On 31 July the Court of Appeal unanimously dismissed two appeals challenging the law's prohibition of voluntary euthanasia. In reference to another appeal, in the case of an appellant referred to as 'Martin', the Court ruled that the policy of the Crown Prosecution Service (CPS) regarding the offence of encouraging or assisting suicide was in need of amendment so as to give greater foreseeability of prosecution in a case where assistance with suicide had been provided by a person, such as a health care professional, with no emotional ties with the person committing suicide. The Judgment in this case was not unanimous. One of the three judges, the Lord Chief Justice, disagreed and issued a dissenting Judgment.
The CPS is to appeal to the Supreme Court against the Judgment. We believe such an appeal to be warranted. The prosecution policy issued by the CPS in 2010 followed five months of careful consultation and reflection, in which individuals and organisations with experience and knowledge of this complex subject submitted their considered views. Among these was advice from the Royal College of Physicians, which stated clearly that in the College's view a doctor's duty of care for patients "does not include being in any way part of their suicide". The CPS's prosecution policy reflects this advice: it lists assistance with suicide given by a doctor for a patient under his or her care as an aggravating factor in any prosecution decision.
Campaigners for legislation to license physician-assisted suicide are predictably unhappy about this, as it cuts across their wish to see physician-assisted suicide legalised. But the Royal College's advice is soundly-based. It rests on the principle that a doctor has a clear duty of care for a patient, that patients must be able to place complete trust in their doctors to act at all times in their best interests and that for a doctor to take any action knowingly to hasten a patient's death would be not only a criminal offence but also a breach of doctor-patient trust.
It is all very well to say that the CPS's prosecution policy should be made "more foreseeable", meaning that those contemplating breaking the law should be able better to calculate whether they will be prosecuted as a result. But there is a fine line between increasing certainty in the minds of potential law-breakers as to the consequences of their actions and changing the law without the consent of Parliament. In his dissenting Judgment the Lord Chief Justice has given his view that the present policy "is sufficiently clear to enable Martin, or anyone who assists him, to make an informed decision about the likelihood of prosecution". We believe he is right.