By Ursula Smartt
Senior Lecturer at Law, Thames Valley University
Debbie Purdy and her husband were seeking clarification on the law
A British woman has lost her battle in the High Court, where she had sought clarification in the law on assisted suicide.
Debbie Purdy, 45, who has multiple sclerosis, wanted a guarantee from the Director of Public Prosecutions (DPP) that her husband Omar Puente would not be prosecuted for murder if he assisted her death in a Swiss euthanasia clinic.
The High Court merely followed the ruling in the House of Lords and European Court of Human Rights in the case of Diane Pretty in 2001.
Mrs Pretty, who had motor neurone disease, had been refused by the DPP to grant her husband immunity from prosecution if he assisted her suicide.
Both Diane Pretty and Debbie Purdy went to the courts because they suffered from incurable illnesses and both wished to end their life prematurely so as to avoid the inevitable pain and indignity they would have to bear in the final stages of their condition.
The problem in the Pretty and Purdy cases rested on the fact that both women were mentally competent, and that their physical disabilities prevented their ending their own lives.
In both cases, their husbands were prepared to assist their suicide provided they received an undertaking from the DPP that they would not be prosecuted for 'assisted suicide' or murder under section 2 of the Suicide Act of 1961.
Both Diane Pretty and Debbie Purdy challenged the 1961 Act, by arguing that the law infringed their human rights, namely Articles 3 'freedom from torture, inhuman and degrading treatment' and 8 of the European Convention on Human Rights (ECHR) - such as an individual's right to privacy.
In Diane Pretty's case, the Human Rights Court in Strasbourg ruled in April 2002 that it could not be plausibly suggested that the DPP was inflicting prohibited treatment on the appellant, whose suffering derived from her cruel disease.
The Strasbourg court equally ruled that Article 8 ECHR had not been infringed and that there was nothing to suggest that there was any reference to the choice to live no longer.
The Human Rights court further ruled that Article 2 of the Convention - 'right to life' - did not confer a 'right to die'.
For this reason Diane Pretty was not successful in her claim that the UK had breached her human rights.
Mrs Pretty died on 12 May 2002.
The ruling in Debbie Purdy's case confirmed the ruling in the earlier case, that the DPP has no power to give an undertaking not to prosecute in respect of a crime to be committed in the future - that is, to allow her husband to assist in her dying. Even at a Swiss clinic.
Presently the law remains such that assisted suicide or mercy killing is illegal and the UK cannot allow the DPP to turn a blind eye to persons who want to assist their terminally-ill or severely disabled loved ones to die.
This leaves wide open the case of the young rugby player, Daniel James, 23. His parents took their son, who was tetraplegic, to a Swiss euthanasia clinic in September 2008 so that he could die with dignity.
The Daniel James case is still undecided
Daniel James had been left paralysed after a rugby scrum accident at a training session at Nuneaton Rugby Club in March 2007.
The case is to be referred to the complex case unit of the CPS. Lawyers will decide if anyone is to face charges, after Mr James' parents were interviewed by police.
In 2005, the Law Commission proposed changes in the law on mercy killing which would reform the present murder laws. But to date, Parliament has not made any changes in legislation.
This leaves the law in a highly unsatisfactory state. If assisted suicide or mercy killing is to be permitted by law, it is essential that the permission includes suitable safeguards of an appropriate rigour and specificity.
The Dutch scheme, for example, includes an elaborate medically supervised and executed procedure.
As the ruling in the Purdy case demonstrates, the courts believe that the proposed safeguards regarding mercy killing remain inadequate and impractical.
This is supported by the British Medical Association.
The DPP is still governed by the existing law on murder, where he cannot give an undertaking that he will not prosecute anyone who is going to assist in someone's suicide.
It does not matter how much their loved one is suffering an incurable illness.
Indeed, it is not the DPP's function to decide arguable questions of law.
The courts ruled in the Pretty case that it was not acceptable for anyone to seek judicial review of the DPP's decision to prosecute as a means of challenging in advance some proposition of law upon which the prosecution will rely at the trial.
Assisted suicide remains against the law and it is up to Parliament to formulate new legislation in this contentious area of law, and not the judiciary.
For the time being, Parliament has ruled that assisted suicide is unlawful by section 2 of the Suicide Act 1961.