Whether in the form of a further attempt by parliamentarians to change the law or a ‘right-to-die’ case reaching the courts or surveys – such as one recently published by the campaign group My Death My Decision, which purports to show overwhelming support among the British public for the legalisation of assisted suicide.

The arguments on each side are relatively well-rehearsed and do not need repeating here.

While assisted suicide remains illegal in this country – and potentially carries a sentence of up to 14 years in prison – the prosecuting authorities have adopted a policy that draws a distinction between compassionate and malicious acts. The family member who selflessly assists a loved one to end their life will be treated leniently.

Under current guidelines, such a person is unlikely to face prosecution, although each case has to be looked at on its individual facts. Professional medical assistance to die will still result in prosecution.

Showing compassion

The common example of a compassionate case is that of help being provided to enable a loved one to fly to Switzerland to go to Dignitas for an assisted suicide.

That is what Sarah Ninian reluctantly did, and in doing so encountered a lesser-known consequence of helping someone to commit suicide: the application of the forfeiture rule.

Mrs Ninian and her husband married in 1983. Mr Ninian retired in about 1992 after a successful career in business and continued to be extremely active, becoming a successful travel writer and completing a PhD at the age of 80. In 2013, he was diagnosed with a progressive, incurable disease. 

Mr Ninian made the decision to go through with an assisted suicide in 2016. He did not tell Mrs Ninian about it initially, and when she found out, she attempted to dissuade him; but his resolve was not weakened.

Subsequently, he asked her to assist him with a number of administrative aspects of the process, including obtaining and sending Dignitas notarised copies of certain documents, such as his birth certificate, passport, their marriage certificate, his medical records and details on the bank transfer to Dignitas. He also provided a written statement about his decision to commit suicide and his home circumstances.

Notwithstanding his apparent determination, Mrs Ninian continued to try and dissuade her husband from assisted suicide but, as it remained his wish, she continued to help him.

By the time Mr Ninian was seen by a consultant in palliative medicine, his condition had deteriorated to a significant extent. In particular, he had poor mobility and found it difficult to communicate.

Even so, the consultant’s notes recorded that Mrs Ninian remained opposed to her husband ending his life at Dignitas.

Mr and Mrs Ninian were aware that her assisting him in his intended suicide might be a criminal offence. She wisely sought advice on her position from solicitors.

They, in turn, sent Mr Ninian to another firm of solicitors in order for him to obtain independent legal advice.

As a result of this, he changed the terms of his will in a significant way: the default terms of his will had previously named two charities, which he replaced with Mrs Ninian’s brothers. That he did so was important for reasons that will become apparent. In that will, he also set out his reasons for wanting to commit suicide.

Mrs Ninian accompanied her husband to Zurich on November 13 2017. Without her assistance, he could not have travelled to Switzerland, or to the various appointments that had been arranged when they arrived.

After the usual procedures, approval for the suicide was given, and on November 16 2017 Mr Ninian committed suicide as planned. Mrs Ninian did not provide any direct assistance in the substances that were used to end his life.

Following Mrs Ninian’s return to the UK, there was a police investigation. A report was submitted to the Crown Prosecution Service who concluded that a prosecution would not be in the public interest, consistent with the relevant policy statement.

After all, this was perhaps the epitome of a compassionate case: a reluctant wife who put her own wishes to one side and helped her husband to end his life in the manner of his choosing.

Forfeiture

While Mrs Ninian did not face any consequences from the criminal law, the position under the civil law was different. As the court found, assisting a person to commit suicide in the manner that Mrs Ninian did engages the forfeiture rule, which served to disentitle her from benefit under her late husband’s will. 

However, by virtue of section two of the Forfeiture Act 1982, the court has the power to modify or exclude the effect of the rule, but only if it is satisfied that having had regard to the conduct of the offender and the deceased and to such other circumstances as appear to the court to be material, the justice of the case requires the effect of the rule to be modified or excluded.

Mrs Ninian applied to the court for relief from forfeiture, and succeeded.

One of the interesting issues that the court had to decide was whether the forfeiture rule was engaged in the first place, given that she had not been convicted of any offence.

In a typical case involving forfeiture, there will usually be a criminal conviction for murder, manslaughter or the like, making it straightforward to ascertain whether the rule applies.

Here, however, the court had to decide, on a balance of probabilities, whether Mrs Ninian had committed an offence under section two of the Suicide Act 1961.

It concluded that she had: she had carried out acts that were, viewed objectively, capable of assisting suicide and had done so with the intention of assisting him.

That last element emphasises the difference between desire and intention: while Mrs Ninian did not want her husband to commit suicide, she helped him to do so, intending that he should be successful.

Getting relief

As noted above, Mrs Ninian’s claim for relief from the forfeiture that would otherwise have occurred, understandably succeeded.

If ever there were a case where relief ought to be granted it was probably hers: a devoted wife who despite her own personal reluctance, helped her husband to die in the way he chose. It was a truly selfless act for which she should not have been penalised.

She was assisted considerably by one very sensible step that Mr Ninian had taken prior to his death.

By changing his will so that the beneficiaries who would take in the event of forfeiture were people who would be sympathetic to Mrs Ninian (in this case her brothers) he ensured that the application for relief would not be opposed.

While the discretion to grant relief is for the court to exercise, on the basis of the clear legal principles, Mrs Ninian’s task was made easier by the change of default beneficiaries.

Having to engage in fully contested litigation with beneficiaries with a significant financial interest would have been an entirely different proposition for her.

In addition, Mr Ninian had left a helpful witness statement setting out his wishes and explaining Mrs Ninian’s role.

That evidence demonstrated that the decision to commit suicide was the product of Mr Ninian’s own free will and that it had been taken after his having had the benefit of independent legal advice.

No incentives 

Some might ask whether, in an era where assisted suicide is becoming more common, the forfeiture role should be reformed or abolished.

For a widow in Mrs Ninian’s position to have to apply to court for the inheritance that her husband wanted her to have is clearly undesirable, but in circumstances where assisted suicide remains an offence in the UK, it serves an important role in ensuring that there is no financial incentive to assist in suicide.

In proper cases, such as Mrs Ninian’s, the court has the ability to grant relief. In others, it may decline to do so even where no criminal conviction has been obtained.

That this should be so makes sense: in many cases it is not possible to obtain a conviction on the higher criminal standard of proof of beyond reasonable doubt, but a court may be persuaded on a balance of probabilities that an offence was committed and that no relief should be given.

Of course, the forfeiture rule would cease to have any application in this context if assisted suicide were to become legal, but that is a different debate, and one that excites very strong views on both sides.

The key, for the time being, is therefore to follow Mr Ninian’s extremely prudent example.

The forfeiture rule is not necessarily something that will be at the forefront of someone’s mind when a decision as important as assisted suicide is being made.

However, the impact on loved ones who have helped the deceased end their life in the way of their choosing can be potentially huge.

Make sure to obtain proper advice and take the appropriate steps to ensure the path to relief from forfeiture is as free from obstacles as possible.

Key Points

• Prosecutors draw a distinction between compassionate and malicious instances of assisted suicide
• Prudent legal steps can prevent your case from becoming difficult for loved ones
• Make sure to obtain proper advice to ensure the path to relief from forfeiture is as free from obstacles as possible

Richard Wilson QC is a barrister at Serle Court