A woman severely disabled due to multiple sclerosis will learn today if she may be lawfully helped to end her life when she chooses, so as to avoid enduring “terrible torment” and what she fears will be a distressing and undignified death.
A three-judge High Court will give its reserved judgment this morning on the unprecedented challenge by 58-year-old Marie Fleming to the ban on assisted suicide in section 2.2 of the Criminal Law Suicide Act 1993.
The case raises important legal, ethical and medical issues and the judgment of the president of the High Court, Mr Justice Nicholas Kearns, Mr Justice Paul Carney and Mr Justice Gerard Hogan is expected to be appealed by the losing party to the Supreme Court.
Among the issues raised is the balance between the right to life and other personal rights of Ms Fleming, including to personal autonomy, bodily integrity, privacy and equality before the law. Similar issues arise in the continuing abortion debate.
Criminal offence
Suicide is not illegal here but section 2.2 makes it a criminal offence to assist a suicide and provides for a maximum 14-year sentence in such cases.
Ms Fleming, a former lecturer living in Arklow, Co Wicklow, claims the ban breaches her rights to life and other personal rights under the Constitution and European Convention on Human Rights.
She claims the right to life includes a right to end it and her rational choice to die when she has determined her life ceases to be valuable does not offend against the sanctity of life.
She also argued that she, a person with disabilities unable to take her life unaided, is being discriminated against compared to able-bodied people who can take their lives without help. She told the court her long-term partner, Tom Curran, is willing to help her end her life but she did not want him to be at risk of prosecution.
The State has insisted there is no right to suicide and the ban is a justified and proportionate measure to protect vulnerable people, who, it is claimed, would be at real risk of involuntary death if assisted suicide were permitted.
Rejected arguments
The Director of Public Prosecutions also rejected arguments that she is required to set out the factors to be taken into account in deciding whether to prosecute for assisted suicide. The DPP said that would effectively involve her in legislating and as the ban was absolute she has no power to legislate.
The Irish Human Rights Commission submitted that there is a right to suicide and the best way of reconciling Ms Fleming’s personal rights with the sanctity of life was by enacting legislation setting out safeguards governing assisted dying and the circumstances in which assisted suicides would not be prosecuted.
The court was told doctors believe Ms Fleming may die within months and is unlikely to live beyond two years. Diagnosed with MS in 1986, her condition has deteriorated to a point where she is confined to a wheelchair with limbs paralysed, suffers acute pain and has difficulty swallowing. She fears she will ultimately be unable to communicate and will die a “horrible” death.
Dr Tony O’Brien, a palliative care expert who gave testimony for the State, said the absolute ban is consistent with core principles of medicine as it makes clear to doctors they can do nothing designed to cause the death of a person.
An expert witness for Ms Fleming, Prof Margaret Pabst Battin of the University of Utah, who has written extensively on bioethics, said the philosophical principles of liberty and mercy were central to the case which was about “the right to live one’s life as one sees fit”.
