Fleming assisted suicide appeal opens in Supreme Court

A “very limited” number of terminally ill people in severe pain who have the mental competence to decide they want to end their lives but cannot do so unaided should be permitted a lawful assisted suicide, the Supreme Court has been told.

Marie Fleming, who is in the final stages of multiple sclerosis, is among that limited number and is entitled to a “dignified” death, her counsel Brian Murray said. The consequence of the ban on assisted suicide meant she faced a “painful, humiliating and distressing death”.

In the very particular circumstances of Ms Fleming, the absolute ban amounts to an unjustified and disproportionate breach of her personal autonomy rights, he argued.

Ms Fleming is not seeking to have another person kill her but is prepared to take the necessary steps herself, he said. Due to her physical difficulties, she cannot do so without assistance. The High Court, in rejecting her case, failed to have regard to just how limited the scope of her claim is.

Possibility of abuse

How could the State show how people who would not otherwise die would be brought to death if Ms Fleming won this case, he asked.

The possibility of abuse could not mean a right as fundamental as hers could be restricted, and the State’s interest in the sanctity of her life could not prevent her bringing about the kind of death she seeks.

The State is not entitled to say her life must be continued “at all costs” and cannot condemn her to endure what the rest of society would not tolerate, he argued. “The right to life is not absolute. The acknowledgement of the sanctity of life does not dictate an unwavering adherence to the maintenance of life at all costs.”

Mr Murray was opening the appeal by Ms Fleming (59), who lives in Co Wicklow, before a seven-judge Supreme Court against a High Court decision she cannot be lawfully assisted in taking her own life at a time of her choice.

A three-judge High Court ruled last month the absolute ban on assisted suicide in section 2.2 of the Criminal Law Suicide Act 1993 does not disproportionately infringe Ms Fleming’s rights and is wholly justified in the public interest to protect vulnerable people.

The High Court also ruled the Director of Public Prosecutions cannot issue guidelines setting out what factors she would consider in deciding whether to prosecute cases of assisted suicide. The court added it was “sure” the DPP would adopt a “humane and sensitive” approach to Ms Fleming’s plight and she is not appealing that aspect.

Yesterday, Mr Murray agreed Ms Fleming’s claim can be described as asserting a constitutional right to commit suicide but said that description did not do full justice to her claim. The exercise of a right to determine the course of one’s own life includes a right to decide the time and manner in which it will end, he said.

May be ‘locked in’

Ms Fleming will physically further deteriorate and may perhaps experience an increase in choking which she has found so distressing, lose the limited movement of her head, her ability to communicate and may be “locked in”, he said.

She may also face a painful death or a death after she becomes comatose and knows she can do nothing about that, he said. It was a “cruel irony”, he said, that if she were able-bodied she would be able to take her own life and she regretted she had not done so earlier when she was physically able.

In its judgment in another case permitting the withdrawal of treatment from a woman in a permanent vegetative state, the Supreme Court had accepted the right to life is not absolute, he said. While the facts of that case differed, it confirmed there is an entitlement to a dignified death covered by Article 41.3.2 of the Constitution.

“To free the dying from suffering is in itself an aspect of the sanctity of life,” he argued.