A three-judge High Court will give its judgment on January 10th on the challenge to the absolute ban on assisted suicide brought by a woman terminally ill with multiple sclerosis.
After evidence and legal submissions in the six-day case concluded yesterday, the president of the High Court, Mr Justice Nicholas Kearns, with Mr Justice Paul Carney and Mr Justice Gerard Hogan, said they had many issues to consider and would rule on January 10th.
Ms Fleming (58) claims the absolute ban on assisted suicide in section 2.2 of the Criminal Law Suicide Act is unconstitutional on grounds it breaches her personal rights under the Constitution and European Convention on Human Rights.
She also argues the DPP is required to publish guidelines outlining what factors are taken into account in deciding to prosecute assisted suicides.
In closing arguments yesterday, Michael Cush SC, for the State, said there was no right to suicide under the Constitution and the policy outlawing assisted suicide was justified to protect vulnerable people from involuntary death.While the absolute ban might be unfair to Ms Fleming, that was not the test the court had to apply, he said.
The evidence from two palliative care experts showed a rational basis for the State’s belief there might be a real risk of involuntary death for others if the ban was removed, he said.
While an expert for Ms Fleming had argued there was no evidence to support arguments that legalising assisted suicide increased the risk of involuntary deaths, the State was contending it was difficult to measure the risks of abuse to vulnerable people who could be subtly coerced.
If the ban was struck down, it would be very difficult to fashion a remedy, Mr Cush added. If the court was against Ms Fleming on the core issues but believed the DPP should issue guidelines, it should leave over the issue of a remedy, he said.
The State contended the DPP had the power to issue general guidelines related to assisted suicide prosecutions but Paul O’Higgins SC, for the DPP, said she considered she had not such power as that would involve legislating or infringing the absolute ban.
Brian Murray SC, for Ms Fleming, argued that the case was not about a right to suicide but about infringement of her personal rights to equality, privacy and personal autonomy.
The State had failed to show that infringement was justified or proportionate when applied to Ms Fleming, who was physically disabled, terminally ill and who had the necessary mental capacity to decide she wanted to end her life but could not do so unless assisted, he said.
The State was not entitled to erect “unreasonable hurdles” condemning Ms Fleming to “appalling suffering and undignified death”. Evidence from palliative care experts did not rule out Ms Fleming ending up in a “locked-in syndrome” or dying by aspiration, which was “an extraordinary psychological burden” that could be alleviated via her assisted suicide.
Cross-examined earlier, Prof Rob George, a British specialist in palliative care, told Ronan Murphy SC, for Ms Fleming, that he did not believe assisted suicide should be permitted for people who had mental capacity to decide to end their lives but could not do so unaided.
His concerns about a “slippery slope” were not reduced because Ms Fleming was seeking lawful assistance to end her life when she had the clear mental capacity to voice that wish. The moral issues did not change even where assisted suicide was allowed only in very narrow circumstances as, once that step was taken, it was “impossible” not to make further changes.
