Keeping the lid on Pandora's box
In ruling yesterday against Marie Fleming in her assisted suicide case, the High Court has unfortunately avoided explicitly taking a view on two issues central to the tragic case.
On the one hand, Mr Justice Nicholas Kearns in his ruling does not address the personal merits of Ms Fleming’s harrowing case, warning that “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 . . .” Might? But, clearly better not to venture there and draw attention to the reality that, if not worried about creating precedents, the court might find for her right to act as she wished. And to the difference between law and justice.
On the other hand, Justice Kearns hints at, but stops short of confirming that taking one’s own life is expressly or implicitly a constitutional right, although he goes as far as acknowledging a competent adult patient has the right to refuse medical treatment, even if this leads to death. The substantive issue does not need to be decided, he argues, because the issues involved in assisted suicide are so qualitatively different from suicide itself that they can be decided irrespective of whether any such constitutional right exists. There is no right to assisted suicide – there may be a right to suicide.
The court’s preoccupation is overwhelmingly not with Ms Fleming but the consequences of conceding her point. The “slippery slope” conjured up so vociferously in the abortion debate, again writ large. “If this court,” Justice Kearns argues, “were to unravel a thread of this law by even the most limited constitutional adjudication in her favour, it would – or, at least, might – open a Pandora’s box which thereafter would be impossible to close. In particular, by acting in a manner designed to respect her conscientious claims and to relieve her acute suffering and distress, this court might thereby place the lives of others at risk.”
The court was concerned primarily that legalising assisted suicide would place the vulnerable under pressure to opt for suicide to ease pressure on families. It heard contested evidence on the issue from both sides on the experience in the Netherlands, Belgium and Oregon where assisted suicide is legal with strict safeguards. The court chose to accept that legislation against assisted suicide was not an unreasonable or disproportionate response to such fears. Ultimately, however, that is a call for our ever-diffident legislators.
Not unlike abortion, this is an issue that will not go away. Many conscientious doctors will admit privately to having crossed the grey line between palliative care and shortening the last moments of a dying patient. Is it right just to accept that reality with a nod and wink, and safer just to pretend it doesn’t happen?