Mercy killing is in the news again as the Crown Prosecution Service (CPS) conducts a consultation on its legal guidance on murder and manslaughter.

The consultation, which closes on April 8, focuses on the offence (known as “mercy killing”) where the act of an individual causes the death of another even though the individual believes they were simply carrying out the victim’s express wish or acting in the victim’s best interest.

The proposed new guidance does not decriminalise any offences, but makes the reasons for prosecuting clearer. The proposals do not cover assisted dying.

As pharmacists have increasingly wider clinical responsibilities, the legal and ethical framework in which they operate widens with them. Healthcare professionals have been the focus of attention in a number of previous “mercy killing” cases and it is likely to continue to be a relevant issue.

 

Mercy killing prosecution

 

To date, the only conviction of a healthcare professional for a mercy killing is Dr Nigel Cox, consultant rheumatologist, in 1995. He was found guilty of attempted murder after injecting a terminally ill patient, 70-year-old Lillian Boyes ,with a lethal drug (potassium chloride). Ms Boyes was a long-time sufferer from rheumatoid arthritis. She had developed ulcers and abscesses on her arms and legs and was in significant untreatable pain.

The charge of attempted murder was brought, rather than murder, because it could not be proved conclusively that the injection had killed her. Dr Cox was given a 12-month suspended sentence. The General Medical Council gave a reprimand.

Guidance on the prosecution of assisted suicide was then introduced in 2010 following judicial criticism of the lack of clarity on decisions to prosecute. This guidance was applied in the trial of a pharmacist in 2015 “who prepared a deadly smoothie”. Bipin Desai gave his father a fruit smoothie laced with Oramorph stolen from his employer. He was cleared of murder, but sentenced for assisted suicide (and theft of the Oramorph).

The presiding judge commented that “the prosecution witnesses at times sounded as if they were giving character references on your behalf.” He referred to the guidance on the prosecution of assisted suicide and concluded: “If these facts had been as evident then as they are to me now, I am strongly of the view that there would have been no prosecution.” Mr Desai was suspended from the General Pharmaceutical Council (GPhC) register following the convictions.

 

Six factors where prosecution would be less likely

 

The proposed new guidance leans heavily on the guidance for prosecution of assisted suicide and gives six factors where a prosecution would be less likely:

• if the victim had reached a voluntary, settled and informed decision to end their life;
• if the suspect was wholly motivated by compassion;
• if the victim was seriously physically unwell and unable to undertake the act;
• if the actions of the suspect may be characterised as reluctant, in the face of a determined wish on the part of the victim to end their life; 
• the suspect attempted to take their own life at the same time as part of a suicide pact; or
• the suspect reported the death to the police and fully assisted the authorities.

The draft guidance sets out 11 factors that tend to favour a prosecution, including uncontentious factors such as: the victim was under 18; the victim lacked mental capacity; the suspect had a history of violence or abuse against the victim; or the suspect received a financial reward. What is more striking is the inclusion of the following factor:

“The suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional, a professional carer [whether for payment or not], or as a person in authority, such as a prison officer, and the victim was in his or her care. [This factor does not apply merely because someone was acting in a capacity described within it: it applies only where there was, in addition, a relationship of care between the suspect and the victim such that it will be necessary to consider whether the suspect may have exerted some influence on the victim.]”

This is, of course a relevant factor, but it is clearly a more nuanced factor than, for example, where the victim was under 18 or lacked capacity.

 

Lessons learned from the Dr Shipman case

 

There were many lessons learned following the conviction in 2001 of Dr Harold Shipman for the murder of patients and the development of guidance on the investigation of deaths was one of the commended actions in the overview report of 2007. It seems that Mr Shipman’s horrific acts continue to frame the way healthcare professionals are referred to in guidance. It is important that lessons continue to be learned, but prosecutors will also need to take into account that healthcare professionals can act with compassion.

The GPhC has said that it is not responding to this consultation, but it is following developments as there might be relevant implications for the regulator’s work.

The guidance is necessary. Mr Justice Green said of the guidance he referred to in the Desai case: “Transparency and consistency were [sic] necessary to avoid the law being arbitrary”, but it is a complex area and future prosecutors will need to be aware of that.

 

Susan Hunneyball is a consultant solicitor at Gordons Partnership law firm.

The is a general overview and any views or reflections are the author’s own