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Yesterday, a Supreme Court challenge to the ban on assisted suicide in Ireland was dismissed. The appeal was brought by Marie Fleming, a 59-year-old MS sufferer who is terminally ill. Ms Fleming is in the final stages of MS, suffers chronic pain and is physically unable to end her own life. She sought a court ruling that her partner, Tom Curran, would not be prosecuted if he were to help her die.
The High Court had heard the case in January and held that although a competent adult has the right to refuse medical treatment, even if it may led to death, the taking of active steps by a third party to bring about the death of another was not permissible. Ms Fleming appealed the High Court decision on a number of grounds including that the blanket ban on assisted suicide breached her Constitutional rights and discriminated against her as a severely disabled person.
Suicide is no longer a criminal offence in Ireland, however the ban on assisting another person to commit suicide is criminalised under S 2(2) of the Criminal Law Suicide Act of 1993 and a jail sentence of up to 14 years may be imposed for that offence.
Marie Fleming had laid the foundation of her case on the express right to life in Article 40 of the Constitution, arguing that the right to die, at a time and in a manner of her choosing, is a corollary of this right. The main issue for the Supreme Court was whether such an unenumerated right existed under the Constitution. However, the Supreme Court ruled that right to life did not import a right to die or to be assisted to do so:
“[T]he protection of the right to life cannot necessarily or logically entail a right, which the State must also respect and vindicate, to terminate that life or have it terminated. In general, the Constitution guarantees rights of general application for the benefit of every citizen . . . The Court accordingly does not accept the submission that there exists a constitutional right for a limited class of persons, which in this case would include the appellant, deducible from their particular personal circumstances.”
In a departure from the High Court ruling, the SC judgment reframed the issue from the right to personal autonomy to the right to commit suicide. It found it “significant” that a claim to a right to assisted suicide had been considered in comparative cases in other jurisdiction without success,
Secondly, the Court also rejected submissions that the criminal law ban on assisted suicide unfairly discriminated against Ms Fleming. Ms Fleming argued that a blanket ban on assisted suicide was unconstitutional as it prevents severely disabled persons from doing something which an able-bodied person is legally able to do i.e. denial of opportunity. The Court stated that
“While it may be open to the Oireachtas to consider making some distinction between persons, it cannot be said that any such distinction is required in this case by the Article 40.1 rights of the appellant.”
Finally, the court refused to give a declaration of incompatibility under the European Convention on Human Rights Act. The Supreme Court stated that the European Court of Human Rights in Pretty v. United Kingdom, (Application No. 2346/02) had already held that no right to die, whether at the hands of a third party or with the assistance of a public authority, could be derived from Article 2 of the Convention and that a blanket ban on such could be proportional. States have the discretion on the grounds of public policy to assess the risk of abuse if the general prohibition on assisted suicide was relaxed or if exceptions were to be created. It is as yet unclear whether Ms Fleming and her family will appeal to the European Court.
Yesterday’s ruling perhaps comes as no surprise in light of similar rulings in comparative cases. However, one of the most significant points of the judgement is that it was stated there was nothing in the Constitution to prevent the introduction of legislation to deal with cases such as that of Marie Fleming.
“Nothing in this judgment should be taken as necessarily implying that it would not be open to the State, in the event that the Oireachtas were satisfied that measures with appropriate safeguards could be introduced, to legislate to deal with a case such as that of the appellant.”
While this stops short of calling on the Oireachtas to do so, it may be seen to build on the High Courts statement that if the court could tailor-make a solution that would affect Ms Fleming only without implications for third parties there might be a good deal to be said for her case. The court ruled it could not be so satisfied. This seems consistent with the principle that Court cannot draft law, only interpret it. Thus while the Courts hands appear to be tied on this issue, the legislators hands however are not.
Importantly, Ms Fleming distinguished her plea from a declaration that it would be lawful for any person to kill another. This would amount to euthanasia. Rather, her claim was that disabled persons who are suffering severe pain on account of a terminal and degenerative illness, and who are able to express their wishes, should not be prevented by the criminal law from receiving assistance from a person, such as her partner, in order to enable herself to take the step of ending her own life. It is in such a situation only which the Court stated that it may be possible for the Oireachtas to legislate, provided appropriate safeguards were put in place.
Ms Fleming’s family have already stated that they will continue to lobby the Oireachtas for such a change. Counsel for Ms Fleming Mr Brian Murray, SC voiced their position that “[i]t is possible to design legislation that facilitates the plaintiff in a way that does not present any risk to the involuntary death of others,” . Thus it is clear, to quote the Supreme Court judgement, that
“The State is left, therefore, with difficult questions of policy involving complex issues both of principle and of practicality”