Last Friday, before the dawn of a bleak winter morning, Marie Fleming died. Her partner, Tom, sat beside her, the couple who had taken on the Irish Constitution, united in her last few moments of life. But that life had become a matter of debate for the whole country as the multiple sclerosis sufferer decided she'd had enough, that she wanted the right to die with the assistance of her partner. And she didn't want him to face the legal consequences of that assistance, a possible 14-year prison sentence.
Marie lost the High Court battle and her appeal to the Supreme Court. It was one of the most poignant scenes in any courtroom when the three High Court judges -- President Nicholas Kearns, Gerard Hogan and Paul Kearney -- left their dais to sit on the press benches close to Marie in her wheelchair. She was unable to move her limbs, a slight movement of her head the only control she had.
Her own statement had been read to the court by her counsel, Simon Mills. "I am in constant unbearable pain," she wrote, and a harrowing account of her life followed. In 1995 she had to give up driving, and ceased work. Two years ago she had lost the use of her hands. Now she was incontinent, she choked on liquids and she was dependent on others for her care and welfare. She told the court she had little or no dignity.
And there were her fears for the future, of being unable to communicate as her body deteriorated, and she was horrified at the prospect of long- term sedation. There were tears in Tom's eyes as the list went on. When their decision was issued, the judges described Marie as in many ways "the most remarkable witness which any member of this court has ever been privileged to encounter". Yet still they turned down her application to die.
There was no doubt that Marie had voiced a very determined wish to die. She had the support of Tom and their children. And she had a very definite idea of how she would die. She had originally planned to travel to Dignitas in Switzerland six years previously. This is the only place where non-nationals can go to die. But they still have to be well enough to take the medication themselves. Marie decided against going to Dignitas then because she knew it was too soon to die, she had new grandchildren to get to know and time to spend with her beloved Tom. But life was very cruel. As her condition deteriorated, Dignitas was no longer an option.
The court cases began and the Flemings were plunged into the limelight. Tom did most of the talking but Marie was there all along giving him her support. This was an extraordinary position for any family to have foisted upon them. A loving family, yes, supportive friends, yes, but difficult then to explain that they were actually supporting Marie in her quest for death.
Each day when they left the court the media were waiting for interviews, comments, reaction and the never-ending photographs. Tom and Marie appreciated the coverage, it got their story out there. This culminated in Tom's appearance on the Late Late Show on May 3 this year, where he read a letter from Marie which had himself and several members of the audience in tears.
Until 1993 suicide was a Common Law offence in Ireland. Section 85 of the Courts of Justice Act, 1936, provided that where a person was charged with and confessed to attempting suicide, there was a punishment of up to three months' imprisonment. But if the suicide succeeded and "the person was dead and could not be sentenced, very harsh punishment was laid down in relation to his or her burial and to forfeiture of his or her property".
Section 2 (1) of the Criminal Law (Suicide) Act 1993 abolished the crime of suicide but enacted the law that a person who aids, abets, counsels or procures the suicide of another shall be guilty of an offence and liable on conviction to imprisonment for a term not exceeding 14 years. It also states that no proceedings
shall be instituted for an offence under this section except by or with the consent of the DPP.
This aspect was evident in the Fleming case when Judge Kearns said: "The Court feels sure that the Director, in this of all cases, would exercise her discretion in a humane and sensitive fashion, while it would stress that, of course, she must retain the full ambit of that discretion to decide whether to prosecute or not."
Perhaps we need to question this vague and paternalistic attitude. If Marie Fleming was a competent adult with a right to autonomy, what right had anyone to prevent her from killing herself in so far as she was not harming anyone else? There is an element of hypocrisy in our assessment and refusal of autonomy. We allow people to eat too much and drink too much. We allow seriously dangerous pastimes. We allow people to decide for or against life-saving operations. Patients are permitted to refuse blood transfusions. Yet when it comes to the end of life, we invoke the Constitution, the slippery slope, and we negate and refuse that autonomy. And, crucially, we have removed the criminality from able-bodied people who kill themselves through suicide.
Marie Fleming's life and death illustrate the need to consider a limited and regulated form of euthanasia and assisted suicide for those whose lives have become medically unbearable and who are facing intolerable deaths. It is time for the Oireachtas to consider a change in the law. It is not sufficient for a court to say that the DPP will use her discretion in the matter of prosecuting someone who assists another to die.
Irish patients need to be relieved of the decision to go abroad to die, or of the pressure of illegally importing drugs and gases in order to die in Ireland. The decision could be taken through a referendum, giving the people the power to decide. Until that time, patients are being forced to travel abroad for relief or to die secret deaths at home, dying with the awful knowledge that a loved one who helps them may be facing criminal prosecution and a long prison sentence.
Rest well Marie -- you and Tom have made us all think about how we die in Ireland.
SIMILAR UK CASES
In 2009 Debbie Purdy won the right to know whether her husband would be prosecuted if he helped her to travel abroad to die. At the time of the case it was recorded that 92 Britons had gone abroad for assisted suicide and none of the accompanying family members or friends had been prosecuted -- and although some had been charged, those charges were dropped.
Purdy's case was dismissed by both the High Court and the Court of Appeal but was successful in the House of Lords -- which directed the DPP to clarify the position regarding a prosecution. The DPP then issued a document which sets out the criteria as to whether or not a prosecution will be taken.
In another case, similar to that of Marie Fleming, Diane Pretty, who was at an advanced stage of motor neurone disease, wanted her husband to assist in her death, although she said she would be able to take the final step herself. The DPP refused to give an undertaking that her husband would not be prosecuted. Pretty took her case to the European Court of Human Rights, which held that no right to die, whether at the hands of a third party or with the assistance of a public authority, could be derived from Article 2 of the Convention.
Valerie Cox, reporter on RTE's 'Today with Sean O'Rourke', holds an MSc in End of Life Healthcare Ethics from University College Cork. Her thesis was centred on Marie Fleming's case. This degree is the first of its kind in the world, and its first nine students graduated last month.