Assisting dying and the criminal law: the legal implications of helping a loved one take their own life

The UK Parliament is debating a proposed new law which, if enacted, would enable terminally ill people to be provided with assistance to end their own lives, subject to safeguards and protections.

The Terminally Ill Adults (End of Life) Bill applies to people whose death is expected within six months. It does not address the concerns of people who are not expected to die within this timeframe.

Every year, hundreds of people travel to Switzerland to end their lives at Dignitas. These individuals may be in chronic pain or may suffer with a seriously life-limiting medical condition.

Crucially, as far as the law in Switzerland is concerned, they do not need to be terminally ill. Still less to have no more than six months to live.

Below, Kate Goold sets out some of the legal issues that will come into play for people considering supporting a loved one to travel to a Dignitas-type clinic; as well as the potential ramifications for their loved ones.

What is the law on helping a loved one die at a Dignitas-type clinic?

It is legal in some European countries – most significantly Switzerland – to help someone kill themselves.

The same is not true in England and Wales. Here, anyone who deliberately helps another person take their own life may be investigated by the police and potentially charged with the criminal offence of assisting or encouraging suicide.

It does not matter where in the world the death took place. Section 2 of the Suicide Act 1961 states that if the action of assisting or encouraging a suicide took place in the UK, that individual may be vulnerable to a police investigation.

A person commits this offence if “he or she does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and that act was intended to encourage or assist suicide or an attempt at suicide.”

“Assisting”, in this case, could mean simply purchasing plane tickets; asking another person to help with the journey; or accompanying a loved one to a clinic in Switzerland to end their life.

Assisted suicide is triable only on indictment so any charged case must be heard in the Crown Court and a prosecution requires the DPP’s consent. The maximum sentence following conviction is 14 years’ custody.

How likely is a police investigation into assisting or encouraging a suicide?

Dignitas’s latest annual figures show the clinic has helped a total of 3,916 people take their own lives since the organisation was founded in 1998. Of these, 571 are reported to have been resident in the UK.

Separate CPS figures reveal how, over the 15 years since April 2009 a total of 187 assisted suicide cases were referred from the police to the CPS.

While we cannot know how these two figures relate to one another, we can see that police forces in the UK do investigate the crime of assisting or encouraging suicide.

Being the subject of a criminal investigation into such a sensitive issue (and at what is likely to be one of the most distressing times in a person’s life during a period of bereavement) is likely to be highly distressing for the family members involved.

The priority, for anyone under investigation in relation to these matters, is normally to be to bring the investigation to a satisfactory conclusion as swiftly as possible and to ensure everyone’s interests are protected.

As someone who has represented families in this situation, my experience is that early legal advice can assist enormously so that the investigation can be managed in the least intrusive and upsetting way.

All police forces have different ways of working but, generally speaking, this crime is dealt with by a specialist unit and is treated with sensitivity. In my experience most police officers are fully aware of the loved ones’ trauma.

Having said this, police investigations can last a long time and they can necessitate a significant amount of work and time to properly address.

How do CPS decide whether to charge for assisting or encouraging a suicide?

While a total of 187 assisted suicide cases were referred by the police to the CPS over the past 15 years, relatively few of these resulted in prosecution. Indeed, of the 187 referred cases, only 24 were proceeded with by the prosecution service.

This relatively low procedure rate is likely partly due to public concerns that the law may be used to unfairly victimise the families of profoundly unwell people.

The fact that loving families, whose primary motive is likely to be easing a loved one’s suffering, may be vulnerable to criminal prosecution has led to political pressure on this issue.

Responding to this, in 2009 the then Director of Public Prosecutions, Sir Keir Starmer, produced a set of guidelines designed to clarify the CPS’s thinking on prosecution.

The resulting policy document provides a list of the factors which make a criminal prosecution more or less likely. This states that a prosecution is more likely if one or more of the following criteria are met:

1. The victim was under 18 years of age
2. The victim did not have the mental capacity to reach an informed decision to commit suicide
3. The victim had not reached a voluntary, clear, settled and informed decision to commit suicide
4. The victim had not clearly and unequivocally communicated his or her decision to commit suicide to the suspect
5. The victim did not seek the encouragement or assistance of the suspect personally or on his or her own initiative
6. The suspect was not wholly motivated by compassion; for example, they were motivated by the prospect that they stood to gain from the death
7. The suspect pressured the victim to commit suicide
8. The suspect did not take reasonable steps to ensure that any other person had not pressured the victim to commit suicide
9. The suspect had a history of violence or abuse against the victim
10. The victim was physically able to undertake the act that constituted the assistance him or herself
11. The suspect was unknown to the victim and encouraged or assisted the victim to commit or attempt to commit suicide by providing specific information via, for example, a website or publication
12. The suspect gave encouragement or assistance to more than one victim who were not known to each other
13. The suspect was paid by the victim or those close to the victim for his or her encouragement or assistance
14. The suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional, a professional carer (whether for payment or not), or as a person in authority, such as a prison officer, and the victim was in his or her care
15. The suspect was aware that the victim intended to commit suicide in a public place where it was reasonable to think that members of the public may be present
16. The suspect was acting in his or her capacity as a person involved in the management or as an employee (whether for payment or not) of an organisation or group, a purpose of which is to provide a physical environment (whether for payment or not) in which to allow another to commit suicide

On the other hand, a prosecution is less likely to take place if on or more of the following are true:

1. The victim had reached a voluntary, clear, settled and informed decision to commit suicide
2. The suspect was wholly motivated by compassion
3. The actions of the suspect, although sufficient to come within the definition of the offence, were of only minor encouragement or assistance
4. The suspect had sought to dissuade the victim from taking the course of action which resulted in his or her suicide
5. The actions of the suspect may be characterised as reluctant encouragement or assistance in the face of a determined wish on the part of the victim to commit suicide
6. The suspect reported the victim’s suicide to the police and fully assisted them in their enquiries into the circumstances of the suicide or the attempt and his or her part in providing encouragement or assistance.

This list of factors is not exhaustive, and each case will be considered on its own facts and merits.

It is notable that, of the 24 assisted suicide cases that have been prosecuted over the past 15 years, just four resulted in conviction. At the time of writing there are six ongoing cases.

Impact of an investigation for assisting or encouraging a suicide

Notwithstanding any potential sanction if convicted, just being the subject of a criminal investigation can be a distressing and exhausting experience.

Police investigations can be intrusive. Effectively addressing police queries can require examination of electronic devices, mobile phones, interviews with friends and family and GP enquiries.

There may be an additional impact if the subject of the police investigation works in a regulated profession (for example is a doctor or lawyer) as their regulating body may wish to carry out its own investigation. If the subject is a beneficiary of the will, this can also cause complications with probate.

The complexities of the Suicide Act, and the differing way the UK’s various police forces deal with this issue have led campaign groups such as Dignity in Dying to describe the law as it stands as “totally unfit for purpose”.

They argue the law “not only […] fail[s] to protect dying people and criminalise acts of compassion, but it is not equally applied”.

However, whilst section 2 of the Suicide Act remains in force, expert assistance is advisable to help navigate this complex and emotional area of law.