MARIE FLEMING, HER family and her supporters were undoubtedly disappointed by the decision of the Supreme Court today when seven judges of the Supreme Court dismissed her appeal and ruled that there was no constitutional right to terminate or to be assisted to terminate one’s life. A sufferer of multiple sclerosis, Ms Fleming, wishes to be assisted to commit suicide at a time of her choosing by her partner without fear of criminal sanction.

To this end, she went before the High Court in January arguing unsuccessfully that section 2(2) of the Criminal Law Suicide Act 1993 should be declared invalid under the Constitution and incompatible with the European Convention on Human Rights (ECHR). It was these aspects of the High Court decision which were unsuccessfully appealed to the Supreme Court by counsel for Ms Fleming.

The refusal of the High Court to issue an order requiring the Director of Public Prosecutions (DPP) to clarify her policy on the factors in favour or against prosecution for the crime of assisted suicide was not appealed and therefore not considered by the Supreme Court.

The Decision

The first important decision of the Supreme Court in this case was the finding that the right to die is not a natural consequence of the right to life recognised under Art 40.3.2 of the Constitution, nor was the right to commit suicide or to have one’s life terminated found in other articles of the Constitution.

This is not the first time that the Irish courts have considered the right to die. In 1996, in a case called In Re a Ward of Court (withholding medical treatment) No 2, an order was sought directing that all artificial nutrition and hydration of a patient in a near persistent vegetative state (PVS) for more than twenty years should cease.

The Supreme Court held that the right to life included a right to die a natural death and consented to the withdrawal. However, the court drew a clear distinction between this and a positive action to take life, a distinction which was upheld by the Supreme Court today where it was held that the actions proposed by Marie Fleming would amount to positive action to end her life and are therefore not within the boundaries of the Constitution. Such a distinction can be considered to be artificial at best, particularly bearing in mind the need to physically remove feeding tubes and medical equipment in these circumstances.

It is also important to reflect upon whether withdrawing artificial hydration, nutrition or treatment, resulting in a slow and protracted death is morally superior to assisting an individual such as Marie Fleming to die quickly and peacefully in circumstances where her life has become unbearable?

Tony Nicklinson case

Should Marie Fleming wish to die in her home in Ireland the only option now available to her is to refuse food, water or medical treatment in order to hasten her death, indeed this was the option taken by Tony Nicklinson (a man suffering from locked in syndrome) in August last year after he lost his right to die case in the High Court in England and Wales. But before we force individuals to choose such a path, we should engage in a wider societal debate about the issue to ensure that we provide the most humane path for individuals who find themselves in these circumstances.

In today’s decision the Supreme Court also held that there was no breach of the constitutional principle of equal treatment as the legislation itself treated all individuals the same, although the effect of the prohibition on assisted suicide was different for able and disabled bodied individuals.

Finally, the court was called upon to decide upon the compatibility of the ban on assisted suicide under s2(2) of the 1993 Act with the European Convention on Human Rights, with the court finding against Ms Fleming once again. The court relied heavily on a decision of the European Court of Human Rights in a case taken by Diane Pretty, a woman suffering from motor neuron disease, where it was held that it was primarily for individual States to assess whether an interference with an individual’s rights under Article 8 was proportionate bearing in mind the risks of abuse if the law on assisted suicide was relaxed.

Hope remains

It is of course open to Ms Fleming to consider an application to the European Court of Human Rights in this case, however, given the similarity of the facts with those found in Diane Pretty’s case (Pretty v United Kingdom), success in this court seems unlikely.

Although it was not argued before the Supreme Court it is possible that at some point in the future an order requiring the Director of Public Prosecutions (DPP) to clarify her policy on the factors in favour or against prosecution for the crime of assisted suicide will be secured. The decision of the House of Lords in a very similar case taken by MS sufferer Debbie Purdy in 2009 provides strong support for this argument.

In that case it was held that the absence of any clear guidance on the factors which the DPP would take into account in coming to his decision on whether to prosecute an individual for this assisting another to commit suicide meant that the law fell short of what was needed to satisfy the Convention. It may take another brave individual to take this argument to the Supreme Court in the future.

There is also a possibility of legislation to clarify this troubled area of law, although given political realities, this seems unlikely. In their decision today, the Supreme Court expressly noted the State is not under any obligation to use all necessary means to prevent individuals in circumstances such as Marie Fleming’s from ending their own lives and that the judgment of the court did not preclude legislative action in this area by the Oireachtas.

How to deal with such cases

A system introduced by the Oireachtas to deal with such cases supported by appropriate safeguards would be open to review by the courts which would have to pay “appropriate regard the assessment made by the Oireachtas both of any competing interests and the practicability of any measures thus introduced.”

Any such legislation would be presumed to be constitutional (as applied in relation to the 1993 Act), a presumption which has particular weight when  the legislation deals with sensitive issues of moral or social importance and their assessment of the constitutionality of the legislation would be framed in light of this presumption.

For Marie Fleming and her partner there may still be comfort in the knowledge that a prosecution seems highly unlikely should she be assisted to die. While both the Supreme and High Courts emphasised that the DPP maintains full authority to decide whether or not to prosecute in an individual case, the expression of confidence by the High Court that the DPP will exercise her discretion to prosecute in this case in a humane and compassionate way after the event should provide some reassurance for the family involved.

Dr Eimear Spain is a lecturer in law at the University of Limerick, with a research interest in end of life decisions.

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