One of the most difficult dilemmas to confront the courts


ANALYSIS:Evidence from two palliative care experts proved influential in decision

An old legal maxim asserts that hard cases make bad law, although some have suggested that it is bad law that makes hard cases.

The case of Marie Fleming presented one of the most difficult dilemmas to come before the courts.

There is no dispute that she is suffering acutely in the final stages of multiple sclerosis, with doctors estimating she is unlikely to live beyond two years. In eloquent and moving testimony, she made clear she has made a conscientious decision she wants to be helped take her own life at a time of her choosing.

Her case centred on arguments that her rights to personal autonomy, bodily integrity, and equality under the Constitution and European Convention on Human Rights were impermissibly infringed by the blanket ban on assisted suicide in section 2.2 of the Criminal Law Suicide Act 1993.

Her action was about “the right to live one’s life as one sees fit”, including to decide on medical treatment and to end one’s life. The State cannot prescribe an orthodoxy regarding life choices, she argued.

The court said the profound and different moral, ethical, philosophical and religious views on the question of end-of-life decisions were matters best left to public discourse and political debate and did not directly impinge on its analysis. It did not make a finding on whether or not there is a right to die under the Constitution. Had it found no such right, that would have been an end to the case.

As Ms Fleming advanced a considered decision to seek help to end her life “of almost complete misery”, her decision “in principle” engaged the right to personal autonomy lying at the core of the protection of the person in article 40.3.2 of the Constitution, it said.

While a competent adult has a right to refuse medical treatment even if that leads to their death, the court found the taking of active steps by a third party to bring about the death of another was an “entirely different” issue.

It considered that the State had advanced compelling evidence that such a law was not possible and that even extensive safeguards would not prevent involuntary deaths of vulnerable people.

The court was strongly influenced by evidence from two palliative care experts, Dr Tony O’Brien and Prof Rob George, who have worked with thousands of dying and suffering patients. They argued that the ban protected the vulnerable, especially those who might choose suicide because they believed they were a burden on others, and prevented “a paradigm shift” in the attitudes of doctors, which could result in the value of human life being diminished.

The State also advanced data from countries including the Netherlands and Switzerland where assisted suicide and/or euthanasia are legal. The court was concerned that the number of legally assisted deaths without explicit consent was “strikingly high” – from 0.4 to 1 per cent of all deaths.

It also noted a case in the Netherlands where a wife told her husband she no longer wished to care for him at home, gave him a choice between euthanasia or a nursing home and a doctor administered euthanasia.