The Next Civil Rights Issue of Our Time | Sarah Morrissey

Marie Fleming  ‘In the 75 years since the Constitution was enacted, both this Court and the Supreme Court have been required to examine a vast proliferation of issues in a huge corpus of case-law. Over that period few cases have emerged which are more tragic or which present more difficult or profound questions than the issues presented for adjudication here. At the heart of this application lie novel and difficult questions as to whether constitutional provisions which guarantee personal liberty and autonomy in Article 40 of the Constitution are interfered with by a statutory prohibition which prohibits even a citizen in deep personal distress and afflicted by a terminal and degenerative illness to avail of an assisted suicide and, if they do, whether such an absolute statutory prohibition passes a proportionality test.’

Last week the High Court handed down its judgment in the case of Marie Fleming v. Ireland. Ms Fleming is fifty nine years old and was first diagnosed with MS in 1989 when she was thirty five. Today Ms Fleming is in the advanced stages of MS, a condition with no cure and is consequently confined to a wheelchair. She can no longer walk and has lost the use of her hands and both her lower and upper limbs. Ms Fleming’s partner, Tom Curran, is her full time care provider.

Constantly in pain, Ms Fleming went to the High Court in October 2012 seeking recognition of her right to die by way of assisted suicide. Her partner, Mr Curran, has agreed to help Ms Fleming end her life but the couple want to know that he will not subsequently face prosecution. An alternative argument put before the High Court was that Ms Fleming has a right to guidelines from the DPP as to how the DPP will exercise her discretion to prosecute in cases of assisted suicide. On both counts the High Court ruled against Ms Fleming.

Suicide was abolished as a criminal offence in Irish law by the Criminal Law (Suicide) Act 1993. The same Act introduced a penalty of up to fourteen years for any person ‘who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide.’ The High Court upheld this offence and in their judgment examined similar prohibitions and practices in other states.

Euthanasia is the termination of a very sick person’s life in order to relieve them of their suffering. Currently euthanasia and/or physician assisted suicide (where a medical professional intentionally assists one in ending their life) is permitted by legislation in the Netherlands, Belgium, Switzerland and the US state of Oregon.

Human Rights - The balanceLegislation was passed in both Belgium (Belgian Act on Euthanasia, 2002) and the Netherlands (current law came into effect in 2002) in order to regulate an already prevalent existing practice of both voluntary and involuntary euthanasia and physician assisted suicide. Research before the High Court suggested that the regimes enacted have not resulted in excessive risk to vulnerable patients.

In Switzerland the law provides for assisted suicide while euthanasia remains illegal. The law is unique in that it does not require a physician to be involved and nor does it require the patient to be Swiss national. In light of this foreigners often avail of the facilities of Swiss clinics such as Dignitas, to end their life. Indeed, Ms Fleming admits to considering the option of travelling to Switzerland to end her life five years ago and now regrets not going through with it before losing the ability to travel and to carry out the act herself as is required under Swiss legislation.

In Oregon the Death with Dignity Act was passed in 1994. The Act permits physician assisted suicide. Attempts to repeal the Act and challenge its validity in the US Supreme Court have failed. Safeguards within the legislation include psychological valuations prior to a request for assisted suicide to be granted. Professor Battin, a witness before the High Court explained that all requests are acted on and that the number of people in Oregon who die by assisted suicide amounts to 0.2% of all people who die. Professor Battin’s research also indicated that there is no evidence of exploitation of vulnerable groups under the Oregon law. However, her categorisation of vulnerable groups according to socio-economic classes as opposed to their emotional or personality vulnerability has been criticised and the High Court ultimately accepted these criticisms in its judgment.

While permitted in Oregon the US Supreme Court has upheld bans on the assisted suicide and confirmed that there is no constitutional right to choose when and how one would desire to die.

In the UK euthanasia and assisted suicide is an offence. In fact, like in Ireland to assist someone to commit suicide is a criminal offence subject to up to fourteen years imprisonment. However, in a case in analogous to Ms Fleming’s circumstances, the UK, House of Lords ruled in Purdy v. DPP that the DPP should issue guidelines as to how it would be decided whether to prosecute someone for the offence of assisting suicide.

Euthanasia has also come before the courts in Canada. Nineteen years ago the Canadian Supreme Court ruled that a prohibition on euthanasia was constitutional. However, at first instance in British Columbia Lynn Smith J held in Carter v. Canada that circumstances had changed in the last nineteen years to permit her to reassess the Supreme Court holding. Lynn Smith J ruled that in light of changes to the proportionality test and new evidence before the court the blanket prohibition was no longer a proportional interference in constitutional rights and therefore was invalid. This case is currently subject to an appeal to the Canadian Supreme Court.

The High Court did examine Lynn Smith J’s judgment and found that the new evidence she cited less than convincing. The High Court ultimately felt that the current legislative regimes in the Netherlands and Oregon were less than ideal and subsequently illustrated a legitimate concern for vulnerable individuals in the absence of a blanket ban so that the ban here remained proportional under our Constitution.

In the most surprising part of the High Court’s judgment, the Court found that the DPP was not required to issue guidelines. The Court instead declared their belief that the DPP would act with humanity and compassion in such cases. But this compromise offers little in the way of legal certainty for Ms Fleming and Mr Curran and is considered to play a central part in the appeal to the Supreme Court.

IBBC imaget was recently announced that Ms Fleming would be appealing the decision to the Supreme Court. In case of a loss there Ms Fleming may take her case to the European Court of Human Rights as one of her claims is that the ban is incompatible with her rights under the European Convention on Human Rights. However, in the meantime it is important that Irish society asks itself what decision it wants. What kind of society do we want? Euthanasia is a civil rights issue of our time which depending on how we choose to react to the Supreme Court decision may well be set to develop at the same rate LGBT rights have across the international sphere.

Like the High Court, the Irish people must face difficult and novel questions. We must decide whether it is possible protect all individuals, particularly the vulnerable, within an assisted suicide regime; whether we can handle what the High Court referred to as a ‘paradigm shift’ in the role of medicine in our lives and how we view the life of terminally ill patients. But the first question we must all answer is: can ever be ethical to end a person’s life? And if it can, in what circumstances?

Ms Fleming is taking this case because she desires to die with dignity among her family. The High Court have ruled it is impossible to create an exception to cater for just Ms Fleming and that the Government is within their power to prohibit one’s choice as to how and when they would like to die. Whether Ms Fleming wins or loses she has dedicated possibly the last few months of her life to attempting to resolve a major social issue of our time. The least Irish society can do is step up to the plate and participate in the necessary dialogue around this ‘difficult and profound’ issue.