Wednesday 17 January 2018

When compassion and love can put you in front of the court

Emer O'Kelly wonders how many more Gail O'Rorkes there will be before we change the law on assisted suicide

COMPASSION: The late Marie Fleming who campaigned for the right to end her life
COMPASSION: The late Marie Fleming who campaigned for the right to end her life

Emer O'Kelly

When the judges of the Supreme Court left the bench and descended into the body of the courtroom almost exactly two years ago, it was a unique occasion.

They went to sit with a woman called Marie Fleming, who was unable to move or stand, with even her hands supported by splinted gloves. Soon, she would be unable to speak. And she had come to court to beg her country allow her to end her life with dignity when she finally decided that she could bear her savage pain no longer.

But Marie Fleming's distorted helpless body would not allow her to administer her own death; and under the law of Ireland, anyone who helped her would be guilty of a serious crime. No matter that her long-time lover, Tom Curran, and her adult children loved her too much not to want to let her go in peace and dignity; no matter that she had begged them to help her. If any or all of them "assisted" her suicide, they would go to jail.

This was the "humane" legislation put in place when the State de-criminalised suicide in 1993. When Marie Fleming had challenged it in the High Court in January 2013, the court president Mr Justice Nicholas Kearns had called her "the most remarkable witness (this court) had ever been privileged to encounter".

But he had to turn down her request under the law as it stood. But he believed, he said, that should Tom Curran, the man who loved Marie Fleming enough to want to let her go, and to help her to go, would be treated "humanely and sensitively" by the State, in the person of the DPP, should he break the law.

Marie Fleming went to the Supreme Court in a final, dignified bid to remove doubt about the status of the man who loved her to death and beyond. And the State defended its laws as they stood.

The judges of the Supreme Court decided that they did not have power under the law to allow the people who loved Marie Fleming, to help her end the horror that her life had become. They stated in no uncertain terms that it was a matter for the legislature.

The country had been rocked with anguish on Marie Fleming's part. Then, she was taken home and the country forgot her. A few days before Christmas 2013, she finally died, in the lingering, agonising pain she had hoped to avoid.

Yes, there were those who believed that "hard cases make bad law" and clung to the cruel doctrine that life was from conception to "natural" death.

We'd gone through it a generation earlier: a woman went into a vegetative state following surgery in the mid-1970s. She was kept "alive" by chugging machines strapped to and wired into her body.

In the 1990s, her family could stand it no longer, and told the religious authorities caring for her that they wanted her body to be allowed to cease functioning.

In support of life, the religious authorities went to court, and fought the woman's family to the last terrible position over the dead body that was now 45 years old in defence of "palliative hospice care".

It was the first time the phrase "right to die" became current in Ireland.

Seventeen years later, the president of the High Court said, with the awesome authority of the State behind him, that he believed the DPP would exercise compassion should Tom Curran, who was prepared to love beyond the grave, decide to break our cruel, inhumane laws against assisted suicide.

Then, the judges of the Supreme Court, almost physically, held the stricken hands of Marie Fleming, whose body had been dying by inches since 1986, and passed her, and those living in similarly intolerable pain, back into the care of the legislature.

Unbeknownst to them, another woman had been dying by inches as Marie Fleming was dying. Her name was Bernadette Forde, and like Marie Fleming, she had multiple sclerosis in a rare and particularly virulent form.

Like Marie Fleming, she was lucky enough to have people who loved her enough to understand that what passed for her life was intolerable.

Bernadette Forde was 51 years old when she took a lethal dose of medication in June 2011. Apparently, there was somebody with her at the time, for which we can all be grateful.

We know that because Bernadette Forde's friend Gail O'Rorke stood in court in recent weeks, distraught and distressed, charged on three counts: helping Bernadette Forde to obtain the means of killing herself; also of attempting to help her to get to Switzerland to the Dignitas clinic where she could have ended her life with dignity and support; and of later "aiding" her suicide by helping her to organise her funeral.

Gail O'Rorke walked free from court by direction to the jury on two of the charges and was acquitted of the third. But while Judge Patrick McCartan had kind words for her, his meticulous direction was on the basis that the evidence against Gail O'Rorke was not sufficient to find her guilty. So, she did not really walk from court commended as an admirable, courageous woman who had been prepared to stand by a friend by pitting herself against a cruelly vicious law.

Initially, Gail O'Rorke was "shopped" by a travel agent because she was booking a flight to Zurich for Bernadette Forde. The gardai were called, and under law, Ms Forde was prevented from travelling. She became a prisoner in her own country.

The law took its tortuous course until Gail O'Rorke, a compassionate human being, prepared to stick her neck out against a cruelly inhumane law, stood accused of helping another human being to do something which is legal under Irish law since 1993.

That the woman she was trying to help was not a tantrum-throwing drama queen, but a human being dying in slow agony who begged for her help because she was physically unable to help herself, mattered not at all under law. Nobody had listened to what Mr Justice Nicholas Kearns said about Marie Fleming in the new year of 2013.

The Waterford TD John Halligan will bring an independent bill before the Dail within weeks, which will remove criminal sanctions against a doctor or family member who assists a suicide.

It has been drafted by two lawyers, and has the support of Tom Curran, who watched the woman he loved die in slow pain because she was not prepared to have him dragged before the courts for helping her to end the pain. It will be restrictive, hemmed in by huge safeguards.

How many of our legislators will be prepared to put a white rose of peace on the graves of Marie Fleming and Bernadette Forde by supporting it?

Sunday Independent

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