Extent of a duty owed by a local authority to a vulnerable, terminally ill person living in their area, at risk from the potentially criminal act of another.
Mrs Z, 65 yrs old, was diagnosed as having a terminal brain condition (cerebellar ataxia) that was affecting her body’s motor functions. She had also developed symptoms of Parkinson’s disease which affected her speech and hearing.
In 2003 she began to express strong views about seeking an assisted suicide, having herself attempted suicide in 2000. She was aware that this could legally take place in Zurich, Switzerland. Her husband, Mr Z, although previously opposed to her wishes, changed his mind and agreed to assist her to make arrangements for the assisted suicide in Switzerland. The Local Authority (LA) assessed Mrs Z to be legally competent to make such a decision but was aware that Mr Z could be committing a criminal offence if he helped her (s2 Suicide Act 1961).
The LA sought and was initially granted an injunction preventing Mrs Z from leaving the country. A full psychiatric assessment then took place of Mrs Z’s legal capacity to elect for suicide. The conclusion of this assessment was that not only did Mrs Z have full capacity to make such a decision but that the decision was uninfluenced by any outside considerations.
The duties owed by a LA are set out in s29 National Assistance Act 1948, the National Health Service Act 1977 and the National Health Service and Community Care Act 1990. Additionally, the ‘No Secrets’ guidance issued by the Department of Health gives guidance on the development and implementation of multi-agency procedures designed to protect vulnerable adults from abuse. The guidance is put on a quasi-statutory footing under s7 Local Authority Social Services Act 1970.
The court commented that in Mrs Z’s case, there was a tension between the principle of sanctity of human life and the right to individual autonomy and self-determination. However, the taking of one’s own life is no longer a crime and there was nothing in law to prevent a person doing so, where that person retains full capacity, even if it might be considered an unwise or bad decision.
However, the position of Mr Z was far less clear, since s2 of the Suicide Act 1961 created an offence for a person who ‘…. aids, abets counsels or procures the suicide of another ….’ But s2(4) stipulates that the authority of the Director of Public Prosecutions (DPP) is required for proceedings to be instituted, recognising that it may not always be in the public interest to prosecute in such cases.
The court considered whether there was a duty for the LA to apply for the continuation of the injunction. There was no doubt that Mrs Z’s human rights were engaged (Articles 2, 3 and 8) but that Article 2 (the right to life) does not assume primacy over the right to autonomy and self-determination. There are inevitable compromises to be made in such cases and in some circumstances one principle may need to be sacrificed in favour of another.
The duties of a LA in such cases are:
(i) to investigate the position of a potentially vulnerable adult and to ascertain their genuine wishes
(ii) to make an assessment of their legal competence so far as possible
(iii) to identify that the adult has relevant information and is aware of all options
(iv) to ensure there is no adverse influence on the adult
(v) to bring the question of competence before the court if necessary
(vi) to give advice and assistance in allowing the adult to determine their best interests
(vii) to allow the adult, if competent, to make a decision, and allow them to give effect to that decision
(viii) to bring to the attention of the police any suspected criminal behaviour
This was an exhaustive list, and in this case the court decided there was no need for LA in this case to seek a continuation of the injunction, nor would the court seek continuance of its own motion.
The case illustrates that a competent person is entitled to take their own decision and in doing so, that person alone takes responsibility for it. English law upholds the right of a competent person to self-autonomy. In relation to Mr Z, although the court left it to the police to decide whether or not he should be prosecuted, it seems unfortunate that no guidance has yet been issued by the DPP on cases such as this, in relation to criteria that might be applied. The answer may be contained in the Assisted Dying for the Terminally Ill Bill which was published in April 2005 and will have its second reading in the next session of Parliament.