By Alexa Payet, Partner, and Jasmine Ivory, Senior Associate, from Michelmores LLP
Michelmores are legal specialists, who as people, as lawyers and as a business have a key role in the transition to a green economy. Through their client work, pro-bono work, and community partnerships, they are driving positive change. They focus on work that helps to deliver a sustainable economy, that reflects who they are, how they do things, and their core values.
Whatever your moral, legal or political opinion, assisted suicide is relevant to us all and is front and centre in political Britain in the midst of a cost-of-living crisis, an underfunded NHS and global unrest.
The media has recently reported on the passing of the Terminally Ill Adults (End of Life) Bill through the House of Commons to the committee stage in a historic first.
The commentary which followed the passing of the bill continues to focus on the opposing sides of the debate and continues to scrutinise the underlying moral philosophy of assisted dying and its practical implications.
The act of suicide itself is often the focus of the debate, but its impact spans both the criminal and civil jurisdictions. With the potential criminal impact the more obviously life-changing, limited attention is given to the wider financial implications for family members who assist the death of a loved one.
Clearly, this is not an issue which is likely to dissipate. But what is the legal position?
Criminal offence
While it is legal to commit suicide, under section 2 of the Suicide Act 1961 (the 1961 Act), a person commits an offence if he or she does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and that act was intended to encourage or assist suicide or an attempt at suicide.[1]
The offence of encouraging or assisting suicide carries a maximum penalty of 14 years' imprisonment[2], which reflects the seriousness of the offence.[3]
In each case what amounts to assistance will be fact-specific, but any help provided to facilitate a loved one's travel to, or in connection with, an overseas dying clinic will likely amount to an offence under the 1961 Act.
There have been various legal challenges seeking to undermine or otherwise attack Section 2 of the 1961 Act[4], all of which broadly failed. However, following Purdy the then Director of Public Prosecutions, Sir Keir Starmer, produced Guidance on what makes a prosecution more or less likely (the DPP Guidance).[5]
In deciding whether to prosecute, the CPS must first consider whether the evidential test has been met[6] and second, whether it is in the public interest to prosecute. In doing so, they will consider the factors tending in favour[7] and tending against a prosecution[8].
Financial implications
Pursuant to section 1(1) of the Forfeiture Act 1982 (the 1982 Act), "the “forfeiture rule” means the rule of public policy which in certain circumstances precludes a person who has unlawfully killed another from acquiring a benefit in consequence of the killing". The rule is grounded in the moral principle that a person cannot benefit from their own wrongdoing.
The forfeiture rule will be engaged where a person has unlawfully aided, abetted, counselled or procured the death of that other.[9] This means that anyone who assists or encourages a suicide under the 1961 Act will forfeit an interest in the deceased's estate and any jointly owned assets will be severed. That is the case whether or not there is a subsequent prosecution and/or conviction.
This therefore has significant financial implications for those left behind, at an emotionally challenging time.
Grant relief
The 1982 Act gives the Court the power to modify or exclude the effects of forfeiture, effectively permitting the person who assisted the suicide to benefit from the deceased's estate and any jointly owned assets. However, under section 2(2) the Court must not make such an order unless it is satisfied that the test for doing so is satisfied.
Where the public interest requires no penal sanction strong grounds are likely to exist for relieving from all effects of the forfeiture rule.[10]
As the Chief Master made clear in Ninian, the Court must have regard to "the conduct of the 'offender' and to such other circumstances as appear to the court to be material and be satisfied that the justice of the case requires the effect of the rule to be modified or excluded."[11]
Many have questioned whether simply travelling with a person to Switzerland in the knowledge that they intend to obtain an assisted death is sufficient to commit the offence under section 2 of the 1961 Act.
It is clear that each case will be highly fact-specific. Indeed, in the recent case of Morris, Mr Justice Trowers held that "the act of accompanying may or may not be assisting the suicide depending on the circumstances. Doubtless, it often will, more particularly where the only way in which the deceased is able to travel is with the person who is said to have given the assistance."[12]
As the law stands, there is no alternative to the process of applying for relief from forfeiture. A properly considered and legally drafted application from a specialist lawyer is therefore not merely desirable, it is essential.
Implications of assisted suicide - What to expect
Expect debate - with the Labour government firmly in Westminster and Sir Keir Starmer’s promise to give assisted dying the parliamentary time it needs, we can expect legislative progress in the coming months. A 23-member committee met for the first time in January 2025 to start the process of scrutinising the bill.
Expect restriction – if passed, the proposed legislation will represent a significant change in our approach to end-of-life care. Notwithstanding the current proposed drafting, it is anticipated that any new legislation will be tightly controlled, and its scope will continue to be narrow. Set against an increasingly under pressure NHS and underfunded hospice sector reliant on charitable donation, it's not clear how this will be 'policed'. Much of the public response to the MP's votes continues to focus on this.
Expect forfeiture to remain relevant – importantly, whatever the outcome of the legislative process, it's likely that assisted dying will remain unlawful in most cases and the forfeiture rule will continue to be engaged in these cases.
This article is featured in the winter 2025 edition of our quarterly news digest, Entitlement. Download your free copy of Entitlement for more informative articles.
About the authors
Alexa Payet represented the successful Claimants in Ninian and Morris and has represented many other families in similar circumstances. She is described as “the most experienced solicitor in the country in this area of the law” (John Critchley, Head of Chambers, Field Court Chambers). She was recently named in The Lawyer Hot 100 2025, which recognises the most innovative and creative lawyers in the industry.
Jasmine Ivory is a specialist litigator with a focus on inheritance and estate-based private wealth disputes. She is described as “an absolute star with fantastic attention to detail and a great rapport with clients” and works alongside Cancer Research UK as part of the team who are appointed as the preferred legal supplier for contentious probate matters.
Their legal expertise combined with their understanding of the sensitive and emotional nature of these cases, make them an essential resource for those who find themselves in this difficult and sad situation as they can guide families through the crucial steps required to be taken in such cases.
[1] s.2(1) Suicide Act 1961
[2] ibid, s.2(1C)
[3] CPS Policy for prosecutors in respect of cases of encouraging or assisting suicide, Issued by the Director of Public Prosecutions, February 2010 (updated October 2014), paragraph 2
[4] The Queen on the Application of Mrs Dianne Pretty (Appellant) v Director of Public Prosecutions (Respondent) and Secretary of State for the Home Department (Interested Party) [2001] UKHL 61; Regina (Purdy) v Director of Public Prosecutions (Society for the Protection of Unborn Children Intervening) [2009] UKHL 45; R (on the application of Nicklinson and another) (AP) (Appellants) v Ministry of Justice (Respondent) [2014] UKSC 38
[5] CPS Policy for prosecutors in respect of cases of encouraging or assisting suicide, Issued by the Director of Public Prosecutions, February 2010 (updated October 2014)
[6] s.2(1) Suicide Act 1961
[7] ibid, paragraphs 43-44
[8] ibid, paragraphs 45-48
[9] s.1(2) Forfeiture Act 1982
[10] Dunbar v Plant [1998] Ch 412 (Philips LJ, at 437G)
[11] Ninian v Findlay [2019] EWHC 297 (Ch), at paragraph 47
[12] Morris v Morris, [2024] EWHC 2554 (Ch), at paragraphs 62-63
Topics: Entitlement, Legislation, Guest writer
