Annex B - Equality and Diversity Impact Assessment

Background

1. In 2009, Ms Purdy sought information about the factors that the Director of Public Prosecutions (DPP) would take into account in deciding whether or not to grant his consent to a prosecution under section 2 of the Suicide Act 1961. Ms Purdy contended that the Code for Crown Prosecutors issued by the DPP under section 10 of the Prosecution of Offences Act 1985 was insufficiently precise to provide her with the information that she sought. The case proceeded through the courts until the highest court in the United Kingdom, the Appellate Committee of the House of Lords, found in favour of Ms Purdy in R (on the application of Purdy) v Director of Public Prosecutions (DPP) on 30 July 2009 - now reported at [2009]UKHL45.
2. In supporting Ms Purdy's case, the Law Lords required the DPP: "to clarify what his position is as to the factors that he regards as relevant for and against prosecution" [Note: paragraph 55] in cases of assisted suicide. This was a legal ruling with which the DPP was bound to comply, and it is a sensitive area of the law, which provokes sincere and deeply-held views on both sides of the debate.
3. The DPP published his Interim Policy on prosecuting cases of assisted suicide on 23 September 2009. At the same time, the Crown Prosecution Service (CPS), launched a consultation exercise inviting members of the public to respond with their views on that policy. The consultation exercise ran for 12 weeks until 16 December 2009.
4. The Interim Policy on assisted suicide provided further information on the relevant public interest factors involved in this type of case that should be considered by prosecutors in addition to those factors already set out in the Code. These lists of public interest factors are not exhaustive and each case must be considered on its own facts and on its own merits.
5. The Interim Policy did not represent a change in the law. Only Parliament can change the law on assisted suicide.
6. The CPS Single Equality Scheme, published in 2006, recognises that the CPS is bound by the current public sector duties in relation to gender, race and disability, and extends this protection to religion or belief, age and sexual orientation. It requires the CPS to conduct an Equality and Diversity Impact Assessment (EDIA) for all new policies, and where significant changes to existing policies are proposed. The policy on prosecuting cases of encouraging or assisting suicide is a new policy which required a full Impact Assessment.

   Methodology

7. According to the Department of Health, around 5,000 people take their own lives in England every year. The factors associated with suicide are many and varied - including social circumstances, biological vulnerability, mental ill-health, life events and access to means [Note: Department of Health (2002) National Suicide Prevention Strategy for England www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_4019548.pdf].
8. The CPS recognised at an early stage that this policy might specifically affect disabled people.
9. As a result, the following approach was adopted. The views of the disabled members of the CPS Community Accountability Forum (CAF) were obtained before the consultation document was published. The CAF is a permanent group, comprising 12 external members from various community organisations reflecting a diversity of interests across the equality strands. The purpose of the CAF is to act as a consultative body in relation to equality and diversity across the CPS.
10. The CPS also specifically targeted a number of organisations, including several representing disabled or older people during the consultation exercise.
11. An easy-read version of the policy was produced and made available to learning disability networks and groups.
12. Responses to the consultation exercise were submitted in a variety of ways, including completed questionnaires, e-mails and letters.
13. The details of cases of assisted suicide which have been prosecuted were considered in producing this EDIA.

    Consultation and involvement

14. The Interim Policy was published on 23 September 2009. A 12 week consultation period was held and was concluded on 16 December 2009.
15. The CPS Community Accountability Forum were fully consulted during the consultation period.
16. CPS Staff Networks were consulted.
17. A total of 4,710 responses were received from a range of sources in England and Wales, including CPS staff, individual members of the public, organisations supporting disabled people and older people, representatives of various faiths, services providing palliative and end of life care, and organisations supporting people with terminal illnesses. Each response was individually considered.

    Policy implementation

18. 18 The policy for prosecuting cases of encouraging or assisting suicide was published on 25 February 2010.
19. 19 All cases of encouraging or assisting suicide will be dealt with by the Special Crime Division in CPS Headquarters. The Head of the Division reports directly to the DPP. The implementation of the policy will be regularly reviewed by the CPS and assessed for further equality impacts.

    Assessment and analysis

    Positive Impact

20. The policy provides the opportunity to clarify for the public, including all the groups considered in this EDIA, the public interest factors that the CPS will take into account when taking prosecution decisions in relation to encouraging or assisting suicide.

    Negative Impact

21. The analysis of the evidence from cases prosecuted, research and the consultation exercise found that there is a potential for differential impacts on the grounds of age, religion or belief, gender and disability.
22. Age: the evidence suggests that the publication and implementation of this policy, without amendment, might impact on the confidence that older people might have in the CPS, because of the inclusion of public interest factors which, in the view of many respondents, should not be considered when deciding whether to prosecute.
23. Religion and belief: the evidence suggests that the publication and implementation of this policy, without amendment, might impact on the confidence that people from a Jewish, Christian or Muslim background might have in the CPS, because of the inclusion of public interest factors which, in the view of many respondents, should not be considered when deciding whether to prosecute.
24. Gender: the evidence suggests that previous violence, or abuse, by the suspect against the victim may have the potential to influence the victim, and to be an improper consideration when arriving at a voluntary, clear, settled and informed decision to commit suicide. The CPS recognises that this type of violence disproportionately affects women. Without amendment, this policy might negatively impact on women's confidence that the CPS has identified the correct public interest factors in cases of encouraging or assisting suicide.
25. Disability: the evidence suggests that the interim policy on assisted suicide, if unamended, may have had the potential to cause indirect discrimination against disabled people. Including the presence of "a terminal illness; a severe and incurable physical disability; or a severe degenerative physical condition; from which there was no possibility of recovery" as a factor against prosecution, and including the absence of the above as a factor in favour of prosecution may lead to disproportionate outcomes in cases involving victims in this situation, namely, that disabled people are more likely to be involved in cases of assisted suicide as the person requesting assistance. Including these factors in the Final Policy may lead to prosecution decisions that exacerbate this disproportionality to an extent that is unjustified.
26. In addition, some respondents recommended that the policy should apply the principles and approach of the Mental Capacity Act 2005 when deciding whether the victim had the capacity to decide that he or she wanted to commit suicide. This would ensure that all people whose capacity was affected by any number of reasons in addition to 'learning difficulty' or 'mental health' issue are covered by the policy.

    Action Plan

27. The CPS carefully considered the responses from the consultation exercise and the findings of this EDIA, and has committed to the actions set out below. The majority of the actions were completed before the publication of the final policy.

This EDIA has been prepared by the Equality and Diversity Unit of the CPS

February 2010

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