THE HIGH COURT
[2012 No. 10589P] Kearns P.
IRELAND, THE ATTORNEY GENERAL AND THE DIRECTOR OF PUBLIC PROSECUTIONS
SUMMARY of Judgment* delivered by Kearns P. on 10th day of January, 2013.
The plaintiff is a 59 year old woman who has gallantly fought multiple sclerosis since she was first diagnosed with this disease in 1989. Her courage in adversity is both humbling and inspiring. She was in many ways the most remarkable witness which any member of this Court has ever been privileged to encounter.
The plaintiff’s body has been ravaged by this insidious disease to the point where she is now almost immobile. Her life has been rendered miserable and she suffers great pain and distress. She now wishes to avail of physician assisted suicide at a time of her own choosing. To this end she challenges the constitutionality of the ban on assisted suicide contained in s. 2(2) of the Criminal Law (Suicide) Act 1993 and, in the alternative, seeks a declaration of incompatibility pursuant to s. 5 of the European Convention on Human Rights Act 2003.
So far as the constitutional claim is concerned, at its heart lies the contention that, as the obligation imposed on the State by its laws to protect and vindicate the “person” in Article 40.3.2 protects personal autonomy in key life decisions of this nature, those rights have been impermissibly interfered with by a complete statutory ban on assisted suicide. While the Court agrees that personal autonomy (especially in medical matters) is a core constitutional value and that the plaintiff’s Article 40.3.2 right is engaged by a ban of this kind, we cannot agree that this legislation amounts to a disproportionate interference with this right.
While a competent adult patient has the right to refuse medical treatment, even if this leads to death, the taking of active steps by a third party to bring about the death of another is an entirely different matter, even if the difference in some cases between the two types of decisions may sometimes be nuanced and blurred. If this Court could tailor-make a solution which would suit the needs of Ms. Fleming alone without any possible implications for third parties or society at large, there might be a good deal to be said for her Article 40.3.2 case. But this Court cannot be so satisfied.
The detailed evidence available to us demonstrates that the State has established an ample evidential basis to support the view that any relaxation of the ban would be impossible to tailor to individual cases and would be inimical to the public interest in protecting the most vulnerable members of society. The evidence from other countries shows that the risks of abuse are all too real and cannot be dismissed as speculative or distant. One real risk attending such liberalisation is that even with the most rigorous system of legislative checks and safeguards, it would be impossible to ensure that the aged, the disabled, the poor, the unwanted, the rejected, the lonely, the impulsive, the financially compromised and emotionally vulnerable would not avail of this option in order to avoid a sense of being a burden on their family and society. The safeguards built into any liberalised system would, furthermore, be vulnerable to laxity and complacency and might well prove difficult or even impossible to police adequately.
The Court further notes that the validity of other similar statutory bans has been upheld by the Canadian Supreme Court, the US Supreme Court, the UK Supreme Court and the European Court of Human Rights.
It is true that there is one recent first instance Canadian decision (Carter v. Canada (2012)) in which a different view was taken. In that case, the Canadian court reviewed the available evidence from other jurisdictions with liberalised legislation and concluded that there was no evidence of abuse. This Court also reviewed the same evidence and has drawn exactly the opposite conclusions. The medical literature documents specific examples of abuse which, even if exceptional, are nonetheless deeply disturbing. Moreover, contrary to the views of the Canadian court, there is evidence from this literature that certain groups (such as disabled neonates and disabled or demented elderly persons) are vulnerable to abuse. Above all, the fact that the number of LAWER (“legally assisted deaths without explicit request”) cases remains strikingly high in jurisdictions which have liberalised their law on assisted suicide (Switzerland, Netherlands and Belgium) – ranging from 0.4% to over 1% of all deaths in these jurisdictions according to the latest figures - without any obvious official response speaks for itself as to the risks involved.
For these reasons, the Court rejects the constitutional claim. Since the European Convention on Human Rights simply replicates the same rights at issue in this case which are already protected by the Constitution, it follows that the claim under the European Convention on Human Rights must also fail.
So far as the issue of guidelines regarding the question of whether any person who assisted Ms. Fleming in effecting her suicide might be prosecuted or not, the Court notes that the Prosecution of Offences Act 1974 (unlike the similar legislation in the UK) does not provide for guidelines of this nature. Article 15.2.1 of the Constitution provides that only the Oireachtas can change the law and it would be unconstitutional for the Director to effect a de facto change in the law by issuing guidelines, the result of which would be that the law would not be enforced.
However, a different state of affairs arises where reliable evidence of compliance with a list of factors, such as those specified in the UK guidelines is presented to the Director ex post facto the event. In those circumstances, the Director remains free to exercise her discretion and make a fully informed decision as to whether or not to initiate a prosecution. The Court feels sure that the Director in this of all cases would exercise her discretion in a humane and sensitive fashion while stressing that the Director must retain the full ambit of her discretion as whether to prosecute or not. This approach leaves the legislative ban intact while ensuring that the Director is afforded the fullest opportunity to consider what she may think are the special and extenuating factors arising from the harrowing experiences being endured by the plaintiff. But beyond this the Court cannot and will not go.
* This summary of the judgment is for convenience only. The authoritative text remains that of the judgment itself and this summary does not bind the Court.