A severely disabled woman in the final stages of multiple sclerosis has lost her landmark High Court challenge to the absolute ban on assisted suicide.
The three-judge High Court ruled today the absolute ban is justified to protect vulnerable others from involuntary death and does not breach Marie Fleming's personal autonomy and equality rights under the Constitution and European Convention on Human Rights.
A "real risk" of removing the ban was that, even with rigorous safeguards, it "would be impossible to ensure that the aged, the disabled, the poor, the unwanted, the rejected, the lonely, the impulsive, the financially compromised and emotionally vulnerable would not avail of option in order to avoid a sense of being a burden on their family and society", it said.
The court also found the Director of Public Prosecutions could not issue guidelines setting out what facts she would consider in deciding whether to prosecute cases of assisted suicide.
Only the Oireachtas can change the law and it would be unconstitutional for the DPP to effect a change in the law by issuing guidelines which would have the effect of the law not being enforced, it said.
However, it added, if there was "reliable" evidence after an assisted suicide of compliance with guidelines such as those set out by the UK DPP in relation to assisted suicide prosecutions, the court said it believed the DPP here would excerise her discretion "in this of all cases" in a "a humane and sensitive fashion".
Giving the court's judgment, the President of the High Court, Mr Justice Nicholas Kearns, said the court regarded Ms Fleming as "in many ways the most remarkable witness" all three judges had ever been privileged to encounter.
"Her courage in adversity is both humbling and inspiring" he said.
If the court could tailor-make a solution which would suit the needs of Ms Fleming alone without any possible implications for third parties or society at large, there might be a good deal to be said for her Artice 40.3.2 case [relating to personal autonomy]," he said. "But this court cannot be so satisfied."
Given the public importance of the issues raised in the case, the court said it would award costs to Ms Fleming against the State and DPP.
Outside court, Ms Fleming, in a statement read on her behalf by her solicitor, said she was "very disappointed and saddened" at the outcome.
Ms Fleming’s solicitor Bernadette Peart thanked the court and other legal teams involved for giving the case a full and speedy hearing, given her client’s circumstances.
She said: "Obviously Marie is very disappointed and saddened at today’s outcome and feels it would be inappropriate at the present time to discuss any specific legal or factual aspects of the case having regard to the likelihood of an appeal."
Ms Fleming, a 59-year-old former lecturer living in Co Wicklow, had asked the court for orders allowing her be lawfully helped take her own life at a time of her choosing so as to avoid what she fears will be a distressing and undignified death.
She argued, in her very particular circumstances, the blanket ban on assisted suicide in Section 2.2 of the Criminal Law Suicide Act 1993 breached her personal rights under the Constitution and ECHR.
The State contended, while the ban may be unfair to Ms Fleming, it was a justified and proportionate measure necessary to protect vulnerable people from involuntary death.
Ms Fleming, who is confined to a wheelchair, was in court today with her partner Tom Curran and other members of her family to hear the decision. It is expected she will appeal the 120-page judgment of the President of the High Court, Mr Justice Paul Carney and Mr Justice Gerard Hogan to the Supreme Court.
Among the issues raised in the case was whether the rights to bodily autonomy, self-determination require provision for assisted suicide in circumstances such as those of Ms Fleming despite the public policy of preserving the right to life.
Another central issue was of equality before the law. Ms Fleming argued the blanket ban was discriminatory as it meant she, as a disabled person, could not be lawfully assisted take her own life when an able-bodied person could lawfully take their own life.
She had told the court Mr Curran is willing to help her end her life but she did not want him to be at risk of prosecution.
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.
