The entitlement to a dignified death is protected by the Constitution and the State has no right to tell people its interest in their lives or "some theory of natural law" overrides a person's absolute right to decide the course of their own lives, the High Court was told today.
Society’s interest in discouraging suicide does not justify the State’s blanket ban on assisted suicide in the case of a terminally ill woman who wants to die at a time of her choosing but is unable to take her own life, the High Court was told today.
The absolute ban on assisted suicide is unconstitutional, unnecessary, unjustified, disproportionate and irreconcilable with the right of Marie Fleming to a dignified death in a manner and timing of her choice, Brian Murray SC argued.
In exchanges with the President of the High Court, Mr Justice Nicholas Kearns, who asked whether concerns about rising suicide rates were a factor to be considered, counsel agreed there is a societal interest in discouraging suicide but argued the State has failed to show how the interests of the common good qualify Ms Fleming’s rights.
Cases involving suicide pacts and mercy killings being relied on by the State are not relevant in the circumstances of Ms Fleming’s case, he submitted.
Strict safeguards and protocols had been introduced in other jurisdictions to address concerns about vulnerable people being encouraged by relatives or carers to take their own lives when they had not made such a decision themselves, he said. Such safeguards would afford more protection to the vulnerable than a total ban on assisted suicide, he said.
The rights to life, privacy, self-determination, dignity and equality were all involved here and the court was not being asked to take any step terminating a life but to allow a competent person realise the effects of all those rights, he said.
The entitlement to a dignified death is protected by the Constitution and European Convention on Human Rights and the State has no right to say its interest in a person’s life or “some theory of natural law” overrides that person’s absolute right to decide the course of their own lives, he added.
The State cannot intrude into a zone of private behaviour “and criminalise it because it doesn’t like it”.
A Constitution that puts such a high value on human dignity does not permit the State say to Ms Fleming she had to bear all that will be involved as her condition deteriorates, he said. Imposition of medical treatment against a person’s wishes amounted to “battery”.
Mr Murray was continuing his arguments in the continuing action by Ms Fleming (58), who is in the fianl stages of multiple sclerosis and wants the court to permit her be lawfully assisted in taking her own life.
Ms Fleming is challenging the absolute ban on assisted suicide set out in Section 2.2 of the Criminal Law Suicide Act 1993. She also argues the DPP is required to provide guidelines as to what factors are taken into account when deciding whether or not to prosecute in a case of assisted suicide.
The case is being heard by a three judge comprising Mr Justice Kearns, Mr Justice Paul Carney and Mr Justice Gerard Hogan.
Mr Justice Kearns said the court required an affidavit outlining the effects on Ms Fleming if she decided to refuse palliative treatment at a later stage. That matter may be a factor in any balancing exercise the court might undertake, he said.
Ronan Murphy SC, also for Ms Fleming, argued the DPP’s failure to publish the factors to be considered in deciding whether or not to prosecute a case of assisted suicide breached Ms Fleming’s rights to respect for her private life under Article 8 of the ECHR.
His side had written to the DPP who had replied she could not provide such guidelines and said a decision whether to prosecute would depend on the circumstances of each individual case.
The DPP in the UK had published such guidelines following a European Court of Human Rights decision upholding a challenge to the UK failure to publish such guidelines and the Irish DPP should do the same, he argued. The DPP must at least indicate whether the public interest would be taken into account as a factor in her decisions.
In other submissions, Mr Murray referred to the Supreme Court decision in a 1996 case permitting further nutrition to be withdrawn from a woman who was in a near permanent vegetative state and argued Ms Fleming was in a stronger position to call in aid the same rights as were recognised in that case.
The 1996 case established a person’s autonomy and self-determination remained operative rights even where the right of life was at stake, counsel said. Those rights encompassed freedom to end one’s life, he submitted.
Mr Murray also relied on a decision of the Supreme Court of British Columbia, Canada, earlier this year which concluded the ban on assisted suicide there had infringed rights to equality, life, liberty and security of the person.
Later today, William Hennessy, Grove Avenue, Blackrock, Co Dublin, applied to be joined to the case on grounds he has significant physical injuries and is concerned his right to life could be adversely affected by the case. The State opposed the application and the court ruled he had made out no grounds at this stage to be joined.
