More clarity in Assisted Suicide cases

Newspapers often carry stories about families battling with traumatic decisions when a loved one has been diagnosed with a long term, terminal illness that will see their quality of life deteriorate over time. Although not permitted in England, on occasions patients decide to travel to clinics such as Dignitas to end their lives.

Assisted suicide is a divisive issue for many but for the family members who agree to help their loved one with travel arrangements at such a time it can have legal implications.

Thankfully we are slowly seeing legal advances to help families who are facing these impossible choices.

The Forfeiture Act 1982 sets out rules of public policy which, in certain circumstances, prevent a person who has unlawfully killed another from benefitting from their death. The Act makes clear that this includes those who have aided, abetted, counselled or procured the death of another person.

With this in mind, being involved in making arrangements for a spouse or parent to travel to a Dignitas Clinic could be interpreted as having acted in a way that falls foul of the Act.

The recent case of Ninian v Findlay [2019] EWHC 297 (Ch) takes a small but important step in moving forward the law in assisted suicide cases.

The case involved an 80 year old man who had been diagnosed with a progressive, incurable, degenerative disease. Three years after his diagnosis he made a decision to end his life and contacted Dignitas in Switzerland. His wife was unaware of his plans but when she found out, tried to talk him out of them. She persuaded him to talk to his doctor and to investigate palliative care options.

His mind was made up, however, and so she assisted him with his application to the Dignitas Clinic and made the travel arrangements when he was unable to speak. Despite her misgivings she also accompanied her husband to the clinic.

The Police concluded that it would not be in the public interest to prosecute her.

In dealing with her husband’s Estate, the widow applied to have section 2 of the Forfeiture Act (which precludes those who have been involved in killing from benefitting from a death) modified or excluded. The Court has power to amend the rule if it considers justice demands it.

The Court looked at Section 2 of the Suicide Act 1961 which provides for an offence of encouraging or assisting suicide. The law had been clarified in 2010 and it was held that the offence comprised two elements:

1. performing an act capable of encouraging or assisting the suicide and
2. establishing that the act was intended to encourage or assist the suicide

The Court determined that despite the fact that the widow had not wanted her husband to go to Dignitas she had in fact acted in a way that made the trip possible. Those actions had been necessary for the suicide.

As a result the elements required for an offence under the Suicide Act were made out.

That gave rise to consideration of the Forfeiture Act provisions. The Court can have regard to conduct and the circumstances of the case when deciding whether or not to exercise its discretion.

The Court considered the judgments in Dunbar v Plant [1998] Ch 412 and the Director of Public Prosecutions publication “Suicide: Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide”. Although the decision not to prosecute the widow was not determinative, the Court found that if was a powerful factor in granting relief from forfeiture.

It is clear that the law is changing slowly in this difficult area. There are complex public policy considerations to be taken into account and each case will be looked at on its own facts. It is also clear that the number of such instances will be likely to increase as patients are more informed about the choices available to them and more able to research and arrange ways to take their own lives which are legal in other countries.

It is to be hoped that as a larger bank of decided cases is built up the statute may in fact be changed to provide certainty and clarity for family members when they are already burdened with dealing with a situation none of us would wish upon anyone.