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By Dr. Peter Saunders
Editor’s note. Dr. Saunders is a former general surgeon and CEO
of Christian Medical Fellowship, a UK-based organization with 4,500 UK
doctors and 1,000 medical students as members. Being behind the
“paywall” means a reader has to pay to read the story which appeared in
the Sunday Times.
Director of Public Prosecutions Alison Saunders
Perhaps surprisingly, the
Sunday Times has been the only
broadsheet newspaper [that is, not a tabloid] to cover a landmark case
which challenges the powers of the crown prosecution service.
Sadly this latest case lies behind the
Sunday Times paywall
which has somewhat restricted it coming to the wider public attention
that it deserves, so I will quote some of the article in this post.
‘A woman who was once so
paralysed she could only wink her right eye will this week launch a High
Court challenge against “liberal” guidelines on assisted suicide
brought in by Alison Saunders, the embattled director of public
prosecutions (DPP).
Nikki Kenward, 62, will on
Tuesday seek a judicial review after doctors and nurses who help
severely disabled or terminally ill people to take their own lives were
told that they are now less likely to face criminal charges.’
Kenward, a former theatre manager, was struck down by Guillian-Barre syndrome in 1990, aged 37.
She was initially fully paralysed for more than five months, and has
been in a wheelchair since. She cannot tie her laces or hold a needle,
but had a play staged last year and campaigns against euthanasia and
assisted suicide through the Distant Voices pressure group. Her case is
backed by the Christian Legal Centre.
Lawyers for Kenward will argue that Alison Saunders, Director of
public prosecutions, exceeded her powers with what she called a
‘clarification’ to the guidelines on
prosecution for assisted suicide which Saunders made last October.
They will argue that she has entered a policy realm that should
properly be a matter not for her but for parliament. The lawyers will
also say that the attorney-general has failed in his duty to
‘superintend’ the DPP.
In other words they will claim that she has gone beyond her remit which is to uphold the law and not to make the law.
To quote the
Sunday Times again:
They are expected to argue
Saunders’s guidance will “enable healthcare professionals operating on
an ideological or other premise to offer their services to a person
wishing to commit suicide . . . this is crossing the Rubicon.” They will
add: it will “make any prohibition on a Dignitas-style of assisted
suicide difficult to resist.”
[It] weakens the protection given by parliament to people . . . coming under pressure to commit assisted suicide.
The fuller background to this case deserves unpacking.
Back in 2009, as a result of the Supreme Court judgment in the Debbie
Purdy case, the DPP was required to make public the criteria by which
he (then Keir Starmer) decided whether a prosecution in a given case of
assisted suicide was in the public interest.
Starmer published an interim policy and put it out to public
consultation. After the consultation was completed, he modified this
interim policy and published his definitive policy in February 2010.
The summary of responses received and the responses themselves are still in the public domain.
The interim policy did not contain a paragraph about the role of
medical professionals but as a result of the consultation one was
included in the definitive policy.
It now says that a prosecution is more likely to be required if… [clause 14]
“the suspect was acting in his or
her capacity as a medical doctor, nurse, other healthcare professional,
a professional carer [whether for payment or not], or as a person in
authority, such as a prison officer, and the victim was in his or her
care;”
Keir Starmer gave his reasons for including the new clause
here.
Saunders, Starmer’s successor, subsequently ‘clarified’ the words in bold last October as follows:
For the avoidance of doubt the
words “and the victim was in his or her care” qualify all of the
preceding parts of this paragraph [43.14]. This factor does not apply
merely because someone was acting in a capacity described within it: it
applies only where there was, in addition, a relationship of care
between the suspect and the victims such that it will be necessary to
consider whether the suspect may have exerted some influence on the
victim.
The key questions raised by
Kenward’s case are whether this amounts to a change in the policy or
merely a clarification and whether the DPP should have made the change
without consulting anybody.
My own view is that DPP has actually crossed the line in both instances.
The relevant factors as I see it are as follows:
1. The ‘clarification’ makes it clear that doctors who do not have ‘a
relationship of care between the suspect and the victims such that it
will be necessary to consider whether the suspect may have exerted some
influence on the victim’ are now not within the scope of this clause.
This surely means that people like Philip Nitschke and Michael Irwin,
who have made names for themselves by assisting suicides in various ways
whilst not being the patient’s primary care giver, are less likely to
be prosecuted. This is real change in my view. Irwin, who welcomed it
[the “clarification”] as ‘a wonderful softening’ agrees with me. I think
it is also clear from the current General Medical Council (GMC)
guidance and Medical Defence Union (MDU) guidance that these bodies did
not understand the guidance in the way that Alison Saunders has now
re-interpreted it. See below
2. Assisted suicide is contrary to all historical codes of medical
ethics including the Hippocratic Oath, the Declaration of Geneva, the
International code of medical ethics and the Statement of Marbella –
which was reaffirmed by the World Medical association (WMA) as recently
as 2013. The latter reads, “Physician-assisted suicide, like euthanasia,
is unethical and must be condemned by the medical profession. Where the
assistance of the physician is intentionally and deliberately directed
at enabling an individual to end his or her own life, the physician acts
unethically.” So a strong argument could be made that this new
“clarification” is morally corrupting for the medical profession as it
makes possible their direct involvement in an unethical practice with
far less possibility of prosecution.
3. Assisted Suicide is opposed by the British Medical Association,
the World Medical Association, the Association for Palliative Medicine,
the British Geriatric Society and virtually every Royal Medical College
including the RCGP and the RCP.
4. The GMC makes it clear in its guidance on assisted suicide that
‘encouraging or assisting suicide’ is against the law. It makes no
mention of any mitigating factors and warns doctors strongly against any
involvement. It certainly does not convey the impression that doctors
like Irwin, Nitschke, etc, are exempt. It is precisely this
understanding of the law which led to Tony Nicklinson and Paul Lamb
trying unsuccessfully to change it through the courts. Saunders seems
now effectively to have done that at the mere stroke of a pen.
5. It is precisely people like Nitschke and Irwin who will push the
envelope rather than ordinary GPs in a relationship of care with
patients, although the ‘clarification’ does also give scope to GPs to do
a little assisted suicide on the side with patients who are not “in
their immediate care.” This clarification appears to give them free
rein.
6. The phrase “In their care” can be interpreted in several different
ways. One might argue that any doctor using his skill and expertise to
help a patient kill themselves is actually involved in “care” even if he
is not their primary doctor.
7. The reason people responding to the original consultation pushed
for the inclusion of the doctor clause in the first place was because of
concerns about the unique position of doctors. Doctors possess the sort
of knowledge and power that could easily be abused. We have seen
already how they push legal boundaries with abortion and how prosecutors
are very unwilling to hold them accountable. This is why doctors need
strong guidance and laws in place to ensure that some of them do not end
up becoming the most dangerous people in the state. It is also why they
should not be involved in assisted suicide.
8. As the doctor phrase (clause 14 quoted above) was introduced into
the DPP guidance after, and as a direct result of, a lengthy public
consultation (34% of respondents supported its inclusion) surely it
should not be changed, or redefined, at a whim by the DPP without a
similar public consultation. Simply asking medical bodies for their
opinion would be inappropriate and inadequate – rather like asking the
police about guidance on prosecuting policemen. This is why the GMC now
has a strong lay membership because as a result of the Shipman case and
others it was decided that doctors were not capable of regulating
themselves.
It seems to me that the DPP has not merely ‘clarified’, but actually
changed the meaning and scope of the guidance. Furthermore she has made
the change without apparently consulting anybody at all.
I await the result of Kenward’s legal challenge with great interest.
Editor’s note. This appeared at www.cps.gov.uk/consultations/as_responses_question_2.html
Source: NRLC News