Section 3

The Law

“Assisting someone else’s suicide is a crime in Britain – though you probably won’t be prosecuted if you do it for pure compassion.   However, taking someone to Switzerland could still affect your ability to inherit anything under their Will”

In order to decide whether or not it is legally “safe” for you to travel to Switzerland with someone who is intending to use the services of one of the Centres, you need to understand the implications under both Criminal Law and Civil Law.   If you break a criminal law you get punished.   If you break a contract or something else under the civil law then you get sued and will have to pay money if you lose.   Criminal Courts impose fines and jail sentences.   Civil Courts award damages.

Assisting a suicide is a crime

Taking criminal law first, suicide itself is not illegal in the UK.   Therefore, attempted suicide is not illegal either.   Both were removed as criminal offences by the Suicide Act of 1961.

One hundred years previously, things had been very different.   Suicide was not only criminal but also regarded as “sinful” by most churches.   If you tried to commit suicide but failed, you would nonetheless have been guilty of “wounding with intent to kill” – for which the penalty was hanging.   That was a somewhat off-beat version of what we would now call a “win-win” situation. Additionally, someone who died by suicide would not be buried in a graveyard but outside any “holy ground”.

However, that same legislation in 1961 to legalise suicide also confirmed that assisting a suicide remained unlawful.   Its words are as follows :

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, or
b.  (D)’s act was intended to encourage or assist the suicide or attempted suicide of another person.

These are very wide clauses.   Note that they say “or” and not “and”.   In other words, if someone tells you they are fed up with their life and want to end it then if you simply say “well, yes, I can understand why”, you are putting your first toe in the water of criminality.   This is the background to the behaviour of everyone from the Samaritans to your local doctor.   No one can ever safely agree with you.   They are, in effect, legally obliged to talk you out of the idea.

Indeed, the moment someone says they are thinking of topping themselves there seems to be a society-wide assumption that they must be mentally ill – however logical their reasoning.

This offence of “assisting or encouraging” a suicide carries a maximum penalty of 14 years in prison.   Technically, that is just the case in England and Wales.   The relevant legislation in Northern Ireland is the Criminal Justice Act 1966.   In Scotland, there is no specific crime of assisted dying but (at least at the time of writing this) there would be a possibility of prosecution for culpable homicide.

It is easy, therefore, to make the law sound as though everything is cut and dried.   The law seems clear and its catchment net is very wide.  Happily, however, things are not so clear as they may sound.

The DPP Guidance

There is a clear distinction between the committing of an offence and the chances of being prosecuted for it.  Under the “guidelines” issued by the Director of Public Prosecutions (Keir Starmer at the time) in 2009, a prosecution should be regarded as unlikely if:

  • The helper was solely motivated by compassion.
  • The person being helped had made a “voluntary, clear, settled and informed” decision to end their life.
  • The helper reports what they have done to the police and fully assists with any investigation.

However, the guidelines also say that a prosecution should be regarded as more likely if :

  • The person being helped is under 18.
  • The helper had motivations other than compassion, such as being a beneficiary.
  • The helper seeks to apply pressure or was unduly persuasive.
  • The helper was a stranger until shortly before the death.
  • It is the helper who does the physical act of ending the life, even if the person being helped was incapable of ending it themselves.

In October 2023 these guidelines were extended to say that a prosecution would be less likely if the victim had clearly wanted to die and the suspect was under “emotional pressure” to assist. However, a prosecution would be more likely if the suspect was a medical professional and the victim was under their care.

Overall, these guidelines simply try to distinguish between malicious homicide on the one hand and compassionate assistance on the other. Although they are now very detailed (see the DPP website) that distinction can helpfully be used to work out where action will or will not be taken.

This is not a full list of the guidelines but it does cover the most salient.   Also, of course, these are only “guidelines”.   They cannot be regarded as any sort of guarantee that a prosecution will not be brought.   The circumstances of each case are bound to be different.   As “guidelines”, they could always be changed at the choice of the next Director of Public Prosecutions.

A problem with inheritance – Ninian vs Findlay & Others

Then there is the even-more-difficult question of inheritance, which falls under the civil law.

In the case of Dunbar v Plant in 1998, the Court held that since assisted suicide is a crime under the Suicide Act then the assistor was not entitled to inherit from the estate of the deceased.   The well-established forfeiture rule “provides that if a person unlawfully kills another, they are not able to inherit from their estate”.   

The big question left unanswered by the wording of the Suicide Act is whether or not “assisting” a suicide includes making the arrangements for a visit to one of the Swiss centres.   In the case of Ninian v. Findlay & Others in 2019 the High Court ruled that Mrs Sarah Ninian had committed a criminal offence when she made the arrangements for their visit to Switzerland and when she accompanied her husband on the journey.   The fact that she did not actually perform the act which ended his life was not considered relevant.   The guidelines were noted by the Court, as was the decision by the DPP and the police not to bring any criminal action.   However, an offence had been committed and the civil issue of forfeiture then came to the centre of the stage.

In the very particular case of Ninian v Findlay & Others the case was brought by Sarah Ninian herself.   She was seeking a ruling that the Court should use its discretion to exclude the forfeiture rule and allow her to inherit from her husband’s estate as they had both intended.   Having ruled that she had indeed committed a criminal offence, the Court went on to give Mrs Findlay the discretionary exclusion she wanted.   She had been motivated by compassion rather than inheritance, she had not initially favoured her husband’s decision, they had been married for 34 years and her husband had clearly been mentally competent and recorded his view.   Perhaps most important of all, the other beneficiaries from his death (i.e. the people who would have stood to gain if the Court had decided not to exercise its discretion) all supported Sarah Ninian’sapplication.

Clearly, this is an interesting precedent but it cannot be taken too far.   If an estate was substantial and if some of the relatives felt they had been unfairly treated in the Will then their lawyer could certainly choose to claim that forfeiture was involved and that the beneficiary who had travelled with the deceased should not be allowed to inherit anything.   The Court in the Ninian case was keen to point out that the case was being decided on its own merits and that its role as a precedent was therefore limited.   This issue could potentially be resolved by means of a pre-emptive ruling, as was the case with Sarah Ninian, but such things do not come cheap.

It is easy to see that a different Court could reach a different decision.   If, for example, a much younger spouse of a wealthy elderly patient had made all the arrangements for the visit and had then been included rather generously in the Will, a challenge would (I believe) succeed.   Once again, an offence would have been committed.   If the deceased had given no longer-term indication of his or her intentions then, quite probably, the DPP Guidelines would not be called into play.   In other words, the new, young spouse could find themselves behind bars and disinherited as a result.

In reality, such a case would be unlikely to arise because the safety mechanisms of all four Swiss Centres would be sufficient to stop it.   If it got through the net, however, the young spouse would live to regret it.

A recent case

There have been a couple of recent incidents which indicate that the UK Police can still choose to investigate cases in this area of the law quite seriously.   In February 2022, for example, a seriously ill patient from South Wales was taken by a friend to Dignitas.   She had made her intentions clear for a long time and had herself taken deliberate steps to leave her affairs in order.   Her colleague was motivated by friendship and compassion.   Nonetheless, as soon as she had left for Zurich someone reported, wrongly, to the police that she had been taken against her will.   The two were also accompanied by a young University researcher who was in the process of writing a thesis.   The assisted suicide was properly carried out but when they arrived back in the UK both the friend and the researcher were questioned by the police. The researcher was only involved on the margins but, nonetheless, at the time of writing this, neither her laptop nor her field notes had been returned.

A similar situation could well arise if a patient in a care home simply asked a relative to take him or her to one of the Swiss centres. These are the questions that would arise. Is there evidence that such a trip follows a long-term pattern of the patient’s thoughts ? Is the relative acting under a Power of Attorney ? Are you sure that no Court has put the patient’s affairs under the control of the Official Solicitor ? Are you sure that no other Court Order (possibly by the Local Authority) has been put in place ? If the answers to those four questions is “Yes”, then whoever accompanies the patient to Switzerland is probably in the clear. The risk, of course, is that someone could accuse the relative of being in contempt of court if some sort of Court Order is already in place. You can read on Google about the case of Wanda Maddocks.

This is clearly an area where the law is still developing.   In the meantime, accompaniment of any kind cannot be expressed as “risk-free”.

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