A statement issued last week by the new Director of Public Prosecutions, Alison Saunders, clarifies the Guidance of the Crown Prosecution Service (England & Wales), and eases some of the fears of doctors and others in the medical profession over cases of encouraging or assisting suicide.
The medical professions have seemed particularly vulnerable until now, given that they have a special relationship with patients known as the “Duty of Care.” This is a legal obligation requiring a doctor, nurse or other professional, to conform to a standard of reasonable care when saying or doing anything that could foreseeably harm the patient. Failure to do so, could see that medical professional taken to court for negligence or barred from further practice. What is more, the test for negligence is based on what a doctor (for instance) of similar training and experience would have done (this, in law, is known as the ‘Bolam’ test). Under current UK law, a doctor or nurse is not reasonably expected to explain to you how to kill yourself, or travel to Dignitas for assistance in dying, and could be negligent if doing so. But what if that doctor is not the doctor treating you but just happens to be your friend or acquaintance?
Until last week, this was a slightly murky gray area. The CPS Guidelines provide two long lists of factors that are formally considered in the balance when deciding whether to prosecute an individual case. (You can find links to the Guidelines, together with the new update, in the sidebar of this Blog: if you are reading this on a mobile device, you may need to switch to desktop view to access them.) One of the factors tending in favour of prosecution, reads:
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;
This might seem fairly straightforward, but as a doctor, do you want to take the risk? As a patient, do you want to risk putting that doctor in an impossible position?
Fears had led to some fairly draconian advice (doctors might feel supportive but that is not the same as being willing to risk 14 years in prison). The British Medical Association was quick to advise:
The BMA advises doctors to avoid all actions that might be interpreted as assisting, facilitating or encouraging a suicide attempt. This means that doctors should not: • advise patients on what constitutes a fatal dose; • advise patients on anti-emetics in relation to a planned overdose; • suggest the option of suicide abroad; • write medical reports specifically to facilitate assisted suicide abroad; nor • facilitate any other aspects of planning a suicide. • Patients have rights of access to their own medical records under the Data Protection Act, and where a patient makes a subject access request, doctors are obliged to provide the requested information, subject to certain exemptions.
While the General Medical Council (which can revoke a doctor’s licence) wrote:
...any advice or information doctors give about suicide to patients should be limited to an explanation that it is a criminal offence for them to encourage it.
In June of this year, the (United Kingdom’s) Supreme Court urged the DPP to clarify her guidance after they had tussled with its clauses in relation to the Tony Nicklinson case. The new amendment to the CPS guidelines, issued last Thursday, clarifies the phrase “and the victim was in his or her care” with the following footnote:
For the avoidance of doubt the words and the victim was in his or her care qualify all of the preceding parts of this paragraph. This factor does not apply merely because someone was acting in a capacity described within it: it applies only where there was, in addition, a relationship of care between the suspect and the victims such that it will be necessary to consider whether the suspect may have exerted some influence on the victim.
The most pertinent application we might deduce from this is the difference when you consult your doctor, a situation where there is an accepted degree of influence, as opposed to when you speak to someone who just ‘happens to be a doctor. ‘ There are exceptions, and it is up to a court to decide if a duty of care exists in a particular case, but it generally means a situation where a doctor (or even a carer) is demonstrably caring for that person. Your registered doctor has a duty of care, as does the doctor in charge of your case if you go into hospital: but when there is no formal relationship then a person who happens to be a doctor may not have any more legal duty of care towards you than any other person. For instance, while his professional ethics may insist that he or she acts to help a drowning child, or a passenger on an airplane, there is no such legally required duty in UK law (this is not the case in a number of other countries).
Although Exit would, of course, like the present law to go further in protecting doctors or others that help someone out of compassion, it would seem that the DPP is doing the best job that can be done under existing legislation to be completely fair-handed. Indeed, her amendment reflects the fairness of her verbal submissions to the courts.
Our readers can discover more about how the law on assisted suicide is applied in some of the links below. Remember, it is a two-part test that the CPS always uses: these weighing up of factors to decide if it is in the public interest to prosecute only apply if the CPS considers there to be sufficient evidence to obtain a reasonable chance of conviction.
- The CPS Policy as updated October 2014
- The DPP responds to the Supreme Court on assisted suicide policy
- The CPS home page, including a video by the new DPP explaining their work
- Analysis by King’s College of the context leading up to the amendment
- A matter of life, death and assisted dying: a Guardian Newspaper discussion
- What is clinical negligence? MIND webpage
- Duty of care in English Law (Wikipedia article)
- Duty of Care & the Law (includes living wills) REALFirstAid website
- Nurses warned they could be jailed for talking about assisted suicide (Mail Online)
- The Supreme Court (on Nicklinson)
- The Supreme Court Press Summary (DPP invited to clarify her code)
- Would you stop to provide care? Nursing Times on treating someone outside of work
- Doctors and the duty of care (a case examined)
- In-flight emergencies (RSM)
- Assisted suicide cases – how the CPS handled them
- A Scottish case – Exit article that shows not dissimilar conclusion reached under Scottish law as would be reached by the CPS guidelines.