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Guarding the gates of St Peter: life, death and law making

  • Jonathan Montgomery (a1)

Abstract

In 2009 the legislature, judges and Director of Public Prosecutions (DPP) each turned their attention to issues around assisted suicide. The legislature decided not to change the law. The judges decided the existing law was insufficiently clear and required the Director to clarify it. The Director flirted with reforming the law, but then drew back from such a legislative role. His published prosecution policy has been considered as a contribution to the regulation of death and dying, and as such has been found wanting. However, considered in the context of the proper roles of Parliament, courts and prosecutors, and seen as an exercise in constitutional restraint, the Director's approach should be appraised rather differently. From this perspective, the decision of the Judicial Committee of the House of Lords in R (Purdy) v DPP raises significant concerns for the legitimacy of decision making in the contested moral issues that arise in healthcare ethics. In our democracy, courts should be wary of usurping legislative authority in areas where the Parliamentary position is clear. They should be reluctant to take sides in the protracted war over access to a ‘good death’.

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This paper is a development of the Bailiff's Lecture, delivered on 21 October 2009 in St Peter Port, Guernsey. I am grateful to the Bailiff, Sir Geoffrey Rowland, and members of the audience for their comments and questions on the thesis put forward, which has been revised in the light of their feedback. I am also grateful for the Legal Studies reviewer's comments, which led to further improvements. The imperfections that remain are my responsibility.

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1 [2009] UKHL 45.

2 Hansard HL Deb, vol 712, pt 103, amendment 173, cols 595–636, 7 July 2009.

3 R (Purdy) v DPP[2009] UKHL 45.

4 For a detailed analysis of the differences, see Lewis, P ‘Informal legal change on assisted suicide: the policy for prosecutors’ (2010) LS DOI:10.1111/j.1748–121X.2010.00184x.

5 Ibid, at 15.

6 These phrases are also taken from the conclusion to Lewis' article, above n 4, at 15.

7 See, for explorations of this point, Ost, S ‘the de-medicalisation of assisted dying: is a less medicalised model the way forward?’ (2010) 18 Med Law Rev 497 ; Coggon, J ‘Assisted dying and the context of debate: “medical law” versus “end-of-life law”’ (2010) 18 Med Law Rev 541 .

8 See more generally on this point, Montgomery, J ‘The virtues and vices of professionalism’ in Bhugra, D and Malik, A (eds) Professionalism in Mental Healthcare (Cambridge: Cambridge University Press, 2011) pp 1731 .

9 Guernsey Press 19 March 2009.

10 [2002] 2 FCR 97.

11 For further discussion on this point, see Montgomery, J ‘The legitimacy of medical law’ in McLean, S (ed) First Do No Harm: Law, Ethics and Healthcare (Aldershot: Ashgate, 2006) pp 116 .

12 For an account of the case, including extracts from the summing up to the jury, see the book by the trial judge Devline, P Easing the Passing: Trial of Dr John Bodkin Adams (London: Faber & Faber, 1986).

13 R v Adams[1957] Crim LR 365.

14 Alan Norrie has observed that this orthodox position is closely connected to the prioritisation of social order over individual need and has traced its origins in the protection of private property. He argues that the exclusion of a ‘morally more serious definition of culpability’ (in which motive is taken into account) follows from the law's adoption of a ‘particular, but contestable moral view of the just social order’. Consequently, the concentration on intention and the exclusion of motive ‘masks’ the particular moral and political content of the law. See Norrie, A Crime, Reason and History: A Critical Introduction to Criminal Law (London: Butterworths, 2nd edn, 2001) pp 35–46 and 226–227. The adaption of the principle that motive should be excluded in the context of medical assistance in dying may be seen as a recognition that the special trust placed in doctors is part of the social order to be protected. I am grateful to the anonymous reviewer who pointed out the relevance of this work, which opens up an important line of enquiry to which justice cannot be done here.

15 For Norrie's discussion of further adaptations of the concept of intention to accommodate medical practice in Gillick v W Norfolk & Wisbech AHA[1985] 3 All ER 402; Airedale NHS Trust v Bland[1993] 1 All ER 821; and R v Moor[2000] Crim LR 31 at 566, see ibid, p 40.

16 Airedale NHS Trust v Bland[1993] 1 All ER 821.

17 See Montgomery, J Health Care Law (Oxford: Oxford University Press, 2003) ch 20 for a discussion of the issues.

18 Bolam v Friern HMC[1957] 2 All ER 118 at 121.

19 R (Burke) v GMC[2005] EWCA Civ 1003.

20 See eg Lewis, P Assisted Dying and Legal Change (Oxford: Oxford University Press, 2007) and Otlowski, M Voluntary Euthanasia and the Common Law (Oxford: Oxford University Press, 1997).

21 Glendon, Ma Abortion and Divorce in Western Law (Harvard University Press, 1989).

22 Equality and Human Rights Commission response to DPP's Consultation on Assisted Suicide para 17, available at http://www.equalityhumanrights.com/uploaded_files/consultations/dpp_consultation_on_assisted_suicide_ehrc_response_final_december_09.doc.

23 See Griffiths, J, Bood, A and Weyers, H Euthanasia and Law in the Netherlands (Amsterdam University Press, 1998) pp 62–63.

24 Under Art 40 of the Dutch Criminal Code.

25 Griffiths et.al note that the court referred specifically to the ‘applicable norms of medical ethics’ in determining the scope of ‘necessity’. See above n 23, p 63.

27 Wake and Gondarra v Northern Territory and Asche[1996] NTSC 56.

28 Euthanasia Laws Act 1997, no 17, 1997.

29 See the Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill 2008.

30 Norrie's analysis of the criminal law makes a similar point about the application of orthodox criminal law doctrines hiding a particular ideology drawn from individualism, via the defence of private property and the liberal political philosophy of the utilitarians. See the concluding chapter to Norrie, above n 14.

33 Griffiths, J, Weyers, H and Adams, M Euthanasia and Law in Europe (Oxford: Hart, 2008).

34 See also Miola, J ‘Medical law and medical ethics – complementary or corrosive?’ (2004) 6 Medical Law International 251 and the extended argument in his Medical Ethics and Medical Law (Oxford: Hart, 2007). For a different emphasis, see Montgomery, J ‘Law and the demoralisation of medicine’ (2006) 26 LS 185 .

35 This general overlap of issues makes it unsurprising that the DPP felt unable to limit either the interim or final prosecution policy to cases where the death occurred abroad, although it should be noted that Lewis, above n 4, takes a different view on this point.

36 [2002] 2 FCR 97.

37 Goodwin v UK[2002] 2 FCR 577; I v UK[2002] 2 FCR 613.

38 R (Pretty) v DPP[2002]1 All ER 1.

39 Affaire Haas c. Suisse Case no 31322/07, judgment 20 January 2011, available only in French at the time of writing.

40 In relation to the content of the rules themselves, it should be noted that offences can be sufficiently certain to satisfy the requirements of the ECHR even though they incorporate prevailing professional practice into their definition; see R v Misra, R v Srivastava[2004] EWCA Crim 2375 (concerning gross negligence manslaughter in the medical context).

41 S 2(4). This subsection was not affected by the codification of the substantive provision into more modern legal language under the Coroners and Justice Act 2009.

42 Keir Starmer QC, DPP ‘Decision on prosecution – the death by suicide of Daniel James’ 9 December 2008, available at http://www.cps.gov.uk/news/articles/death_by_suicide_of_daniel_james/index.html.

43 Code for Crown Prosecutors (London: Crown Prosecution Service, 2010), para 5.7.

44 Oral Evidence, HL Paper (1993–1994), 28–II, 18, 25.

45 In one case there was an infanticide conviction and in the remaining case, the suspect died before proceedings were concluded.

46 R (Purdy) v DPP[2009] UKHL 45 at [30].

47 CPS ‘Key Facts – Assisted Suicide Interim Policy’ September 2009, available at http://www.cps.gov.uk/consultations/as_keyfacts.html.

48 For detailed discussion of the drafting of interim and final policies, see Lewis, above n 4.

49 Explored by Lewis, above n 4.

50 Public Consultation Exercise on the Interim Policy for Prosecutors in Respect of Cases of Assisted Suicide Issued by The Director of Public Prosecutions. Summary of Responses, available at http://www.cps.gov.uk/consultations/as_responses.html.

51 Explored by Lewis, above n 4.

52 This is the formulation quoted by Patricia Hewittt in the House of Commons, Hansard HC Deb, vol 507, pt 54, col 403, 10 March 2010, and is slightly longer than the similar phrase in Lewis, above n 4, at 10.

53 ‘No charges following death of Caroline Loder’, CPS press statement, 16 August 2010.

54 See paras 43.f and 45.b of the prosecution policy. For discussion of this element of the guidance, see Mullock, A ‘Overlooking the criminally compassionate: what are the implications of prosecutorial policy on encouraging or assisting suicide?’ (2010) 18 Med Law Rev 442 . For details of the DPP's decision, see ‘Statement by Keir Starmer QC regarding the deaths of Sir Edward and Lady Downes’, CPS press statement 19 March 2010.

55 Prosecution policy, para 44.

56 ‘The suicide of Mr Raymond Cutkelvin – decision on prosecution’ CPS press statement, 25 June 2010, para 5 where the diagnosis is mentioned as inoperable (without other treatment options being discussed), and paras 6, 39 and 46(b) where his decision to make a living will refusing life sustaining treatment is noted but the medical condition itself is not referred to.

57 EDM 302, introduced 1 December 2009. The vote referred to was in fact 194 to 141.

58 Hansard HC Deb, vol 507, pt 54, col 401ff, 10 March 2010.

59 Hansard HL Deb, vol 717, pt 37, col GC69, 3 February 2010.

60 Ibid, col GC80.

61 Ibid, col GC72. See also Lord Carlile at GC74.

62 See by way of comparison the Jepson litigation where a Church of England curate sought to force a prosecution for a fetal abnormality abortion; Jepson v Chief Constable of West Mercia[2003] EWHC 3318 (QB).

63 See Lord Hope in Purdy at [27].

* This paper is a development of the Bailiff's Lecture, delivered on 21 October 2009 in St Peter Port, Guernsey. I am grateful to the Bailiff, Sir Geoffrey Rowland, and members of the audience for their comments and questions on the thesis put forward, which has been revised in the light of their feedback. I am also grateful for the Legal Studies reviewer's comments, which led to further improvements. The imperfections that remain are my responsibility.

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