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Dublin: 4 °C Tuesday 26 March, 2019
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Column: Families who assist their loved ones to die will continue to feel the full wrath of the law if it is not changed

Today, the case began of Gail O’Rorke who has been charged under the Criminal Law (Suicide) Act 1993 for assisting an MS sufferer to die.

Dr Eimear Spain

THE FIRST CASE to be taken against a person accused of assisting in a suicide began in Dublin’s Circuit Criminal Court today. Gail O’Rorke’s defence team requested a long adjournment and an arraignment date of 27 March was set by the presiding judge. On that date, the accused will either plead guilty or a trial date will be elected. She has been granted bail.

Dr Eimear Spain, a lecturer in law, looks at how Ireland’s legal system deals with end of life decisions.

Recent developments in the Irish courts have highlighted the unsatisfactory nature of the current law relating to assisted suicide and euthanasia, with two individuals in court this week charged in relation to the death of vulnerable individuals. Until recently, prosecutions in connection with the death of an individual through assisted suicide or euthanasia were rare in Ireland.

However, Gerald Vollrath pleaded guilty yesterday to the attempted murder of his 87-year-old mother at a County Waterford nursing home in January 2012. The original charge or murder, carrying a mandatory life sentence, was substituted with the lesser charge of attempted murder only after the jury had been sworn in.

Meanwhile, the trial of Gail O’Rorke on a charge under the Criminal Law (Suicide) Act 1993 begins today. These cases come just months after the High Court and Supreme Court rejected Marie Fleming’s attempt to bring legal clarity to this area, with courts placing the obligation firmly on the legislature to bring about any change in this complex area of law.

Legal Ramifications Outside Ireland

The legal ramifications for those who assist another to die vary across jurisdictions. Euthanasia and/or assisted suicide are permitted in various jurisdictions including Oregon, Washington, Switzerland, Belgium, Luxembourg and the Netherlands. However, as is clear from the cases making their way thorough the Irish courts, the legal position in these jurisdictions is the exception rather than the rule.

Euthanasia

This debate regarding the law in this area is often highly charged and confusing, not least because of the different contexts in which life is taken and the lack of consistency in the terminology used. ‘Euthanasia’ is considered to be the deliberate ending of another’s life by a third party and may be voluntary or involuntary, such as when an individual is unable to express a desire to die.

In Ireland, the law as it is currently constituted does not distinguish between murder committed with a malicious motive and one motivated by empathy, love or a desire to relieve suffering. Those who actively take a life in these circumstances are liable to be convicted of murder and sentenced to life imprisonment.

However, a difficulty may sometimes arise in determining the exact cause of death due to the weakened state of the victims and a charge of attempted murder may be substituted for a charge of murder.

While the motivation of defendant Vollrath in this case is not in the public domain as yet, the fact that the charge has now been reduced to that of attempted murder in this case will allow the court to reflect his motivation at sentencing, an option not available to those convicted of murder given the mandatory sentence.

Assisted Suicide

‘Assisted suicide’ occurs where one takes one’s own life with help from another, including information and medication.

In the Republic of Ireland, those who assist another in dying without actually killing the person concerned may be charged with assisting suicide under the Criminal Law (Suicide) Act 1993 which makes it an offence to aid, abet, counsel or procure the suicide of another person, or an attempt by another person to commit suicide. This offence carries a maximum penalty of 14 years’ imprisonment.

It is important to remember that the law considers the life expectancy of the victim to be irrelevant, with the same penalty attaching to shortening a life by one hour as 50 years.

Reform

In the aftermath of the Marie Fleming case, many took comfort from the emphasis placed on the discretion of the DPP not to prosecute in cases of this nature with the High Court expressing confidence that this discretion would be exercised in a humane and compassionate manner in the Fleming case.

However, the Vollrath and O’Rorke cases have highlighted this week the limitations of this discretion and the uncertainty surrounding the application of this discretion pointing to the need for substantive reform of the law.

The Supreme Court has made clear that the Oireachtas is not precluded by the constitution from legislating to decriminalise assisted dying in limited circumstances and subject to appropriate safeguards. Such a system, with clear regulation and inbuilt safeguards, would ensure that vulnerable people were protected rather than accepting the current situation without any state involvement until after a life has been taken.

It is clear that we need certainty and clarity more than ever and the Oireachtas must not continue to ignore the plight of individuals who wish to die or their loved ones who may find themselves subject to the full wrath of the criminal justice system should they assist them to die.

Dr Eimear Spain is a lecturer in law at the University of Limerick, with a research interest in end of life decisions.

Column: Legal clarity needed after Marie Fleming ‘right to die’ verdict>

Column: Assisted suicide ruling will be a landmark for Ireland>

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Dr Eimear Spain

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