Assisted dying – legal perspectives

An individual commits an offence under s.2 of the Suicide Act 1961 where they:

“do an act capable of assisting or encouraging the suicide or attempted suicide of another person, where the act was intended to encourage or assist suicide or an attempt at suicide”.

All forms of assisted dying are therefore illegal in the UK. This applies to everyone: family members, doctors, nurses, allied healthcare professionals, mental health practitioners and community workers. 

This will remain the case for the foreseeable future while the Assisted Dying Bill navigates its way through Parliament.

Many countries across the world allow assisted dying within a legal framework:

• Dignitas in Switzerland is the most well-known facility. They have an evaluation process which involves medical documentation, psychological assessments, a legal review and a cooling off waiting period. 

• California requires patients to be over 18, a Californian resident, be mentally competent to decide, be diagnosed with a terminal illness with less than six months to live and be able to self-ingest the medication. 

• Canada’s differs slightly; they do not require a terminal illness, but the condition must be grievous and irreversible. They permit self-administered and clinician administered options. 

We do not know what legal provisions may or may not be brought into UK law. That debate rumbles on as set out in our previous article.

What we do know is that requests for assisted dying are growing. A 2021 report by Dignity in Dying reported that 300-650 terminally ill people take their own life each year. Around 50 people per year travel to Dignitas for an assisted death.

CPS data reveals that between 1st April 2009 and 31 March 2025;

• 199 - Referred to the CPS

• 131 - No prosecution

• 39 - Withdrawn by police

• 10 - Ongoing investigations

• 5 - Successful prosecution

Increasing numbers of requests for legal advice are coming in to us.

Two high profile cases

There have been two high profile cases involving family members:

1. Debbie Purdy: diagnosed with progressive multiple sclerosis and took her case to the House of Lords in 2009 to clarify if her husband would face prosecution if he took her to Switzerland for an assisted death. She argued that the lack of clarity breached her human rights. The House of Lords decided that the Director of Public Prosecutions (then Keir Starmer) must clarify when someone would be prosecuted for assisting suicide. Guidance was published in 2010 stating that prosecution was less likely if the act was motivated by compassion, the victim had a clear and settled wish to die, and the assister had no self-interest and reported the death to authorities.
     

2. Diane Pretty: diagnosed with motor neurone disease and sought to challenge the legal framework to allow her husband to assist her suicide with prosecution. The European Court of Human Rights ruled against her. Her right to dignity and privacy did not extend to a right to die.

Potential ramifications for healthcare professionals involved in assisted dying

There has been one high profile case involving a healthcare professional. Dr Michael Irwin was arrested in 2003 for planning to help his friend who was terminally ill, end his life on the Isle of Man and again in 2009 for helping another man travel to Switzerland to Dignitas. Both times, a criminal prosecution was not pursued reportedly on the basis it was not in the public interest. 

In 2005, he was struck off the medical register by the GMC for serious professional misconduct as he had obtained a potentially fatal dose of Temazepam to assist his friend on the Isle of Man. 

The risks for a healthcare professional of being involved in an assisted death are:

• Criminal prosecution

• Regulatory action

• Civil claims for compensation 

• Complex Inquests which could invoke Article 2 of the Human Rights Act 1998 or juries.

• Media coverage

Practical tips for healthcare professionals

Patients may raise the topic of assisted dying with their treating healthcare professional – either in search of emotional support or practical guidance. We have been asked to advise on cases where patients have asked for the drugs required to end their life or have asked a healthcare professional to help facilitate travel abroad for this purpose.

• If approached by patients who wish to seek their assistance in dying, the British Medical Association (‘BMA’) guidance is that doctors should obviously respond “sensitively, compassionately and non-judgementally”. 
   

• Discussions should obviously be handled delicately but also clearly documented in the patient’s notes.
   

• Clearly explain the legal position in the UK and that there are serious consequences involved for anyone that may assist the patient in ending their life (including their medical team). The lawful alternative options available to them should be discussed such as palliative care, mental health assessment and treatment and pain relief.
   

• In considering the role of palliative care in this context, Lord Sumption stated the following in the 2013 Supreme Court case of R (on the application of Nicklinson and another) -v- Ministry of Justice (UKSC/2013/0235): 
   
  “A doctor may not advise a patient how to kill himself. But a doctor may give objective advice about the clinical options (such as sedation and other palliative care) which would be available if a patient were to reach a settled decision to kill himself. The doctor is in no danger of incurring criminal liability merely because he agrees in advance to palliate the pain and discomfort involved should the need for it arise. This kind of advice is no more or less than his duty. The law does not countenance assisted suicide, but it does not require medical practitioners to keep a patient in ignorance of the truth lest the truth should encourage him to kill himself. The right to give and receive information is guaranteed by article 10 of the Convention.”
   

• The General Medical Council (‘GMC’) guidance also advises that healthcare professionals should proactively consider whether the patient has any unmet palliative care needs, including pain and symptom management. If additional care can be provided to make the patient more comfortable, this should be discussed with the patient, implemented and clearly documented. There is of course no obligation to prolong life irrespective of the patient’s views. Where a patient has capacity, they can refuse to consent to medical treatment even if that decision leads to their death.

What should clinicians NOT do?

The BMA has helpfully outlined certain actions which should be avoided to ensure healthcare professionals do not fall foul of the criminal legislation. The full guidance is accessible here.

Healthcare professionals 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 assisting suicide abroad; 

• provide literature to patients on aspects of assisting suicide; 

• disseminate information via the media (including the internet) which would be likely to encourage people to end their lives;

• put patients in touch with other individuals or groups who may be able to assist or organisations who promote assisted dying; and

• facilitate any other aspects of planning a suicide.

It is essential to seek legal advice if at all unsure to avoid exceeding legal boundaries.

Patient data 

If a patient requests medical reports specifically to assist in their application to end their life abroad, healthcare professionals should not prepare it. This would risk committing a criminal offence. 

Patients with capacity are of course entitled to access their medical records. They do not need to provide an explanation for their request. Any request for medical records should be complied with following the usual internal policies and processes. It is not advisable for healthcare professionals or providers to liaise directly with assisted dying organisations involved in facilitating suicide abroad, without taking specific legal advice. 

The next article in our ‘Assisted Dying – legal perspectives” will focus on some difficult issues that can arise when Data Sharing. This is a complex area in the context of assisted dying.