Alexandra Mullock

OVERLOOKING THE CRIMINALLY COMPASSIONATE: WHAT ARE THE IMPLICATIONS OF PROSECUTORIAL POLICY ON ENCOURAGING OR ASSISTING SUICIDE?

The decision of the House of Lords in the case of Purdy compelled the Director of Public Prosecutions (DPP) to promulgate guidance as to the exercise of prosecutorial discretion with respect to those suspected of an offence under the Suicide Act 1961. Consequently, the Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide now sets out determining factors for potential culpability in encouraging or assisting suicide. This paper discusses the implications of the Policy, particularly with respect to the role of compassion as a key determining factor which effectively decriminalises acts of assisting or encouraging suicide in the majority of cases, despite such acts remaining technically criminal. Following the DPPs assertion that the location of the actual suicide is irrelevant to the prosecutorial decision, this article considers whether some elements of the Policy might belie this assertion. The apparently heightened risk of prosecution now faced by doctors and other healthcare professionals and workers is also considered. Finally, in light of the apparent prosecutorial endorsement of compassionate assisted suicide, this article questions whether we might now expect the imminent legalisation of assisted suicide.

Best interests and the sanctity of life after W v M

The case of W v M and Others, in which the court rejected an application to withdraw artificial nutrition and hydration from a woman in a minimally conscious state, raises a number of profoundly important medico-legal issues. This article questions whether the requirement to respect the autonomy of incompetent patients, under the Mental Capacity Act 2005, is being unjustifiably disregarded in order to prioritise the sanctity of life. When patients have made informal statements of wishes and views, which clearly—if not precisely—apply to their present situation, judges should not feel free to usurp such expressions of autonomy unless there are compelling reasons for so doing.

Compromising on assisted suicide: is ‘turning a blind eye’ ethical?:

Following the decision of the House of Lords in Purdy, the Director of Public Prosecutions was required to promulgate guidance as to how prosecutorial discretion is exercised over the decision of whether to prosecute or not under the Suicide Act 1961. The resulting policy essentially confirms that if a lay person, who is motivated wholly by compassion, provides minor and reluctant assistance to a mentally competent adult, he or she is extremely unlikely to be prosecuted. Consequently, prosecutorial policy over cases of complicity in suicide might be viewed as presenting a procedural compromise between explicitly allowing and robustly prohibiting assisted suicide. This paper explores the legal and ethical implications of compromising over complicity in suicide.

The Value of Life in English Law: Revered but not Sacred?

Terms such as sanctity and inviolability have failed to provide a legally coherent or ethically sound principle upon which to determine the scope of the intrinsic value of life against extrinsic, quality‐of‐life considerations in a medical context. In their recent work, Margaret Brazier and Suzanne Ost introduce a new term, reverence for life, which they suggest may be more appropriate when attempting to navigate the murky waters of the meaning of life and the value that should be attached to it. They suggest that reverence should be utilised as an alternative that better reflects the nuances and the realities of the dilemma. This paper explores the existing difficulties before considering how the principle of reverence might provide a principled compromise over when the presumption in favour of preserving life should be rebutted.

The Assisted Dying Bill and the role of the physician

This article explores the role of the physician in the Assisted Dying Bill, which is currently progressing through the House of Lords. The Supreme Court decision in Nicklinson and Others has alerted Parliament to the possibility that the current prohibition against assisted suicide may breach Article 8 of the European Convention in relation to the right to choose how to end ones life. In this article, the role of healthcare professionals in the proposed legalisation of physician-assisted suicide is examined, together with consideration of key ethical concerns over who might be permitted to access assisted dying. Whether the proposed law presents an ethically sound alternative to the current prohibition against assisting in suicide is not clear, but Parliament must now respond in order to address human rights issues and the call to legalise medically assisted suicide.

Gross Negligence (Medical) Manslaughter and the Puzzling Implications of Negligent Ignorance: Rose v R [2017] EWCA Crim 1168

This commentary explores the Court of Appeals decision in the case of Rose1 in order to assess the risk of liability for gross negligence manslaughter currently faced by the medical profession in the event that negligence causes the death of a patient. Subtly modifying the test established in Adomako,2Rose confirms that in order to be potentially liable, there must be a serious risk of death that was, rather than ought to have been, obvious/foreseeable to the defendant. Consequently, in more complex cases where the serious risk of death is not immediately obvious, negligently failing to assess risk seems to prevent potential liability on the basis that the putative defendant was in a position of negligent ignorance.

Improving healthcare through the use of ‘medical manslaughter’? Facts, fears and the future:

The criminal law looks set to play a larger role in regulating healthcare. Until recently, health professionals only faced the prospect of criminal liability if it could be proved that their gross negligence resulted in the death of a patient. In such a case, the professional could face a charge of gross negligence manslaughter (GNM). Prosecutions for ‘medical manslaughter’ have generated concern among doctors worried about what is perceived as a rise in the number of doctors facing criminal prosecution and the impact prosecutions are having on healthcare practice. May more frequent resort to the criminal process damage rather than promote better health care? In seeking to try to answer this question, the first problem is that reliable data in this area about how many prosecutions are brought and how they fare are limited due to the way cases are recorded. What evidence does exist is often based on media reports or samples that are not representative. This paper will argue that, while the real risk of being prosecuted for medical manslaughter remains low, such fears should not be dismissed because, as Donald Berwick has argued, ‘fear is toxic’ – for health professionals and their patients.