The absolute ban on assisted suicide in Irish law breaches the rights of terminally ill people who have the necessary mental capacity to decide they wish to end their own lives but cannot do so without assistance, the High Court was told.
The ban, set out in section 2.2 of the Criminal Law (Insanity) Act 1993 providing for a sentence of up to 14 years for those who assist in or help procure the suicide of another, also amounts to unequal treatment of disabled persons who, due to their disability, cannot take their own lives, it was argued.
Brian Murray SC, for Marie Fleming, said section 2.2 is unnecessary and cannot be justified, as the State argues, on grounds it is necessary for the social and public objective of preventing a “slippery slope” to euthanasia or could lead to the deaths of vulnerable people who may be overborne by others.
Strict safeguards to prevent such scenarios could be put in place via legislation, he said.
While Ms Fleming agreed it was necessary to protect vulnerable people, she disagreed the absolute ban on assisted suicide was necessary to achieve that objective, counsel said. She wanted a narrow exception in her circumstances as a terminally ill person with full mental capacity who could not take her own life without assistance. She also wanted the DPP to set out guidelines concerning what factors would be taken into account in deciding whether or not to prosecute a person who assisted another to take their own life.
Indisputable rights
The State was contending she was seeking a right to die when there was no such right under the Constitution but the State’s argument was an “oversimplification” as Ms Fleming had indisputable rights to autonomy, dignity and privacy, Mr Murray said.
A paternalistic concept of protecting people could not justify “a tyranny” of telling people they could not end their lives and concerns about harm to vulnerable persons could be addressed in legislation.
The State could not justify consigning Ms Fleming to “misery and pain” for the rest of her life on grounds there was a risk to other people if the absolute ban was removed when such a risk can never be totally eliminated, he said. Such a “simplistic” argument ignored the existing risk of abuse of vulnerable persons and was fundamentally inconsistent with the obligations of the State and courts to vindicate her rights.
Mr Murray was opening the unprecedented action by Ms Fleming, who is terminally ill with multiple sclerosis, against Ireland, the Attorney General and the DPP.
The Irish Human Rights Commission has also provided legal submissions.
Legal issues
The action is being heard by a three-judge court comprising the president of the High Court, Mr Justice Nicholas Kearns, Mr Justice Paul Carney and Mr Justice Gerard Hogan.
Mr Murray said there were four legal issues for determination. The first is whether section 2.2 impairs Ms Fleming’s rights to life, dignity, personal and bodily autonomy and privacy under the Constitution and/or European Convention on Human Rights.
If the court finds such rights are impaired, it must decide (2) if that impairment is justified. If it rules any impairment is justified in the common good, it must consider (3) if that impairment has been achieved in a constitutional and proportionate manner and is not legally broader than is necessary.
The fourth issue arises because Ms Fleming, due to her disability and total dependence, is unable to take her own life. The court must decide whether, in her circumstances, the absolute ban on assisted suicide amounts to discrimination between her as a disabled person and an able-bodied person.
Mr Murray said the right of a terminally ill person to be assisted in taking their own life has been upheld by the Canadian supreme court, the European Court of Human Rights and, most recently, by the UK House of Lords in 2009.
The case continues today.
