Fleming v Ireland Ors
Neutral Citation: IEHC 2
High Court
Judgment was given by President of the High Court Mr Justice Nicholas Kearns on January 10th, 2013.
Judgment
The three-judge High Court ruled the absolute ban on assisted suicide is justified to protect vulnerable people from involuntary death and does not breach personal autonomy and equality rights under the Constitution and European Convention on Human Rights.
The court also noted that only the Oireachtas can change the law, arguing it would thus be unconstitutional for the DPP to effect a change in the law by issuing guidelines outlining what factors would be taken into account in deciding whether to prosecute assisted suicide.
Background
Marie Fleming, a former lecturer living in the final stages of multiple sclerosis, brought a case challenging Ireland’s strict legal ban on assisted suicide. The 59-year-old was diagnosed with MS in 1986, and since then her condition has deteriorated to a point where she is confined to a wheelchair with limbs paralysed. She suffers acute pain and has difficulty swallowing. As a result, she wants to avail of physician-assisted suicide at a time of her own choosing.
Ms Fleming claimed that the strict ban on assisted suicide was unconstitutional and in breach of the European Convention on Human Rights (ECHR) as it violated her rights to dignity, privacy and autonomy.
She argued that the right to life includes a right to end it and her rational choice to die when she has determined her life ceases to be valuable does not offend against the sanctity of life.
She also argued that she, a person with disabilities unable to take her life unaided, is being discriminated against compared to able-bodied people who can take their lives without help. She told the court her long-term partner, Tom Curran, is willing to help her end her life but she did not want him to be at risk of prosecution.
She wanted the Director of Public Prosecutions to issue guidelines outlining what factors would be taken into account in deciding whether to prosecute assisted suicide.
Decision
The three judges agreed a competent adult had the right to refuse medical treatment even if it led to death, but the taking of active steps by a third party to bring about the death of another was an entirely different matter.
Even with the most rigorous safeguards, it “would be impossible to ensure the aged, the disabled, the poor, the unwanted, the rejected, the lonely, the impulsive, the financially compromised and emotionally vulnerable would not avail of this option in order to avoid a sense of being a burden on their family and society”.
For these reasons, the court rejected the constitutional claim.
Justice Nicholas Kearns, with Mr Justice Paul Carney and Mr Justice Gerard Hogan, said unravelling “even a thread” of the ban, by even a limited constitutional finding in favour of Ms Fleming, would, or might, “open a Pandora’s box which thereafter would be impossible to close”.
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, Mr Justice Kearns said in his judgment.
As to the issue of guidelines, Mr Justice Kearns noted that the Prosecution of Offences Act 1974 does not provide for guidelines of this nature.
“Article 15.2.1 of the Constitution provides that only the Oireachtas can change the law and it would be unconstitutional for the director to effect a de facto change in the law by issuing guidelines, the result of which would be that the law would not be enforced.”
Full judgment is at courts.ie
Brian Murray SC instructed by Parte Associates for plaintiff. Senior Counsel Michael Cush instructed by Eileen Creedon chief state solicitor for defence.