New policy on assisted suicide in the termially ill

Doctors must avoid offering advice or taking steps that might be construed as encouraging or assisting suicide, explains medico-legal adviser Dr Janet Page.

Following a House of Lords ruling in 2009, Keir Starmer QC, the director of public prosecutions (DPP), issued interim guidance clarifying grounds for prosecution of an individual aiding and abetting a suicide in contravention of the Suicide Act, 1961.

In 2010, section 59 of the Coroners and Justice Act, 2009, came into force. This established a single offence of 'encouraging or assisting a suicide'. An offence is committed if the actions of the offender are deemed capable of encouraging or assisting the suicide, provided it was the offender's intention to do so.

The potential ramifications for doctors became clear when the DPP published his finalised policy later the same year. One key feature in the revised policy was a new factor in favour of prosecution, namely that the offender was acting in the capacity of a medical doctor or other healthcare professional and that the victim was in their care.

Locked-in syndrome patient Tony Nicklinson died shortly after his application to the High Court to allow doctors to end his life without fear of prosecution was rejected, on the grounds that it would represent a major change in the law. Mr Nicklinson's widow is appealing the court's decision.

The current situation puts doctors in a very difficult position.

Doctors' predicament

On the one hand, doctors have a duty to provide care to patients approaching the end of their life, which includes a duty to discuss treatment options with them, including withdrawal of treatment, symptom management and exploring their fears and anxieties about the future.

But on the other hand, doctors need to take care to avoid offering advice or taking any steps that might be construed as encouraging or assisting suicide.

The GMC has issued guidance for doctors (see box). Clearly, any discussion about potential methods of suicide or lethal dosages of drugs would fall into this category and doctors should decline to engage in discussing these matters on the basis that to do so would be unlawful.

There are, however, other less obvious pitfalls for the unwary doctor to consider. These include prescribing even small quantities of potentially lethal drugs over a period of time, knowing or suspecting the patient would be stockpiling these for the purpose of committing suicide.

Providing a medical report confirming that the patient has a terminal illness or unbearable suffering that cannot be relieved, to facilitate entry to a 'suicide clinic' abroad would also be an offence if the doctor was aware of the intended purpose of the report.

A doctor may become aware that someone else intends to assist a patient to commit suicide. GMC guidance recognises that patient confidentiality may be breached when failure to do so would put the patient at risk of serious harm, or to assist in the prevention of a serious crime.

When deciding whether to report concerns to the authorities, doctors should weigh the evidence for their suspicions and the risk of harm to the patient if they fail to act, against the potential damage to the doctor/patient relationship and their continuing ability to provide effective terminal care.

GMC guidance for investigation committee and case examiners on assisted suicide

The GMC has recently published guidance for its investigation committee and case examiners on how to deal with complaints against doctors who may have helped patients to commit suicide.

It sets out some of the things doctors may have done in order to encourage or assist a suicide and makes clear the factors that need to be considered in deciding whether a doctor should be disciplined.

These include:

  • If the doctor knew or should have reasonably known that their actions would encourage or assist suicide.
  • If a doctor had prescribed medication that was not clinically indicated or other practical assistance or information or advice about methods of committing suicide.
  • The context and nature of support or information sought.
  • The intensity of encouragement or assistance.

Case study

Miss A has motor neurone disease and is becoming progressively more disabled. She approaches Dr S for a medical report, asking him to mark it for the attention of a known suicide clinic in Switzerland.

Dr S refuses and advises Miss A that this would constitute encouraging or assisting a suicide and hence would be unlawful. The following day, Dr S receives a data subject access request under the Data Protection Act for copies of her records.

In its guidance to the investigation committee and case examiners, the GMC has stated that complying with such a request in accordance with the terms of the Data Protection Act would not normally give rise to a question of impairment of fitness to practise.

How this would be viewed by the DPP remains to be seen, particularly if it can be argued that the doctor would have been aware of the intended use for the records.

When to seek advice

In summary, the DPP's policy puts healthcare professionals at significant risk of prosecution if they take any steps that might be construed as an intention to encourage or assist a suicide.

Doctors face a challenge in avoiding discussions with patients which may put them at risk while continuing to fulfil their obligations to provide care and support to patients nearing the end of their life. Doctors facing such difficulties are encouraged to seek further advice from their medical defence organisations.

  • Dr Page is a medico-legal adviser at the Medical Protection Society

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