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.
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.