The Irish Human Rights Commission has told the High Court it considers a person has a right, flowing from their personal autonomy rights, to take their own life in “defined and extreme” circumstances.
Yesterday was the third day of the action by Marie Fleming (58), who is in the final stages of multiple sclerosis, for orders permitting her to be lawfully assisted to take her own life at a time of her choice.
The commission has asked the court to consider whether the absolute ban in Irish law on assisted suicide is justified having regard to the extent of interference with the personal rights of a terminally ill, disabled and mentally competent person like Ms Fleming.
Less absolute terms
It wants the court to examine the purpose of the ban and consider if it could be achieved in less absolute terms. It was “far preferable” to introduce legislation prescribing safeguards and circumstances in which assisted suicide would not result in a criminal sanction in such cases, the commission said.
The legislative option would be a “measured and proportionate” reconciliation of the right to life, reflecting the sanctity of life, with the personal rights of privacy and personal autonomy and equality rights.
In submissions to the three-judge court, the commission said the facts required consideration of the rights to life, equality, privacy, autonomy and dignity as protected by law in the context of the criminalisation of assisted suicide here.
Asked by Mr Justice Nicholas Kearns whether the commission considered a person had a right to take their own life, Frank Callanan SC, for the commission, said it believed a person had a right, flowing from personal autonomy rights, to take their own life in “defined and extreme” circumstances, but he wanted to avoid using the term “right to die” as that was “emotive and not entirely accurate”.
He agreed with Mr Justice Gerard Hogan that another way of looking at Ms Fleming’s case was whether the State, in criminalising assisted suicide, could compel a person to live on and endure a “horrible and unimaginable death” that in other circumstances would amount to torture.
Aiding a crime
Paul O’Higgins SC, for the DPP, said she would be aiding a crime if she granted Ms Fleming’s request to outline what factors would be considered when deciding whether to prosecute for assisted suicide.
The DPP was very concerned not to set out “a road map” under which a person may more safely commit a crime and avoid prosecution.
While the DPP recognised that the situation confronting Ms Fleming was “appalling”, Mr O’Higgins added, and it was reasonable for her to seek guidelines to avoid her partner, Tom Curran, being prosecuted should he assist her in taking her own life, what was being sought was outside the DPP’s constitutional remit.
While the DPP has issued guidelines relating to prosecution of crime, those were general and effectively indicated the more serious the crime, the more likely a prosecution.
Mr O’Higgins agreed with Mr Justice Kearns that Mr Curran could, before any contemplated offence of assisted suicide, write to the DPP outlining that certain safeguards as stipulated by the UK DPP and the Canadian courts for assisted suicide cases were complied with.
Such a letter could be similar to “a will”, the judge remarked. The DPP could take such correspondence into account only after any crime was committed, Mr O’Higgins said.
