IEHC 2
THE HIGH COURT
[2012 No. 10589P]
IRELAND, THE ATTORNEY GENERAL AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT of the Court delivered by Kearns P. on the 10th day of January, 2013
1. In the 75 years since the Constitution was enacted both this Court and the Supreme Court have been required to examine a vast proliferation of issues in a huge corpus of case-law. Over that period few cases have emerged which are more tragic or which present more difficult or profound questions than the issues presented for adjudication here. At the heart of this application lie novel and difficult questions as to whether constitutional provisions which guarantee personal liberty and autonomy in Article 40 of the Constitution are interfered with by a statutory prohibition which prohibits even a citizen in deep personal distress and afflicted by a terminal and degenerative illness to avail of an assisted suicide and, if they do, whether such an absolute statutory prohibition passes a proportionality test.
2. These proceedings were commenced by plenary summons on 25th October, 2012 and were fast-tracked and case managed to full hearing before this Court on 5th December, 2012.
3. In the proceedings the plaintiff’s claim is for:
4. The Criminal Law (Suicide) Act 1993 (hereinafter referred to as “the Act”) abolished the offence of suicide while providing for an offence for an accomplice to suicide. Section 2 of the Act provides:-
(1) An order declaring that section 2, subsection (2) of the Criminal Law (Suicide) Act 1993 is invalid having regard to the provisions of the Constitution of Ireland;
(2) An order declaring that section 2, subsection (2) of the Criminal Law (Suicide) Act 1993 is incompatible with the rights of the plaintiff pursuant to the European Convention on Human Rights and Fundamental Freedoms;
(3) In the alternative, an order directing the third named defendant, within such time as to this Court shall seem just and appropriate, to promulgate guidelines stating the factors that will be taken into account in deciding, pursuant to section 2, subsection (4) of the Criminal Law (Suicide) Act 1993, whether to prosecute or to consent to the prosecution of any particular person in circumstances such as those that will affect a person who assists the plaintiff in ending her life.
5. Defences to the plaintiff’s various claims were filed on behalf of the State defendants and on behalf of the Director of Public Prosecutions.
“(1) Suicide shall cease to be a crime.
(2) A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding 14 years.
(3) If, on the trial of an indictment for murder, murder to which s. 3 of the Criminal Justice Act 1999 applies or manslaughter, it is proved that the person charged aided, abetted, counselled or procured the suicide of the person alleged to have been killed, he may be found guilty of an offence under this section.
(4) No proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions.”
6. The defence delivered on behalf of the State denies that the said statutory provision infringes any specific or unenumerated constitutional right enjoyed by the plaintiff in the manner pleaded and further denies that the Constitution of Ireland expressly or implicitly confers upon the plaintiff or any other person a right to die. The defence states that the said statutory provision is necessary in the interests of the common good and that the public interest in maintaining that statutory provision without qualification or exception outweighs any alleged rights which the plaintiff might claim to have in terms of obtaining the assistance of another person for the purpose of terminating her own life. The Criminal Law (Suicide) Act 1993 is a law of general application which is designed to cover the many circumstances in which one person might aid, abet, counsel or procure the suicide or attempted suicide of another and it is therefore necessary for the promotion of the common good and the protection of the public interest. The defence also contends that s. 2 (2) of the Criminal Law (Suicide) Act 1993 admits of no qualification or exception to the offence of aiding, abetting, counselling or procuring the suicide or assisted suicide of another. The statutory provision does not, however, exclude the application of any general defences available at common law.
7. It is further denied by these defendants that the statutory provision is incompatible with the State’s obligations under the European Convention on Human Rights or any provision thereof. It is further denied that the plaintiff is entitled to seek a remedy directly from this Court on the basis of a claim that there has been an alleged breach of her rights by reference to the provisions of the European Convention on Human Rights. The European Convention on Human Rights Act 2003 does not give direct effect in Irish Law to the European Convention on Human Rights. Alternatively, it is denied that the statutory provision contravenes any right of the plaintiff defined under the Convention or that it discriminates against the plaintiff on the ground of disability contrary to Article 14 of the Convention.
8. The defence of the third named defendant denies that the common law provides no exception or defence in that any person charged with an offence under the section would have available any common law defences which arise generally in the case of serious indictable crime. This defendant contends that the entitlement of the Director to exercise a discretion whether or not to prosecute arises only after the commission of an offence and that she is not obliged under the Constitution or at law to promulgate guidelines. This defendant further denies that her refusal so to do constitutes a breach of the plaintiff’s right to privacy either under Article 40 of the Constitution or under Article 8 of the European Convention on Human Rights. It is further denied that the Convention rights articulated in the plaintiff’s claim are directly applicable in this jurisdiction and pleads that the plaintiff is confined to such rights and remedies as arise under the European Convention on Human Rights Act, 2003.
9. On behalf of the Human Rights Commission it was submitted that a person has a right, flowing from their personal autonomy rights, to take their own life in “defined and extreme” circumstances. The Commission invited the Court to consider whether the absolute ban on assisted suicide under Irish law is justified having regard to the extent of interference with the personal rights of a terminally ill, disabled and mentally competent person such as the plaintiff. The Court was invited to consider if it could be achieved in less absolute terms. The existing ban could be replaced by legislation which would be a measured and proportionate reconciliation of the right to life, reflecting the sanctity of life but also taking into account personal rights of autonomy, privacy and equality rights.
10. The plaintiff is 59 years of age and lives in Arklow, Co. Wicklow with her partner, Tom Curran, with whom she has been in a long term relationship since 1995. She has two children aged 40 and 28 from previous marriages. The plaintiff was born and raised in Lifford, Co. Donegal and is the eldest of five siblings. In 1986, aged 32 her first episode of multiple sclerosis began and a diagnosis of MS was made in 1989 when she was aged 35. At the time of her diagnosis during the years 1987 – 1992 she was the assistant director of the Department of Adult Education in the University of Swansea. When her marriage broke up in 1992 she returned to Ireland where she did some consultancy work in University College, Dublin until 1995, when she had to cease working due to her illness.
11. Multiple sclerosis is an immune-mediated inflammatory disease causing neurological deficits which follows a relapsing-remitting pattern. Sufferers initially experience short-term neurological deficits and for some patients the disease involves progressive neurological deterioration and eventually death. Although there are some medications that can modify the progress of the disease in its early stage, there are no drugs to treat the advanced stages and there is no cure.
Plaintiff’s current condition
12. The plaintiff’s current neurological condition is that she is unable to walk or to use her lower or upper limbs. Since 2001 the plaintiff has been confined to a wheelchair as a means of mobility, although she can no longer propel herself. She therefore requires to be pushed. She would be unable to control an electric wheelchair. She has no bladder control. Since 2010 has lost the use of her hands and is almost totally physically helpless and requires assistance with all aspects of her daily living.
13. While she remains able to communicate it is becoming increasingly difficult for her to speak and the nature of her speech has changed significantly. This is associated with the gradual loss of control of the muscles of the neck. She is very concerned that, in due course, she will lose the capacity to communicate verbally. In order to maintain her speech she attends speech therapy and undertakes the necessary exercises and treatments. She frequently chokes when swallowing liquids and can suffer choking episodes, even when not attempting to swallow. Such choking episodes are extremely exhausting, frightening and generally distressing. The eventual loss of the ability to swallow will put her at risk of aspiration and she will eventually become dependent on artificial feeding. She is now in the final stage of her disease and is experiencing a rapid deterioration of her condition.
14. She states that she suffers from significant and frequent pain from a number of sources which is intense and sometimes almost unbearable.
15. She suffers from neurological-type pain in her hips, legs, hands and the back of her head and non-neurological pain associated with muscle weakness or spasm from sitting for prolonged periods of time. She suffers significant head and neck pain, lower back pain and severe arm pain associated with the weakening of muscles in the limbs. In addition she suffers frequent spasms in her upper and lower limbs which are extremely painful and debilitating; the affected limb becomes rigid and requires gradual easing of the limb back to a relaxed position in order to ease the pain.
16. She is now required to wear special splinting gloves because of painful spasms in her hands and in order to prevent their occurrence. She also reports suffering burning sensations in her temples and stabbing pains in her eyes.
17. Her typical daily routine involves waking at 8.00am and being given her tablets. At 9.00am she is toileted, fed, washed and dressed with assistance. If she chooses to have a shower the process takes approximately 2 hours. Once the tasks are complete she spends the remainder of the day in a wheelchair. She is required to be repositioned three to four times each day as sitting in the wheelchair is uncomfortable and contributes to the pain she experiences. Her activities are limited to listening to the radio, looking at her garden and on occasion, dictating for short periods. The process of preparing for the end of the day commences at approximately 6.00pm and she is in bed from 7.00pm until the following morning.
18. The plaintiff reports taking maximal doses of analgesia that she can without becoming comatose or reaching a level beyond which it is difficult to function. Therefore, while it is possible to control the pain somewhat to do so any further would decrease what quality of life she has. In total she takes 22 tablets per day: antispasmodic tablets, tablets for bladder control, for pain relief and for constipation. This medication is for the management of her symptoms as no treatment can be administered for the purpose of treating her condition. There are side effects to the medication which include dry mouth, hot and cold flushes, heart palpitations, drowsiness, nausea and sleeplessness.
EDSS (Expanded Disability Status Scale)
19. On the EDSS (Expanded Disability Status Scale), which is a scale used to describe the progress of multiple sclerosis, her consultant neurologist Professor Tubridy assessed hers as an 8.5 which means the patient is essentially restricted to bed much of the day with some effective use of arms and some self care functions. However the plaintiff feels she has deteriorated since Prof. Tubridy’s assessment and is now at 9 at best on the EDSS and possibly a 9.5 (difficulty speaking and swallowing). The next point on the EDSS is 10, representing death from the disease. Her condition is in the terminal phase and ability to function continues to deteriorate until her body completely shuts down.
20. The plaintiff has been assessed with a view to establishing her levels of competence and has been advised that she has no underlying mental illness that does or is likely to affect her decision-making capacity. The disease has not impaired her cognitive functions. She states that she now lives with little or no dignity. She did consider ending her life five years ago by travelling to Switzerland to avail of the services offered by Dignitas. On the wishes of her partner and on the realisation that Dignitas was located in an industrial estate she postponed her decision. She now claims that if she were able to end her life she would do so and regrets not doing so before she lost the use of her arms. The thought of enduring months without the ability to communicate in pain and isolation with full consciousness or being heavily sedated to the point of being barely conscious is horrifying to her.
21. All of these facts are corroborated and confirmed in medical reports furnished as agreed evidence by the plaintiff’s advisors, including those of Prof. Niall Tubridy, consultant neurologist, Dr. Paul Scully, consultant psychiatrist, Dr. Niall Pender, clinical neuropsychologist and her general practitioner, Dr. Ann Marie O’Farrell. Dr. O’Farrell’s report, filed in the aftermath of the plaintiff’s own evidence, stated that any decision by the plaintiff to withdraw consent to medical treatment and opt instead for palliative treatment only would not help her in any way because it would only exacerbate the worst features of her condition and require the re-instatement of her existing medication regime. The report also stated that the plaintiff’s mind and its forceful clarity “is all that Marie has left”. Both the plaintiff and Dr. O’Farrell believe that the side-effects of heavy pain-killing medication would significantly increase her drowsiness and reduce her clarity of thought. Dr. O’Farrell states that the plaintiff’s strong wish is to preserve this mental clarity as it constitutes her one remaining faculty.
ORAL EVIDENCE GIVEN TO THE COURT
22. The Court was both humbled and inspired by the courage and mental clarity demonstrated by the plaintiff in coming to Court and giving evidence. She described in evidence how she had seven different carers and struggled every single day with the myriad problems outlined above. It left her feeling totally undignified. She had great difficulty trying to keep her head up and has constant pain in her shoulders, limbs and joints. She felt, indeed she was well aware, that her condition was getting worse but her medication for pain relief was presently at the top dosage she could take without becoming comatosed. She is presently taking 22 tablets of different medications every day. Her wish and her request to the Court was for assistance in having a peaceful dignified death in the arms of her partner and with her children in attendance. However, she did not wish to leave a legacy behind her whereby her partner or her children could be prosecuted. Her partner, while willing to help her, would only do so if it was lawful. She did not wish to die in the same way as a fellow sufferer from MS who died of hunger and thirst at the end of her treatment. She believed that with assistance she could self administer gas through a face mask. Alternatively with medical assistance a cannula could be put into her arm whereby a lethal injection would pass into her veins.
23. She told the Court she had confronted any fears she ever had about dying and was at peace with the world. She had even organised her funeral arrangements so as to include a wicker coffin and an accompaniment of jazz music on the day.
24. She stated she had nothing to hide and if an independent person needed to validate any steps that were taken she would be quite happy with that. She confirmed that palliative care was not acceptable to her. Massive doses of painkillers might alleviate the symptoms of pain but she believed it would keep her in a comatose state which she did not want.
Professor Margaret Pabst Battin
25. Professor Battin is a professor of philosophy at the Philosophy Department of the University of Utah in the United States. Her specialty is bioethics which incorporates medical ethics. Though not a clinician she has been studying the issue of assisted suicide for 30 years. In 2007 she co-authored a study on legal physical-assisted dying in the state of Oregon and the Netherlands. This 2007 study concluded that there was not a disproportionate impact on vulnerable persons where assisted dying was legalised. In 2008 she published a paper identifying and addressing objections made to the initial study.
26. Professor Battin commenced by saying that from her analysis of the Death with Dignity Act in Oregon and roughly analogous legislation in the Netherlands, sufficient safeguards in relation to assisted dying were in place to ensure abuse did not occur. (She suggested that there could be added safeguards such as antecedent consultation with the DPP). She identified two forms of abuse – procedural and substantive – and it was acknowledged that the possibility of abuse existed but there was no evidence of wholescale abuse.
27. In the 2007 study, ten vulnerable groups were identified which included the elderly, women, people without insurance, people with stigmatised illnesses, the poor, people with low educational status and those with disabilities. The fact that these groups were categorised by reference to certain socio-economic groups instead of by reference to emotional vulnerability or personality type was criticised in a paper by Finlay and George. Professor Battin responded that the study was looking for identifiable objective indicators not at the motivation or the particular mechanics of peoples’ choices. She acknowledged that Finlay and George’s understanding of what counts as “vulnerable” was different from that in the study. She continued that her data was robust and she was confident of the conclusions regarding these vulnerable groups since these categories were drawn from statements originating from various expert bodies such as the American College of Physicians and the British Medical Association.
28. She stated that the assumption that legalisation brings extra-legal practices into being is backwards, and its actual effect is to bring these practices out into the open and allow them to be regulated and controlled much more carefully. Citing the Netherlands she claimed that as legalisation becomes more robust, life-ending acts without current explicit request have been consistently declining.
29. Further, she said that not every request for assisted suicide is acted on and that assisted dying has not been extended to an ever widening circle. Overall, incidents of assisted dying are extremely low. In Oregon only 0.2% of people who die avail of this option. In the Netherlands the proportion is also small – about 3% of those who die. She stated that the vast majority of people do not die by assisted suicide. In relation to any issue of coercion she said this could be detected by a number of techniques such as conducting interviews with patients, family members, or physicians. The study avoided conjecture as to why people chose this route and she went on to say that the 2007 paper was not saying that coercion could not conceivably occur but rather that it could serve as an index as to whether coercion did occur.
30. It was put to the witness in cross-examination that, by their nature, some of the feared abuses in relation to assisted dying, such as coercion, do not lend themselves to identification by empirical data. Professor Battin responded by saying that there are techniques for identifying coercion, therefore it is not impossible to detect. She went on to say that the 2007 paper was not saying that coercion could not conceivably occur. However, if there was coercion of the elderly then one would see higher rates and nothing was found that could be construed as evidence of coercion against a particular group of persons. The study explicitly declined to explore the issue of motivation.
31. Counsel for the State, Mr. Cush S.C., then put to her for her comment some eight objections in relation to her study. Most of the objections were discussed in order to highlight the fact that there were objections and not to examine their robustness. Objection 6, that the data cannot get at cases of depression, was recognised by Professor Battin as the most serious concern but she stated that it did not undermine the study as the data indicates euthanasia is not practised more frequently on people made vulnerable by mental illness. She also explained that there are many kinds of depression. The State pointed out that she herself called her claim “modest”. The State then turned to the paper by Finlay and George where they cited Professor Linda Ganzini (who co-authored with her the 2007 paper) as saying that Oregon’s Death with Dignity Act may not adequately protect all mentally ill patients. Professor Battin pointed out that Ganzini had used the phrase “may not” instead of “does not”. The State responded by referring to Professor Ganzini and her conclusion that further study was needed to determine whether treatment for depression affected the choice to opt for assisted dying.
32. Objection 7 (that there is a misconstrual of “vulnerable patients), was said by Professor Battin to ring true to a certain extent. The key criticism from Finlay and George was that categories of vulnerability were drawn by reference to certain socio-economic groups instead of in relation to emotional vulnerability or personality type. Professor Battin responded that the study was looking for identifiable objective indicators and not at the motivation or the particular mechanics of peoples’ choices. She acknowledged that Finlay and George’s understanding of what counts as “vulnerable” was different from that in her study.
33. On the question of whether a change in legalisation would result in the abuse of vulnerable persons, two forms of abuse were identified – procedural and substantive – and it was acknowledged that the possibility of abuse existed but there was no evidence of wholescale abuse. She added that where there is procedural abuse it is declining and she was not aware of substantive abuse cases.
Dr. Tony O’Brien
34. Dr. Tony O’Brien is a consultant physician in palliative medicine and former chair of the Council of Europe Expert Committee on Palliative Care. He has 26 years experience with 30,000 dying or suffering patients and is one of Ireland’s leading palliative care specialists. He told the Court that he supports the ban on assisted suicide and takes great comfort and reassurance from the fact that the law, as it stands, is explicit and abundantly clear. He is fearful that a change in the law would result in people opting for assisted suicide in the belief that they are an excessive burden to those around them. He added that were the law to change the whole issue of persons with impaired competence would be enormously difficult and the situation would be quite impossible. He stated that it would be “entirely radical for a physician to attempt to kill the pain by killing the patient.”
35. He explained that palliative care is regarded as a medical intervention which is concerned with quality of life. It involves pain and symptom management where the patient is also given psychological, social, emotional and spiritual support so that they can live a life of their choosing in the place where they choose to live it to the greatest possible extent.
36. He stated that the representation that palliative medicine achieves pain control by effectively anaesthetising the patient is an incorrect one. He commented that opioids have the potential to offer enormous benefit that is not in any sense achieved by rendering the patient comatose or in any way compromised. Patients may function absolutely normally without restriction or impairment of cognitive functions provided that the drug dose is carefully selected, titrated and monitored. He explained that pain is the natural antagonist to opioid side effects. So if a person is in pain and taking an opioid, the pain will antagonise, not all, but many of the unwanted adverse effects of the opioids. Pain control is not the primary objective of palliative care. He found it to be an interesting feature from the experience of other jurisdictions that “uncontrolled pain typically ranks quite low down in the hierarchy when people are identifying reasons why they wish to have their life ended”. A situation whereby a patient achieves and maintains an optimal level of pain and symptom control is the foundation stone on which the patient can build or rebuild the rest of their life. Dr. O’Brien stated that the use of opioids has a dual function: firstly, it achieves and maintains reasonable pain control; and secondly, it enables the patient live the life they choose to live.
37. He said Professor Battin’s view of terminal sedation, involving necessarily the withdrawal of food and hydration, was inconsistent with his experience of the practice of sedation in this jurisdiction. He stated that sedation does not hasten death. He commented that patients are going to die with or without palliative sedation; they are dying as a direct, unavoidable and inevitable consequence of their underlying disease process. Moreover, he said that hydration and nutrition are entirely separate entities; one would have to weigh up the benefit/burden of each intervention. The benefit/burden of each treatment is undertaken individually and on an ongoing basis.
38. He stated that patients will die much more peacefully and in much less distress if their symptoms and fears are appropriately managed through palliative care. The level of sedative medication is carefully titrated to ease the patient's distress but is not administered in such doses whereby the clear intention is to shorten a person’s life. On cross examination he rejected the assertion that sedatives are never administered as a primary purpose of shortening life but it is sometimes done knowing that that is what will happen.
39. According to Dr. O’Brien palliative care can assist in allowing the plaintiff to die in her own bed, in her own home and surrounded by her family. It can afford her the possibility of dying with dignity in a peaceful and gentle way. When death is expected within quite a short period of time the Irish Hospice Foundation will fund a nurse to attend to that patient overnight for a period of up to 14 nights. This is designed to give an additional layer of support, comfort and reassurance to family members and to others assisting in the care of such a person at home.
40. Dr. O’Brien said that the situation of the plaintiff could be greatly enhanced and significantly improved by active engagement with palliative care professionals. And there may be situations where palliative care professionals could reasonably reassure her in respect of her fears which he feels could be exaggerated or ill-founded.
41. According to Dr. O’Brien the idea that the plaintiff would become unable to communicate but would nevertheless remain conscious would not be a likely occurrence as she would most likely succumb to respiratory sepsis. The risk of speech function being lost while swallowing and respiratory functions continue is unlikely as typically they decline roughly in parallel. Further, where patients lose the ability to speak that there are other ways in which they can communicate their needs very efficiently and effectively.
Professor Robert George
42. Prof. George is currently a consultant physician in Guy’s and St. Thomas’ hospital in London and is Professor of Palliative Care at Cicely Saunders Institute. He has been a consultant in palliative care since 1987. He said that deliberate intervention in the process of dying completely reclassifies the role of medicine. He claimed that distinguishing assistance from suicide would have an effect on the ambient view as to what is normal resulting in a paradigm shift in society. He described killing people as a treatment or as a solution as the greatest risk because it changes society fundamentally and that legalisation will result in a much more hazardous environment for the vulnerable. Using the example of the Netherlands, he commented that what began as voluntary euthanasia became non-voluntary for people who were incapable. The issue then affected people with psychiatric disorders and presently the possibility of offering it to children is being discussed. He also warned that once assisted suicide enters the domain of treatment then economic utility is considered. He cited a case from the Remmelink Report in which a patient had non-voluntary euthanasia in order to free up a hospital bed.
43. On the issue of safeguards he said that when they are incorporated into physician-assisted suicide they probably decrease but do not prevent its misapplication. He went on to say that it is difficult to objectively analyse a patient’s capacity; depression and helplessness greatly impact on a patient’s perception of their value and their desire for death. He also explained that many patients have a degree of mental incapacity as they are acutely ill; their capacity is affected by their symptomatology. Furthermore, in his experience patients change their minds all the time according to what is occurring with them clinically and psychologically within the dynamics of the family. He is not concerned primarily about malicious abuse but rather subconscious abuse. Legalisation will result in an ambient change in society where inherently groups of people are going to be at risk. According to Professor George if legalisation were to occur the likelihood of involuntary deaths would be “absolutely probable” and that the risks to vulnerable people are evident and cannot be monitored adequately.
44. On cross examination he said the narrow exception requested by the patient would not be less of a worry as no matter how narrow the argument is construed, it is a paradigm shift. He explained this by saying that “if there is one person who is considered legitimate or justified in making a claim then the territory changes by the very fact of the acceptance of that claim.” In sum, allowing for the narrow exception that the plaintiff is requesting would lead to a “categorical change”. He described the situation in Oregon where assisted suicide was narrowly defined and tightly controlled. He said that in the first year 15% of patients said being a burden on their family was a contributing factor in their decision to opt for assisted suicide. By year seven that figure rose to 32% and the median figure runs at around 42%. The legalisation in Oregon he said has lead to an ambient change and he is deeply troubled by that.
45. Professor George agreed with Dr. O’Brien that if the plaintiff were to re-engage with palliative care services it would benefit her greatly. He also stated that if someone has limitations in communication there are lots of means that one can use to improve the situation. He added that the earlier referrals to palliative care had lower sets of problems and their ability to resolve problems increased. This he explained was because the measures and the means to communicate were set in process to deal with deteriorating communication early and this allowed physicians to continue the processes despite the loss of function.
46. He went on to say that “if a person is able and decides to go and do whatever that person decides to do, then society may say they are free to do that, but if physicians are furnishing the means for somebody to do this then we are reclassifying a decision here.” He commented that in terms of professional clinical practice in the UK a GP or other medical practitioner is under an active duty to stop that person possibly committing suicide.
47. Finally, he concurred with Dr. O’Brien on the correct use of opioids and said that the notion that “by giving opioids at the very end of life we are bringing about death simply isn’t true in our experience and the evidence doesn’t support it at all.”
THE CONSTITUTIONAL ISSUE
48. The Court turns now to consider first the challenge to the constitutionality of the assisted suicide ban contained in s. 2 of the 1993 Act. It is only in the event that this constitutional challenge were to fail that this Court would have jurisdiction – should the matter arise - to issue a declaration of incompatibility under s. 5(1) of the European Convention of Human Rights Act 2003 (“the Act of 2003”).
49. At the heart of the plaintiff’s case is her contention that inasmuch as Article 40.3.2 of the Constitution protects her “person”, this also necessarily embraces decisions concerning her personal welfare, including medical treatment. It is, of course, perfectly clear that the protection of personal autonomy in matters of this kind is a core constitutional value. The protection of the person is accordingly juxtaposed with other rights which are key to the fundamental freedom of the individual – liberty, good name and the protection of property. To this may be added the Preamble’s commitment to the dignity and freedom of the individual as a fundamental constitutional objective and the recognition by Article 44.1 of freedom of individual conscience. For good measure, one might here also include similar and over-lapping rights such as the right to bodily integrity and personal privacy which have been judicially held to be protected as implied personal rights for the purposes of Article 40.3.1.
50. All of this means that the State cannot prescribe an orthodoxy in respect of life choices of this fundamental nature and, moreover, that individual choices of this kind taken by competent adults must normally be respected absent compelling reasons to the contrary. The following passage from the (admittedly dissenting) judgment of Henchy J. in Norris v. Attorney General  I.R. 36, 71-72 may be taken to represent the current judicial consensus on this question:
51. In line with the sentiments expressed in this passage, the Court would observe that there are profound and different moral, ethical, philosophical and religious views on the question of end-of-life decisions such as the issue in controversy here. These are questions which are best left to public discourse and political debate and do not in and of themselves directly impinge on our analysis. If, accordingly, the plaintiff’s constitutional rights extend as far as the manner claimed, then the fact that she is exercising those rights in a manner and for a purpose which some might consider contrary to their own ethical, moral or religious beliefs – or even the prevailing mores of the majority - is irrelevant.
“…there is necessarily given to the citizen, within the required social, political and moral framework, such a range of personal freedoms or immunities as are necessary to ensure his dignity and freedom as an individual in the type of society envisaged. The essence of those rights is that they inhere in the individual personality of the citizen in his capacity as a vital human component of the social, political and moral order posited by the Constitution….It is sufficient to say that there are [personal rights of this nature] which fall within a secluded area of activity or non-activity which may be claimed as necessary for the expression of individual personality, for purposes not always necessarily moral or commendable, but meriting recognition in circumstances which do not engender considerations such as State security, public order or morality, or other essential components of the common good.”
52. Inasmuch, therefore, as the plaintiff advances a conscientious and considered decision to seek the assistance of others to take active steps to end her own life in the face of a terminal illness which has ravaged her body and rendered her life one of almost complete misery, we consider that such a decision is in principle engaged by the right to personal autonomy which lies at the core of the protection of the person by Article 40.3.2. In that respect, therefore, such a decision is not really properly to be regarded as either an implied constitutional right in its own right or a right derived from an implied constitutional right in the manner discussed (and rejected) by the US Supreme Court in Washington v. Glucksberg 521 U.S. 207 (1997): it is rather a facet of that personal autonomy which is necessarily protected by the express words of Article 40.3.2 with regard to the protection of the person.
53. The Court, however, has chosen the words “in principle” advisedly, because it considers that there are here powerful countervailing considerations which fully justify the Oireachtas in enacting legislation such as the 1993 Act which makes the assistance of suicide a criminal offence. Like Rehnquist C.J. in Glucksberg, the Court believes there is a real and defining difference between a competent adult patient making the decision not to continue medical treatment on the one hand – even if death is the natural, imminent and foreseeable consequence of that decision - and the taking of active steps by another to bring about the end of that life of the other. The former generally involves the passive acceptance of the natural process of dying, a fate that will ultimately confront us all, whereas the latter involves the active ending of the life of another - a totally different matter.
54. This fundamental distinction further reflects the fact that one necessary feature of the Constitution’s protection of the “person” in Article 40.3.2 is that the competent adult cannot be compelled to accept medical treatment and that our constitutional traditions have firmly set their face against the compulsion of the competent adult in matters of this kind: see, e.g., North Western Health Board v. H.W.  3 I.R. 622, 746-753 per Hardiman J. and Fitzpatrick v. FK  IEHC 104,  2 I.R. 7, 18-19, per Laffoy J. This, after all, is the rationale for the decision in In re a Ward of Court (No.2) 2 I.R 79, where a majority of the Supreme Court concluded that inasmuch as every competent adult could take steps to hasten their end by refusing medical treatment, that right should not be denied to the ward - who was not herself in a position to make such a judgment - if it were in her best interests to do so. It followed, therefore, that the courts were entitled to make that decision in the best interests of the ward. As it happens, that approach coincides in substantial measure with the view expressed by the US Supreme Court in a case with not dissimilar facts, Cruzan v. Director, Missouri Department of Health 497 U.S. 261 (1990), save that the U.S. courts would not compel a State to follow the wishes of the family in the absence of clear evidence as to what the patient herself would have wished.
55. The taking of active steps by a third party to bring about death is an entirely different matter, even if this is desired and wished for by an otherwise competent adult who sincerely and conscientiously desires this outcome and even if again, as Rehnquist C.J. observed in Glucksberg, the difference in some particular cases between the two types of decisions may sometimes be nuanced and blurred. If this Court could be satisfied that it would be possible to tailor-make a solution which would address 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 in favour of her case. But this Court cannot be so satisfied. It certainly can not devise some form of legislative solution which would be an impermissible function for the Court. Further, the Court is mindful that any legislative solution would have to be of general application and this is true a fortiori of any judicial decision which the Court might be called upon to make.