Social work and end-of-life care

Social work is important in end-of-life care

Social workers asked to assist a suicide: Court of Appeal decision

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20130910 NicklinsonThis post is about right to die and assisted suicide cases, which were reviewed recently by the Court of Appeal (Civil Division), including the well-known Nicklinson case:

Link to the judgement (there is a good and authoritative summary of the present law at paras 16-36)

I’ve been looking at the judgement (about the Nicklinson and related cases) and find that it actually talks about the position of social workers (and carers) if they help someone to die out of compassion. Here is the paragraph (141):

The Lord Chief Justice does not accept that the guidance creates the uncertainty which we have identified. He believes that it is tolerably plain that if a social worker acts out of compassion, he or she will not be prosecuted even if paid for providing the service since the purpose of paragraph 43(13) is to deal with “profiteering”. However, the helper could not be the social worker or carer who has had the responsibility for caring for the victim since he or she is in a position of trust. This might be the proper construction of the guidelines, but we cannot, with respect, feel confident that it is. Clearly Martin’s lawyers and social workers are not confident that it is; and nor were the members of the Falconer Commission. If the DPP intends to convey the message as the Lord Chief Justice understands it, we see no reason why it should not be spelt out unambiguously.

Here is how the two majority justices set the issues out:

These appeals concern individuals who suffer from permanent and catastrophic physical disabilities. They are of sound mind and acutely conscious of their predicament. They do not want to suffer a painful and undignified process of dying. They wish to die at a time of their choosing. However, they are not physically capable of ending their own lives unaided…Each has a settled and considered wish that his death should be hastened by the requisite assistance. Each contends that as a matter of both common law and European Convention of Human Rights law (“the Convention”), those who provide him with assistance to bring about his death ought not to be subject to any criminal consequences. The current understanding of the law is that those providing such assistance will be committing the offence of assisted suicide contrary to section 2(1) of the Suicide Act 1961 (“the 1961 Act”) if they merely assist a person to take his own life, and murder if they actually terminate life themselves.

Social work is dealt with (in passing) because the justices decided they needed to consider the adequacy of the Director of Public Prosecutions’ (DPP) statement (for the Crown Prosecution Service – CPS) of the factors that he takes into consideration when considering whether to prosecute someone for assisting another person’s suicide. Basically, the more you can demonstrate a close relationship to the person and lack of self-interest, the less likely you are to be prosecuted. So a relative who clearly acts out of compassion is unlikely to be prosecuted. The reason why this came up was that one of the people who wanted help to die argued that the law (including subsidiary bits of law such as statements like the DPP’s) should be clear and accessible, but in this case it was argued that it wasn’t.

Link to the Crown Prosecution Service policy on assisted suicide  This is also set out in paras 127-8 of the case report.

Obviously, someone’s social worker does not come into the close relationship category, although they may be disinterested. Anyone who has worked in palliative care knows that social workers are often asked about the possibility of helping someone commit suicide, or facilitating the trip to Dignitas, the best-known option in a foreign jurisdiction for Europeans to get assistance with suicide.

Link to Dignitas  (I provide this link for information, not expressing any view about its policies and practice)

The point about this is that English law gives the courts and the DPP considerable flexibility in looking a a particular case to see if a prosecution is reasonable. Because the law has that flexibility, the European Court of Human Rights has determined that the English law (which contains a blanket ban on assisted suicide) is not an interference with people’s rights under Article 8 of the European Convention on Human Rights, the right to a private and family life. The implication of this Article is that states should not interfere with actions that people do as part of their personal and family life.

Link to the European Convention on Human Rights

So, the administrative flexibility is an important part of the law, but this sometimes makes it unclear what your position is when faced with one of these situations. the way hospices often deal with this is simply to say that as organisations that have a responsibility to comply with the law, their staff must comply with the blanket ban on assisted suicide. This is also a practical position to take, because, as most people who have worked in end-of-life care know, many more people are worried about medical help leading to an early death (hence the anxiety about the Liverpool Care Pathway) than are wanting to pursue suicide.

So social workers are usually in the position that they can help people discuss what they believe and want to do, but not actively help them with anything. This puts them in the category of ‘class 2’ helpers, and this may also include other carers who are not close relatives of the person who wants to die. The position of close relatives is clear, but not others, and therefore not social workers. The problem partly is that the DPP cannot produce guidelines that refer to the situation of the person who wants to die, because this would in reality introduce a situation in which homicide might be accepted legally as justified in such circumstances.

And although helping out of compassion is one of the factors that may mean that a professional is not prosecuted, this is only one factor and nobody can know how the DPP will exercise the discretion balancing that against the other factors in the list. Let’s look back at Para 141 of this judgment, which I reprinted at the beginning of this article, which refers to the views of the Lord Chief Justice (LCJ) in dissenting from the majority judgement in this case. The LCJ argued that the main aim of this provision was to prevent profiteering, and that social workers, even if they were paid, could assist out of compassion. But the majority in the Court of Appeal does not agree, and accepts that general view that a professional (or non-related carer) must still be quite uncertain. Hence the argument that this should be made clearer. We shall see.


Written by Malcolm Payne

11 September 2013 at 11:05 am

One Response

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  1. […] Link to my previous post on the position of social workers. […]

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