Assisted suicide ban cannot be diluted even in 'harrowing' case of MS sufferer

The absolute ban on assisted suicide is fully justified under the Constitution to protect the most vulnerable in society and cannot be diluted even in the “harrowing” case of a woman terminally ill with multiple sclerosis, the High Court has ruled.

However, the three-judge court said it was “sure” the DPP would act in a “humane and sensitive” way in considering whether to prosecute any assisted suicide of Marie Fleming.

Giving the court’s judgment, president of the High Court Mr Justice Nicholas Kearns, with Mr Justice Paul Carney and Mr Justice Gerard Hogan, said unravelling “even a thread” of the ban, by even a limited constititional finding in favour of Ms Fleming, would, or might, “open a Pandora’s box which thereafter would be impossible to close”.

Fundamental objective

The State is committed under the Constitution to protecting the sanctity of all human life and “valuing equally” the life of all persons. The ban was rationally connected to that fundamental objective and “not remotely based on arbitrary, unfair or irrational considerations”.

“In the eyes of the Constitution, the last days of the life of a terminally ill and disabled patient facing death have the same value, possess the same intrinsic human dignity and naturally enjoy the same protection as the life of the healthy young person . . .”

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”.

If doctors could hasten deaths of the terminally ill, this might send “a subliminal message” to vulnerable groups that, to avoid consuming scarce resources amid shrinking public funds for healthcare, physician-assisted suicide was “a normal option” to be considered.

Mr Justice Kearns said Ms Fleming’s courage in adversity was “both humble and inspiring” and she was “in many ways the most remarkable witness” any of the three judges had ever been “privileged to encounter”.

The heart of her claim was that the State’s obligation to protect and vindicate her personal autonomy rights under article 40.3.2 was impermissibly interfered with by the blanket ban.

While finding her personal autonomy and equality rights were engaged by the ban, the court found no disproportionate interference with those rights.

This case was “entirely different” from one where a competent adult refused medical treatment, even if such refusal led to death, because assisted suicide involved the taking of “active” steps by a third party to bring about the death of another.

If the court could “tailor-make” a solution to suit Ms Fleming’s needs “alone” without any possible implications for third parties or society at large, there might be “a great deal” to be said for her article 40.3.2 case, but the court could not be so satisfied.

The court had heard ample evidence to support the view any relaxation of the ban would be impossible to tailor to individual cases and also inimical to the public interest in protecting the most vulnerable. Evidence from other countries where assisted suicide was legal showed abuse risks were “all too real”.

‘Invidious position’

As the Constitution provided that only the Oireachtas could change the law, the DPP could not issue guidelines setting out what factors would be taken into account in deciding whether to prosecute assisted suicide cases, the court also ruled.

It noted Ms Fleming had sought assurances from the DPP “before” any assisted suicide event which put the DPP in “an invidious, if not impossible” position. To make the DPP aware of an intended criminal offence might oblige her to consult other authorities to stop an offence being committed, such as happened in the X case in 1992.

A “different state of affairs” arose if, after an assisted suicide, the DPP was given “reliable evidence” of compliance with factors akin to those considered by the British DPP in assisted suicide.

“In this of all cases”, the court felt sure the DPP would exercise her discretion in a humane and sensitive fashion, but that was for the DPP.

Because the European Convention on Human Rights replicated the same rights at issue in the case, the claim of breach of ECHR rights also fell.

Given the “exceptional public importance” of the issues raised, the court said Ms Fleming was entitled to her costs.