DPP needs clear protocols after assisted suicide ruling

If the court had stopped there, its ruling might raise fewer questions.

Contradictory conclusions

However, moved by Fleming’s evidence in the case and sympathy for her plight, the court made some further suggestions that somewhat contradict its own conclusion. It was observed that should Fleming’s family assist her to end her life, they would be entitled to submit documents to the DPP describing the circumstances of so doing, and the DPP would be obliged to consider these when exercising her discretion over whether to prosecute.

It was also observed that the English guidelines are of considerable assistance here and would “surely inform” the DPP’s decision. The court stated that it felt “sure that the [DPP], in this of all cases, would exercise her discretion in a humane and sensitive fashion”.

It is difficult to escape the impression that the court was trying to have it both ways. On the one hand, it held that the DPP was precluded from issuing guidelines, since to do so would amount to an alteration of the existing law by indicating in advance who is and is not likely to be prosecuted for the offence.

On the other hand, the court stressed that the DPP was free to exercise discretion after the event not to prosecute, and held that the English guidelines, and communication between the individuals concerned and the DPP, could inform this process.

It is difficult to see the real difference between these two approaches.

Double bind

The decision suggests that the DPP cannot legally do what is done in England – but also that, in truth, we expect her to deal with cases in exactly the same way, based on the very guidelines that she is not entitled to issue.

If the outcome is to be so similar, would it not be better to base the process on a transparent application of Irish guidelines rather than a surreptitious application of English ones? Admittedly, the ruling was partly based on the court’s doubts over whether there was a clear legal basis on which to order the DPP to issue guidelines.

If this is correct, the matter could (for example) be rectified by legislating to grant the DPP this power in the same way as her counterpart in England and Wales. This is what we need to debate: what is the appropriate legislative response to the dilemma highlighted by the case?

Unfortunately, by the time the dust finally settles from the abortion controversy, there will be no prospect of the Government grasping the nettle of assisted suicide.

Dr CONOR O'MAHONYlectures in constitutional law at University College Cork