Saturday 16 December 2017

Marie Fleming lodges appeal in controversial 'right-to-die' case

Tim Healy

MULTIPLE Sclerosis sufferer Marie Fleming today lodged an appeal over the High Court's rejection of a blanket ban on assisted suicide.

The appeal papers from the 59-year-old, who is in the final stages of MS, were lodged in the Supreme Court office this afternoon and it is expected her lawyers will apply to the court today (Thurs) for an urgent hearing of the appeal.

Given the importance of the issues raised in the case, it is likely the appeal will be heard by a seven judge Supreme Court.

Last week, a three judge High Court ruled the absolute ban on assisted suicide does not disproportionately infringe Ms Fleming's personal rights under the Constitution and is wholly justified in the public interest to protect vulnerable people.

The President of the High Court, Mr Justice Nicholas Kearns, sitting with Mr Justice Paul Carney and Mr Justice Gerard Hogan also ruled the DPP has no power to issue guidelines setting out what factors she would consider in deciding whether to prosecute cases of assisted suicide.

The court was "sure" the DPP would adopt a humane and sensitive approach to Ms Fleming's plight, Mr Justice Kearns said.

The court also awarded costs of the case to Ms Fleming against the State on grounds the action raised issues of exceptional public interest and was brought on a bona fide basis. Ms Fleming was perhaps the most remarkable witness the three members of the court were privileged to encounter, it said.

Ms Fleming said afterwards she was disappointed and saddened by the outcome but would not comment further pending consideration of an appeal.

In the High Court judgment, Mr Justice Kearns said dilution of the absolute ban could open a "Pandora's Box" impossible to close afterwards with the risks of abuse "all too real".

The court had heard "deeply worrying" evidence from doctors there would be "a paradigm shift" with "unforseeable and perhaps uncontrollable" changes in attitude and behaviour regarding assisted suicide, he said.

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

Other concerns were "deeply worrying" evidence of "a strikingly high"

increase in involuntary deaths in countries where assisted suicide is legal and the effects on the core principles of the medical profession to preserve life.

Ms Fleming's solicitors wrote to the DPP last August asking her to set out the factors she would consider in deciding whether to prosecute for assisted suicide.

The High Court said the DPP cannot set out guidelines as that would involve her legislating when the Constitution stipulates making law is solely the Oireachtas' function.

It said a "different set of affairs" might arise AFTER any event of assisted suicide and provided there was evidence of compliance with guidelines set out by the UK DPP in assisted suicide cases.

In those circumstances, the DPP was free to exercise her discretion as she saw fit and the court was "sure" the DPP, "in this of all cases" would exercise her discretion "in a humane and sensitive fashion".

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