Supreme Court rejects Fleming case but says ruling does not preclude legislation

There is no constitutional right to suicide or to arrange for termination of one’s own life at a time of one’s choosing that the State and courts must protect and vindicate, the Chief Justice, Mrs Justice Susan Denham, said.

The right Ms Fleming claimed necessarily extended to a right to have life terminated by another in a case of total incapacity “would sweep very far indeed” and was “not detectable in the values and philosophy of the Constitution”.The ban on assisted suicide had required a careful assessment of competing and complex social and moral considerations, an assessment the legislature was “uniquely well-placed to undertake”.

State's obligation
Rejecting other claims the ban was incompatible with the State's obligation to safeguard her rights under the European Convention on Human Rights, the Chief Justice said the ban was consistent with decisions of the European human rights court in Strasbourg allowing a wide margin to states to regulate activities detrimental to life and safety of persons.

Nothing in the judgment should be taken as necessarily implying it would not be open to the Oireachtas, if it believed measures with “appropriate safeguards” could be introduced, to legislate to deal with a case like Ms Fleming’s.

Prosecutions for aiding suicide were, she added, “exclusively a matter” for the DPP “in the exercise of the functions delegated to her by law . . .” and it was “not for the courts to give general directions as to how she should exercise her functions”.

Consideration might be given to the term “aids” at common law when construing the new offence of assisted suicide, not the previous offence of suicide.

Ms Fleming (59), living in Co Wicklow, is in the final stages of multiple sclerosis and sought to be lawfully assisted to have a peaceful and dignified death at a time of her choice without the risk of prosecution for anyone who helped her. When a three-judge High Court rejected her case last January, she appealed to the Supreme Court against the findings the blanket ban did not breach her rights under the Constitution and ECHR. She did not appeal a finding the DPP had no power to issue guidelines as to what factors would be considered when deciding whether or not to prosecute cases of assisted suicide. The High Court had said it hoped the DPP would adopt a “humane” approach in Ms Fleming’s case.

Giving the judgment, the Chief Justice noted suicide was decriminalised under the Criminal Law (Suicide) Act 1993 but section 2.2 made it an offence to assist a suicide.The fact suicide ceased to be a crime did not establish a constitutional right to suicide and there was “no explicit right” in the Constitution to either take one’s life or determine the time of one’s death.

Any such right would have to be found as part of an unexpressed right or in an unenumerated right and Ms Fleming contended the express right to life in article 40.3.2 incorporated a right to determine the time of one's death.

Right to life
The right to life "does not import a right to die" and protection of the right to life "cannot necessarily or logically entail a right which the State must also respect and vindicate, to terminate that life or have it terminated", she ruled. It was not generally the jurisprudence of the Constitution that rights can be identified for a limited group of people in particular circumstances "no matter how tragic and heartrending".

While Ms Fleming relied on a Supreme Court decision allowing withdrawal of medical treatment from a woman in a permanent vegetative state, that case decided the right to life extended to a right to die a natural death, or to let nature take its course, and did not find a right to terminate a life or to have it terminated.

The precise extent of the State’s positive obligation to protect life in article 40.3.2 of the Constitution may require careful analysis and in some cases, a “careful balancing” of other constitutional considerations. As part of that obligation, the State may have to discourage suicide generally but may not be obliged to use all means at its disposal to seek to prevent someone like Ms Fleming ending her own life.

The court dismissed further claims Ms Fleming’s right to equal treatment requires the Oireachtas to provide an exception to the absolute ban to address her particular circumstances as a disabled person unable to end her own life without help. She had claimed she is treated unequally to an able-bodied person who can lawfully end their life.

The constitutional principle of equal treatment does not mean the indirect effects on a person of an objectively neutral law addressed to others can be categorised as unequal, she said. This was particularly so when the ban was based on the fundamental equal value of each human life and pursued “an important objective”. The ban applied to all who aided a suicide and in that regard, did not directly affect Ms Fleming herself as her inability now to take her own life was due to her disability, not the law.