The recent review of the guidelines for public prosecutors in cases of assisted dying has put a number of cats among the pigeons. One of these concerns the nature and role of compassion in the working of political society.

Keir Starmer, the Director of Public Prosecutions, commented that:

“We are proud of the way we temper justice with mercy. The discretion not to prosecute provides essential flexibility to prosecutors. Being able to translate the often blunt words of a criminal statute into a meaningful decision based on the individual facts of a case enables compassion to be shown where appropriate.”

According to the guidelines Starmer has drawn up, a key factor proposed in favour of not prosecuting a relative or friend who helps someone to die is that the person “was wholly motivated by compassion” and not by any hope of financial or other gain.

Starmer appeals to both mercy and compassion, familiar words but ones which bear on a challenging moral question. Careful distinctions count for a great deal in such a context.

Mercy is basically about not giving someone the punishment they deserve. It has a long and subtle tradition of influence in Western political thought, influenced as that tradition is by the Christian worldview. Compassion, on the other hand, is an experience of fellow-feeling with someone who is suffering in some way. It is, no doubt, a very important public emotion, but it is not equivalent to mercy since it is not necessarily bound up with desert and punishment.

In the guidelines mercy is not mentioned while compassion has a very important place. Publicly, however, Starmer (partially) justified the guidelines in terms of the interrelation of justice with mercy.

The question therefore arises, why would mercy be appropriate towards someone who, for example, assisted in the suicide of their spouse?  The answer, on the basis of the plain meaning of the word, is presumably because the person assisting is worthy of punishment but that the compassion they showed – which was untouched by any motivation for financial gain – is a suitably mitigating factor.

What should we make of this? It seems unobjectionable and even imperative that compassion should play some role in our society, especially in cases of terminal and severely debilitating illnesses. The difficulty is that the tenor of the guidelines suggests that compassion works well when it leads the person feeling compassion to assist a suicide. This sort of compassion is seemingly commended as a good thing and thus as a mitigating factor. It is presumed that such compassion does not cloud or otherwise diminish someone’s moral responsibility. Quite the contrary: their compassion indicates a deep engagement in the terrible condition that their loved one is experiencing.

The presence of just this sort of compassion is one factor which militates against their prosecution. Moreover, it seems, from his public statement, that Starmer is saying that judicial discretion gives space for a judge herself to show compassion of this sort towards the victim and perhaps also any putative suspect. Compassion for the dying and mercy for the relative or friend are bound together in the person of the judge.

There are two main problems with this way of thinking and they both relate to the roles compassion and mercy should play in our society.

The first problem is that the direction that compassion should take is hardly straightforward. Why would compassion lead towards assisted suicide and not to a vigorous campaign for better and more widely available palliative care? The sort of compassion implicitly commended by the guidelines might appear to be an understandable though somewhat worrying collusion with death. This kind of compassion sees death as the heart-wrenching solution to the problem of severe suffering.

Some might argue that we need to rethink compassion so that it leads us to enable a sufferer to deal with the process of dying and death exactly as that individual determines. But does the appeal to this kind of compassion, legitimated and perhaps encouraged by these guidelines, risk undermining the arguably deeper or at least more traditional form of compassion, which is worked out in palliative care?

The second problem is that the public communication of the guidelines failed to distinguish carefully between mercy and compassion and so left behind some confusion. The apparent conflation of the two suggests that a judge who wishes to be compassionate towards the dying and their relatives should be merciful towards anyone who assists a suicide. This move obscures the crucial distinction between what the two achieve in political society. The implicit commendation of compassionate assistance is the heart of the confusion. Why would mercy be appropriate at all if what the relatives did was compassionate and therefore commendable? Mercy emerges as the state looking kindly on those who apparently act kindly to the seriously or terminally ill by assisting in their death. This seems to go somewhat beyond mercy’s remit and may undermine its proper exercise.

What role then should compassion have in such cases? What kind of compassion do we want to characterise our national life? How should it relate to mercy? And what understanding of sickness, death, dying and hope should frame our exercise of compassion?

Joshua Hordern is a Fellow of Wolfson College, Cambridge and Research Associate with the Kirby Laing Institute for Christian Ethics.