No right-to-die in Ireland

On 23 October 2012, Marie Fleming, a terminally-ill woman who was first diagnosed with multiple sclerosis in 1989, launched a court action in the Republic of Ireland with a view to permitting her partner, Tom Curran, to assist her to die. Ms Fleming sought:

(i) An order declaring that section 2, sub-section (2) of the Criminal Law (Suicide) Act 1993 is invalid having regard to the provisions of the Constitution.

(ii) An order declaring that section 2, sub-section (2) of the Criminal Law (Suicide) Act 1993 is incompatible with the State’s obligations under the European Convention on the Protection of Human Rights and Fundamental Freedoms.

(iii) In the alternative, an order directing the Director of Public Prosecutions, within such time as to this Court shall seem just and appropriate, to promulgate guidelines stating the factors that will be taken into account in deciding, pursuant to section 2, sub-section (4) of the Criminal Law (Suicide) Act 1993, whether to prosecute or to consent to the prosecution of any particular person in circumstances such as those that will affect a person who assists the appellant in ending her life.

The case was the first of its kind in Ireland, where although suicide was decriminalized in 1993, assisting another to commit suicide remains a criminal offence carrying a custodial sentence of up to 14 years.  After six days of a specially-convened hearing of the High Court in Dublin, on 10 January the three judges delivered a reserved judgment in which they ruled unanimously that they could not support a third party to bring about the death of another.

The appellant subsequently filed an appeal limited to (i) and (ii) above, on the basis that the learned judges of the High Court had erred and misdirected themselves in law and/or fact, on twenty-eight grounds.

Judgement of the Supreme Court

The appeal, Fleming v Ireland & Ors [2013] IESC 19 was heard in the Supreme Court of Ireland, and although acknowledging the appellant’s very distressing situation as giving rise to a right in her very particular situation to have assistance in the termination of her life, the court stated, [at para. 115],

“[t]hat reasoning reverses, however, the process of identification of the extent of rights of general application and risks converting the question of the identification of rights and correlative duties, into an ad hoc decision on the individual case.  It has not generally been the jurisprudence of the Irish Constitution that rights can be identified for a limited group of persons in particular circumstances no matter how tragic and heartrending they may be.”

The Court’s conclusions [at para. 137 & seq] were based upon its finding that there is no constitutional right to commit suicide or to arrange for the determination of one’s life at a time of one’s choosing.  It argued that as a consequence: the appellant has no right which may be interfered with by any disability; and issues, such as discrimination, do not arise.  Likewise, values such as dignity, equality, or any other principle under the Constitution, do not apply to the situation and application of the appellant.

As there is no right to commit suicide so issues such as discrimination do not arise; nor do values such as dignity, equality, or any other principle under the Constitution apply to the situation and application of the appellant, as discussed above. Furthermore, since the appellant has no constitutional right to commit suicide, and so no right to assistance in the commission of suicide, the issue of the proportionality of any restriction of such a right does not arise for determination in this case.

The court considered [at para. 139] that the appellant had relied on her very distressing situation on a fact-based argument that the blanket ban affects her adversely, which “is not a basis upon which a constitutional right may be identified. It has not been the jurisprudence of the Constitution that rights be identified for a limited group of persons.” With regard to proportionality, the court rejected the argument based upon Canadian jurisprudence suggesting that

“the court should approach the question by first determining in general whether a right existed, whereupon the onus shifted to the State to justify by evidence any limitation whatsoever on the general right asserted, by reference to the principle of proportionality”.

In addressing the alleged incompatibility under s. 5(1) of the European Convention on Human Rights Act, 2003, Supreme Court noted [at para. 143] that

“[the] High Court pointed out, correctly, that the Convention does not have direct effect in this jurisdiction. The Act of 2003 requires the Court “insofar as is possible, subject to the rules of law relating to such interpretation and application” to interpret a statutory provision or rule of law in a manner compatible with the Convention”.

It drew assistance from Pretty v. United Kingdom, (Application No. 2346/02) [1] and Haas v. Switzerland (Application No. 31322/07) [2].  In Pretty, the ECtHR affirmed that Article 2 “safeguards the right to life, without which enjoyment of any of the other rights and freedoms in the Convention is rendered nugatory.” However, although Article 2 places a positive obligation on Member States to protect life, it was not satisfied that a corresponding negative aspect could be interpreted from the article, stating [at para. 39].

“[Article 2] is unconcerned with issues to do with the quality of living or what a person chooses to do with his or her life… [It] cannot, without a distortion of language, be interpreted as conferring the diametrically opposing right, namely a right to die; nor can it create a right to self-determination in the sense of conferring on an individual the entitlement to choose death rather than life.”

In the case of Haas, the ECtHR upheld the decision of the Swiss Federal Court that there was no obligation on the State under Article 8 of the Convention to issue, without medical prescription, sodium pentobarbital to persons who wish to end their lives or to organisations for assisted suicide. The Court found that the applicant’s right to decide how and when to end his life had not been breached by the requirement to submit a medical prescription in order to obtain the lethal substance and accordingly, there had been no violation of Article 8.  With regard to Article 2, the ECtHR considered that this placed a positive obligation placed on Member States to prevent an individual from taking his or her own life, and the restriction of access to the lethal substance in question “was found to pursue the legitimate aims of the prevention of crime and the protection of public health and safety.”

The Irish Supreme Court noted the similarity between the instant case and that of Pretty in which it was decided: States are entitled to regulate activities which are detrimental to the life and safety of persons; and it was primarily for the States to assess the risk and likely incidence of abuse if the general prohibition on assisted suicides were relaxed, or if exceptions were to be made. Since “the complex issue of assisted suicide has been assessed, and the legislature has legislated on the issue in s. 2(2) of the Act of 1993”, the Supreme Court dismissed the Appeal, which had been brought on the basis of s. 5 of the Act of 2003, seeking a declaration of incompatibility.

Comment

In the event, the critical issue for Ms Fleming and her partner was the component of the High Court’s ruling that was not appealed, i.e. item iii], above. This is clear from some reports which state that moments after the judgement was handed down, Ms Fleming’s partner, Tom Curran, indicated he was prepared “to do whatever was necessary to end Ms Fleming’s life”.  He is quoted as saying:

“The court has ruled on Marie’s future as far as they’re concerned and we will now go back to Wicklow and live our lives until such a time when Marie makes up her mind that she has had enough, . . . . . . .[a]nd in that case, the court will have the opportunity to decide on my future.”

Provision iii] as sought by Ms Fleming in the High Court hearing would probably have reflected the measures introduced within England and Wales following R (on the application of Purdy) v Director of Public Prosecutions reported at [2009] UKHL45, which required the DPP “to clarify what his position is as to the factors that he regards as relevant for and against prosecution” (at  para. 55) in cases of encouraging and assisting suicide.” The DPP Guidance was issued following extensive public consultation, but the DPP stressed that Purdy did not change the law nor decriminalize the offence [3].

In an earlier review of the law in this area, A Right to Die?, we noted that cases in this area of law,

“[illustrate] the extraordinary difficulties that judges face in such cases and – perhaps – an innate tendency to come down on preserving life when other considerations are finely balanced. This is obviously not a “religious” issue but, rather, one of common humanity. But it is an issue of intense importance to people of all religious persuasions – who, it must be said, will not necessarily all be of one mind on the matter.”

The present case also highlights the conflicts experienced by those involved.  The court notes, [at para. 16], that

“the appellant considering travelling to Switzerland to avail of the facility offered by Dignitas to end her own life five years ago, she postponed the decision because of the wishes of her partner and the location of the clinic. The appellant now claims that she would end her life if she were able to do so and regrets not doing so before she lost the use of her arms.”

In February 2011, her partner joined the pro-euthanasia lobby group Exit International Europe (EIE) and is currently its Coordinator.


[1] A 43-year-old woman suffering from a degenerative and incurable illness, known as motor neuron disease, alleged that the prohibition on assisted suicide contained in s.2 of the Suicide Act 1961 in the United Kingdom, and the refusal of the Director of Public Prosecutions to grant her husband immunity from prosecution if he were to assist her in committing suicide, violated her rights guaranteed under articles 2,3,8,9 and 14 of the Convention.

[2] The applicant had been suffering from serious bipolar affective disorder for a period of 20 years and wished to obtain access to a lethal substance, sodium pentobarbital, which taken in a sufficient quantity would enable him “the only dignified, certain, rapid and pain-free method of committing suicide.”  This substance, however, was only available on prescription in the respondent State.

[3] Parliament’s intentions on passing the Suicide Act 1961 are clear from the statements of the then Joint Under-Secretary of State for the Home Department, Mr Charles Fletcher-Cooke, Hansard:HC Deb 19 July 1961 vol 644: Cols 1425-1426 and Hansard: HC Deb 28 July 1961 vol 645: 1961(a): Cols 822-823). Furthermore, words ‘aid, abet, counsel or procure’ were amended to ‘encourage or assist’ by s59 Coroners and Justice Act 2009 in an attempt to facilitate secure convictions in cases of internet suicide promotion.

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