Friday 28 October 2016

Not guilty - but the complex issues of assisted suicide and euthanasia remain

Published 29/04/2015 | 02:30

Trial Judge Patrick McCartan, in his charge to the jury, described Ms O'Rorke as a faithful, honest and decent person who faced
Trial Judge Patrick McCartan, in his charge to the jury, described Ms O'Rorke as a faithful, honest and decent person who faced "an immense dilemma".

We can only guess what goes on behind the jury door, can only speculate how a temporal community of men and women selected at random from the electoral register arrive at their decisions.

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But we can reasonably infer from the fact that it took a jury of six men and six women just under seven hours to acquit a Dublin taxi driver of attempting to assist her friend to end her life that the complex debate about the boundaries of assisted suicide and euthanasia is one that is far from clear cut.

Many will, perhaps, question why the Office of the Director of Public Prosecutions prosecuted taxi driver Gail O'Rorke at all.

Trial Judge Patrick McCartan, in his charge to the jury, described Ms O'Rorke as a faithful, honest and decent person who faced "an immense dilemma".

The prosecution, too, was at pains to stress that Ms O'Rorke - a close friend and carer of multiple sclerosis (MS) sufferer Bernadette Forde - was "an exceptionally decent person" who held a great loyalty and love towards the Dubliner who was determined to end her life.

Ms Forde, confined in later years to a wheelchair for 24 hours a day, died at her Donnybrook, Dublin home in June 2011 after gardaí thwarted a planned trip to Dignitas, the controversial end-of-life clinic in Zurich, Switzerland.

Ms Forde died after consuming a lethal dose of phenobarbital, a slow-acting barbiturate ordered from a website in Mexico.

The drug, illegal in Ireland, is used by vets and in lethal injections in capital punishment cases in the US.

Ms O'Rorke is the first person to be prosecuted under the 1993 Criminal Law (Suicide) Act. The 22-year-old law decriminalised suicide, but it remains an offence under the act to assist or attempt to assist another person to commit suicide.

The constitutionality of the law was challenged in recent years by the late MS sufferer Marie Fleming.

Two years ago Ms Fleming lost her landmark challenge against the ban on assisted suicide after a full, seven-judge Supreme Court ruled that there is no Constitutional right to die or to be assisted to do so, despite the decriminalisation of suicide. But the Supreme Court bounced the legal ball back over the constitutional fence to the Oireachtas when it also ruled that there was nothing to prevent the introduction of legislation to deal with "tragic" cases such as that of Ms Fleming.

The Oireachtas, of course, did no such thing.

Nor did it take up the invitation, implicit in the earlier ruling of High Court president Mr Justice Nicholas Kearns - who sat on a specially convened three-judge divisional court to hear Ms Fleming's case - to draw up UK-style guidelines.

When the House of Lords ordered Britain's DPP to issue a policy setting out when people who help their loved ones to die face prosecution, it was a turning point in the law there. The ruling, which followed a legal challenge by MS sufferer Debbie Purdy, led to the release of "realistic and compassionate" prosecutorial guidelines.

The now five-year-old guidelines focus on motivation and seek to draw a distinction between someone acting out of compassion to help an incurably ill but competent person to die - unlikely to face the courts - and those who persuade or pressurise a victim to kill themselves, who probably would.

Despite Ms Fleming's failed challenge, which garnered significant public support, our law states that it is an offence to assist or attempt to assist a suicide.

And it is this legal reality that the DPP was confronted with after gardaí intervened and prevented Ms Forde from travelling to Zurich, launching a criminal inquiry when she died in any event some weeks later.

When she was first charged, Ms O'Rorke stood accused of assisting the suicide of Ms Forde by means of helping her in the procurement and administration of a toxic substance.

But two additional counts were added at the eleventh hour. As well as standing accused of ordering the lethal dose from Mexico, Ms O'Rorke was also charged with procuring a suicide by making funeral arrangements two days before Ms Forde's death and attempting to assist a suicide by means of making the travel arrangements to Zurich.

However, on day eight of the trial, following legal argument, Judge McCartan directed that Ms O'Rorke be found not guilty on the funeral and drug aspects of the counts as there was no evidence to sustain them. That left the attempt to assist making travel plans charge which, in turn, led to the jury seeking clarification from Judge McCartan on concepts including aiding and abetting, proximity and the crime of attempt in Irish law.

The jury was told that there must be more than preparation to establish criminal intent in an attempt charge.

Did the act of helping Ms Forde make travel plans go beyond preparation? Were those plans conducted with the intent to assist her suicide even though the plans were thwarted??

The fact that the jury struggled, in a sense - I've seen murder juries come back in lesser time - reminds us of the strengths of a robust jury system and the enduring power of the distilled community verdict.

But it is also a reminder that, in the absence of guidelines and other laws, everyone - the Director of Public Prosecutions included - is faced with the enormous task of overcoming the immense dilemmas faced by autonomous citizens and their loved ones facing tragic end-of-life decisions.

The trial of Gail O'Rorke was not the forum for such debate, but her acquittal will no doubt inform future life-and-death predicaments.

Irish Independent

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