28 November 2024
I almost did not publish the post below.
The online (and no doubt offline) debate about this topic is heated and often abusive, and as one gets older one loses usually loses the taste for such confrontations.
So this post is offered as a respectful contribution to the debate on this subject.
However, other equally sincere views are available.
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Let us start with the people at the centre of these cases.
The following passages are from the leading legal cases on the topic of assisted dying.
These case reports are often lengthy and detailed but what is striking about each case is that the material facts can be succinctly stated.
(I have broken some of the paragraphs up for ease of reading on a screen.)
Please take the time to read these passages carefully, rather than a quick skim-and-scroll, because these are the people who should be central to the debate.
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From the 2001 House of Lords case of Diane Pretty:
“She suffers from motor neurone disease, a progressive degenerative illness from which she has no hope of recovery. She has only a short time to live and faces the prospect of a humiliating and distressing death. She is mentally alert and would like to be able to take steps to bring her life to a peaceful end at a time of her choosing.
“But her physical incapacity is now such that she can no longer, without help, take her own life. With the support of her family, she wishes to enlist the help of her husband to that end. He himself is willing to give such help, but only if he can be sure that he will not be prosecuted under section 2(1) of the Suicide Act 1961 for aiding and abetting her suicide.”
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From the 2009 House of Lords case of Debbie Purdy:
“The position in which Ms Purdy finds herself can be stated very simply. She suffers from primary progressive multiple sclerosis for which there is no known cure. It was diagnosed in 1995, and it is progressing.
“By 2001 she was permanently using a self-propelling wheelchair. Since then her condition has deteriorated still further. She now needs an electric wheelchair, and she has lost the ability to carry out many basic tasks for herself. She has problems in swallowing and has choking fits when she drinks. Further deterioration in her condition is inevitable.
“She expects that there will come a time when her continuing existence will become unbearable.
“When that happens she will wish to end her life while she is still physically able to do so. But by that stage she will be unable to do this without assistance. So she will want to travel to a country where assisted suicide is lawful, probably Switzerland. Her husband, Mr Omar Puente, is willing to help her to make this journey.”
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From the 2024 Supreme Court of Nicklinson and others:
[Tony Nicklinson]
“The first appeal arises from the fact that Mr Nicklinson suffered a catastrophic stroke eight or nine years ago, when he was aged 51. As a result, he was completely paralysed, save that he could move his head and his eyes. He was able to communicate, but only laboriously, by blinking to spell out words, letter by letter, initially via a perspex board, and subsequently via an eye blink computer. Despite loving and devoted attention from his family and carers, his evidence was that he had for the past seven years consistently regarded his life as “dull, miserable, demeaning, undignified and intolerable”, and had wished to end it.
“Because of his paralysed state, Mr Nicklinson was unable to fulfil his wish of ending his life without assistance, other than by self-starvation, a potentially protracted exercise, involving considerable pain and distress. His preference was for someone to kill him by injecting him with a lethal drug, such as a barbiturate, but, if that was not acceptable, he was prepared to kill himself by means of a machine invented by Philip Nitschke, an Australian doctor.
“This machine, after being loaded with a lethal drug, could be set up so as to be digitally activated by Mr Nicklinson, using a pass phrase, via an eye blink computer.
“Because he was told that it would be unlawful for someone to kill him or even to assist him in killing himself, Mr Nicklinson applied to the High Court for (i) a declaration that it would be lawful for a doctor to kill him or to assist him in terminating his life, or, if that was refused, (ii) a declaration that the current state of the law in that connection was incompatible with his rights under article 8 of the Convention. […]”
[Paul Lamb]
“Because it was feared that there might be a challenge to Mrs Nicklinson’s right to pursue an appeal, Paul Lamb was added as a claimant in the proceedings before the hearing in the Court of Appeal. Since a catastrophic car crash in 1990, Mr Lamb has been completely immobile, save that he is able to move his right hand.
“He requires carers 24 hours a day, suffers pain every day, and is permanently on morphine. His condition is irreversible, and he wishes a doctor to end his life, which he regards as consisting of a mixture of monotony, indignity and pain.
“He therefore applied for the same relief as Mr Nicklinson had sought, and it was similarly refused by the Court of Appeal.”
[“Martin”]
“The second appeal arises from the fact that Martin (who wishes to be so described in order to maintain his privacy) suffered a brainstem stroke in August 2008, when he was 43. He is almost completely unable to move and can only communicate thorough slow hand movements and via an eye blink computer.
“His condition is incurable, and, despite being devotedly looked after by his wife and carers, his evidence is that he wishes to end his life, which he regards as undignified, distressing and intolerable, as soon as possible.
“Apart from self-starvation, Martin’s only way of achieving this is by travelling to Zurich in Switzerland to make use of the Dignitas service, which, lawfully under Swiss law, enables people who wish to die to do so. However, he first needs (i) to find out about this service, (ii) to join Dignitas, (iii) to obtain his medical records, (iv) to send Dignitas money, and (v) to have someone accompany him to Zurich.
“For understandable reasons, his wife does not want to be involved, and he does not want to involve any other member of his family, in this project. So, as he says, he needs assistance from one of his carers or from an organisation such as Friends At The End.”
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To say that the five people above, and others in their predicament, should be central to the discussion is not to say that their wishes should be, in and of themselves, determinative. These are decisions in a legal and political context. But it is to say that their predicaments should be the starting point.
These are five examples of people with full mental capacity who want to do something which, in and of itself, is not a criminal offence: that is to bring their life to an end in a manner and at a time of their own election. But which they cannot do without assistance.
If they were able to do this without assistance, there is nothing in the law to stop them doing so. But the law prevents them from doing so, because they cannot do it for themselves. The law means that they should instead suffer horribly as described in the passages above, because they cannot do a lawful act by themselves.
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The criminal law in respect of suicide is distinctive, perhaps unique, in its nature.
Usually there is what we can call a principal offence – say murder or theft – and then ancillary to that offence are other offence such as assisted murder or theft, or attempted murder or theft.
Those secondary offences are normally punished less harshly than the principal offence, for perhaps obvious reasons. But you can see why those secondary offences exist – because the principal offence exists.
But in England and Wales the law relating to suicide is such that we have the rare (if not only) instance where there is what would normally be regarded as an ancillary offence but without a principal offence.
This is because of the Suicide Act 1961:
The offence of committing suicide was “abrogated” – and so thereby was the offence of attempted suicide.
But the offence of assisting a suicide was explicitly made an offence:
The reason for this express provision was presumably that when an offence is abolished then all the ancillary offences disappear too, and so to retain the assisting offence then express provision had to made.
Indeed it was no longer even an ancillary offence, as Lord Hope described in the Purdy case (paragraphs again broken up, emphasis added):
“Assisting a person to commit suicide is a crime in this country.
“Section 2(1) of the Suicide Act 1961 provides: “A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years.”
“As Lord Judge CJ said in the Court of Appeal, this provision is clear and unequivocal: […].
“The offence which it describes is an offence in itself. It is not ancillary to anything else.
[…]
“Furthermore it does not permit of any exceptions.”
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And it is because the provision was and is indeed “clear and unequivocal” that there have been unsatisfactory work-arounds.
I described this in a post at Prospect.
What has happened is that the practice – as opposed to the law – of assisted suicide is such that it now rests entirely on prosecutorial discretion.
The Crown Prosecution Service (CPS) – as is well-known – has two tests in deciding to prosecute: the evidential test and the public interest test.
In respect of assisted suicide, the published position is that there will be factors against there being a public interest in prosecutions:
The full guidance, including the factors in favour of a prosecution, can be read here.
That is very detailed guidance – and it is perhaps some of the most detailed guidance published by the CPS about any public interest test.
And not a word of it is in the Suicide Act.
This cannot be a satisfactory position: it is legalisation in practice by the back door of guidance, rather than the law of the land.
At Prospect I sought to turn the usual argument against any reform of assisted suicide on its head – that it is “a slippery slope” – by pointing out that the current situation was the slippiest of slopes.
As long as you can get the CPS to nod-along with your version of events they will find that there is not a public interest in prosecuting. And as the CPS get used to not prosecuting, the boundaries of what is effectively, if not legally, permitted will tend to get wider.
It is difficult, if not impossible, to see how the current informal permissiveness of assisted suicide is preferable to actually setting out what is allowed and not allowed by Act of Parliament.
And as one purpose of law is to enable people to regulate their actions so that they can comply with the law in advance, that would be preferable to a blanket but practically ineffective prohibition, just for the sake of it.
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Law is not magic, and Acts of Parliament are not spells.
Just by “prohibiting” a thing does not make the unwanted thing disappear: it just means that any instances of it may be attended by different legal consequences.
This, of course, does not mean that many prohibitions do not have a purpose: it may be socially preferable to have those legal consequences. There is a public good in many things being prohibited at law, even if they carry on in reality.
But what it does mean is that prohibiting a thing rarely, in and of itself, makes the unwanted thing go away. Think about abortion or drugs policy.
There will still be a demand, it will just be met in a different manner.
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When a person is in the predicament of the five individuals in the cases quoted above, they can seek to go to Dignitas or elsewhere abroad, or to choreograph their assisted deaths so as to meet the CPS public interest guidance.
And many do.
The “clear and unequivocal” terms of the Suicide Act make no difference in this fundamental respect.
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What the the Suicide Act does do is make this matter of life and death a matter for official discretion, rather than a legal certainty.
That it is matter of crossing-fingers, or getting a good lawyer.
And as it is a matter for post-event prosecutorial decision-making, the actual people at the centre – those in the five cases quoted above – do not have the certainty that their demise will not bring unwanted legal consequences for those who assisted them to do something which otherwise would be completely lawful.
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On the basis of the above, there is an argument that the law in this area should be amended so that those at the centre of these situations can have the peace of mind that those assisting them do not face the possibility of criminal liability by the discretion of the CPS.
If the objection is that this would be a “slippery slope” then this objection perhaps overlooks the current slippery slope.
And there are many areas of law where the legislature has had to strike a balance between what should be done and what should be avoided.
That there is a hard decision to be made does not release those elected to make hard decisions from making those decisions.
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There is force in the objection of the well-regarded former judge Sir James Munby that there should not be the involvement of the courts.
Munby is no doubt right: there is perhaps no necessary role for court orders.
(One suspects the court orders requirement was put into the current draft legislation merely so to show that there were safeguards.)
The analogy with the Bland line of cases, where life support is to be ended, is inexact. Those are cases where the person has no capacity – but in cases like the five quoted above there is capacity.
The historic and proper role of the courts is to step in and protect the rights of those without the capacity to make decisions for themselves.
There is a role for the courts to ascertain if a person indeed has that capacity – but once that capacity is found then it is entirely a matter for that person what they do with that capacity.
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In an ideal world presumably no person would elect to end their own life.
But this is not an ideal world, and there are those such as the five cases quoted above who want to elect to do this lawful act, but cannot do so without assistance, and the law prevents them from having the peace of mind that those assisting will not be prosecuted.
That cannot be right, especially as the practice in the real world is actually for the CPS to find “public interest” factors to not prosecute after the event.
The bill currently before parliament is far preferable to the current evasive situation – even if the bill still needs substantial amendment.
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This is therefore the argument I put forward in favour for the bill.
In essence: not because assisted suicide is right, on which views differ, but because like many other matters of life and death it needs to be properly regulated by law, and not by mere official discretion.
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Thank you David – this is by far the most illuminating and thought provoking article I have read on this and it causes me to reflect on my views.
I have one question on reading this – and I’m ashamed to ask it as it is so basic and probably daft – but why not just repeal that assisted suicide offence. Is any further legislative change required? Presumably if there was evidence that a person had acted in a way contrary to the individuals wishes then the prosecutors could bring other charges?
Although we talk of “assisting” suicide, the offence is more one of encouraging or assisting, and the offence can therefore (sometimes) be used to go after pro-suicide websites, that can encourage sometimes vulnerable people to take their own lives. It’s not clear what other legislation could cover that (for instance, it wouldn’t be unlawful act manslaughter as publishing pro-suicide material isn’t otherwise an offence).
It’s also not clear that assisting a non-capacitatious person to take their own life would be caught by – eg manslaughter – if the means employed were itself legal (eg supplying them with overdose quantities of over-the-counter drugs). It’s possible that in those circumstances the fact that the person went on take the drugs would not break the chain of causation required for homicide (unlike where a person of capacity knowingly chooses to take something) so supplying with intent that the person would die would amount to murder. But it certainly wouldn’t be clear cut.
As I understand it, the Government by taking a neutral position on Kim Leadbeater’s Assisted Dying Bill has, to all intents and purposes, made it a Government Bill, subject to it passing Second Reading in the House of Commons.
Sir Keir through his Whips Office has earlier in this Parliament told Labour backbenchers they may not put down any amendments to Government Bills.
Any concerns Labour backbenchers have with draft Government legislation should be raised with Ministers privately.
If Labour backbenchers in the House of Commons obey the Whip then it will be down solely to the Opposition parties to address the growing concerns about this Bill.
Not the least being that a Private Member’s Bill was not the best way to develop and pass legislation on this sensitive, divisive matter.
As an aside, many people, some of whom should know better, are treating the Second Reading vote as a one off.
One commentator expects the House of Lords to bear in mind her expected large vote in the House of Commons for the Bill when deliberating on the Bill.
The Lords should, in the commentator’s opinion adopt a light touch inspection of the Bill.
The Salisbury Convention does not, however, apply to Government Bills, the intent of which was not set out in the party of Government’s General Election Manifesto.
I expect more outrage at arcane rules getting in the way of the will of somebody or other.
Is constitutional law about to get exciting again?
As an aside, the late Terry Pratchett, who passed away peacefully in his garden, wrote in the Guardian shortly before his death that he felt the matter of legislating for assisting dying should start with a panel of experts and lay people drawing up a series of practical options to implement the policy before the debate then moved on to consider the philosophical and ethical aspects of self inhumation (as Lord Downey might put it?).
Pratchett felt the debate on assisted dying nearly always became a confused deliberation in which people mixed up the philosophical and the ethical with the practical.
Pratchett, though, was a writer of fantasy fiction.
A very helpful and informative contribution. Thank you.
This bill, with its judges and processes, reflects not the needs of the dying but the needs of the state and the church.
Suicide was, until recently, in 1961, unlawful. This was a crime which, if successfully achieved, was unpunishable. If unsuccessful, the criminal attempting suicide and those who may have assisted were subject to imprisonment. But suicide is the ultimate act of autonomy.
This new Bill puts obstacles in the way which have the impression of re- criminalising suicide. Applying to the High Court for an order permitting a prescription opens a whole new and unwelcome legal intervention and the prospect of a new or expanded branch of legal practice in representing sick people seeking death. This should not be a tweak to the struggle of people applying to have relatives accompany them to Dignitas. Instead, we need specially licenced prescribers as part of a control process rather than the High Court. I understand that, in Oregon, some people get medicines prescribed and then go on and can live well in their last weeks with the comfort of knowing that they have control over the circumstances of their death.
That is the essence of this, personal control over the end. It is not work for the State, for family, for any deity, but for the individual concerned. The supervision of this should rather be by a small, national, expert body. This would oversee cases, authorise doctors and prescriptions, and record each case so as to establish patterns and overall statistics. The requirement for this end-of-life treatment will be such that a new organisation would be appropriate, rather than the courts. This authority could report to Parliament and the Department of Health. Its board could include a high court Judge.
But please no priests. Religious leaders are the source of more coercion than any group of worried relatives. See them stand together and insist that death is not the business of the dying. No, let the dying have control.
It doesn’t seem to be a Bill about committing suicide, so I don’t see it being able to re-criminalise suicide.
At present assisting suicide is, as described in the article above, criminal, but likely at present to be let off, probably, in most, but not defined, circumstances.
So it couldn’t re-criminalise that either.
Preventing suffering is one of the basic elements of good medicine, and the causes cited above are all cases of neurodegenerative disease or severe neurological damage, which are only tangentially covered in the current bill under debate. That bill focusses, perhaps unintentionally, on people with end stage cancer where the course is more, if not entirely, predictable. Also, many of these people will be unable to self-administer medicines under the proposed bill.
The assessment process used by NICE to determine if new medicines will be funded by the NHS uses quality and prolongation of life as its two basic dimensions. Quality of life measures used can have negative scores, i.e. a state worse than death, presumed to be 0 quality of life. There is little debate that there are such states, but no recognised remedy for them.
This is superb.
Without wishing to be unduly pedantic, S2 of the Suicide Act was amended by the Coroners & Justice Act 2009, as:
A person (“D”) commits an offence if—
(a)D does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and
(b)D’s act was intended to encourage or assist suicide or an attempt at suicide.
It’s arguable whether ‘assist or encourage’ is broader than ‘counsel or procure’ and would capture more conduct. To me it is perverse that one can be committing a crime by helping someone do a thing that isn’t a crime.
Why do you think this is being pedantic? It is informative, but it is not pedantic – unduly or otherwise.
I even thought about deleting that first bit.
I have a similar condition to Debbie Purdy and can very much relate to her circumstance. Your argument is very compelling and reflects an important aspect which I had not heard before in the debate. I also agree that the voices of the people at the centre of these cases are not given the priority they should. One final point – I think that the restriction of the Bill to six months prior to death is unfortunate. There are many conditions which cause pain and suffering as well as intolerable indignity, loneliness and boredom but which are not terminal within such a timeframe.
In line with Stephen Jones above, because you have so well untangled the “slippery slope” argument, you have altered my view from equal Yes and No to Yes.
There is much concern about the issue of coercion in the matter of assisted dying. Might not the same degree of concern be applied to other human endeavours such as getting married (parents harking on about wanting grandchildren), deciding to have children (see above) or deciding not to have children( again see above).
This is an exceptionally argued presentation on the lack of logic and common sense in the current law on assisted dying.
I have forwarded it to my MP who has voted against a change in the current law on assisted dying.
Is there any other lawful act that, if assistance were needed in order for it to be carried out, that assistance would be unlawful?
Excellent point about the CPS guidelines which I’ve not seen elsewhere.
Great piece altogether.
There is a slippery slope argument the other way. There are very many people, including medical staff, who consider it wrong to let people suffer excessively. In the absence of assisted suicide, there have been many cases where people have wanted, needed, and been given assistance to die and this has been successfully concealed. Indeed, in the current debate there have been numerous letters and articles published where people express gratitude that a relative of theirs was assisted in such a manner.
The slippery slope is that, once we have accepted the fact that people are secretly being helped to die, we must realise that some people will be given unwanted assistance either through misplaced sympathy, or even that the culture of concealment will allow the directly malicious to get away with murder – with one actual example being Dr. Harold Shipman.
To avoid a slippery slope we need to accept the principle that an individual is the sole and final authority over their own suicide and that it is wrong to force people to live and wrong to force them to die. That way each individual can make clear their wishes and the full force of the law can help them achieve their wish, whether that is “today” or “not today”.
The reliance on the currently over-stretched judiciary as arbiters of the correctness of any assisted dying decision is perverse unless there are to be increased funds and staffing. As is often said justice delayed is justice denied. It should not be beyond the wit of an accomplished lawyer present a case on the back of the Human Rights legislation Section 3.
Elsewhere, there is precedent: it is time we accept this, and leave the law courts to deal with those who may abuse it
I’m really grateful that you decided to publish this – Thank you.
Thank you for an excellent dissection of the current situation. In my mind we, as a society, have become necrophobic, death having become something done by hospitals, doctors and undertakers. The days when everyone has seen a dead body have gone and many do not wish to be faced with a loved one’s or their own inevitable demise. Your slippery slope angle is a new take for me, and as a retired doctor who has seen many unpleasant deaths where choice has been denied by people of good faith, I agree. Let the law help tidy up an deeply unsatisfactory situation.
Very interesting. Generally in agreement with the idea but a couple of points to make.
The case studies given are very clear but seem to have been very well chewed over and cleaned up. They are ‘ideal’, which is OK as a starting point for legislation but leave unaddressed the messy reality of cases likely to come up. Trouble ahead.
Then taking a look at the bill (Bill?) I see under section 3 para 8 that somehow the High Court is involved. But in what way seems unclear. What is the process? Does the HC have any power of yes or no?, how quickly is it expected to act?, at what if any cost? What exactly is the point of involving the HC? Perhaps I have not understood this bit.
I can only hope the cost of the many upcoming arguments does not fall on the unfortunate ill or their relatives.
The next stage is the committee stage.
Those all seem like questions for that stage.
To get to them, the bill had to be read.
And has.
At the end, as I understand it, the solutions arrived at will be parts of the Bill read again, amendments proposed even then, and voted on.
I do not think the depth can come before the breadth.
Thank you.
Clear thinking.
There’s a recent example from the USA of one peril of leaving a situation unlegislated.
Here, I suspect some of those opposed think they may be able to nudge the CPS thresholds more easily than prevent the passage of a law or have it repealed or modified.
Whilst I support the proposed legislation it’s not clear to me that any of the five people listed would be covered by it. Without delving into them the Diane Pretty case sounds like the only one where the person had less than six months to live. Additionally, I understand that the legislation requires that the action that causes death be carried out by the patient, so it’s possible that Pretty’s physical limitations would have prevented her from benefiting either.
If this does become law hopefully it will be significantly broadened in the future.
I agree. The five cases are to illustrate the general principle that a fully competent person should be able to make their own decisions.
As an ex-UK doctor, living and working in New Zealand, who is and has been a practitioner for the NZ Assisted Dying Service and the New South Wales Voluntary Assisted Dying Service, I am saddened by the approach and detail of the UK’s journey toward a legislative solution to this issue.
David’s insightful contribution to the debate is excellent and timely. I would also recommend The HoC H&SC Committee’s 2023-24 report, which can be found here – https://committees.parliament.uk/publications/43582/documents/216484/default/
Given the very long and detailed consideration, not least in Holland – see https://english.euthanasiecommissie.nl/binaries/euthanasiecommissie-en/documenten/publications/annual-reports/2002/annual-reports/annual-reports/RTE_JV2022_ENGELS.pdf and Canada – see https://www.canada.ca/en/health-canada/services/publications/health-system-services/annual-report-medical-assistance-dying-2022.html let alone the various Australian states and New Zealand – see the just published https://www.health.govt.nz/publications/review-of-the-end-of-life-choice-act-2019 and collectively, a best path informed by countries that have already been through the various options clearly emerges. There is nothing different about the UK. Why is learning from the international experience of others not front and centre of the debate?
As a doctor, currently practising in this area, I cannot see how a timely and responsive service will result from the proposed legislation.
Thank you for this contextual material.
Thank you for the rigour and clarity of the thinking contained in this post.
Thank you for deciding to post it.
I’m grateful that the legislation passed the recent hurdle but I have two worries;
– that the ‘principle’ Charles, yourself and a few others mention (‘that an individual is the sole and final authority over their own suicide’ I would say ‘life or end of it’ but let’s make progress here) has not been established to a sufficient level in legislative terms. Is it better contained in the Universal Rights provisions elsewhere in order to enable the thorny issue of assisted dying to be addressed more clearly? I can’t find an adequate statement in this current legislation of this ‘right’ so have I missed something?
– that your final point (‘needs to be properly regulated by law, and not by mere official discretion’) ignores the comment you made not seven or 8 lines before, that this is not an ideal world. Altering the means of address by including various arms of the justice system in its current state could, those who have a good grasp of the detail tell me, not only fail to make progress in dealing with some distressing situations but will cause further damage to be inflicted more widely.
I hope those who are more closely involved in this process can convince me that passing this legislation in its finished state will in fact deliver better conditions for those determined to end their own life but unable to take the requisite action themselves. As someone whose parents faced this issue with strength and humility and came out the other side of it fairly under the current system I’d be loathe to see it ended without being sure that it is replaced by a better one.
This is probably a stupid question but I’ve never let that stop me.
If, as you say the Suicide Act 1961 is “clear and unequivocal” and “does not permit of any exceptions” isn’t there an argument
that, despite decisions being made post-event, the discretion applied by the CPS over the years, which has the affect of providing people with the opportunity to “choreograph their assisted deaths so as to meet the CPS public interest guidance”, is in itself aiding and abetting “suicide or attempted suicide by another”?
PK