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23 May 2009

Posted by DMC on 23 May 2009 in Diary |

A quiet day at home after all the birthday excitement.

I decided to listen again to a very interesting discussion which it taken place on Radio 4. (Saturday 16 May) in the Unreliable Evidence series – entitled The Law and Death.

The subject matter was of particular interest to me as it dealt with the practicalities, morals and ethics of assisted suicide. Not that I am contemplating doing away with myself in the immediate future but there may well come a time as the disease progresses.

The discussion was led by Clive Anderson (CA) and I have paraphrasing those parts of it which are relevant to me and perhaps to other sufferers who might reach a point in time when they would rather die than continue in their present condition. I should stress that I have transcribed as faithfully as I can what the particular participants said. I have deliberately not put these comments in quotes as, due to my own physical limitations, I find almost impossible to write and therefore may not have recorded precisely every single word correctly.

It was such an interesting and relevant discussion that I was hoping to be able to include it as a permanent Link to this blog but having spoken to the office of the producer of this programme it was explained to me that there are all sorts of complications of copyright etc or with the BBC.

However having said that their kind lady from the producers office very kindly offered to send me a CD of the programme and said that it would be perfectly in order for me to copy this to others. Any reader therefore who would like a copy of the full discussion, if they would send me a CD stamped and addressed envelope I will happily burn a copy for them.

My address is Lantern Thatch, Wicken Road, Clavering, Essex CB11 4QT

The participants were Lord Bingham (LB), erstwhile Lord Chief Justice and senior Law Lord; Sir Ken Macdonald QC (KM), past Director of Public Prosecutions: Philip Havers QC (PH), who represented Diane Pretty and Alistair ?, The Official Solicitor (OS).

CA started the discussion by considering what the law said about going to Switzerland, which permits or even encourages assisted suicide.

The panel were specifically invited to consider this issue in relation to the Diane Pretty case and express a view as to the legal authorities on the agonizing decision involved and comment on whether they considered the law needed clarifying on the right to die.

CA reminded us that Diana Pretty had suffered from MND and sought a decision from the DPP to say he would not prosecute her husband if he were to take her to Switzerland for assisted suicide.

PH.
Said the case was not satisfactorily resolved. He thought it a disappointing result as although she could have lawfully committed suicide, had she been able to do so physically, the very disease that led her to want to end her life prevented her from doing so and, as the law made it a criminal offence to assist someone to commit suicide, she was unable to do that which she would otherwise have been able to do. The law let her down.

CA
To KM. If you get your husband, or a relative, to help you, can the DPP say I will not prosecute? But you are reluctant to give that undertaking in advance.

KM
It’s difficult, if not legally impossible, to given immunity from prosecution in advance, which is what I think Mrs Pretty was asking.

Debbie Purdy, in contrast, was asking for clarification about the circumstances in which the discretion would be exercised, one way the other. She had MS and wanted to clarify the suicide law.

There is a two stage test for decision to prosecute cases. The first stage is, is there sufficient evidence to point to a realistic chance of conviction?. If there is, then would such prosecution be in the public interest; and this second stage has always been extremely important.

CA
The first stage does not really apply if someone says it is something that they really wanted to do, i.e go to Switzerland or pass me the pills, etc. – would this be against the law and prosecuted as a criminal offence?

KM
Sometimes, in these cases the evidential stage was not passed and, when it became matter of public interest, as indeed it was in the case of Daniel James (the young rugby player who was severely injured and who wanted to die but was not terminally ill). His parents took him to Switzerland and the DPP office decided it was strongly against public interest to prosecute them.

CA
You are the only prepared to take that decision once facts are I known, i.e not prepared to exercise that discretion in advance.

KM
No. Each case has to be looked at on its own terms. Cases differ widely in circumstances and I think it would be dangerous, and wrong in principle, for the DPP to issue a policy statement in advance that it would not prosecute an entire category of cases. This would be usurping the function of Parliament.

LB
The law should accord with public opinion so far as can be achieved as to where the line should be drawn.

CA
In 1961 suicide was no longer illegal. Nobody could be prosecuted for helping someone to take their life.(CHECK THIS!!)

LB
What the law has to try to achieve is something between a person’s right to do as they wish with their own life and the other view that life is God given and therefore cannot be taken away.

CA
In the Diana Pretty case she was concerned that she did not want to live out life to the bitter end. She wanted to end it in a way that if it involved other people then they would not be prosecuted. What was your feeling about this case?

LB
The House of Lords (and below) were asked to interpret the European Convention on Human Rights which imports a right to life and the excellent argument ….. do we also have a right not to live? The question was, was that what the Convention meant?

We concluded that was not the case and the European Court agreed with us. That does not mean that the law will remain there forever. Human judgments on these questions develop over time.

PH
I am not surprised we lost but ….our main argument was on Article 8 of the Convention, where the right of self-determination is found. The Strasbourg court agreed that Article 8 protects rights to self autonomy and that’s the right which pretty well supports the view that there should be a rule which does not prevent others from assisting you to commit suicide. Where the European Court disagreed with us was in saying that a state is justified in having a law which prevented others from assisting you to commit suicide. That was a reasonable state of affairs for the European Court to take.

CA
For general considerations preserving people from undue pressure and things like that.

PH
Exactly, and that’s where circumstances may change in the future.

In fact, if you take opinion polls they have consistently, and over a number of years, been consistently in support of a change in the law which will permit assisted suicide under very strictly controlled circumstances with plenty of protective measures for those who were seeking assistance, so as to ensure that no one was put under undue pressure.

CA
It’s an odd situation where someone can be prosecuted for assisting someone for something which is no longer a crime plus this option that you can go to another country. Is it okay to help someone to go aboard when you know full well to go to Switzerland is for death?

PH
This shows the law is in a mess. The financial option is not a available to everyone nor indeed do people wish to die in unfamiliar surroundings without their family.

LB
English law does not meet public opinion. It may be reaching a point where the law needs overhauling.

KM
I cannot detect any parliamentary enthusiasm for changing the law. Last time it was debated it was defeated overwhelmingly.

When I was DPP we had 90/95 such cases and we did not prosecute one of them .. on public interest grounds.

Even if the law was changed people would still have to go through a police investigation as in all cases of death there has to be some sort of investigation. For example, in the Daniel James case no law would protect the parents because in his case he was not terminally ill.

The above represents around one third of this discussion programme and I would strongly advise the reader to listen to the entire debate (see above for access to CD) particularly as, in paraphrasing what the participants said I may have inadvertently put a slightly different slant on what they were trying to get over.

In summary it seems to me that the participant’s view was that public opinion seems strongly in favour of a change in the law but the legislature seems to have no stomach for it.

The rest of the debate was dedicated to such matters as abortion, mercy killings and euthanasia none of which, I hope, are relevant in my case.

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