Tuesday 28 July 2015

MS sufferer loses legal challenge to assisted suicide

Aodhan O'Faolain and Ray Managh

Published 10/01/2013 | 13:32

Marie Fleming leaving the Four Courts in Dublin today. Photo: Collins
Marie Fleming leaving the Four Courts in Dublin today. Photo: Collins

A TERMINALLY ill woman has lost her legal action aimed at overturning the ban on assisted suicide.

Today a three judge High Court, comprised of the President of the High Court, Mr Justice Nicholas Kearns, Mr Justice Paul Carney and Mr Justice Gerard Hogan unanimously rejected Marie Fleming's constitutional challenge against the ban.

The court said that while Ms Fleming was in many ways "the most remarkable witness any of the Judges had ever the been privileged to encounter," but in the interests of protecting the vulnerable in society the ban was justified and did not amount to an interference with her rights.

The 59-year-old wheelchair-bound Co Wicklow based mother of two, is in the latter stages of Multiple sclerosis (MS).

She wants to be able to die at a time of her own choosing, in the arms of her partner Mr Tom Curran, and without fear that anyone who assists her in ending her life will be prosecuted.

However the court left the door open to Ms Fleming by stating in its decision that the director of public prosecutions, in this particular case, would exercise her discretion whether or not to initiate a prosecution against someone who assists a suicide.

After the ruling, in a statement read by her solicitor, Ms Fleming said she was "very disappointed and saddened" by the outcome. She would not be commenting on any details of the judgment given the "likelihood of an appeal," to the Supreme Court.

Suicide is not illegal in Ireland but it is an offence under the Criminal Law Suicide Act 1993 to be an accomplice to such an act and a jail sentence of up to 14 years may be imposed for that offence.

She had argued that an exception should be applied to those with the full mental capacity to decide that they wanted to end their life but were unable to do so themselves.

The absence of such an exception rendered the relevant laws unconstitutional and in breach of her rights to personal and bodily autonomy, to privacy and dignity, she claimed.

In what was a lengthy and detailed judgment Mr Justice Kearns said if it could "tailor-make" a solution "for Ms Fleming alone" without any implications for society at large the "there might be a good deal to be said" for her challenge against the constitutionality of the ban.

However the court the satisfied that "any relaxation" of the ban "would be impossible to tailor to individual cases" and would go against the public interest in protecting the most valuable members of society.

Evidence from other countries shows "the risks of abuse" were "all to real" and could not be dismissed.

The Judge said that it considered that evidence from countries where there is a liberalised legislation ( Belgium and the Netherlands) in relation to assisted suicide that certain groups, namely the elderly and the disabled, are venerable to abuse.

Even with the most rigorous system of checks and safeguards it would be "impossible to ensure the aged disabled, the poor the unwanted, the rejected, the lonely, the impulsive, the financially compromised and emotionally vulnerable would not avail of this option to avoid a sense of being a burden on their family and society."

The court also found the DPP could not issue guidelines setting out what facts she would consider in deciding whether to prosecute cases of assisted suicide.

Only the Oireachtas can change the law and it would be unconstitutional for the DPP to effect a change in the law by issuing guidelines which would have the effect of the law not being enforced, it said.

However, it added, if there was "reliable" evidence after an assisted suicide of compliance with guidelines such as those set out by the UK' in relation to assisted suicide prosecutions, the court said it believed the DPP here would exercise her discretion in this specific case in a "a humane and sensitive fashion".

The court in holding that the case had raised important issue award Ms Fleming her legal costs against the state and the DPP.

In her case against Ireland, the Attorney General and the DPP, Ms Fleming, a former lecturer at UCD sought an order declaring Section 2(2) of the 1993 Act invalid under the Constitution and incompatible with the European Convention on Human Rights.

Alternatively, she sought an order requiring the DPP to issue guidelines setting out what factors are taken into account in deciding whether to prosecute a person who assists her in ending her life.

The State opposed the action. It agreed the 1993 Act allows for no exception to the offence of aiding a suicide but contended that does not exclude the application of any general defence available.

It denied her constitutional rights were breached and that the Constitution confers a right to die upon any person.

The State also denied that the DPP has any obligation to publish any policy or information stating what factors would be taken into account in deciding whether to prosecute a person who assisted another in a suicide.

Several years ago, Ms Fleming had registered with Dignitas, the clinic in Zurich, Switzerland, where terminally ill patients can bring about their own deaths under the supervision of qualified doctors.

Ms Fleming said she did not travel then because Mr Curran persuaded her not to.

The court heard he had assured her, if or when she came to the point where she wanted to die that he, "notwithstanding his own fears and sadness, will do all he can to help me". She also had misgivings at dying "far from my own home and most of the people I have loved".

Ms Fleming is now unable to move any of her limbs and her speech and swallowing are significantly affected. She was now past the point where she would be able to take her own life herself, "cannot endure much more pain" and believes she could die "within months" rather than years.

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