The Irish Human Rights Commission has told the Supreme Court it believes terminally ill Marie Fleming has a right, “subject to strict conditions”, to be assisted in taking her own life.
Frank Callanan SC, for the commission, argued it was not necessary to conclude firmly there is a constitutional right to commit suicide before the court can decide if Ms Fleming has a general right not to be compelled by the State to live out her remaining days in great pain.
After repeated questions from the judges on whether the commission believes there is a constitutional right to commit suicide, Mr Callanan said he wanted to focus on Ms Fleming’s particular case and did not wish to adopt a policy position for the commission.
The right to equality in this case arose directly from the decriminalisation of suicide in the Criminal Law Suicide Act 1993, he said. The legislature was obliged to take into account the differences between able-bodied and disabled people in this regard and it was discriminatory that a disabled person who wished to end their life could not lawfully be assisted to do so, he argued.
Mr Callanan was making submissions in Ms Fleming’s continuing appeal against the High Court’s rejection of her challenge to section 2.2 of the 1993 Act, which makes it an offence to assist a suicide.
Particular circumstances
Ms Fleming (59), who is in the final stages of multiple sclerosis, argues the absolute ban on assisted suicide should and must be relaxed to meet her particular circumstances as a terminally ill person in severe pain who is mentally competent to decide when and how she wants to end her life but is unable to do so unaided.
A three-judge High Court ruled last month the absolute ban is wholly justified in the public interest to protect vulnerable people.
Ms Fleming’s appeal to the seven-judge Supreme Court centres on arguments that the absolute ban, in her personal circumstances, disproportionately breaches her personal rights, including to life, equality and privacy, under the Constitution and European Convention on Human Rights.
Absolute ban
Earlier yesterday, Brian Murray SC, for Ms Fleming, argued the absolute ban disproportionately impairs the rights of an “entirely innocent” group of severely disabled people such as Ms Fleming and is causing her great suffering. The High Court had not applied the proper test in concluding the ban was justifiable on grounds of a possible risk to others, he argued.
The High Court had referred to a “substantial consensus” in western countries, shared by the Law Reform Commission here, that such an absolute ban was the “best approach” to protecting life and vulnerable people but that was not the correct legal test, he said. The correct test was whether such a ban impaired rights as little as possible and did not impose a disproportionate burden on one group, he argued.
When some of the judges expressed concerns that overturning the ban would mean the court was legislating in breach of the constitutional separation of powers, Mr Murray said the Supreme Court did not have to tell the legislature what laws should be enacted. What the court was obliged to find was that laws with appropriate safeguards must be enacted to vindicate her rights and then leave it to the Oireachtas to design those laws, he said.
