Debbie Purdy’s case forced English authorities to produce assisted suicide prosecution guidance. John Kerrigan says Scotland needs legislation now.

There hasn’t even been a full public debate, and the unavoidably emotive arguments for or against have not even been properly aired, yet a poll in September found opinion in Scotland to be almost evenly split on legislating to allow a form of assisted dying. In England, the decision in Debbie Purdy’s case obliged the Director of Public Prosecutions to clarify the position in relation to prosecuting those who assist another’s suicide, an act which is -lest we forget- still a crime. In Scotland, no such guidance will be issued by the Lord Advocate, who deflected the matter to Parliament in September. John Kerrigan, a partner at Maxwell Maclaurin, is keen to see the issue raised and clarified at the earliest opportunity.

“The matter cannot be left with clarification from the DPP. That is not primary legislation. There needs to be a full and open debate about all the issues. That is the way law should evolve in an open democracy. I think we should have legislation, and I think people should have the freedom to choose, subject to appropriate safeguards being put in place,” he says.

“If all you have is a statement of policy, the people who oppose voluntary euthanasia will quite rightly point out that the law remains, and you could be charged with culpable homicide.  The problem for people who hold my view is that unless and until there is a full debate, we are still going to have great doubt. It is not necessarily a difficulty for the Lord Advocate that in England suicide is regulated on a statutory basis for the criminal charge. Lord Carlile said that he didn’t think the DPP needed to do anything because policy was quite clear. 110 people had gone from the UK to Dignitas, and no one had been charged with assisting suicide. He said it is quite clear that the DPP has formed the view that it is not in the public interest to charge these people.”

“The first point about the House of Lords decision in the Purdy case was that they were not amending section 2(1) of the Suicide Act in any way. Debbie Purdy’s ‘victory’, if you see it in those terms is a limited one. The DPP will now be forced to give clearer guidance on the subject, but that doesn’t change the underlying law. The Suicide Act will remain in force.”

The crux of wheelchair bound Debbie Purdy’s case was that whilst there was uncertainty in the law, she would have to travel to Switzerland to end her life whilst she could still push herself through, so that her husband, even if he was there, couldn’t be said to have assisted her. It is rare, if not unheard of, for such potentially emotive legislation to be enacted by a political party, leaving it to Margo MacDonald to raise the matter on her own through the Scottish Parliament, and to try to garner what support she can without the assistance of the party machine. The Lord Advocate has declined to provide clarity, stating the matter falls to Holyrood to legislate if necessary. Despite the theoretical separation of powers in Scotland, the presence of religious figures in the House of Lords, and the fact that both Parliament and Crown Office swear loyalty to the Defender of the Faith, complicates the process of enacting legislation that runs counter to aspects of religious dogma.  

“There are only two countries in the world who have clerics in their legislature; us and Iran,” Kerrigan says.

“It could be argued that in this modern day age, the church of England and the Catholic church should not have appointees in the House of Lords who can affect social or moral legislation. I have no difficulties with anyone’s faith, but with those who hold faith views who say no one should have this right.”

 The present uncertainty, and the gradual erosion of the practical application of “living wills” in our judicially persuasive neighbour to the south, is further complicated by extreme cases such as those of rugby player Daniel James, rendered quadriplegic in a scrummage, who ended his life despite being offered a hopeful prognosis from clinicians.

“I have problems with that case. He was not terminally ill,” Kerrigan says. “However, if you have the right to life under the human rights act, you could say that you have the right to choose when to end that life.”

That argument goes right to the heart of the ethical debate around assisted suicide. Whilst every right carries a correspondent obligation, what is the obligation on the right to life? Is one obliged to live that life, even if they believe it to be a burden?

“Somebody who is terminally ill, who has capacity and who chooses to end their lives has  that right. The House of Lords did not go that far in the Purdy case, I’d be looking for more than a statement from the Lord Advocate. I’d be looking to see legislation, as Margo MacDonald is pressing for.” Kerrigan says.