This meant Purdy’s right to live and die in her own way was not being affected in accord with the law but with an unaccountable and non-transparent discretion of an official – the Director of Public Prosecutions.

In the absence of a clear statement of the factors which would be taken into account in deciding whether or not a prosecution would occur, the law against assisting suicide was in breach of article 8 of the convention and its protection of the right to respect for one’s private and family life.

The House of Lords ordered the DPP to put together a policy identifying the facts and circumstances which he will take into account in deciding, in a case like Purdy’s, whether or not to consent to a prosecution for assisting suicide. 

Australians do not have access to the European Convention of Human Rights. The precise legal question as arose in Ms. Purdy’s case will not, therefore, arise in Australia as the law presently stands. That does not mean, however, that the underlying issues can be ignored. As Lord Brown of Eaton-Under-Heywood said:
   
“I seriously question whether one should always deprecate conduct criminalised by s.2(1) [assisting suicide]. Of course it is wrong-often terribly wrong-to assist in the suicide of one who is not mentally competent or not clearly fixed in their intention or who may feel under pressure to end their life for the benefit of others … assistance in those kinds of situations is clearly to be condemned. But suppose, say, a loved one, in desperate and deteriorating circumstances, who regards the future with dread and has made a fully informed, voluntary and fixed decision to die, needing another’s compassionate help and support to achieve that end… Are there not cases in which … might regard such conduct as, if anything, to be commended rather than condemned?” 

As the population ages and the ability to keep people alive expands, these issues will not disappear. They will simply occur more frequently and in lives and in families close to each one of us. Each one of us will know a Debbie Purdy.

Many of us will be a Debbie Purdy.

We should face up to and grapple with these issues before, for each of us, it is too late.