Prosecutorial guidelines for voluntary euthanasia and assisted suicide: autonomy, public confidence and high quality decision-making.

• Jurisdiction: Australia
• Author: White, Ben
• Date: 01 August 2012

[This article proposes offence-specific guidelines for how prosecutorial discretion should be exercised in cases of voluntary euthanasia and assisted suicide. A similar policy has been produced in England and Wales but we consider it to be deficient in a number of respects, including that it lacks a set of coherent guiding principles. In light of these concerns, we outline an approach to constructing alternative guidelines that begins with identifying three guiding principles that we argue are appropriate for this purpose: respect for autonomy; the need for high quality prosecutorial decision-making; and the importance of public confidence in that decision-making.]

CONTENTS I Introduction II Prosecutorial Guidelines in Australia III The Assisted Suicide Policy in England and Wales IV Proposed Voluntary Euthanasia and Assisted Suicide Guidelines: Introduction V Three Guiding Principles A An Autonomous Choice B High Quality Decision-Making C Public Confidence in the Exercise of Prosecutorial Discretion VI Autonomous Choice VII Elements and Direct Evidence of an Autonomous Choice A Competence B Voluntariness C Received or Offered Sufficient Information D Guidelines VIII Confidence regarding whether Death Occurred as a Result of Autonomous Choice A History of Violence or Abuse B Settled Decision C Conflict of Interest D Reporting the Death E Guidelines IX Decision to Be Made by the Director of Public Prosecutions X Public Reporting of Decision-Making A Reasons for Decisions B Systemic Data Reporting in Annual Report XI Conclusion XII Appendix: Proposed Prosecutorial Guidelines for Voluntary Euthanasia and Assisted Suicide I INTRODUCTION

Euthanasia and assisted suicide remain the subject of ongoing debate in Australia. Public interest has been sparked by a series of recent prosecutions, most notably those of Shirley Justins and Caren Jenning in connection with the death of Graeme Wylie. (1) Other recent prosecutions that have attracted attention include those of Ann Leith (2) and Victor Rijn (3) in Victoria, Merin Nielsen in Queensland, (4) and David Mathers in New South Wales. (5) A prominent part of the debate in this area has been directed to the need for reform and those efforts to date have focused on legislative change. For example, there have been a number of Bills recently introduced or considered in South Australia, (6) Western Australia (7) and New South Wales (8) seeking to liberalise the law. (9) There have also been reports of a forthcoming Bill being prepared in Tasmania, which has the support of the Premier of that state, (10) and there have been attempts at the Commonwealth level to repeal the laws that preclude territory governments from legislating in relation to euthanasia. (11)

One issue that has not yet received sufficient attention in the Australian context, however, is the use of discretion as to when cases of euthanasia and assisted suicide should be prosecuted. (12) Examination of the role that prosecutorial discretion might play in such cases is timely given recent developments in England and Wales and Canada. In 2010, after a period of public consultation, the Director of Public Prosecutions ('DPP') in England and Wales released its Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide, which provides offence-specific guidance for how prosecutors will approach their decision of whether or not to prosecute. (13) In Canada, both the reports of the Royal Society of Canada Expert Panel on End-of-Life Decision-Making and the all-party Select Committee of the Quebec National Assembly included the adoption of prosecutorial guidelines as part of their recommendations for reform in this area. (14)

The purpose of this article is to develop offence-specific guidelines for how prosecutorial discretion should be exercised in cases of voluntary euthanasia and assisted suicide. We acknowledge the threshold issue of whether such guidelines are an appropriate vehicle for reform, but there is not scope in this article to make the case for this. It is sufficient for our purposes to point to developments in England and Wales and Canada, which make it timely for Australian jurisdictions to consider this issue, and to offer our guidelines as a principled approach for those contemplating this model.

We propose that our guidelines would supplement the existing general prosecution guidelines and we begin by outlining the way in which these guidelines in the various Australian states and territories operate in relation to the prosecution of offences generally. We then turn to consider the position in the England and Wales and how the offence-specific policy there came to be produced. Although a useful starting point, we conclude that this policy is deficient in a number of respects, including that it lacks a set of coherent guiding principles. In light of these concerns, we outline an approach to constructing alternative guidelines that begins with identifying three guiding principles that we argue are appropriate for this purpose: respect for autonomy; the need for high quality prosecutorial decision-making; and the importance of public confidence in that decision-making. Using those principles, we then construct our own guidelines for how prosecutorial discretion should be exercised in cases of voluntary euthanasia and assisted suicide. For ease of reference, our proposed guidelines are set out in full in the Appendix.

II PROSECUTORIAL GUIDELINES IN AUSTRALIA

The criminal offences that principally arise in the context of euthanasia and assisted suicide are murder, manslaughter, and aiding, abetting or counselling suicide. (15) It is no defence that the accused's conduct was motivated by compassion,(16) nor is a person excused from criminal responsibility because a victim consented to his or her own death. (17) However, the commission of one of the above offences is not of itself sufficient to lead to prosecution. All of the state and territory DPPs have issued guidelines that govern the exercise of prosecutorial discretion generally and made them publicly available. (18) In all but one jurisdiction (Tasmania), the production of these guidelines is expressly authorised by the statute that creates the office of the DPP. (19) These guidelines set out the test that the DPP will apply in considering whether to prosecute an accused. Although the approach is formulated in different ways in the various jurisdictions, (20) there are broadly two considerations:

1 Is there sufficient evidence such that there is a reasonable prospect of securing a conviction?

2 If so, is it in the public interest that a prosecution occur?

The second consideration is the significant one for this article. The various Australian prosecution guidelines identify a range of factors that may be relevant to determining whether a prosecution is in the public interest. These factors include: the seriousness of the alleged offence; (21) any mitigating or aggravating circumstances; (22) the characteristics of the accused, the victim and any witnesses (such as age, physical or mental health, or disability); (23) the degree of the accused's culpability in relation to the offence; (24) antecedents and background of the accused; (25) the prevalence of this type of offence and the need for deterrence; (26) the level of public concern about the offence; (27) the attitude of the victim to prosecution; (28) the level of cooperation from the accused; (29) the need to maintain confidence in Parliament, the courts and the law; (30) the likely sentence if the accused is convicted; (31) and the likely length and cost of trial. (32) Although some of these factors may have particular applicability to cases involving voluntary euthanasia and assisted suicide, none of the prosecution guidelines in Australia include specific criteria to consider when determining whether a prosecution should occur in such cases. (33)

III THE ASSISTED SUICIDE POLICY IN ENGLAND AND WALES

The position is different in England and Wales, as they have recently produced a prosecutorial policy dealing with assisted suicide (the policy does not cover voluntary euthanasia). (34) This occurred after the final judicial decision of the House of Lords in July 2009: R (Purdy) v Director of Public Prosecutions ('Purdy'). (35) Ms Purdy suffered from primary progressive multiple sclerosis and wished to obtain assistance from her husband to travel to a jurisdiction where assisted suicide was lawful so that she might die. She was, however, concerned that her husband might be prosecuted and so requested information from the DPP as to the factors he would consider when deciding whether to consent to the initiation of a prosecution for assisted suicide. This consent is specifically required by s 2(4) of the Suicide Act 1961. (36) The DPP declined to provide that information and Ms Purdy challenged that decision. The House of Lords concluded that Ms Purdy was entitled to know what factors the DPP would consider when deciding whether to prosecute and directed him to promulgate an offence-specific policy to this effect. (37)

In reaching this conclusion, the House of Lords considered that Ms Purdy's right to respect for her private life under art 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms ('Convention') (38) was engaged. (39) A failure to provide an offence-specific policy setting out the factors that will be used to determine whether a prosecution is in the public interest interfered with that right in a manner that was not 'in accordance with law' as required by art 8(2) of the Convention. (40) Matters of significance in reaching this conclusion included the recognised inadequacy of the general Code for Crown Prosecutors (41) in providing guidance for prosecution decisions in cases of this type (42) and the disparity between the prohibition on assisted suicide and the general practice in terms of prosecutions actually...