The Irish High Court last week in Fleming -v- Ireland unanimously ruled that an absolute ban on assisted suicide was justified under the Irish Constitution.
The plaintiff, Marie Fleming, who suffers from multiple sclerosis, sought to challenge the constitutionality of the ban on assisted suicide contained in section 2(2) of the Criminal law (Suicide) Act 1993 and, in the alternative, she sought a declaration of incompatibility pursuant to section 5 of the European Convention on Human Rights Act, 2003.
Ms Fleming argued that the State’s obligation under Article 40.3.2 of the Constitution to protect and vindicate her personal autonomy was disproportionately interfered with by the blanket ban on assisted suicide in Ireland.
The Court heard detailed evidence that any relaxation of the ban would be impossible to tailor to individual cases and it would be impossible to ensure that the most vulnerable groups in society would not avail of this option in order to avoid being a burden on their family and society. The Court examined evidence from other countries where assisted suicide was legal and found that the risk of abuse was “all too real”. For these reasons, the Court rejected the constitutional claim. The claim of breach of ECHR rights also fell since the same rights were at issue.
The Court also ruled that it would be unconstitutional for the DPP to issue guidelines on the question of whether any person who assisted a suicide might be prosecuted or not, as only the Oireachtas can change the law. However, the Court did note that, after an assisted suicide, if the DPP was given “reliable evidence” of compliance with factors akin to those considered by the British DPP in assisted suicide, the DPP may exercise her discretion as to whether or not to initiate prosecution. The Court stated that in these cases the DPP would exercise her discretion in a humane and sensitive fashion and consider fully what she may think are special and extenuating factors.
The Court awarded Ms Fleming her costs against the state and the DPP given the public importance of the issues raised in the case.
The family will decide this week whether to appeal the decision to the Supreme Court.
Click here to access the full judgment
Click here for an Irish Times article and another.
Meanwhile in the UK, on 3 January 2013, the family of the recently deceased locked-in syndrome sufferer Tony Nicklinson won permission to continue his right-to-die test case by appealing against a High Court ruling that went against him. The Court of Appeal made an order that Jane Nicklinson, now a widow, may take forward his case that the current law was incompatible with his rights under Article 8 of the European Convention on Human Rights which protects the right to respect for private and family life.
A Protective Costs Order has also been granted so she will not be liable for the costs of her opponents if she is unsuccessful.
Click here to see UK Law Society Gazette article