University of Warwick School of Law

Legal Studies Research Paper No. 2010-05
LEGAL FORM AND MORAL JUDGMENT: THE PROBLEM OF EUTHANASIA

Alan Norrie

Electronic copy available at: http://ssrn.com/abstract=1577163

ABSTRACT In this paper, I want to consider the way in which categories of legal responsibility in the criminal law’s general part mediate and finesse broader moral issues around questions of euthanasia.

I INTRODUCTION

Euthanasia and its close cousin assisted dying represent extremely problematic areas for the criminal law, as the recent guidelines issue around assisted suicide testifies. The effect of these guidelines is to make no official change in the law, yet to make it clear as a matter of practice that where the law on its face has been broken, there will be no prosecution where the defendant was motivated by good moral reasons. On a legal realist vision of law, the law has changed, but on a positivistic reading it has not. What we have in fact is a rather complex and potentially troublesome juxtaposition of legal rule and administrative discretion. This balances strong social, political and moral claims in a society where there is no consensus as to the rights and wrongs of helping someone to die. In this context, the legal realist can say ‘I told you so’, and the legal positivist can cluck disapprovingly, but both miss the point, which is that the law’s messy mixing of messages in a pragmatic compromise reflects the moral impasse in a way that gives something to everyone. Thus the pro-life lobby can say that the law has not changed and no symbolic succour has been given to the pro-euthanasia view, while the latter can claim to have made headway in chipping away at the monolithic view that assisting death is impermissible. The right to lifers will be legal positivists on the matter whereas the pro-choice constituency will be legal realists. A deeper view of the matter would be to say that moral complexity is reflected in the peculiar legal complex of form and substance that the legal categories of responsibility actively permit, and which enables a deeply conflicted moral issue to be managed or finessed through the legal architectonic of the criminal law’s general part. It is such a complex vision of the criminal law’s general principles of responsibility that I wish to develop in this paper, in order to apply it generally to questions surrounding euthanasia. In thinking about the criminal law’s architectonic, I will be bringing to bear my previous analysis of the role of formalisation on the categories of criminal law, a development that begins to occur in the early nineteenth century, and which sets up a constant tension in the law between formal and substantive approaches to criminal responsibility. In thinking about euthanasia, I will be examining two different situations: those of active killing, in the sense of actually bringing about or contributing to a person’s death; and of actively promoting death, in the sense of assisting a suicide. In both cases, I will be looking at how the legal categories finesse or mediate the result in terms of reflecting an underlying moral judgment.

Electronic copy available at: http://ssrn.com/abstract=1577163

II UNDERLYING SOCIAL, POLITICAL AND MORAL ISSUES Before coming to the law itself, I want to expand discussion of the moral issues concerning euthanasia, about which there is no consent in modern British society (and indeed in many other western societies, though compare the situation in Holland). As already stated, this expresses itself as a conflict between the ‘right to life’ and the ‘right to choose death’ views, with the former associated with the moral claim that the sanctity of life is paramount and the latter with the view that quality of life issues are equally, or perhaps more, important. Sanctity of Life The sanctity of life view affirms the value of human life in itself in a way that trumps even claims to self-determination. Human life just is a morally foundational good, and is to be protected in all situations. The best that can be said for euthanasia is that it may be permitted in its passive form (‘letting die’) where a person is dying and life surrenders itself up to a natural process. In one form of the argument, there is a validation of human being qua species or relational being, such that there is an important sense in which a person’s life is not just her own, but also belongs to the group of which s/he is a part. An individual life has value beyond what the individual perceives it to be. There seems to me to be something important in this, and with it a ground for social intervention, altruism and care to assist others in living. Of course, at the same time, such an approach can have morally counterintuitive results: people who really want and need to die are kept alive at great pain to themselves. When that happens, the argument for sanctity of life surely becomes somewhat sanctimonious. In another form, I think the sanctity of life argument draws strength from what one can call the possibility of dystopian futures. There is a concern that once we move away from sanctity of life claims, we open the door to various dangerous possibilities. If life loses its sanctity for the terminally ill, it may also lose it for other groups where quality of life might be regarded as questionable, the long term depressed, the mentally and physically handicapped, and so on. Against this, the quality of life stance will say that where freedom of choice pertains, there is a check on authoritarian and fascist direction of programmes of compulsory euthanasia, but much would then depend on what is meant by freedom of choice and how it is ascertained. Such a view is reflected in recent government concerns that where assisted suicide is formally permitted, it will be the poor who will ‘choose’ to die, for their life chances as elderly or infirm will be much less than the those of the wealthy. Suffice it to say that there are good moral reasons of either a direct or an indirect kind for supporting a sanctity of life view. Quality of Life

Electronic copy available at: http://ssrn.com/abstract=1577163

There are also, of course, good reasons for supporting a quality of life view. Despite what I have just said about the conditionality of choice, the possibility of choosing the time and place of one’s own death appears to be an important aspect of what it means to be a human being. The possibility of human agency is premised on the notion of human freedom, and the idea of freedom implies a progression of possible states in which freedom exists. We can start with a simple negative liberty, a freedom to be left alone with one’s life, but from there project out to a positive freedom to become what we have it within ourselves to be. Such freedom then entails further conceptions of autonomy, emancipation and flourishing, insofar as human life reflects the ontological potentialities in human being. The ability to choose one’s own death reflects many of these aspects of human freedom, from the simple sense that one should be left alone to do what one likes with one’s life to the more complex sense that an autonomous life would include amongst its components control over one’s death, and then on to the sense - that is surely there in the term euthanasia (a ‘good death’) - that a flourishing life is one in which one is genuinely able to register the time to go. A good life means a good death too. The Real, the Ideal, the Actual All this I take to provide morally valid reasons for permitting forms of euthanasia, both active and passive, but it should be noted that the different forms of freedom are stated abstractly as ontological possibilities for human beings, and they do not indicate that in modern western societies anything like these possibilities for freedom are available in the here and now, certainly not for all people. Nor may they be available in future versions of our society in which declining possibilities for a good life and death seem likely. The arguments concerning dystopian futures and social inequalities retain their validity, and especially the latter in thinking about euthanasia today. Where poverty is real and life chances are affected, to speak of death as the logical corollary of human autonomy or flourishing looks like the worst kind of moral idealism. That is certainly a danger, and it is a danger for large numbers of people, but it does not counter the morally realist hypothesis that human beings can under certain conditions embrace their deaths as part of a good life. What it does is set up a relationship between the morally real (what is ontologically true for human being), the morally ideal (what is true for human beings, seen as a potential that is not instantiated in a given society), and the morally actual (what is actually possible under given social conditions, in contrast to what becomes an unachieved ideal state). In practice, I think this relationship between the morally real, the ideal and the actual is seen in the tension between different kinds of death. Consider the deaths of individuals with terminal illnesses who have chosen to die, who plan their deaths, and who are able to pay to travel to the Dignitas clinic in Zurich with their close family. Everything has a measured, respectful, reflexive character. This kind of death for a few, however, should be contrasted with the concern that legalising assisted suicide

would mean that many people who are poor, who are leading lives with little quality, and feel themselves to be a burden on their families would then be pressured directly or indirectly to ‘choose’ to die. Accordingly, in all these circumstances, one might say that even if each human being has the real potential to live a good life and die a good death, that does not lead to the conclusion that the law should be changed to permit this to happen. Just as one has to balance different arguments around sanctity and quality of life, so one has to measure ethically different practical outcomes. At bottom, I think there is a question about the relationship between individual human flourishing and collective human flourishing which balances off the argument about the value to individuals of a good death, and comes out in practice as a position in favour of the sanctity of life. There is a moral sense that we cannot individually be allowed to flourish until such time as we all are able to do so, and this is reflected in the tension between sanctity and quality of life arguments in society today. But id this is so, there is also surely a moral conviction that those who really can decide to die at a time of their choosing should be allowed to do so. There is a major and a minor premise here, and they are in contradiction with each other.

III LEGAL FORM If we move from this complex social, moral and political terrain to the question of legal regulation, the first thing to say is that I think we have to understand the legal forms of responsibility that make up the criminal law architectonic in a different way than is normally the case in liberal criminal law scholarship. I will state this assertively, though I realise that the claim I make may require to be tailored differently for different theorists in the tradition. Nonetheless, at the core of the liberal tradition is a sense of a homology between moral rules and legal rules, so that, for example, the legal conception of intention shadows and is given its validity by a moral conception of intention (‘As with morality so with law’ – Duff). Now, this is not to say that liberal theory does not recognise that legal concepts are also importantly political, or that rules elaborated by a state may be different from rules elaborated by a moral philosopher. For example, in moral philosophy, there is the possibility of finegrained tuning of judgment which is not possible in law, or other (‘political’ or institutional) considerations may come into play in law that are not there in philosophy. But if that is the case, I think the position adopted tends to be that the ‘other things that come into play’ are post-hoc considerations which may temper or befoul an otherwise adequate moral understanding (e.g. ‘policy’ – Ashworth), yet still be regarded as necessary in a process of moral-to-legal translation. Then the question becomes one of controlling the extraneous post-hoc considerations in favour of underlying moral-legal principles. In the critical approach to legal formalisation adopted here (meaning an approach associated with the tradition of critique promoted e.g. by the early Frankfurt School), the idea is for a more difficult

relationship between law and morality. In essence, political demands are read into moral and legal forms from the start. Thus morality itself is subjected to a critique that says that liberal forms of freedom associated with modernity are themselves radically limited: thus Kantian philosophy’s account of freedom is in Adorno’s view irretrievably entangled in unfreedom, and becomes itself a mode of repression. This argument is probably reflected mutatis mutandis in other critical approaches to law such as those provided by deconstruction, by Foucault (but consider his late writings), and systems theory, as well as in at least the middle period Habermas writings (in the contrast between system and lifeworld). I find it often overdrawn so that, to focus on Adorno, one finds a tendency for him to damn Kantian freedom, but then at the same time to see it as expressing a valid element in human ontology that is a specific achievement of modernity. I have argued that a better view of freedom under modern conditions would have to be able to give a full theoretical expression and understanding to the ambivalence one finds in Adorno’s philosophy, and that leads me into an account of the relationship between law and morality for which I wish to argue here. In essence, I think we have to retain a sense of the possibility and limited actuality of human freedom, while recognising that this is constrained and limited under modern conditions. This view carries across into law, where the core argument is that social, political and historical considerations crucially structure the abstract nature of legal form. Modern law expresses a notion of human freedom, but one that is abstract, universal, and formalistic, and in its abstraction and universality, one that is important but also importantly limited. It is important because it articulates a general sense of individual political freedom, one that is associated with the basic idea of agential, negative liberty from interference by the state or other persons. It is importantly limited because it operates by way of a formalisation of ethical categories that fails to identify substantive moral concerns that pertain in different social contexts. It works essentially by establishing a form/ substance dichotomy at the heart of criminal responsibility, which means that criminal law forms are sought to be expressed in formal, neutral, factual, psychologistic terms. This is a prevalent and continuing way of doing criminal responsibility, and is seen for example in the ‘orthodox subjectivism’ of the textbook tradition in England and Wales. It should be noted, however, that its consequence is that a formalistic way of doing responsibility is always subject to criticism from positions that adopt a more substantive approach to issues, so that a form/ substance dichotomy, albeit one with form in the driving seat, is generally to be observed in the criminal law itself. Thus it is that legal categories always tend to ‘hunt in pairs’: intention and motive, subjective and objective recklessness, act and omission, offence and defence, and so on. The general point is that a formalistic conception of legal freedom is achieved by excluding substantive moral concerns, but these return to trouble the law. For example, the division of motive from intention is a classic piece of formalism, but issues concerning motive return to trouble legal doctrine. (They also then serve to help it out, as we shall see below).

I don’t want to labour the general argument, which has been made before; nonetheless, I think it is an important argument for elucidating how the law works with regard to euthanasia. In the next section, I will begin to explore this, but it can be noted that many of the oppositions set out above are central to how the law handles different kinds of euthanasia: the distinction between motive and intention is central to permitting certain kinds of active killing, as is the distinction between offence and defence; in the case of assisted suicide, it is motive, which plays no part in the legal affirmation of the crime of assisting a suicide, which animates the discretionary decision not to prosecute; in the case of passive euthanasia, it is the distinction between act and omission that is crucial. In all cases, there is the appearance that legal categories are functioning normally in the euthanasia context as they do elsewhere, but there is a surreptitious play on those categories which permits outcomes that are not really permitted in law to occur. What I want to argue for is a complex relationship between legal form and ethical substance. At one level, one can only be struck by the law’s moral ineptitude in its dealings with euthanasia. The abstract formalism of its categories fails to carry necessary and appropriate moral distinctions. For example, the contract killer and the mercy killer are on the face of the law both culpable, and equally so, under the general definition of the crime of murder. An illustration is the case of the doctors in the conjoined twins case, Re A. In intending to separate the twins, knowing that one is virtually certain to die, the doctors satisfy the Woollin test for the mens rea of murder. The definition of the offence having been satisfied, doctors are murderers who require a defence. Do we normally think of doctors in such a situation as murderers? At a second level, however, I want to argue that this legal formalism gives the law a certain backhanded ethical facility, in its ability to manoeuvre under cover of formality, and thereby to finesse social and moral conflicts around a contentious subject such as euthanasia. It appears to uphold the sanctity of life position, while permitting quality of life issues to have their effect under cover of formal law. Thus, Re A notwithstanding, the law of mens rea is sufficiently flexible, and perhaps self-consciously so, to permit the issue of mercy killing to be dealt with as a question of general mens rea. This allows some mercy killing cases to be filtered out and treated differently from the normal run of cases. Yet it appears as though the general rules of mens rea are applied in the mercy killing cases as in all others. The formal categories resolve the matter, without resort to substantive public declarations that mercy killing is permitted. A benign hypocrisy operates through formal law which allows society to have its cake and eat it.

IV ACTIVE EUTHANASIA (KILLING) An early flavour of the way in which criminal law categories are maintained but finessed is seen in Dr Adams’s case, where it was held that a doctor may do ‘all that is proper and necessary to relieve pain..., even if the measure ... may incidentally shorten life’. But under the law of contributory cause,

any shortening of life or hastening of death counts towards causation. To avoid the problem, Lord Devlin had resort to what he termed a ‘common sense’ view of causation. Underlying his approach, however, was a distinction between medical intervention aimed to relieve pain which incidentally shortens life, and an intervention which is aimed to shorten life. In the later case of Dr Cox, a distinction was drawn between a doctor’s ‘primary’ and ‘secondary’ purpose in administering treatment. As against the incidental hastening of death pursuant to a course of treatment with the primary purpose of easing suffering, it was stated that ‘What can never be lawful is the use of drugs with the primary purpose of hastening the moment of death’. This analysis of primary and secondary purpose, however, runs up against the approach in Woollin, where any secondary purpose that has consequences that are foreseen as virtually certain to occur is promoted to the same position and status as a primary purpose. That was the background to the judge’s direction to the jury in Dr Moor’s case. There, the instruction was to consider, first, whether the doctor’s purpose had not been to give treatment to relieve pain. If it had not been, then the jury had to be sure that he intended to kill his patient, and intention meant purpose. If Dr Moor thought it only highly probable death would follow the injection, there would be no intention. The jury was offered an ‘out’ and took it, but this direction simply failed to relay to the jury the essence of Woollin, that if the doctor thought it virtually certain death would follow, he would have the intention to kill. The direction was to put it mildly highly favourable to the defendant. It led to a subsequent proposal suggested by Senior Counsel in the case that intention may be found ‘if death was a virtually certain result (barring an unforeseen intervention) and his primary intention was not purely to relieve pain and suffering but to cause death’. This is an attempt to splice together the Woollin direction and the primary purpose rule, but it is not clear that it would work, for the two parts of the test come from different moral backgrounds. One is the idea that a foreseen virtually certain consequence is ipso facto so tied to a direct purpose that it is a consequence that is owned by the actor. The other is that one’s purpose is circumscribed by one’s moral commitments, and one only owns those things to which one is morally committed. It is true that one may accept consequences which are not intrinsic to one’s moral commitment, where those consequences are themselves means to the end of that commitment but, importantly, where they are not significantly at moral odds with it. Doctors who inject a patient to ease pain and suffering are arguably in that category, for easing pain as their moral commitment as doctors is at odds with bringing about death. But, if that is the case, then one does not need the additional test of foresight of virtually certain consequences to resolve the matter: the purpose analysis will do all the work anyway. There is a problem with the formalism in the foresight of virtual certainty analysis, which is that it lacks an adequate moral grasp of what is substantively at stake. One only morally endorses those virtually certain consequences which are not at significant moral odds with what it is one seeks to do:

this is the ‘moral threshold’ analysis originally worked out by Duff. The simple view that one accepts the virtually certain consequences of one’s actions threatens to be morally over-inclusive. Woollin reflects the problem, but it also has a way out of it, in the stipulation that a jury is ‘entitled to find’ an intention to kill where it nonetheless finds that D foresaw a consequence as virtually certain. If it is entitled to find, then this is arguably permissive rather than obligatory, so it can choose not to find an intention where it finds foresight of virtual certainty. This seems to be the logic of entitlement, and it is seen in the analysis of Matthews and Alleyne which argues that Woollin did not produce a law of intention, only a rule of evidence. Of course, it is somewhat bizarre in formal terms to argue that the law has no definition of intention, but the gap may be an important one. It may do important moral work in cases where a jury does not wish to find intention. Note, however, that the judges in Re A declined to go down this route, preferring to claim that Woollin intention was satisfied in the case of the doctors in that case. This decision stands in contrast to the more flexible reading of intention permitted by Matthews and Alleyne. Underlying the legal debate in the euthanasia cases are a number of moral positions, but the signal fact in relation to all of them is that they are not part of the law. There is, first, the doctrine of double effect. This is the claim that ‘One may permit the evil effect of his act only if this is not intended in itself but is indirect and justified by a commensurate reason’ (Price). This is drawn on in some medical cases (Bland, Re A), but it is essentially problematic because it in effect permits a citizen or group of citizens (such as doctors) to second guess the formal law. It is a requirement of legal form that it apply uniformly and generally in society, and that it be clear as to the forms of conduct to which the law applies. (This is the law’s internal morality in Fuller’s terms). Double effect challenges this, and therefore is the most unlikely basis for legal doctrine. Nonetheless, I think it plainly underpins the moral calculations that go into practical decision-making in this area of the law. The same is true of the idea of a moral threshold, mentioned above. A good example of this is seen in the case of Gillick, where the doctors’ intention to treat under-age girls by prescribing contraceptive pills was held to be an answer to any offence of aiding and abetting unlawful sexual intercourse. It could hardly be denied that prescription would enable sex, but it was not part of a doctor’s role to do anything other than protect their patients’ health. Such an open endorsement of a moral threshold position would be quite problematic if it were to be extended more broadly, but somehow, it is permitted in the case of doctors. One legal analysis that can reflect the moral threshold or double effect arguments concerns necessity as a justificatory defence. The doctors in these cases are caught between conflicting duties, in that they must treat their patients even if treating them would bring them into collision with the law. They must negotiate a balance of evils (Ashworth), and hastening the death of a patient (or prescribing the pill) may involve such a balance. Against this, however, it should be noted that any general balancing of a doctor’s duty to treat a patient when compared with the duty not to kill would be hard to resolve

in favour of the doctor’s duty to treat. If the duty not to take life is, as the law claims, one of the most fundamental obligations imposed on citizens, then it is hard to see that a doctor’s duty to treat a patient measures up to it. Furthermore, the law of necessity makes it clear that this is a defence of very limited application, and not in cases of killing. Of course, Re A muddies the waters here, but it is very clear that the judges’ intention in that case was not to extend necessity to cover situations of doctors causing the deaths of their patients, but was limited to the very precise circumstances of the conjoined twins. The general problem with the necessity defence is reflected in the judges’ discomfort in Re A in formulating it: a declaration that the law of necessity goes beyond the precise facts of that case would be too open a statement that the law does permit the taking of life in situations such as that of mercy killing. Extending the law of necessity beyond Re A’s precise facts would establish the morally substantive proposition that mercy killing is allowed, but it is just that morally substantive conclusion that the law cannot draw, for it cannot go against the official position that states that killing is wrong and supports general sanctity of life. Much better to stay with the formal account of mens rea and smuggle in the morally substantive position in the interstices of that law. Ultimately, the issue that hoves into view here is the distinction between motive and intention, for motive is the ‘home’ of moral substance alongside the formalism of intention in the standard form/ substance dichotomy at the core of the law. Of course the first rule of criminal law is that the two should be kept apart. Here we are back on the familiar terrain of comparing mercy and contract killers, and affirming their equal guilt. Nonetheless it is clear that even if this is so, it is motive that makes the difference in practice in these mercy killing cases. The recent conflicting decisions in the cases of two mothers, Frances Inglis and Kay Gilderdale, who both killed their disabled adult children suggest that it is how a defendant comes across in terms of their overall persona and the precise moral circumstances in which they act and that reveal their motives that is relevant. Frances Inglis stated that she had killed her severely brain damaged son with love in her heart, yet she was still convicted of murder and found by the judge to have undertaken a ‘calculated and consistent course of criminal conduct’ and to have ‘intended to do a terrible thing’ (Guardian 21 January 2010). Kay Gilderdale in contrast was found not guilty of attempted murder with the judge describing her as a ‘caring and loving mother’, and openly questioning why she had been prosecuted for attempted murder, when she had pleaded guilty to aiding and abetting suicide. The CPS was left to assert, quite properly, that ‘the intent was clear on our evidence’ (Guardian 26 January 2010), and they were probably absolutely right in so thinking. What went wrong for Frances Inglis? It is likely that she came across as a person too caught up in her own emotional concerns to act fully in terms of what was right for her son. This is borne out by the claim of her solicitor that the defence of provocation in a situation of severe emotional stress should have been left to the jury. The hidden moral issue expressed in the language of intention is seen quite clearly in another case from a few years ago, that of Barbara Salisbury (Guardian 29 April 2004). Salisbury was a nurse on a

geriatric ward in Crewe, who was convicted of the attempted murder of two patients and acquitted with regard to two more. The general evidence was that she was obsessed with unblocking beds in the ward. She was described at trial as having a bad attitude, as upsetting and offending people, as brusque and as callous. Sentencing her for the crimes for which she was convicted, the judge stated that she had broken her duty of care and abused her position of trust ‘by attempting to hasten death’. This was contrasted by the prosecution with ‘easing the passing’, which is permissible, but it is a fine line between the two. The knife edge is seen in one of the deaths for which she was acquitted. There, she was involved in administering diamorphine to a patient and allegedly saying to him ‘Give in, it’s time to go’ as she did so. Her evidence was that her words were ‘It’s ok to go now’. Did it matter which words precisely she had used and which tone she had used them in? I think it did. Administering a pain-killing drug which will hasten death is acceptable if done in the right spirit, and the words that she spoke could have been said in a kindly or a callous way. If they were found to have been said in a kind way, it would have been a comforting, compassionate, easing of the passing. If they had been said in a callous way, the same words, and accompanying deeds, could be interpreted quite differently. A decision of guilt and innocence as to intention in such a case surely depends on the attitude or the motive with which deeds are done or words said.

V. AIDING AND ABETTING SUICIDE The same kind of juridical logic is at play in the area of assisted suicide as that of active euthanasia, though the nature of assisted suicide entails a slightly different arrangement of the categories. With active euthanasia, the main work is done by the distinction between primary and secondary purpose, though this has to be mediated through the distinction between direct and indirect intent. The extension of intention to include primary and secondary purposes in the line of cases leading to Woollin through the consequentialist approach to indirect intention presents a problem. It is

negotiated in active euthanasia cases by the moral, motive-based assertion that, though a killing may have been intended, the fact that it was carried out with a good heart or alternative intention deflects the focus from the intention to kill or to commit a criminal act in favour of an alternative intention to alleviate or bring an end to suffering. The position is slightly different as between the doctors cases and the case of a parent such as Kay Gilderdale. With doctors, it is possible to claim that treating the patient represents the primary purpose and/ or the focus of their intentional agency. With a case such as Mrs Gilderdale, what is the distinct primary purpose or focus of her agency that can be taken as the alternative to the intention to kill? It can only be a loving commitment to bring an end to suffering, but the unstated problem here is that this is essentially a more euphemistic way of speaking about what Mrs Gilderdale in fact did – killed her daughter. There is no doctor’s obligations or practices to fall back on as the narrow horizon for action which blocks the criminal goal from view. These are in

law hard cases to decide in favour of the defendant and involve a fuller quotient of jury equity than the doctors cases for that reason. Juries just have to ‘feel’ their way to a decision without the prop of an alternative distinct intention as in the doctor cases. How does it work with assisted suicide? It is also hard to see such cases as involving an additional primary purpose under which what becomes the secondary purpose of assisted dying can nestle. If a spouse helps his or her partner to travel to Zurich, or to take a dose of drugs that will kill, there is no possible argument for alleviating pain as in the doctor’s case, just as there is no plausible argument that travelling to Zurich will broaden the spouse’s horizons. The intention to assist the suicide is all too clearly visible. Presumably, if prosecutions were brought, it would be open to the defendant to simply argue the moral issue out in the open of the court room and say that s/he acted from the best of intentions, and with love in their heart. The criminal law, however, could only take so many of such cases, which presumably are more numerous than those where a parent actively kills a loved one, before a disparity between the law and the outcomes of such cases, or the scandal of the difference in outcomes, brought the law into disrepute. These are hard cases for the law to deal with because it is too clear that defendants are breaking it, and defendants have themselves got the message that this is so: hence their resort to the Dignitas clinic in Switzerland. Yet, this hardly lets the law off the hook. Assisting a terminally ill sufferer to travel abroad to their death is a form of aiding and abetting in its own right, yet even before the new CPS guidelines, no one had been prosecuted for so doing. Before the guidelines were issued by the DPP, the way in which the problem of assisted suicide was dealt with was by means of a discretion to prosecute that was undisclosed. After the guidelines, of course, the discretionary basis is disclosed. In the draft guidelines, two sets of factors were regarded as germane to the decision to prosecute. One set concerned the condition of the ‘victim’, the other the position and motives of the defendant. In their revised form, the condition of the ‘victim’ has been removed from the criteria, leaving the motives of the defendant as the main factor. This was as a result of arguments that identifying certain conditions as being likely to lead to suicide would place a degree of pressure on those suffering from such conditions to think of themselves as potential suicides. In that way, it raised the substantive concern that some lives were of less value than others. It is the argument of this paper that one way of dealing with the problem of euthanasia is not to treat it in a way that confronts substantive moral concerns about the value of life. Better instead to treat it as a matter of individual choice for ‘victims’ taken in the round (i.e. without judgements based on their conditions), and as a matter of individual attitude on behalf of defendants acting out of care and love. Hence the resort to motive as the main consideration in deciding to prosecute leaves the law of assisted suicide in much the same place as the law of active euthanasia with regard to doctors and others who hasten death: it is ultimately a question of motive, regarded as a means for qualifying their otherwise clearly criminal intentions.