Woman asks court for right to die

Tue, Dec 4, 2012, 00:00

A woman who is terminally ill with multiple sclerosis has appealed to the High Court to save her "a horrible" death and allow her be helped to lawfully die with dignity among the people she loves.

Marie Fleming, giving evidence from a wheelchair to the three judges, said she had come to court "while I can still use my voice to ask you to assist me in having a peaceful, dignified death".

She had fully thought the matter through, talked about it non-stop with her partner and family, and had planned every detail down to her funeral where she wanted a wicker coffin, jazz music and her life to be celebrated.

To have a peaceful death, she needed assistance and had called upon her partner and carer for the last 18 years, Tom Curran, who had said he would help her if it was lawful to do so, she said.

Ms Fleming, a 58-year-old mother of two who lives in Co Wicklow, who also a stepson and grandchildren, said she had discussed her wishes at length with her family.

While there had been "a lot of tears shed and questions asked", they could see her life had deteriorated to such an extent she could no longer help herself with the most minor things like showering or feeding. They supported her in her wish to be permitted to take her own life, with assistance, if and when she chose to do so, she said.

Under the existing law, if she was assisted in taking her own life, a sentence of up to 14 years could be imposed and she did not want to leave her partner or family in that situation.

"Tom has promised to help me, only if it's lawful. Otherwise, I will die a horrible death which could take months or even a year."

She knew another woman with MS who had starved to death, she said. "That's not how I want to go, I want to go peacefully in my own home with the people I love around me."

Because of her deteriorating situation and the fact she is effectively paralysed, the option available to her involved the use of gas via either a mask being placed over her face or via a canula into her arm. Her doctor had said "she will not kill me" but would help if it was lawful, she said.

Ms Fleming said she was ready to die. "i am at peace with the world, I have put all my wrongs to right, I have sorted all in my head, I have even arranged my funeral." She would also be very happy to have an independent witness attend at an assisted suicide, she added.

"I have nothing to hide," she said. When she met her partner, they fell in love and he "has been there with me for 18 years through good and bad", she said. "We fell in love but I don't think he signed up for what he got, he probably thought we could go on for ever."

Ms Fleming also said palliative care was not an acceptable option for her. She did not want to be kept in a comatose state with large doses of pain killers.

"To be kept in a state of not being able to smell the flowers or see my beautiful garden or just see the changes in the seasons, that's not acceptable for me to miss all that. I would be doing myself an injustice."

She was giving evidence from the back of a packed and hushed court where the three judges had left the judges bench and sat on the press benches in order to hear her. Her children and other family members were in court.

Ms Fleming is seeking orders allowing her to be lawfully assisted in taking her own life and claims the absolute ban on that breaches her rights to autonomy, privacy and dignity.

The State is opposing the action and contends there is no right to die under the Constitution. It also argues removal of the absolute ban on assisted suicide could lead to vulnerable people being overborne to take their own lives.

Suicide is not illegal here but it is an offence under the Criminal Law Suicide Act 1993 to be an accomplice to such an act and a jail sentence of up to 14 years may be imposed for that offence.

In her case against Ireland, the Attorney General and the DPP, Ms Fleming, a former lecturer at University College, Dublin, wants an order declaring Section 2(2) of the 1993 Act invalid under the Constitution and incompatible with the European Convention on Human Rights.

She contends Section 2.2 breaches her rights to live and to die, bodily autonomy and self-determination, privacy and to be held equal before the law.

Alternatively, she wants an order requiring the DPP to issue guidelines setting out what factors are taken into account in deciding whether to prosecute a person who assists her in ending her life.

In opposing the action, the State agrees the 1993 Act allows for no exception to the offence of aiding a suicide but says that does not exclude the application of any general defence available at common law. It denies the 1993 Act breaches Ms Fleming's constitutional rights and specifically denies the Constitution expressly or implicitly confers a right to die upon any person.

Section 2.2 is necessary for the promotion of the common good and the public interest as it is designed to cover the many circumstances in which one person might aid another in a suicide, the State pleads.

The State also denies that the DPP has any obligation to publish any policy or information stating what factors would be taken into account in deciding whether to prosecute a person who assisted another in a suicide. The absence of such guidelines does not breach Ms Fleming's rights under the Constitution or Article 8 of the ECHR, it is also pleaded.

Five years ago, Ms Fleming registered with Dignitas, the clinic in Zurich, Switzerland, where terminally ill patients can bring about their own deaths under the supervision of qualified doctors.

Ms Fleming said she did not travel then because Mr Curran dissuaded her and due to her own misgivings at dying "far from my own home and most of the people I have loved".