DPP needs clear protocols after assisted suicide ruling

Tue, Jan 15, 2013, 00:00

OPINION:Without being entitled to issue guidelines, the DPP can only look to the UK. This is surreptitious and insufficient

Last week’s lengthy High Court judgment that rejected Marie Fleming’s bid to legally end her own life with the assistance of her partner may not signal the end of the debate on the issue of assisted suicide. Indeed, it would be best if it did not.

Irrespective of any appeal to the Supreme Court, the mixed messages sent by the High Court illustrate the unsatisfactory nature of the legal position that the court upheld.

Few legal commentators will have been surprised at the rejection of Fleming’s claim that the ban on assisted suicide is an unconstitutional restriction on her personal autonomy. Previous constitutional cases had established that a person has a right to refuse medical treatment – even where this will lead to death – but no person has a right to have their life ended by active steps.

Last Thursday’s ruling merely reaffirmed this distinction (which has been well-recognised by most courts in other common law jurisdictions) by holding that the restriction was a proportionate response to the State’s duty to safeguard the sanctity of all human life.

While this outcome was no surprise, the court’s ruling on a second aspect of Fleming’s case was more difficult to predict.

Since the Director of Public Prosecutions has discretion as to whether to prosecute people accused of assisting suicide, Fleming argued that the DPP should provide guidelines stipulating how this discretion is likely to be exercised. This would allow people like Fleming and her partner to regulate their conduct so as to minimise their chances of being prosecuted.

Obligation to have guidelines

This argument draws support from a UK ruling in the Debbie Purdy case, in which the House of Lords held, in light of obligations imposed by the European Convention on Human Rights, that the DPP was obliged to issue such guidelines.

Since our assisted suicide law is identical to that in England and Wales, and we have incorporated the European convention into domestic law in almost exactly the same way as in that jurisdiction, Fleming seemed to have a good chance of success on this point.

There are strong similarities here with the current controversy on abortion. The A, B and C v Ireland ruling was based on the same aspect of European convention law as the Purdy case – ie that article eight of the convention requires that laws be sufficiently clear to allow people to regulate their conduct and act within the law.

Arguing that the DPP should issue guidelines to clarify what factors would lead her to either prosecute or not prosecute a case of assisted suicide has much in common with arguing that the Government should legislate to clarify when a termination of pregnancy is and is not a criminal offence.

However, the High Court distinguished from the Purdy case by pointing out that, unlike in England, our DPP has no legal duty to publish guidelines on the prosecution of offences. It was held that doing so would effectively amend the law on assisted suicide by carving out an exception to the general prohibition. Law-making was the function of the Oireachtas, and the DPP was not entitled to intrude into this domain.

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

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