On 10 January 2013 the landmark case brought by Ms Fleming,
challenging the constitutionality of the absolute ban on assisted
suicide under section 2 (2) of the Criminal Law (Suicide) Act 1993
(the "Act"), was unanimously rejected by
the High Court. The court held that the ban on assisted
suicide did not disproportionately infringe on Ms Fleming's
rights under the Constitution and was justifiable in the public
interest to protect vulnerable people.
Marie Fleming, a 59 year old mother of two was diagnosed with
multiple sclerosis ("MS") in 1989.
She is now in the final stages of the disease, requiring assistance
with all aspects of day-to-day living. She sought a
declaration from the court that the ban on assisted suicide was
unconstitutional and incompatible with her rights pursuant to the
European Convention on Human Rights
("ECHR"). In the alternative, Ms
Fleming sought an order directing the DPP to issue guidelines
regarding the factors to be considered in deciding whether or not
to prosecute an individual for assisting or aiding a person to end
The High Court considered personal autonomy enshrined in Article
40.3.2 of the Constitution, to be the crux of the constitutional
challenge. Particular emphasis was placed on the distinction
between a competent adult refusing medical treatment, which is
protected by the Constitution and the taking of "active
steps" by another person to end the life of that competent
person. The High Court was mindful of the protections
afforded to an individual in protecting the "sanctity of all
human life". The court also placed considerable emphasis
on the evidence of increased involuntary deaths in jurisdictions
where assisted suicide is legal. It referred to case law of the
European Court of Human Rights in finding that the absolute ban on
assisted suicide is not incompatible with the
Despite the decision, the court had genuine sympathy with the
plight of Ms Fleming. It found that the DPP had discretion in
relation to cases of this nature, highlighting the relevant DPP
prosecution guidelines in the UK and the family's ability to
submit documents to the DPP outlining the circumstances of their
On 19 February Ms Fleming's appeal to the Supreme Court
began. It is hoped the curious situation whereby the High
Court found itself referring to the UK DPP guidelines, may provide
an impetus for the Oireachtas to provide a more robust stance on
the particular guidelines that are to be followed in Ireland.
An update will be provided following judgment from the Supreme
1.Pretty v UK 2002 35 EHRR 1, Haas v Switzerland 2011 53
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