• Ethics

Gauthier et al1 contend that “suicide tourism can result in the amendment of existing laws”, and argue that this is “confirmed” by, inter alia, the example of the UK (by which they must mean England and Wales: The Suicide Act 1961 does not extend to Scotland). They rely entirely on the case of Purdy v DPP2 to support this contention, saying: (1) that “the phenomenon of suicide tourism caused Debbie Purdy to bring about legal action to clarify the position regarding the prosecution of persons assisting in suicide” and (2) that the revision of the guidelines of the Director of Public Prosecutions (DPP) pertaining to the prosecution of assisted suicide which resulted from Purdy resulted in “an overall liberalisation of the prosecution practice in the UK following assistance in suicide”. (1) is wrong, while (2) is at best contentious, and probably wrong.

The Purdy litigation sought to establish two things. First, that Article 8 of the European Convention on Human Rights extended to end-of-life decision-making (there being some doubt about this after Pretty v DPP3 and Pretty v UK4). And second, that the DPP should, by promulgating guidelines, make it clear whether or not Debbie Purdy's partner would be likely to be prosecuted if he helped her attend the Dignitas clinic in Zurich.

The first of these objectives was the main and most repercussive one. Purdy was a step in a systematic campaign to use Article 8 to liberalise assisted dying. Article 8 is the platform from which all subsequent assaults on the assisted dying legislation have been and are likely to be launched: see, for example, the Nicklinson/Lamb/Martin litigation.5

As to the second objective, Debbie Purdy could hardly have been in any real doubt. No Dignitas-type case had ever been prosecuted in England or Wales, and, before the hearing of the appeal in the House of Lords, the DPP, in the closely comparable Dignitas case of Daniel James, had set out in detail his reasons for not prosecuting.6 There was no reason for Debbie Purdy to think that her partner would be in jeopardy, and every reason for her to think that he would not.

It is true, as Gauthier et al say, that Purdy concerned “suicide tourism”, but it was not suicide tourism that “caused” the litigation. The legislation saying what it said, it was obvious at that time that her partner would be in real jeopardy were he to help her to commit suicide in England. Dignitas was the only realistic option. Thus it was the domestic situation which caused the couple to consider Dignitas, and hence (if one accepts that there was real doubt about the danger of prosecution) to bring the claim for judicial review. Suicide tourism was simply the (inevitable) context of the English litigation. Gauthier et al imply that the English courts, legislature or prosecutors somehow looked at the phenomenon of suicide tourism and that, encouraged by it or resigned to it, decided to become more liberal about assisted suicide. That is not the case.

Did the DPP's revised guidelines which resulted from the Purdy litigation liberalise prosecution practice?7 It is hard to see that they did. Indeed it might be argued that in some respects they made it less friendly to assisted suicide. Physician-assisted suicide, for instance, was frowned on more explicitly after the guidelines than it had been before.8 In relation to suicide tourism cases, there was, as we have seen, no change at all in prosecutorial policy.

Gauthier et al do not touch on the interesting and important question of whether suicide tourism should result in the liberalisation of assisted suicide law and/or practice.

England has been able to outsource its assisted suicides to Switzerland. That has meant that it has had the luxury of being able, usually, to avoid confronting directly the difficulties associated both with liberalising and with not liberalising the existing English law. Only in very unusual cases (such as, it was said, Nicklinson and Lamb) is a trip to Zurich impossible, and hence only in very unusual cases has it been impossible to avoid complex and agonising debates about what England itself should do or not do.

I do not enter that debate here, save to say that if Switzerland is happy to continue providing the facility then, however intellectually dishonest it may be to allow her to siphon off all our own English pain, fear, angst and debate, it is likely to do less harm overall than introducing any conceivable assisted suicide law into England.

There are two possible connections between suicide tourism and English policy. The first is the liberalisation of public opinion that comes naturally, if irrationally, with familiarity. And the second is the slowly growing public acknowledgement that there is something intellectually, if not morally, uncomfortable, about getting another country to do your dirty work. While both of these factors no doubt contribute to the DPP's view of whether it is in the public interest to prosecute cases of assisted suicide, and will certainly affect the legislature's view of assisted dying, neither has played any discernable part in the deliberations of English courts on which Gauthier et al rest their thesis.

Gauthier et al's survey is useful, but their conclusions are suspect.