What happens if your client discloses their reason for writing a will is to end their own life? When trapped between an ethical and legal juxtaposition of informing relevant parties and ensuring confidentiality, how should a legal service practitioner respond?
Earlier this month, Belgian Paralympian, Marieke Vervoort, made the decision to end her life through Euthanasia.
Despite living with a degenerative muscle disease which caused seizures, paralysis in her legs and constant pain, Vervoort went on to win four Olympic medals in the last two games, including a gold and silver in London.
Even before her Olympic journey unfolded, 40-year-old Vervoort had made the decision to end her life on her own terms by signing papers in 2008 allowing doctors to assist in her death.
Marieke Vervoort’s home city of Dierst announced her death explaining that the athlete had ‘responded to her choice on Tuesday evening,’ 11 years after first signing her wishes for doctors to assist in her death.
Whilst the decision may have been difficult, Vervoort was able to remain in her hometown, dying on her own terms.
Unfortunately, for over 350 UK residents, the absence of an assisted dying law meant that they were forced to travel vast distances to end their life at Dignitas in Switzerland.
In order to be physically able to make the trip, many were forced to make the decision before they would necessarily need to if they were able to die at home. If Belgium rescinded their assisted dying law, Marieke Vervoort may not have had the option to prolong her life for as long as she did.
In stark contrast, a Briton travels thousands of miles every eight days, despite constant pain, to end their suffering without the fear of a loved one facing prosecution.
Currently, UK law prevents dying people from asking for medical help to die.
It is also a crime to assist a suicide In England, Wales and Northern Ireland. Those convicted could face up to 14 years in prison; an excessive sentence considering 44% of UK adults would assist a loved one with dying in spite of all risks.
The Director of Public Prosecutions and the Crown Prosecution Service then review guidelines to assess whether the act was deemed as ‘malicious’ or ‘compassionate’ before deciding whether to prosecute.
Various Bills have made their way through Parliament only to fail at the final hurdle despite 84% of the public and 54% of GPs supporting the choice of assisted dying for terminally ill adults.
In 2014, Lord Falconer proposed the Assisted Dying Bill allowing terminally ill, mentally competent adults to have an assisted death after being approved by two doctors. Although two opposition amendments aiming to derail the Bill were defeated in 2015, the General Election took precedence and the Bill lapsed before it could be fully scrutinised and ratified by Parliament.
When Rob Marris reintroduced a reformed version of the Assisted Dying Bill towards the end of 2015, it was defeated during the second reading following a four hour debate.
Ruth Heap, Partner at Hillyer McKeown LLP and Head of Private Client Services, has taken the time to offer her expert advice in regards to this ethical conundrum.
“Fortunately, I have never personally been in this position, and I can see it being a very thorny ethical conundrum. Clearly, as solicitors, we have a duty of confidentiality to our clients, and this can only be overridden in the most serious of circumstances. I have separated my advice into two areas. Firstly, what to do if a client informs us of their intentions, and secondly whether anyone who assists the client in ending their life would forfeit any inheritance as a result of involvement in the death.
“1. When a client openly tells us they intend to end their own life in the near future:
“Where a client intends to end their life, we are not permitted to share that information with any third parties without the client’s consent. A client who is intending suicide must first give us permission to disclose their confidential information to a professional, e.g. a doctor or family member before we can disclose their intentions. Or alternatively, we must convince them to seek help for themselves. There is clearly a capacity issue here as well.
“The SRA guidelines provide that a solicitor can breach client confidentiality for the purposes of crime prevention, but it must be justified. For example, their intention to murder someone else is perhaps more justified than the client killing themselves.
“I spoke to the SRA ethics line, and they were pretty clear on the fact, that regardless of circumstance, (capacity/coercion) we must keep it confidential unless given consent.
“We should only disclose it if we can really justify the disclosure, which is a high bar to meet.
“Similarly, I asked whether the position changes if there is assisted suicide involved, the response was the same, since it’s our client coming to harm and intending it themselves, we mustn’t disclose it without clear consent or a really strong justification.
“So, in summary, nothing can be done really other than make the client aware of the legal consequences of forfeiture.
“2. Forfeiture
“The rule of forfeiture states ‘no person can obtain, or enforce, any rights resulting to him from his own crime; neither can his representative, claiming under him, obtain or enforce any such rights. The human mind revolts at the very idea that any other doctrine could be possible in our system of jurisprudence.’
“This is where a murderer cannot inherit from someone they have killed. This precludes an individual who has unlawfully killed or aided, abetted, counselled or procured the death of another person from benefiting in consequence of the killing.
“However, this isn’t a blanket rule, the court must have ‘regard to the conduct of the offender and of the deceased and to such other circumstances as appear to the court to be material’, applying or modifying the rule as ‘the justice of the case requires’. It is therefore tried on a case by case basis.
“A person (e.g spouse) who assisted a suicide could potentially fall foul of forfeiture. If they were tried and acquitted however, then forfeiture would not apply.”
For now, at least, the UK must wait for legislative changes to be made, meaning UK citizens and their families must risk legal sanctions and inheritance forfeiture if they are to end prolonged suffering on their own terms.
Living Wills may set out a patient’s wishes regarding health care and how they would like to be treated if they become physically unable to communicate or lose capacity, but what should a legal service provider do if a client wishes to make a will because they intend to commit suicide?
Is a will drafter still permitted to exercise their own professional judgement in this circumstance? Or, are they required to seek medical advice to ensure the testator has mental capacity before drafting the document? Should the issue be disclosed to third parties or should the issue remain confidential?
