In a judgment released on Thursday a High Court judge held that a woman who accompanied her husband to an assisted dying clinic can inherit his estate. Sarah Ninian had travelled with her husband Alex to Dignitas in Switzerland after he was diagnosed with a progressive incurable disease.
BACKGROUND
Mr Ninian was diagnosed with progressive supra-nuclear palsy in 2013. Mrs Ninian became aware of her husband’s intentions to die with Dignitas’s assistance in November 2016.
At first she actively tried to dissuade Mr Ninian from going through with his plan. However, as her husband became progressively more disabled, Mrs Ninian carried out his requests for assistance in arranging the trip to Switzerland.
As Mr Ninian was unable to travel unaided, on 13 November 2017 the couple flew together to Zurich. Once there, Mrs Ninian accompanied her husband to several medical appointments before Mr Ninian’s death on 16 November 2017.
The offence of encouraging or assisting suicide carries a maximum penalty of 14 years’ imprisonment. A 2010 Policy Statement by the Director of Public Prosecutions requires prosecutors to apply a two-step test when deciding whether or not to prosecute: an evidential test and a public interest test. While prosecutors may find the evidential test is passed, it is often decided that a prosecution is not in the public interest given the sensitive nature of the decision to assist in the suicide of a loved one.
On 29 November 2017, Mrs Ninian reported the circumstances of Mr Ninian’s death to the police. On 20 June 2018, Mrs Ninian was informed by the Crown Prosecution Service that it was not in the public interest that she be prosecuted for assisting in her husband’s suicide.
WHY DID THE CASE COME ABOUT?
On 9 November 2018 Mrs Ninian applied for relief against the “forfeiture rule” in relation to her husband’s estate. In the matter of Alexander Shedden Ninian [2019] EWHC 297 (Ch) was heard on 5 February 2019.
The forfeiture rule is contained in the Forfeiture Act 1982. It requires that a person who has unlawfully killed another should not receive a consequential benefit. Under the Act “unlawfully killed” includes cases of aiding and abetting death.
However, the court may make an order modifying or excluding the effect of the forfeiture rule if the justice of the case so requires.
In finding that the justice of the case required the disapplication of the rule, Chief Master Marsh regarded it as important that: (i) Mr Ninian had reached a voluntary, clear and settled and informed decision to commit suicide; (ii) Mrs Ninian was wholly motivated by compassion; (iii) Mrs Ninian had sought to dissuade her husband from committing suicide; (iv) Mrs Ninian’s actions could be characterised as reluctant assistance in the face of a determined wish on the part of her husband to commit suicide; and (v) Mrs Ninian reported the suicide to the police and fully assisted them in their enquiries into the circumstances of the suicide.
Additionally, the judge held that the decision of the Crown Prosecution Service not to prosecute Mrs Ninian was a powerful factor in favour of the grant of relief. Seeming to recognise the personal tragedy at the heart of the case, the judge remarked that, “although [it is] not a course of action the court can endorse, [Mrs Ninian] did what many persons would do for a loved one.”
WILL THE CASE HAVE ANY CONSEQUENCES?
The decision may allay the fears of some families planning to help a loved one to end their life that they will be unable to inherit under the forfeiture rule. It is hoped that the case will bring transparency in an area of law struggling to keep pace with public morality and political sympathy.
Freedom of Dissenters 