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Will Marie Fleming right-to-die case live on?

AUTHOR(S): Rebecca Ryan
PRACTICE AREA GROUP: Healthcare
DATE: 30.08.2013

Marie Fleming's challenge under Irish law to the ban on assisted suicide came to an end on April 29 2013. The Supreme Court sympathised with the appellant's plight but was ultimately constrained by its constitutional obligations to protect public health and safety.

The appellant stated that her claim did not seek to legalise euthanasia but instead aimed to prevent the criminalisation of those providing assistance to the narrow sector of society who, due to degenerative and terminal illness, require assistance in ending their lives.

Assisting a person to commit suicide is a criminal offence under Section 2(2) of the Criminal Law (Suicide) Act 1993. The appellant argued that the High Court erred in finding the ban constitutional and compatible with the European Convention on Human Rights. Interestingly, the appellant did not appeal against the High Court's refusal to direct the director of public prosecutions to publish guidelines on the factors considered in deciding whether to prosecute a case of assisted suicide.

Submissions

In her submissions, the appellant relied heavily on the right to life in Article 40.3.2. of the Constitution. However, the court found that the right to life does not import a corresponding right to die. She also argued that the ban amounted to indirect discrimination in breach of Article 40.1 of the Constitution, as an able-bodied person could take the necessary steps to end their own life lawfully; however, a person with a disability who attempts to do the same, with the assistance of another, strays into the parameters of criminality. The court ultimately held that the principle of equal treatment does not allow the appellant the right to be assisted in taking her own life.

The appellant also argued that the ban violated her rights under the European Convention on Human Rights. The court agreed with the European Court of Human Rights decision in Pretty v United Kingdom, which found that although Article 2 of the convention places an onus on a member state to protect a person's right to life, it did not find a corresponding obligation to protect a person's right to die. The court also agreed with the European Court of Human Rights' stance on the right to privacy under Article 8 of the convention, which confirms that member states have a wide margin of appreciation where serious harm, such as death, is involved.

Questions in the Dáil

Overall, the court found no jurisprudence to allow an ad hoc system of constitutional rights for a limited class of people. The court was particularly mindful that any dilution of the ban on assisted suicide, even for a distinct selection of persons, would run the risk of abuse. However, in reaching this conclusion, the court placed the onus back on the Oireachtas by noting its ability to legislate for safeguards against incidences of abuse. This issue was raised in the Dáil on May 29 2013 by independent Teachta Dála John Halligan during Leaders' Questions, where he called on the Taoiseach to legislate for assisted suicide with appropriate safeguards. Taoiseach Enda Kenny ruled out any changes to the law to allow for assisted suicide emphasising that:

"the Constitution does not contain either a right to commit suicide or to arrange for the ending of one's life at a time of one's choosing" and that ultimately "it is not open to me to give you the commitment you seek."

Gross judgment

Alda Gross recently argued before the European Court of Human Rights that her right to privacy under Article 8 of the convention was violated by Swiss medical practitioners who refused to facilitate her wish to die by prescribing a fatal dose of sodium pentobarbital. The Swiss Federal Supreme Court has found that doctors may prescribe lethal doses of sodium pentobarbital to allow patients to commit suicide, subject to national medical-ethical guidelines. The guidelines did not cater for Gross's circumstances. She was not terminally ill but was aged 82 and unwilling to suffer further physical and mental degeneration. The European Court of Human Rights found that Swiss law contravened Article 8 of the convention by providing for the right to procure a lethal dose of medication, without clarifying the parameters of that right.

In May 2013 the European Court of Human Rights concluded that the right to privacy is broad and includes the right to personal autonomy and personal development. Without prejudice to the sanctity of life protected by the convention, it encompassed Gross's wish to die. The essential object of Article 8 is to protect individuals against arbitrary interference by public authorities. Any interference under Article 8 must be justified in accordance with the law and necessary in a democratic society in the interests of:

  • national security;
  • public safety;
  • the economic well-being of the country;
  • the prevention of disorder or crime;
  • the protection of health or morals; or
  • the protection of the rights and freedoms of others.

Will the appellant go to Europe?

The High Court stated in its judgment that it was sure that the director of public prosecutions would act in "a humane and sensitive" manner. It remains to be seen whether the appellant and her family have the resources, both emotionally and financially, to appeal the decision of the Supreme Court to the European Court of Human Rights or to place their fate into the hands of the director of public prosecutions in considering whether to prosecute any assisted suicide of the appellant. It may be that the recent Gross case will give the appellant added impetus to continue her legal battle.

This article was first published by International Law Office on 21 August 2013.

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