State ban on assisted suicide 'unjustified'

Society’s interest in discouraging suicide does not justify the State’s blanket ban on assisted suicide in the case of a terminally ill woman who wants to die at a time of her choosing but is unable to take her own life, the High Court has been told.

The absolute ban on assisted suicide was unconstitutional, unnecessary, unjustified, disproportionate and irreconcilable with the right of Marie Fleming (58) to a dignified death in a manner and timing of her choice, Brian Murray SC argued yesterday.

High Court president Mr Justice Nicholas Kearns asked if concerns about rising suicide rates should be considered. Mr Murray agreed there was a societal interest in discouraging suicide but he said the State had failed to show how the interests of the common good qualified Ms Fleming’s rights.

Not relevant

Cases involving suicide pacts and mercy killings being relied on by the State were not relevant in Ms Fleming’s case, he submitted.

Strict safeguards and protocols had been introduced in other jurisdictions to address concerns about vulnerable people being encouraged by relatives or carers to take their own lives when they had not made such a decision themselves, he said. Such safeguards would afford more protection to the vulnerable than a total ban on assisted suicide.

Mr Murray added that the State had no right to say its interest in a person’s life or “some theory of natural law” overrode that person’s absolute right to decide the course of their own lives.The State could not “criminalise” private behaviour “because it doesn’t like it”.

Mr Murray was continuing his arguments in the action by Ms Fleming, who is in the final stages of multiple sclerosis and who wants the court to permit her to be lawfully assisted in taking her own life. Ms Fleming also argues that the DPP is required to provide guidelines as to what factors are taken into account when deciding whether to prosecute in a case of assisted suicide.

Three-judge court

The case is being heard by Mr Justice Kearns, Mr Justice Paul Carney and Mr Justice Gerard Hogan. Mr Justice Kearns said the court required an affidavit outlining the effects on Ms Fleming if she later decided to refuse palliative treatment. That may be a factor for the court, he said.

Ronan Murphy SC argued that the DPP’s failure to publish the factors to be considered in deciding whether to prosecute a case of assisted suicide breached Ms Fleming’s rights to respect for her private life under article 8 of the European Court of Human Rights (ECHR).

His side had written to the DPP who said she could not provide such guidelines and said a decision whether to prosecute would depend on the circumstances of each case. Mr Murphy said the DPP must at least indicate whether the public interest would be taken into account as a factor.