Abstract

Any case raising the profile of ‘assisted-dying’ and public policy naturally causes consternation, excitement, heated debate and concerns from different parties, worried that the law is unclear, unfair, too conservative, too permissive, neglectful of ‘the vulnerable’ or indifferent to the proper scope of freedom for ‘the competent’. It was unsurprising, then, that much attention focused on the litigation between Debbie Purdy and the Director of Public Prosecutions .1–4 Ms Purdy has muscular sclerosis, and would like to be free, at a time of her choosing, to travel to receive assisted suicide in a jurisdiction that permits this. To do so, she will need the help of her husband. In contrast with the famous Pretty case,5 Ms Purdy did not seek a proleptic immunity from prosecution under the Suicide Act 1961. Rather, she invoked her human right to respect for private and family life, and argued that the DPP should publish guidance detailing the basis on which he exercises his discretion to bring a prosecution for the crime of aiding, abetting, counselling or procuring a suicide in England and Wales. Her case, when heard in the House of Lords, was successful. 3A decision to prosecute cases of assisted suicide pivots on the satisfaction of two key issues: the ‘evidential test’—is there sufficient evidence to justify bringing a prosecution?; and the ‘public interest test’—is it in the public interest to bring a prosecution? Rightly or wrongly, the threshold for meeting the evidential test seems to be set very low.6 Focus tends to fall, therefore, on the public interest aspect of the decision. In September 2009, the DPP published interim guidance, which detailed the offence of ‘assisting a …