R(Purdy) v DPP and the case for wilful blindness

Oxford Journal of Legal Studies

Volumn 30, Issue 2, 2010, Pages 301-326

  Greasley, Kate ^a  

^a NEW COLLEGE   (United Kingdom)

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EID: 77954168204     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gqq010     Document Type: Article

References (48)

1. HL Deb vol 712 cols 596-634 (7 July 2009). The amendment, proposed by Lord Falconer, was rejected by 194 votes to 141.
2. [2009] UKHL 45, [2009] 4 All ER 1147
3. See Airedale NHS Trust v Bland [1993] AC 789 for an example of the first justification, and Re B [2002] EWHC 249 (Fam), [2002] 2 All ER 449 and S v St George's Health Care Trust [1998] 3 All ER 673 for authority on the second
4. At the time of the House of Lords judgment in Purdy, the relevant section still stood, unamended, to read that a crime is committed where a person 'aids, abets, counsels or procures' the suicide of another
5. See also Re Z [2004] EWHC 2817 (Fam), [2005] 3 All ER 280 where the court held that a local authority which was aware of one Mr Z's intention to assist his wife in traveling abroad to die was not even permitted to pursue an injunction to prevent the pair from leaving the country. Its obligation was strictly to investigate and inform the police and the DPP of the relevant facts for a decision on prosecution.
6. The figures are those given by Lord Hope in his judgment in Purdy (n 2) [30]
7. [2001] UKHL 61, [2002] 1 AC 800
8. Pretty v UK (App no 2346/02) (2002) 35 EHRR 1
9. See K Starmer, 'Decision on Prosecution - The Death by Suicide of Daniel James' (9 December 2008) accessed 9 February 2010.
10. R(Purdy) v DPP [2009] EWCA Civ 92, [2009] 1 Cr App R 32
11. Lord Phillips's judgment advanced an alternative argument to the effect that s 2(1) might not in fact apply to suicide tourism cases. He reasoned that the subsection should logically parallel the scope of s 1, which only decriminalized suicides committed in England and Wales. The result would be that acts of assistance which enabled a person to commit suicide elsewhere were outside of the 1961 Act legislation altogether, leaving them only to be tried under the law of murder. This somewhat technical argument was considered with some interest by the other judges, but ultimately was not endorsed in their decisions.
12. Pretty v UK (n 8) [36]
13. The full Code can be found at accessed 9 February 2010.
14. From the outset Lord Hope made clear his view that it was not the function of the judiciary to seek to challenge or alter the law as it stood on assisted suicide, but only to clarify its application (n 2) [26]
15. For developed theories of excuse, in crime as well as elsewhere, see JL Austin, 'A Plea for Excuses' in JO Urmson and GJ Warnock (eds), Austin, Philosophical Papers (3rd edn OUP, Oxford 1961) 85-101
16. J Gardner, 'The Gist of Excuses' (1997) 2 Buffalo Crim L Rev 575-98
17. J Horder, Excusing Crime (OUP, Oxford 2004)
18. The Coroners and Justice Act 2009 s 55(6) contains provisions expressly dealing with a defendant's premeditated reliance on a 'loss of control' excuse in a murder charge. A slight qualification should, however, be added here. It is of course possible to envision a scenario where a person commits an offence in the knowledge that he will probably be afforded an excuse, but is not for this reason barred from relying on it. An example might be where a man is threatened with the infliction of serious physical injury on his daughter unless he commits an offence. That the man foresees a defence of duress would not disentitle him from that defence, but this is because the foreseeability of the excuse has no bearing on his decision to commit the prohibited act and hence does not invalidate the blame-reducing factor which grounds the excuse (the duress). Conversely, the kinds of cases to which I am referring are ones in which the availability of an excuse influences the offender's initial decision to commit a crime.
19. See s 2(4)
20. See Prosecution of Offences Act 1985, s 10
21. Purdy (n 2) [43]
22. Re B (n 3). Here, the patient had suffered a complete paralysis from the neck down and was entirely dependent on a ventilator for survival. She had expressed her wish that the ventilator be turned off, in the knowledge that this would lead to her death. When the doctors failed to comply with her wishes she brought an action claiming that their refusal was unlawful. In finding against the NHS, Butler-Sloss P considered that the right of a patient to refuse treatment took precedence over the desire of health care professionals to keep her alive. The doctors' actions, she opined, carried the 'serious danger' of 'benevolent paternalism' and undermined the disabled patient's right to self-determination [94].
23. [2005] EWCA Civ 1003, [2006] QB 273
24. Though it should be noted that it is highly unlikely in practice for life-saving treatment to be withheld from a competent patient wishing to receive it (unless due to lack of resources). As past case law has demonstrated, determinations that life-saving treatment is not in a patient's best interests tend to be made only where the patient is incompetent (cf Bland (n 3); Portsmouth NHS Trust v Charlotte Wyatt [2005] EWHC 117 (Fam); Glass vUK(App no 61827/00) (2004) 39 EHRR 15).
25. I am leaving aside, in this article, the argued intrinsic moral difference between causing death by omission and commission and the related doctrine of double-effect. This is not because I do not believe it to be of vital importance in the context of controlled death, but because I wish to concentrate here on the arguments most frequently deployed in defence of the right to die, these being the arguments most likely to lend support to the recent House of Lords decision.
26. Purdy (n 2) [36]
27. See R Dworkin, Life's Dominion (Harper Collins, London 1993) chs 7 and 8 generally, and particularly 199-213
28. J Raz, The Morality of Freedom (OUP, Oxford 1986) chs 14 and 15
29. See T Nagel, Mortal Questions (CUP, Cambridge 1979) 1-10
30. This should not be taken to suggest that Nagel is himself an opponent of the legalization of assisted suicide in all cases. Indeed, that he was one of the signatories to the 'Philosopher's Brief' amicus curiae in the US Supreme Court cases of Washington v Glucksberg and Vacco v Quill is strong evidence to the contrary. The brief had argued in support of endorsing the Circuit Court of Appeals' decisions to overturn the blanket ban on assisted suicide in Washington and New York. However, my interest here is pointedly on the question whether there are ever any circumstances in which death can coherently be viewed as a good for a person, and to the extent that Nagel's view of death implies it cannot, it is an implication which needs to be wrestled with.
31. Raz (n 35) 417
32. For a further statement of the instrumental nature of the value of freedom, see J Christman, 'Saving Positive Freedom' (2005) 33 Political Theory 79-88
33. Of course there are some who argue that the evils and harms which invariably come with life make nonexistence the preferable choice over existence for everyone, healthy or not. One such view is put forward by David Benatar, whose key claim is that the harm attached to living can never be cancelled out by any amount of pleasurable experience because while the absence of pain (attached to non-existence) is always of great value, the absence of pleasure (also attached to non-existence) is no bad thing if there is no identifiable person for whom that absence is a deprivation (See D Benatar, Better Never to Have Been (OUP, Oxford 2006)).
34. This thought is not of much concern to me in the present context, not the least because (for reasons space precludes me outlining here) I find it highly challengeable, but also because Benatar expressly does not mean his view to imply that death is preferable to continuing to exist, but rather that never coming into existence is preferable to existing. Indeed, it is evident why the original calculation trips up when applied to the choice between existence and nonexistence for someone who is already living, for it now becomes possible to identify a person who will be deprived of the possible pleasures in continued life.
35. Pretty v UK (n 8) [29]-[30]
36. For a developed exposition of the dangers of slippery slopes in assisted dying and euthanasia see generally, J Keown, Euthanasia, Ethics and Public Policy: An Argument Against Legalisation (CUP, Cambridge 2002)
37. 'Euthanasia in the Netherlands: Sliding Down the Slippery Slope?' in J Keown (ed), Euthanasia Examined (CUP, Cambridge 1995)
38. These worries only represent the tip of the iceberg of practical slippery slope concerns, although they are probably the most widely voiced. Other kinds of practical concern arise from evidence that patients frequently change their minds about wanting to die, so that acting on a temporary resolve is extremely dangerous, or the cite fear that trust between patients and their relatives or medical professionals could be eroded by the possibility that preserving the patient's life may not always be the obvious (and mandatory) aim. Though regulatory frameworks could do much to help ensure both the authenticity and resoluteness of a patient's death-wish, questions are raised as to whether regulation can ever be failsafe enough.
39. S Smith, 'Evidence for the Practical Slippery Slope in the Debate on Physician-Assisted Suicide and Euthanasia' (2005) 13 Med L Rev 17-44
40. Purdy (n 2) [66]
41. It might be pointed out that in the Purdy-type case, the proposed suicide has an obvious minimum objective standard of living, in that he will at least be physically incapable of travelling abroad unassisted. But this does nothing to extinguish the root of the problem I go on to outline, which is that legitimizing assisted suicide in these cases and not others applies an inferior value of life determination to everyone afflicted by similar levels of pain and physical ineptitude.
42. The thread of this contention was captured in one of Dinah Rose QC's submissions on behalf of the Director. Her argument, as Lord Hope paraphrased it, was that there were serious ethical objections to the Director further clarifying his policy, particularly given that 'there were many examples of people who were severely disabled leading full and fulfilling lives'; Purdy (n 2) [52].
43. See (n 42) above
44. A counter-suggestion could be launched here that the conception of personal autonomy articulated above can be employed to produce an accurate and objective threshold on the reasonableness of a person's wish to die. Can we not set down as a benchmark simply that that the person concerned has no future valuable options available to him due to his condition? This would immediately exclude the lovesick teenager whose incapacitation we all know to be temporary and who still has a world of possibilities laid open to him. I have already stated my view that a closer look at the value of personal autonomy might well provide such an objective threshold. But again I do not believe that this does anything to upset the drift of the concerns set out above. Though it is possible to envision circumstances where it may well be objectively reasonable to wish to end one's life, this reasonableness does not eliminate the pragmatic concerns that come with condoning assistance in doing so. To a large extent, many of the ill consequences of condoning assisted suicide (the normalization of controlled death, the slippery slope, etc.) are detached from the legitimacy of the particular act condoned. Sympathizing with a person's wish to die is very different from agreeing publicly that they probably have nothing left to live for and permitting others to assist them in ending their life. The latter position remains hugely objectionable for formally placing varying relative value on different individual lives. Consequently, even if there is a threshold of reasonableness in assisted dying, it cannot double up as the threshold of lawfulness.
45. H Lillehammer, 'Voluntary Euthanasia and the Logical Slippery Slope' (2003) 61 CLJ 545-50
46. For another good critique of Keown's view here see Smith (n 44)
47. Purdy (n 2) [97]
48. Naturally exceptions are possible: think, for example, of the infamous Harold Shipman. The Shipman case, however, can largely be excluded from consideration in the particular discussion here because his actions, even if we had taken them to be mercifully motivated, would not fall into the discrete class of Purdy-type cases about which I am advocating a policy of wilful blindness. For one, his patients did not solicit his assistance in helping them die, but rather were covertly murdered. Further, Dr Shipman was not a close relative or a loved one of any of his victims, none of whom were accompanied by relatives who were assisting them in carrying out their wish to die. I think it goes without saying that the law should not turn a blind eye to a doctor's practice of unilaterally deciding to end his patients' lives.