The legalities of assisted dying

April 2, 2019

Hay & Kilner’s Ellie Gibbison reflects on a case of no forfeiture for a wife who assisted her husband with travelling to Dignitas

One person from the UK travels to Dignitas in Switzerland every eight days. Dignitas, a Swiss non-profit members’ society, is well-known for unique services in providing assisted/accompanied suicide to its members suffering from ‘terminal illness and/or severe physical and/or mental illnesses, supported by qualified Swiss doctors’.

The cost for the service for the person choosing to die is on average £10,000. Often, those travelling to use the services are unable to do so alone due to the advancement of the medical conditions they face. In a recent High Court decision, the wife of Alex Ninian was allowed to inherit her £1.8m stake in her husband’s estate even after travelling with him to Dignitas in his final days, as he was unable to get there by himself.

After helping her husband through her ‘love and care’ for him, Mrs Ninian faced potential prosecution. In England and Wales, if a person is found to be assisting with a suicide, this entails a 14 year maximum prison sentence. As yet, there have been no charges following UK cases at Dignitas. Mrs Ninian was extremely co-operative with police enquiries and although there was enough evidence to bring criminal proceedings, it was found that doing so would not be in the public interest.

It is also an established principle that if a person is found to have unlawfully killed or aided, abetted, counselled or procured another person’s death, they cannot take under the deceased’s will (or under the rules of intestacy if there is no will). This is known as the ‘forfeiture’ rule and the court has the ability to consider the conduct of the beneficiary and of the deceased and to any circumstances which are relevant. One of the important factors considered here was that before his death, Mr Ninian instructed his lawyers to produce a statement, which set out that his wife had not been in agreement with his decision to travel to Dignitas. It also explained how she accompanied him there simply because he was not in a position to travel himself (the couple had no other family or loved ones to help).

This case may set a precedent offering reassurance to loved ones that they can be transparent in accompanying relatives to suicide clinics, without being subsequently charged with any offence. Each case would, of course, be still reviewed on a subjective basis.

Diane Pretty’s case reached the European Court of Human Rights in 2002. Diane had motor neurone disease, and she sought a reprieve for her husband in that he would not face charges under the Suicide Act 1961 if he helped her to die. It was found that the ban on assisted suicides would not be lifted and Diane lost her case. Just two weeks after judgement was delivered, news reports featured headlines such as “Diane Pretty dies in the way she had always feared”.

I recall as an undergraduate the much publicised case of Debbie Purdy in 2009. Debbie had multiple sclerosis and she argued that in contravention to her human rights (to live) she also should not be withheld from having a right to die. While Debbie won her case in the House of Lords, in a landmark decision against the Director of Public Prosecutions, the outcome was that the law on assisted suicide needed to be cleared up. Prior to this decision, Debbie and her husband would not have known the consequences of him travelling with her to Dignitas or assisting her with dying.

There have been more recent cases, but these of Pretty and Purdy still resonate.

So what does this mean now? As mentioned, beneficiaries assisting loved ones in relation to travelling to Dignitas may not be disinherited as a consequence. They can, of course, still be prosecuted under the law in England and Wales for this crime, but as in Mrs Ninian’s case, it is unlikely this would be in the ‘public interest’.

Hay & Kilner
If you require advice on any personal legal issue, contact: 0191 232 8456
www.hay-kilner.co.uk
@HayKilner

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