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Response from the Christian Medical Fellowship to the Crown Prosecution Service consultation on Interim Policy for Prosecutors in respect of Cases of Assisted Suicide issued by The Director of Public Prosecutions

Published: 14th December 2009


1. Executive summary

Christian Medical Fellowship is a founder member of the Care Not Killing Alliance, endorses their submission, and wishes to make brief additions.

We hold that both assisted suicide and euthanasia are always wrong

The existence of published prosecution criteria will weaken perceptions of prohibition and by incremental drift lead to legalisation by administrative process rather than by the will of Parliament.

We chart the process by which this occurred in the Netherlands.

Consequently, we cannot in conscience collude with the consultation process by completing the artificial tick-in-the-box questionnaire, but offer the following:

The criteria are fundamentally flawed in principle because most are factors to be raised in mitigation at consideration of sentencing

    The criteria are fundamentally flawed in detail because:
  • They are confused regarding 'Mental illness' and 'a clear, settled and informed wish'
  • There are three reasons why reference to 'Terminal illness', 'disability' and 'degenerative physical condition' should be removed
  • The consideration of 'Spouse, partner…close relative…close personal friend' does not engage the realities of clinical and social experience

The absence of specific reference to health professionals is a significant omission.

We conclude there should be a strong presumption to prosecute in all cases.

We call the bluff on the risk of perverse verdicts, which if returned would have the effect of returning decisions to Parliament where they belong.

2. Christian Medical Fellowship - status

In 2005 CMF became a founder member of the Care Not Killing Alliance. CMF fully endorses the substantial submission made by Care Not Killing to this consultation of the DPP's, but wishes to make this brief additional submission.

CMF is an interdenominational organisation with some 4,500 British doctors as members. All are Christians who desire their professional and personal lives to be governed by the Christian faith as revealed in the Bible. Members practise in all branches of the profession, and through the International Christian Medical and Dental Association are linked with like-minded colleagues in over 100 other countries.

CMF regularly makes submissions on ethical and professional matters to Government committees and official bodies. Since our inception in 1949 we have commented at every opportunity on matters relating to end-of-life ethics and euthanasia. Recent submissions are listed in the Appendix.

3. Christian Medical Fellowship's position on assisted suicide

One of CMF's aims is 'to promote Christian values, especially in bioethics and healthcare, among doctors and medical students, in the church and in society'. With regard to euthanasia and assisted suicide, we see no fundamental moral difference between acts of euthanasia and of assisted suicide, where (in the case of physicians) the suicide could not have proceeded without the expertise and legal powers of the physician to prescribe lethal medication. We see assisted suicide as 'euthanasia one step back'.

We hold quite simply that both are always wrong. We believe they are included in the Bible's 6th Commandment: 'You shall not murder' which prohibits the intentional killing of the legally innocent, and note the support of the later Hippocratic Oath: 'I will not give a lethal drug to anyone if I am asked, nor will I advise such a plan'.

However, our members have been in such tough clinical situations that most of us have asked ourselves: 'Why does God say something like that?' We have come to answer that question in the medical context through, inter alia, arguments that we do not have to kill the patient to kill the symptoms, and arguments of risk to far greater majorities. These arguments do not need repeating here, but have now been accepted by the medical profession (with clear majorities against in the British Medical Association and those Royal Colleges with a position on the matter), and twice within the last four years by clear majorities in Parliament.

4. The problem of the existence of published policy on prosecution criteria

We are of course aware that the DPP has to respond to the requirements of the Law Lords. However, we fear that publishing any such guidelines runs the real risk of leading over the years to what would effectively be legal sanctioning of the practice of assisted suicide. Case law would inevitably be built up, and statute law permitting assisted suicide would eventually follow. Legalisation of euthanasia would inevitably follow or accompany that. Parliament will effectively have been by-passed by administrative process, and this should never happen in any democratic society.

This is exactly what happened in the Netherlands. The landmark case of Dr Gertrude Postma who was found guilty of performing euthanasia on her own mother but given only a suspended sentence and one year probation by the Dutch court occurred in 1973; legal sanctioning of euthanasia with 'guidelines' gained ground; and statute law was finally changed only in 2002. By 2005 the number of euthanasia cases in the Netherlands was 2,325 and there had been a worrying increase in cases of 'terminal sedation' - patients are given drugs which sedate them 'continuously and deeply' until death in 8.2% of all deaths. Voluntary euthanasia (1.7%), non-voluntary euthanasia (0.4%), and terminal sedation accompanied by withdrawal of nutrition and hydration now account for nearly one in ten Dutch deaths.

This incremental drift we describe, often known as a slippery slope, is not occurring accidentally. As Professor John Keown writes 'Purdy was not merely a case of some neutral party seeking clarification of the law: it was part of an orchestrated campaign to undermine it…[the DPP] should show he will not be used as a political pawn by campaigners who, having failed to lobby the legislators, are now trying to pressure the prosecutors'. He concludes his thoughtful critique in New Law Journal (11 December 2009, p1718): 'Justice should be tempered by mercy; not undermined by it'.

Our principled opposition to euthanasia and assisted suicide, and our medical conviction that they are always unnecessary, couple with the certainty of this slippery slope to mean that we cannot in conscience collude with this process by completing the artificial tick-in-the-box questionnaire.

We therefore decline to complete it, but urge the DPP nevertheless to read the following brief comments which clarify key issues.

5. The prosecution criteria: fundamentally flawed in principle

We note that the guidelines do not take as their starting point the requirement laid down in the current Code of Practice for Crown Prosecutors that, once the evidential test has been passed, 'a prosecution will usually take place unless there are public interest factors tending against prosecution'.

Most of the criteria listed as factors in favour of prosecution, or against it, are rather factors to be raised in mitigation at consideration of sentencing. We hold that there must be a presumption in favour of prosecution, and that a public interest decision not to prosecute should be extremely exceptional. Should prosecution on the evidence be successful, then justice can if appropriate be tempered with mercy as the judge considers these factors. Thus the symbolic and practical protection the law offers equally to the lives of all citizens would be maintained.

6. The prosecution criteria: flawed in detail

We draw attention to three areas in particular where we believe the thinking behind some detailed proposals is wrong:

6.1 'Mental illness' and 'a clear, settled and informed wish'

(Factors in favour of prosecution No's 2 and 3, factor against No 1)

Most of our members accept from their experience that there are occasional fully deliberated decisions to attempt suicide, but these are very much the exception rather than the rule. It is unnecessary to enter the philosophical and ethical debate about the rightness or wrongness of these - these guidelines concern not the attempting of suicide but the assisting of such attempts.

What is accepted is that it is often impossible to assess the state of mind of the 'victim' - either at the time of a request for assistance or retrospectively in the case of a successful suicide. A 'settled wish' can indicate mental ill health and not any degree of soundness in the decision. Ordinarily of course, the health and caring professions work as hard as they can to prevent suicide attempts, and to treat those who have attempted it but survived.

6.2 'Terminal illness', 'disability' and 'degenerative physical condition' with 'no possibility of recovery'

(Factor in favour of prosecution No 6, factor against No 4)

First, these categories cover a very wide range of medical conditions which afflict literally millions of Britons. Even in those jurisdictions overseas which have legalised euthanasia and/or assisted suicide, qualifying criteria have never been so broad. We remind the DPP that Parliament has twice in the last four years refused to legislate in the case even of terminal illness. This proposal therefore represents a massive extension in the face of Parliament's clear, settled and informed wish.

Secondly, as doctors we are only too aware of the fears that concern many of our patients, living with disabilities and degenerative conditions. To argue that the mere existence of one of these conditions makes assisting suicide more acceptable may produce the fear, real or imagined, that the life of such an individual is somehow of less value and thus may add to their conviction that perhaps they should seek suicide. It is not sufficient to counter that these guidelines are only there to guide the small minority who might wish to take advantage of, effectively, a loosening of the law on assisting suicide - an option to die could so easily become the perception of a duty to die.

Thirdly, the assumption that suicide rates are extremely high in these groups of patients is wrong. For example, a recent in-house literature review confirms that women doctors in the UK have higher suicide rates than patients with multiple sclerosis.

Notwithstanding the Law Lords' specific order to the DPP, these criteria should be removed.

6.3 'Spouse, partner…close relative…close personal friend'

(Factor in favour of prosecution No 10, factor against No 6)

This argument in favour of so-called 'loved ones' does not equate with medical experience.

First, much 'elder abuse' happens within families and close, long-term relationships and is not always readily detectable.

Secondly, the existence and acceptance of these particular guidelines would put pressure upon 'victims'. Altruistic but misguidedly motivated, usually elderly and/or with disabilities and degenerative conditions, such people may increasingly come to feel that they are a burden on others and that they should ask for assistance to kill themselves. The experience of our many members working with the elderly suggests that this would be a significantly greater risk than that of 'elder abuse'.

Thirdly, regarding these close personal relationships, it is more often the 'victim' who puts pressure on family and friends to assist suicide than it is that family and friends put pressure on the 'victim'. Maintaining a clear legal proscription on assisting suicide in these contexts provides protection to such relatives or friends and allows them to refuse to comply with the request, citing the law.

We submit that the DPP's guidelines in this particular respect do not engage the realities of clinical and social experience.

7. A significant omission: the position of health professionals

The status under the guidelines of health professionals is nowhere spelled out clearly. We hold that because of historic ethical obligations and because of the greater opportunities for health professionals to bring pressure onto the vulnerable, any guidelines should make clear that health professionals in all disciplines would be viewed particularly stringently for prosecution.

8. Conclusion

There should be a strong presumption to prosecute in all cases. The factors listed 'in favour of' or 'against' prosecution are actually mitigating factors to be considered in sentencing. They are 'why?' factors that perhaps explore motivation, not 'what?' factors that consider intention, which is the law's primary responsibility.

Christian Medical Fellowship recognises that such a policy runs the risk of juries returning so-called 'perverse verdicts'. We call that bluff. If such verdicts were to be returned again and again, that might well precipitate the return of the debate to Parliament, where it belongs.

While preferring their removal altogether, we wish the DPP well in the revision of these interim policy guidelines, assure the authorities of our prayers, and - subject to our continuing conscientious refusal to 'tick boxes' - are willing to advise further.

Appendix. CMF Submissions on End-of-Life matters

  • July 2009 - the General Medical Council on End of Life Treatment and Care
  • March 2009 - Margo MacDonald MSP's proposed End of Life Choices (Scotland) Bill
  • July 2008 - the Nuffield Council on Bioethics on Dementia - ethical issues
  • June 2006 - Department for Constitutional Affairs on Mental Capacity Act Code of Practice
  • April 2006 - the Law Commission on A new homicide act for England and Wales
  • June 2005 - the Nuffield Council on Bioethics on The Ethics of Prolonging Life in Fetuses and the Newborn
  • April 2005 - the Scottish Parliament on Jeremy Purvis MSP's Dying with Dignity consultation paper
  • September 2004 - the Select Committee of the House of Lords on the Assisted Dying for the Terminally Ill Bill
  • October 2002 - the Department of Health in response to Human Bodies, Human Choices - The Law on Human Organs and Tissue in England and Wales
  • July 2001 - the General Medical Council on Withholding and Withdrawing Life-Prolonging Treatments: Good Practice in Decision Making

All submissions are on our website at www.cmf.org.uk/publicpolicy/submissions/

For further information:

Steven Fouch (CMF Head of Communications) 020 7234 9668

Media Enquiries:

Alistair Thompson on 07970 162 225

About CMF:

Christian Medical Fellowship (CMF) was founded in 1949 and is an interdenominational organisation with over 5,000 doctors, 900medical and nursing students and 300 nurses and midwives as members in all branches of medicine, nursing and midwifery. A registered charity, it is linked to over 100 similar bodies in other countries throughout the world.

CMF exists to unite Christian healthcare professionals to pursue the highest ethical standards in Christian and professional life and to increase faith in Christ and acceptance of his ethical teaching.

Christian Medical Fellowship:
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