1 May 2019 | Firm news | Article by Nerys Clement

High Court waives Forfeiture Rule in assisted suicide case

In the case of Ninian v Findlay and Others [2019] EWCH 297 (Ch) a widow who assisted her husband’s suicide has been successful in her application for relief from the Forfeiture Rule.

The Forfeiture Rule is well established law whereby if a person unlawfully kills another person, they will be prevented from inheriting under the deceased’s estate. The case of Dunbar v Plant [1998] Ch 412 confirms that this extends to assisted suicide cases, as assisted suicide is a crime under section 2 of the Suicide Act 1961.

The Claimant, Mrs Ninian, made an application under section 2 of the Forfeiture Act 1982 to have the Forfeiture Rule excluded. Under this section, the court can make an order modifying or excluding the effect of that rule providing it is satisfied that, “having regard to the conduct of the offender and of the deceased and to such other circumstances as appear to the court to be material, the justice of the case requires the effect of the rule to be so modified…”

Mrs Ninian was the widow of an 84 year old man who, in 2013, had been diagnosed with Progressive Supra-nuclear Palsy (“PSP”), a progressive incurable disease causing difficulties with balance, movement, vision, speech and swallowing.

Three years after diagnosis, Mr Ninian contacted an assisted suicide clinic in Switzerland. When, three months later, Mrs Ninian discovered her husband’s plan she actively tried to dissuade her husband from going through with it.

Despite her attempts, Mr Ninian remained determined and asked his wife to assist with some of the administration required. Mrs Ninian agreed, although was also able to persuade her husband to inform his doctors of his plan who advised him of his palliative options. By this time, Mr Ninian’s condition had deteriorated. He lost some mobility in his fingers, found it increasingly difficult to swallow and was unable to move his eyes. He suffered with poor mobility, rarely spoke and his ability to write became limited.

Both Mr and Mrs Ninian sought separate legal advice in respect of Mr Ninian’s decision. Mr Ninian prepared a new will and a statement setting out the reasons for his decision. Mr Ninian was assessed by Dr James Warner, a medical expert and the National Professional Advisor for the Care Quality Commission. Dr Warner produced two reports expressing his opinion that Mr Ninian had testamentary capacity and that Mr Ninian had the capacity to decide about significant treatment options.

Mr and Mrs Ninian travelled to Zurich together in November 2017. Whilst Mrs Ninian aided her husband in travelling to the clinic, she provided no direct assistance in the ingestion of the medication that killed Mr Ninian.

Shortly after Mr Ninian’s death, Mrs Ninian reported the circumstances of the matter to the police. Although the police were satisfied that there was sufficient evidence for a prosecution, they did not consider it would be in the public interest to do so.

At the hearing, the court first considered the application of section 2 of Suicide Act 1961, which provides for the offence of encouraging or assisting suicide. The court confirmed that there are two elements to the offence. Firstly, the carrying out of an act that is capable of encouraging or assisting the suicide and secondly, that the act was intended to encourage or assist the suicide. There is therefore both an objective and a subjective test.

The court concluded that whilst Mrs Ninian made it clear that she did not want her husband to attend the clinic, she had however, assisted his with the administration and travel. Her involvement was essential to enable Mr Ninian to attend the clinic and it could therefore be considered that she had the necessary intent to help her husband end his life. On the balance of probabilities, the court concluded that an offence had been committed and the forfeiture rule applied, such that Mrs Ninian could not inherit under her husband’s estate.

Next, the court decided whether or not it should apply its discretion in order to modify or exclude the effect of that rule.

In making its decision, the court considered the decision in Dunbar v Plant and, in particular, the observations of Mummary LJ who said that, “the court is entitled to take into account a whole range of circumstances relevant to the discretion.”

The court also considered the Director of Public Prosecutions’ Policy Statement, “Suicide: Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide”, which sets out the factors the CPS must consider when deciding whether or not to prosecute.

In making its decision, the court stressed that no one factor was determinative and, further, the factors were not of equal weight. However, the court emphasised that the decision of the CPS not to prosecute Mrs Ninian was a powerful factor.

The court was satisfied that the circumstances provided a compelling case for it to exercise its power to grant full relief such that Mrs Ninian was able to retain her interest in Mr Ninian’s estate.

The case suggests some clarity on what is clearly a sensitive and emotive issue, and one which is likely to become more relevant with an increasingly aging population. Whilst each case will turn on its facts, it highlights the need for parties to seek independent legal advice at an early stage, not only protect vulnerable individuals but the loved ones they leave behind.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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