Wednesday 26 October 2016

James McDermott: Court decided in end that hard cases make bad law

Published 11/01/2013 | 17:00

IRONICALLY, in a week when the Oireachtas is deliberating on the legal implications of when life begins the courts delivered their ruling on what the law says about when and how life ends.

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If anyone had any lingering doubts about the significance of yesterday's decision then these were assuaged in the very first paragraph of the judgment delivered by the President of the High Court. He observed that over those 75 years "few cases have emerged which are more tragic".

Indeed, it is difficult to think of a plaintiff more deserving of sympathy that Marie Fleming, a 59-year-old woman in the final stages of multiple sclerosis, whose courage both "humbled and inspired" the three judges.

At the core of Fleming's case was her challenge to the constitutionality of the Criminal Law (Suicide) Act 1993, which prohibits assisted suicide. In particular, Fleming argued that her constitutional right to personal autonomy in key life decisions was not being respected where there was a complete statutory ban on assisted suicide.

While the court accepted that such autonomy was a constitutional right it held that the prohibition on assisted suicide does not constitute a disproportionate interference with that right. The court noted that there was a real difference between a competent adult patient making a decision not to continue medical treatment and the taking of active steps by another person to bring about the end of the life of the other.

The court was particularly concerned about the position of patients who are wrongly diagnosed and who, if the law were liberalised, might opt for assisted suicide rather than endure a deliberating terminal illness that clinicians had, in fact, wrongly diagnosed. The court was also concerned that any change in the law might send out a subliminal message to vulnerable groups such as the disabled, or elderly, that in order to avoid consuming scare resources in an era of shrinking public funds, physician-assisted suicide is a "normal" option.

Interestingly the court indicated that if it could tailor a solution that would address the needs of Fleming alone without any possible implications for third parties, or society at large, then it might be tempted to do so.

However, this was not the case.

In other words hard cases make bad law and the court was not willing to make bad law just to try and assist Fleming in her particular dilemma.

Fleming also argued that the DPP ought to publish guidelines outlining the circumstances under which a person who assisted her in ending her life might be subject to prosecution. This happened in the UK in 2010. In rejecting this argument, the court observed that the Constitution confers sole and exclusive powers to make laws on the Oireachtas and it would be inconsistent with this were our DPP to issue guidelines indicating when the law would and would not be enforced.

The court did, however, make a distinction between the issuing of guidelines prior to an assisted suicide taking place and the DPP deciding whether or not to exercise her discretion to prosecute a case in the aftermath of such an event.

While upholding the legislation, the court left the door tantalisingly open to the possibility that someone could assist another person to die and end up not being prosecuted for that conduct.

James McDermott is a barrister and lecturer in the UCD School of Law

Irish Independent

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