Marie Fleming's challenge to the ban on assisted suicide,
under section 2(2) of the Criminal Law (Suicide) Act 1993 (the
"Act"), came to an end on 29 April
2013. The Supreme Court sympathised with Ms Fleming's
plight but was ultimately constrained by its constitutional
obligations to protect public health and safety.
Ms Fleming stated that her claim does not seek to legalise
euthanasia but instead aims to prevent criminalisation of those
providing assistance to the narrow sector of society, who due to
degenerative and terminal illness, require assistance in taking
steps to end their life. She argued the High Court erred in
finding the ban constitutional and compatible with the European
Convention on Human Rights
("ECHR"). Interestingly, Ms
Fleming did not appeal against the High Court's refusal to
direct the Director of Public Prosecutions
("DPP") to publish guidelines on the
factors considered in deciding whether or not to prosecute a case
of assisted suicide.
Submissions
In her submissions, Ms Fleming 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. Ms Fleming further argued 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 Ms Fleming the right to be assisted in taking her own
life.
Ms Fleming also argued the ban violated her rights under the
ECHR. The Court agreed with the European Court of Human
Right's ("ECtHR") decision in
Pretty v United Kingdom which found that, although Article
2 of the ECHR 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 ECtHR's stance on the right to privacy
under Article 8 of the ECHR 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 29 May
2013 by Independent TD 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".
The High Court previously stated in its judgment that it was sure
the DPP would act in "a humane and sensitive"
manner. It remains to be seen whether Ms Fleming and her
family have the resources, both emotionally and financially, to
appeal the decision of the Supreme Court to the ECtHR or to place
their fate into the hands of the DPP in considering whether or not
to prosecute any assisted suicide of Ms Fleming.
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