Earlier this month, the Law Commission announced proposals for a new crime of intentionally encouraging or assisting serious self-harm, as part of their report on Modernising Communications Offences.

The Commission is particularly concerned about the "proliferation of self-harm content online" to which children and young people are exposed. But the new offence they recommend covers encouragement or assistance of self-harm however this is carried out, so is not restricted to online or other communications.

In framing this offence, the Commission has drawn directly on the existing crime of encouraging or assisting suicide as a model (e.g. see para. 7.94 of their report). However, acts of self-harm would not themselves be criminalised, any more than is suicide (or attempted suicide) at the moment; the aim is to protect vulnerable people from inducements to self-injury short of suicide.

In effect, this proposal extends the present law, prohibiting assisted suicide as the ultimate form of self-harm, so as to include other serious forms of self-harm (reaching the level of grievous bodily harm) which people can be persuaded or helped to inflict on themselves.

A government response to the Law Commission's report is now awaited.

But if the government decide to accept the recommendation to criminalise assisting non-suicidal self-injury, how much sense would it make to decriminalise assisted suicide at the same time?

The law on suicide

Although suicide ceased to be a crime with the passing of the Suicide Act 1961, section 2 of that Act (in a subsequently amended form) ensures that it remains an offence to do anything which is both "intended to encourage or assist suicide" and is also capable of having that effect.

No prosecution for this offence can take place without the consent of the Director of Public Prosecutions, who has discretion to decide whether that prosecution would be in the public interest (section 2(4)).

In 2009, Debbie Purdy, who had terminal motor neurone disease, wished for her husband's help to travel to the Dignitas clinic in Switzerland, so that she could end her life there. She claimed that, in the absence of information to clarify the risk of a prosecution, section 2 of the Suicide Act infringed her right to a private life under Article 8 of the European Convention on Human Rights. If prosecution were likely, she would wish to make the journey sooner without her husband's assistance.

The House of Lords accepted Ms. Purdy's argument, ordering that the DPP should "promulgate an offence-specific policy identifying the facts and circumstances which he will take into account in deciding, in a case such as that which Ms Purdy's case exemplifies, whether or not to consent to a prosecution under section 2(1) of the 1961 Act" (paragraph 55 of the judgement).

The outcome of this case was eulogised in a 2019 BBC Radio programme, and is referred to in a recent House of Commons Briefing on 'assisted dying' (page 2).

Following the Law Lords' judgement, the Director of Public Prosecutions (Kier Starmer at that time) issued a Policy for Prosecutors in cases of encouraging or assisting suicide, setting out the criteria for these prosecution decisions. Circumstances in the which prosecution is "less likely", as set out in the current version of the policy, include for example:

• the victim had reached a voluntary, clear, settled and informed decision to commit suicide;
• the suspect was wholly motivated by compassion;
• the suspect had sought to dissuade the victim from taking the course of action which resulted in his or her suicide; or
• the actions of the suspect may be characterised as reluctant encouragement or assistance in the face of a determined wish on the part of the victim to commit suicide; etc.

This document makes crystal clear that it "does not in any way 'decriminalise' the offence of encouraging or assisting suicide. Nothing in this policy can be taken to amount to an assurance that a person will be immune from prosecution if he or she does an act that encourages or assists the suicide or the attempted suicide of another person".

Crucially, therefore, where someone has made a "voluntary, clear, settled and informed decision to commit suicide", it is clearly still a crime to assist them, even though the DPP may exercise his or her discretion to decide that prosecution would not be in the public interest.

The deterrent effect of this crime also remains, though it may in practice be diluted by the factors weighing against prosecution, as defined in the DPP's policy.

The law on assisted suicide law may serve as a model for wider self-harm laws

The concept of a "voluntary, clear, settled and informed decision" has now been picked up by the Law Commission for a significantly comparable purpose.

One of the recommendations in their recent report is a new indictable offence of "encouraging or assisting serious self-harm", based specifically on the Suicide Act 1961 (7.71, recommendation 14).

The Commission also recommends that "the Director of Public Prosecutions consider issuing a policy for [this new offence] similar to the one that exists concerning prosecutions under the Suicide Act 1961" (7.92, 7.96, recommendation 16).

Its report then spells out (in para. 7.93) that it would be "useful" for a DPP policy to provide that "[a] prosecution is less likely to be required if: ... the victim had reached a voluntary, clear, settled and informed decision" [in this case to injure themselves].

To illustrate the useful role of such a policy, an example is given: A may provide clean razor blades to B in the knowledge that B will injure themselves in any event, but may otherwise use even more dangerous means (7.86-87).

Other circumstances in which avoidance of prosecution is envisaged include the posting of online self-harm content by vulnerable people, which the Commission believes would in many cases be "appropriately treated as a mental health matter" (7.34; also 7.47-49, 7.54).

So, as with the current law on assisting suicide, on which these recommendations are based, assisting serious self-harm would be a crime, though the DPP could decide that prosecution was not in the public interest in certain cases.

But the assisted suicide law could soon be scrapped ...

Baroness Meacher's Assisted Dying Bill, currently before Parliament, also borrows wording from the first of the DPP's conditions, in common with earlier attempts at legislating to the same effect.

Clause 1 of the Bill would legalise assisting the suicide of a terminally ill person with less than six months to live who, in the view of the High Court, "has a voluntary, clear, settled and informed wish to end his or her own life". A partial repeal of section 2 of the Suicide Act is also included in the Bill to cover these circumstances (clause 6(2)).

Adoption of existing phraseology belies the radical effect this Bill would have on the view taken by the law and society generally, including the NHS and families of vulnerable people, not only of assisted suicide but of the nature of suicide itself as a tragic loss reflecting mental distress and to be avoided at all costs. We explored some of the implications in a previous article.

Importantly, the current DPP's policy includes other (more numerous) conditions under which prosecution is more likely, such as where:

• the victim did not seek the encouragement or assistance of the suspect personally or on his or her own initiative;
• ... the suspect was [at least partly] motivated by the prospect that he or she ... stood to gain in some way from the death of the victim;
• the suspect did not take reasonable steps to ensure that any other person had not pressured the victim to commit suicide;
• the suspect had a history of violence or abuse against the victim;
• the suspect gave encouragement or assistance to more than one victim who were not known to each other;
• the suspect was paid by the victim or those close to the victim for his or her encouragement or assistance;
• the suspect was [a member of] an organisation or group, a purpose of which is to provide a physical environment (whether for payment or not) in which to allow another to commit suicide.

As also suggested previously, there are no effective safeguards in Baroness Meacher's Bill to eliminate conflicted interests or hidden influences of these kinds by a third party (no longer a "suspect" of course). It is far from clear that the presence of such factors could be effectively ruled out by the High Court, any more than by the DPP.

So, do we really want to legalise assisting fatal self-harm and criminalise assisting non-fatal self-harm?

It is striking that the law and policy developed to protect victims of assisted suicide should have been looked to by the Law Commission as a template for protecting those vulnerable to self-harm, at the very time when Parliament is being asked to discard those same legal protections for the most extreme form of self-harm.

We can imagine a strange legislative farrago in which the proposals made by the Law Commission and Baroness Meacher have both reached the statute book.

Encouraging self harm – whether online or by any other means – would be criminalised, while encouraging suicide under section 2 of the Suicide Act would remain an offence.

So far, so reasonable.

If encouragement of non-suicidal self-harm were to escalate into assistance, the new offence would still apply. This again is perfectly rational. As with present suicide law, a DPP investigation may not necessarily lead to prosecution in every case.

But where the self-harm involved was the ultimate – that is the fatal – form, assistance as opposed to encouragement would become, under certain conditions, positively approved.

Unscrambling the contradictions

The Law Commission did not, of course, mean to recommend legislating for cognitive dissonance.

Its 230-page study, in which the present state of suicide law is taken as read, carefully and consistently resorts to "the potential for harm" as a criterion for the legal reforms it proposes, which are mainly concerned with harmful (though not just online) communications.

Having made clear that, "The conduct we are trying to capture in the current analysis is related to, but falls below, the threshold of harm in the Suicide Act 1961" (7.22), they identify as "a gap in the law" the fact that "while there are specific offences addressing encouraging or assisting suicide ... there is no offence that addresses intentional encouragement of self-harm" (7.28).

As argued previously, approval of suicide in certain defined circumstances - especially where these are liable to future expansion - will inevitably undermine initiatives to combat the risks of suicide in the population more generally. Suicide could no longer be seen in principle and in general as a terrible, avoidable tragedy.

The perverse situation could easily arise in which a sick person is induced to opt for "assisted dying" by undue influence which would in fact still be an offence (albeit below the radar of the authorities), whilst doctors would then proceed to implement the person's decision within the law. At the same time, encouraging someone to less serious forms of self-harm would also be an offence, but so would any follow-up actions to bring about the harm.

This scenario is one of legal and conceptual disarray.

The Commission's "harm-based" approach throws into sharp relief a very different attitude embodied in the Assisted Dying Bill – an attitude towards harms of whatever seriousness which one person can help another to inflict on themselves, towards the sometimes hidden influences and motives involved, and towards one vital question: should 'helping to harm' in these ways be prohibited or permitted by law? Or should it perhaps be introduced into the NHS as a healthcare option?