Whilst assisted dying has received increased public and professional attention, particularly considering the Terminally Ill Adults (End of Life) Bill, it remains widely misunderstood.
Where an individual wishes to end their own life but requires assistance to do so, this is commonly referred to as 'assisted dying' or 'assisted suicide'. These terms are often used interchangeably.
A common example arises where an individual living with an intolerable or incurable condition decides to travel to a Swiss dying facility, such as Dignitas, to end their life. In doing so, their spouse or relatives may assist with the arrangements or accompany them there. This assistance requires specific legal consideration.
It is important to distinguish assisted dying from palliative care and the refusal of medical treatment.
In the UK, individuals can refuse medical treatment even where that refusal may shorten their life. They can also receive palliative care, directed towards comfort, symptom management, and quality of life, rather than cure. Neither involves assisting a person to end their life, and both are separately regulated under established medical and legal frameworks.
The Suicide Act 1961 (Suicide Act) provides that it is lawful for an individual to commit suicide. However, under section 2 of the Suicide Act, it is a serious criminal offence to encourage or assist the suicide, or attempted suicide, of another person. The maximum penalty is 14 years' imprisonment. This offence has the scope to encompass the assistance described above. In 2010, the Director of Public Prosecutions (then Sir Keir Starmer) issued guidance for prosecutors dealing with assisted suicide cases. When deciding whether to prosecute, the Crown Prosecution Service (CPS) must first consider whether there is sufficient evidence that the individual encouraged or assisted the suicide or attempted suicide of another person. If that evidential test is met, the CPS must then consider whether a prosecution is required in the public interest. A prosecution will usually follow unless the CPS is satisfied that the public interest factors tending against prosecution outweigh those in favour. Whilst not guaranteed, the CPS guidance indicates that genuinely compassionately-motivated assistance may be of a nature where it is not reasonable to prosecute. Although the Terminally Ill Adults (End of Life) Bill sought to legalise assisted dying for terminally ill adults who are reasonably expected to die within six months, it ultimately fell before completing its passage through Parliament. Whilst it is due to shortly return, at present any form of assistance in ending another's life is feasibly a criminal act.
Assisting a suicide is not just a criminal matter. Perhaps the most overlooked issue in this area is the parallel engagement of the Forfeiture Act 1982 (Forfeiture Act).
In broad terms, what this means is that a person who has unlawfully assisted or encouraged another person's death may be prevented from benefiting from that individual's estate on death – they effectively forfeit their right to benefit. The rule applies automatically, even where the assistance was motivated entirely by compassion and in the absence of a criminal prosecution or conviction.
For forfeiture purposes, the person who assisted is treated as having died before the deceased (section 33A (2) Wills Act 1837). As a result, gifts made to them under a Will or intestacy may fail, jointly owned property that would otherwise pass by survivorship may be treated as severed, and benefits payable under pensions or life policies may not take effect. The impact is wide and can result in default beneficiaries unexpectedly inheriting.
Where a spouse has assisted a suicide (which is common), the estate may lose the benefit of the spousal exemption. This can create an unexpected inheritance tax liability, financial instability for the surviving widow and potentially prejudice the security of the family home.
The Forfeiture Act does, however, provide the Court with discretion to modify or relieve the impact of the forfeiture rule. A carefully prepared Court application will be required after the assisted suicide has taken place. If successful and at its simplest, the applicant should then be able to inherit from the deceased's estate.
The intricate nature, legal complexity and extremely sensitive detail of a relief application should not be overlooked – whilst relievable, these cases create public interest and require families to go through a legal and cost-intensive process at an otherwise unimaginably challenging time. Whilst manageable, they are not a 'tick box' procedure or an 'easy' option.
The Forfeiture Act can therefore have serious and unintended consequences for carefully considered succession planning. Where practitioners become aware that an individual may be considering assisted dying, they must consider whether specialist advice should be sought. There are beneficial steps that can be taken pre-death to obtain and preserve evidence that is critical for a later relief from forfeiture application. Likewise, there may be appropriate modifications and adjustments that can be made to mitigate the impact of forfeiture on the individual's estate planning and family.
It is incumbent on practitioners advising pre-death to consider and flag these opportunities for individuals who find themselves in these circumstances.
There is not a neat or statutory definition of assistance. Whether a particular act constitutes 'assistance' in ending another person’s life is highly fact-specific and will depend on the surrounding circumstances. The Court has indicated that administrative acts, such as completing paperwork or assisting with paying the clinic's fees, accompanying the individual to the clinic, or otherwise helping with practical arrangements, may, depending on the facts, have the potential to amount to assistance. More recently, this issue was explored by the High Court in Morris v Morris [2024] EWHC 2554 (Ch) in which the Court held that, although accompanying someone to a clinic does not automatically amount to assistance, the question is always whether the acts in question were objectively capable of encouraging or assisting the suicide. In that case, the deceased's husband organised and facilitated his wife's assisted dying arrangements, whereas her children only accompanied her mother and provided comfort. Accordingly, the husband's course of conduct was treated as having assisted the suicide, but the children were not. There is no definitive guidance as to what will or will not amount to assistance, particularly as it depends on both the nature of the acts and the assister's intention, in each case. Practitioners should therefore be alert to the possibility that even apparently minor acts may, depending on the circumstances, constitute assistance. It is crucial to identify precisely what steps were taken, by whom, and in what circumstances, to assess whether a beneficiary’s entitlement under a Will or intestacy could be impacted.
Assisting or encouraging suicide automatically triggers the forfeiture rule, with significant consequences for succession planning, direct financial implications for loved ones, and it may also result in a criminal conviction. The key takeaway is that practitioners should treat any indication of assisted dying with particular care and caution:
When advising pre-death, it is good practice to be aware of the above and alert to any indication that an assisted death is considered. If it is, there is a valuable opportunity for that individual and their family to take specialist advice on how best to prepare for the process, from a legal perspective.
If advising post-death, potentially when acting as or advising executors, practitioners should carefully analyse the circumstances surrounding the death so that any forfeiture risk can be identified at an early stage. It is critical, again, to take early advice on whether relief from forfeiture is applicable, the appropriate approach to any defence and care should be taken to preserve the estate to avoid incorrect distribution.
Charity beneficiaries, in particular, should take careful and early specialist advice as to how their charitable duties are appropriately balanced with finding themselves as a defendant to a relief from forfeiture application.
It remains to be seen if the Terminally Ill Adults (End of Life) Bill will be become law on the second journey through parliament. Subject to the content, it is anticipated that any new law will remain limited in scope and there will be many cases which fall outside of the approved parameters, such that forfeiture will remain an important topic to be well versed in.
Jasmine Ivory, Michelmores Legal Director
