On Tuesday 8th September Keir Starmer MP delivered a speech on assisted dying to a Dignity in Dying seminar in Westminster.
You can read the full speech by clicking here.
My mother contracted a rare chronic disease, which attacks part of the immune system, when she was ten. She spent much of her childhood in hospital, had to have her knees and hips replaced when she was in her twenties and spent far too much of her adult life in the high dependency units at Guy’s Hospital and St Thomas’ Hospital. By Christmas 2008, she had had one leg amputated, was bedridden, unable to clothe, feed or wash herself and no longer spoke. She was so ill that St Thomas’ hospital discharged her so that she could die at home. She did not give up. She fought her disease, as she always had. She lived until 19th April this year when she died peacefully at home having battled her ill-health for 65 of her 75 years. That was just 18 days before I was elected as the MP for Holborn and St Pancras. Despite years of great pain and disability, to my knowledge she never contemplated suicide.
For others the journey is different. Tony Nicklinson suffered a catastrophic stroke when he was 51. As a result he was completely paralysed, save that he could move his head and eyes. Because of his paralysed state, Mr. Nicklinson was unable to fulfil his wish of ending his life without assistance. He applied to the court for a declaration that a doctor be permitted to assist his suicide. When he lost his case in the High Court, Mr. Nicklinson embarked on the difficult and painful course of self-starvation, refusing all nutrition, fluids and medical treatment. He died on 22 August 2012, but his case continued on appeal to the Supreme Court where, in June 2014, the majority of judges concluded that although our law on assisted suicide no longer conforms to fundamental human rights standards, no ruling to that effect should be given until Parliament had had the chance to consider the matter further.
Two lives; two journeys; and a reminder that, as we debate the difficult and sensitive subject of assisted suicide or assisted death, we owe it to all concerned on all sides of the debate, to respect one another’s views and arguments. Perhaps also the first of those lives serves as a footnote to assure those who disagree with my views on the issue that I do have a very real, personal and profound understanding of what it means to be seriously ill and disabled and to fight to the end.
My first incursion into the debate was in 2009 when Debbie Purdy, who suffered from progressive multiple-sclerosis, persuaded the highest court in the land to require me, as the then Director of Public Prosecutions, to publish guidelines setting out the approach taken to prosecuting assisted suicide cases. I decided to act swiftly. Within months, I drafted interim guidelines and embarked on the widest consultation exercise ever conducted into the issue.
Two principles underpinned my approach. First, that the criminal law should rarely (if ever) be used against those who compassionately assist a loved one to die at their request - so long as that person had reached a voluntary, clear, settled and informed decision to end their life. Second that very strong safeguards are needed to protect those who might be pressurised (in any number of ways) into taking their own lives: those who encourage the death of the vulnerable should feel the full force of the law.
In total there were 4,867 responses to my consultation exercise. So far as I am aware, that was an unprecedented response rate. Almost 4,000 of those responding were members of the public. The rest were doctors and other health care professionals, representatives of various faiths, including all the major religions, academics, lawyers, judges and public servants. Responses were also received from members of the House of Commons and the House of Lords and from a number of All-Party Parliamentary Groups.
Those who responded were overwhelmingly in favour of the approach that I had taken in the interim guidelines. Almost all the factors for and against prosecution met with approval and this I took as a hugely important endorsement of the two principles underpinning my approach: compassionate assistance to those who are clear they want to end their lives, yes; pressurising the vulnerable, no. Accordingly, the final guidelines published in 2010 were modelled on the same principles.
Since then hardly anyone has questioned those principles. I personally oversaw over 80 decisions not to prosecute in cases of assisted suicide without provoking outrage or a clamour for a change of approach. And a motion welcoming my guidelines was unanimously supported by MPs on all sides of the House in a Backbench Business Committee debate in the House of Commons in March 2012.
However, over the years I have become increasingly concerned about two inherent limitations in the guidelines. The first is that although those who have reached a voluntary, clear, settled and informed decision to end their lives can now be confident of the compassionate assistance of loved ones without automatically exposing them to the criminal law, the only assistance they can be provided with is the amateur help of those nearest and dearest. They cannot be provided with professional medical assistance unless they traipse off to Dignitas in Switzerland.
That was the dilemma raised in the Supreme Court in the Nicklinson case. The President of the Court, Lord Neuberger, put it succinctly: “... those people who have access to supportive friends and relations, and who possess the means and physical ability to travel to Switzerland, are able in practice to be assisted in their wish to commit suicide, whereas those people ... who lack one or more of those advantages, cannot receive any such assistance”.
That is an injustice which we should not tolerate any longer. Once the principle is accepted that those who have reached a voluntary, clear, settled and informed decision to end their life can receive assistance without the intervention of the law, there is no rational or moral case for confining that assistance to the amateur assistance of relatives in England and Wales or the professional assistance of medical practitioners in Switzerland for those that can afford it.
The second inherent limitation in the guidelines goes to the heart of the argument advanced by those who do not want any change in the law. They, rightly, point to the risk that some people might be pressurised or encouraged to take their own lives by those who do not have their best interests at heart; and argue the blanket criminalisation of assisted suicide, subject to the operation of my guidelines, offers the best protection against abuse.
I have always given great weight to that argument. I completely accept the case for very strong safeguards to protect those who might be put upon (in any number of ways) to take their own lives. But the truth is that the only safeguard that I was able to put in place in my guidelines was an ‘after the event’ criminal investigation into the motive of the individual who assisted their suicide. As the President of the Supreme Court observed in the Nicklinson case: “A system whereby a judge or other independent assessor is satisfied in advance that someone has a voluntary, clear, settled and informed wish to die and for his suicide then to be organised in an open and professional way, would ... provide greater and more satisfactory protection for the weak and vulnerable, than a system which involves a lawyer from the DPP’s office inquiring, after the event, whether the person who had killed himself had such a wish”.
No safeguards are foolproof. Cases where individuals are put upon to take their own lives are probably less likely to come to the attention of the police than cases involving loving relatives acting compassionately. They therefore escape the scrutiny that my guidelines put in place. But it is a fact that of the 80 or so assisted suicide cases on my five year watch, there was only one prosecution – of someone who provided petrol and a lighter to a vulnerable man known to have suicidal intent, who subsequently suffered severe burns as a result. All the other cases involved compassionate acts of assistance to an individual with a voluntary, clear, settled and informed decision to end his or her life.
Moreover the report published in 2012 by the commission on ‘Assisted Dying’ set up by Lord Falconer indicated that in those jurisdictions where it is permissible to assist suicide, there was no evidence of vulnerable groups being subject to any pressure or coercion to seek an assisted death. The same view was expressed in the 2011 report of the Royal Society of Canada Expert Panel on End-of-Life Decision Making and in the 2012 report of the Quebec National Assembly ‘Dying with Dignity’ Select Committee.
Those who oppose any change in the law are understandably sceptical about this evidence; and I accept that evidence of pressure or coercion is likely to be buried far deeper than evidence of compassion. But it does not follow that strong and robust safeguards before someone ends their life would not be far better than the current ‘after the event’ inquiry.
The safeguards in the Assisted Dying Bill proposed by Rob Marris MP are certainly strong and robust. A person may only be provided with assistance to end his or her life if a High Court judge sitting in the Family Division, by order confirms that he or she is satisfied that the person has a voluntary, clear, settled and informed wish to end his or her own life. An order can only be made if the person in question has made a declaration about their wish to end their life, which must be counter-signed by a witness who must not be a relative or a person directly involved in the person’s care or treatment. And only those diagnosed by a registered medical practitioner as having a terminal illness and less than six months’ life expectancy may apply to the High Court.
Such protection is much stronger than that which applies in other life-and-death circumstances. For example, it has been regarded as quite acceptable in cases such as in re B (Consent to Treatment – Capacity)  1 FLR 1090 that the High Court should have the power to accede to a request, in that case by a tetraplegic, dependent on an artificial ventilation machine, that a life support machine be turned off. Furthermore, in the Mental Capacity Act 2005, Parliament has recognised the right of individuals to give advance directions that they be refused medical treatment. In the former case, the appropriate protection for the vulnerable is that a High Court judge must first be satisfied that the request is based on a settled, informed and voluntary desire. In the latter case, a formal document recording the desire suffices.
So, in the end, the question before Parliament this Friday is whether we have got the balance right under the current law. At the moment, those with a voluntary, clear, settled and informed decision to end their lives can receive assistance to commit suicide, but only the amateur assistance of loved ones unless they have the means and physical ability to travel to Dignitas in Switzerland. Professional medical assistance so that they can die with dignity and in peace at home is denied.
In the Nicklinson case, the Supreme Court questioned the rational connection between the aim of protecting the vulnerable and this unsatisfactory effect of our law on assisted suicide on those who do have a clear wish to end their lives, describing it as “fairly weak”. When the robust and strong safeguards in the Assisted Dying Bill are added to the scales, any possible rational connection is stretched beyond breaking point.
Parliament now has the opportunity to re-balance our law in this difficult and sensitive area. Unless we revert to a position of a blanket prohibition of any assistance even for those with a voluntary, clear, settled and informed decision to end their lives, we have to recognise and accept their desire for professional help from medical practitioners rather than amateur help from loved ones. So long as the robust and strong safeguards in the Assisted Dying Bill are enshrined in law, that desire can be met without compromising the protection necessary to protect the vulnerable. In such circumstances, it is impossible to justify the continuation of the injustice inherent in the current arrangements.