Sunday 18 February 2018

High Court to rule on multiple sclerosis sufferer’s assisted suicide case in early January

Tim Healy

THE High Court will rule on January 10 on an unprecedented challenge to the absolute ban on assisted suicide here brought by a woman terminally ill with multiple sclerosis.

After evidence and legal submissions in the six-day case concluded yesterday, the President of the High Court, Mr Justice Nicholas Kearns, sitting with Mr Justice Paul Carney and Mr Justice Gerard Hogan, said they had many issues to consider and would rule on January 10.

Ms Fleming (58) claims the absolute ban on assisted suicide in Section 2.2 of the Criminal Law Suicide Act is unconstitutional on grounds it breaches her personal rights under the Constitution and European Convention on Human Rights.

Alternatively, she argues the DPP is required to publish guidelines outlining what factors are taken into account in deciding whether to prosecute assisted suicides.

In closing arguments today, Michael Cush SC, for the State, said the crucial issue was that there was no right to suicide under the Constitution and the important social policy outlawing assisted suicide was justified to protect vulnerable people from involuntary death.

While the absolute ban may be unfair to Ms Fleming, that was not the test the court had to apply, he said. The ban was a solution that best fitted the needs of society and vindicated the right to life where there was "a real risk" of involuntary death of others.

The evidence from two palliative care experts showed a rational basis for the State's belief there may be a real risk of involuntary death for others if the ban was removed, he said.

It was also the State's case additional palliative care could significantly alleviate Ms Fleming's position, he said. While the court was told she has not refused palliative care, the two propositions were "not mutually exclusive".

If the ban was struck down, it would be very difficult to fashion a remedy and that was among the issues the court should consider, counsel added.

Replying for Ms Fleming, Brian Murray SC argued the case was not about a right to suicide but about infringement of her personal rights to equality, privacy and personal autonomy.

The State had failed to show that infringement was justified or proportionate as applied to Ms Fleming, a person physically disabled, terminally ill and with the necessary mental capacity to decide she wanted to end her life but could not do so unless assisted, he said.

The State was not entitled to erect "unreasonable hurdles" condemning Ms Fleming to "appalling suffering and undignified death". Evidence from palliative care experts did not rule out Ms Fleming ending up in a "locked-in syndrome" or dying by aspiration and this was "an extraordinary psychological burden" that could be alleviated via her assisted suicide.

What the State was effectively saying to Ms Fleming was she would have to endure this appalling situation for the rest of her natural life, which could be up to 24 months. The State believed her life had a value that allowed it prevent her ending it and was also contending for "an entirely speculative risk" that other physically disabled people who are terminally ill but mentally incompetent would "slip through the net" and be involuntarily killed, he said.

That risk was so remote it did not justify the infringement of her rights, he said.

Earlier, Professor Rob George, a UK specialist in palliative care, said under continuing cross-examination he did not believe assisted suicide should be permitted for dying and seriously ill people who have mental capacity to decide to end their lives but cannot do so unaided.

His concerns about a "slippery slope" effect were not reduced because Ms Fleming was seeking lawful assistance to end her life when she had clear mental capacity to voice that wish herself. The moral issues did not change even where assisted suicide is allowed only in very narrow circumstances as, once that step was taken, it was "impossible" not to make further changes.

Prof George, who has worked with 25,000 suffering patients, said doctors have an obligation to do all they can to dissuade patients from taking their own lives. While serious weight must be given to a patient's own view as to the value of their life, people were not living isolated lives on individual desert islands but as part of civil society.

It would be very unusual to have situations where very ill patients are actively having their lives ended by doctors, he said.

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