Human Exceptionalism

Debbie Purdy Case Did Not Legalize Assisted Suicide

I have now had the opportunity to read the Debbie Purdy court ruling. First, it is clear that it did not create a right to assisted suicide. From the judgment:

26.  It must be emphasised at the outset that it is no part of our function to change the law in order to decriminalise assisted suicide. If changes are to be made, as to which I express no opinion, this must be a matter for Parliament…We do not venture into that arena, nor would it be right for us to do so. Our function as judges is to say what the law is and, if it is uncertain, to do what we can to clarify it.

The court expressed sympathy for Purdy’s request in light of other cases of suicide tourism that were not prosecuted, and seems to have accepted the pernicious notion of suicide as a necessity in cases of serious illness or disability:

Ms Purdy’s request for information is to be seen in the light of that background. As has been said, she does not seek an immunity. Instead she wants to be able to make an informed decision as to whether or not to ask for her husband’s assistance. She is not willing to expose him to the risk of being prosecuted if he assists her. But the Director has declined to say what factors he will take into consideration in deciding whether or not it is in the public interest to prosecute those who assist people to end their lives in countries where assisted suicide is lawful. This presents her with a dilemma. If the risk of prosecution is sufficiently low, she can wait until the very last moment before she makes the journey. If the risk is too high she will have to make the journey unaided to end her life before she would otherwise wish to do so.

But the court also noted that Purdy’s husband has no right to a decision in advance not to prosecute:

What Ms Purdy was seeking was in reality a guarantee that her husband would not be prosecuted. She could not achieve that objective without his being given what amounted to an immunity from prosecution or the promulgation of a case-specific policy which recognised exceptional defences to the offence which had not been enacted by Parliament. The Director was not in dereliction of his statutory duty in declining to do this.

The court distinguished the Diane Pretty case–which involved a desire for a court legalization of domestic assisted suicide that was refused–from this case.  Pretty was about a right to die, which does not exist.  Purdy, is about how she and her husband will decide to live their private lives, that is, whether and when to fly to Switzerland for death.  That being so, and since already published criteria are not relevant to Purdy’s situation, the prosecutor was instructed to publish the criteria that will be used in deciding whether to prosecute cases of suicide tourism:

54: The Code will normally provide sufficient guidance to Crown Prosecutors and to the public as to how decisions should or are likely to be taken whether or not, in a given case, it will be in the public interest to prosecute. This is a valuable safeguard for the vulnerable, as it enables the prosecutor to take into account the whole background of the case. In most cases its application will ensure predictability and consistency of decision-taking, and people will know where they stand. But that cannot be said of cases where the offence in contemplation is aiding or abetting the suicide of a person who is terminally ill or severely and incurably disabled, who wishes to be helped to travel to a country where assisted suicide is lawful and who, having the capacity to take such a decision, does so freely and with a full understanding of the consequences…

55.  The cases that have been referred to the Director are few, but they will undoubtedly grow in number. Decisions in this area of the law are, of course, highly sensitive to the facts of each case. They are also likely to be controversial. But I would not regard these as reasons for excusing the Director from the obligation to clarify what his position is as to the factors that he regards as relevant for and against prosecution in this very special and carefully defined class of case. How he goes about this task must be a matter for him, as also must be the ultimate decision as to whether or not to prosecute. But, as the definition which I have given may show, it ought to be possible to confine the class that requires special treatment to a very narrow band of cases with the result that the Code will continue to apply to all those cases that fall outside it.

Thus, while the ruling clearly reflects a sympathetic attitude toward assisted suicide so frequently seen among the elite, and the language could even be construed as hoping that the prosecutor will create a limited sphere of “compassionate” cases that would be guaranteed freedom from prosecution, it did not legalize suicide tourism, nor did it grant Purdy’s husband a license to take his wife to commit suicide in Switzerland.

I am not happy with the decision, particularly the language promoting the culture of death. But it is not a “landmark” or a radical change in the status quo.  If the prosecutor grants a privilege to assist suicide overseas, that will be a different matter, since it would quasi legalize suicide tourism.  But, the case itself, while clearly sympathetic to legalizing assisted suicide, did not change the law.

Will the prosecutor buckle and grant such a license? I suspect so, but only time will tell.