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Column: Legal clarity needed after Marie Fleming 'right to die' verdict

By not ordering the DPP to issue guidelines on factors which would influence a prosecution for carrying out an assisted suicide, Marie Fleming and others in her situation have been left in legal limbo, writes Dr Eimear Spain.

Dr Eimear Spain

Last week the High Court ruled against MS suffer Marie Fleming in her landmark ‘right to die’ case. This evening it was announced that the verdict is to be appealed to the Supreme Court. Here, Dr Eimear Spain, from the University of Limerick, considers whether the recent verdict is another example of the State abdicating its responsibility to provide legal clarity and certainty to a vulnerable section of our society.

IT WAS INEVITABLE that MS sufferer, Marie Fleming, would find herself in the Supreme Court in a further bid to be legally allowed to be assisted to end her life at a time and place of her choosing.

As has been widely reported in the media, public policy concerns ultimately resulted in the High Court ruling against Ms Fleming last week, despite the distress and sympathy for Ms Fleming’s plight which permeated the court’s judgement in the case.

Few expected the High Court to declare the ban on assisted suicide unconstitutional, or indeed, to issue a declaration of incompatibility with the European Convention on Human Rights.

But there had been hope that Ms Fleming would secure an order requiring the Director of Public Prosecutions (DPP) to clarify its policy on the factors which would be considered when exercising its discretion to prosecute for the crime of assisted suicide.

This refusal is perhaps the strongest grounds for an appeal to the Supreme Court and one which will no doubt be pursued vigorously by the defence.

This approach would see assisted suicide remain a criminal offence, ensuring the most vulnerable members of our society are protected, but members of the public would have a better understanding of the level of risk that they would be exposed to should they assist another to commit suicide.

Such an approach reflects society’s great respect for human life while displaying compassion to individuals facing a truly awful situation and reducing the stress and uncertainty associated the already traumatic decision to assist a loved one to take their own life.

‘Surprising’

The decision of the High Court in this regard was surprising, particularly given the decision of the House of Lords in the Debbie Purdy case in 2009 where the facts and arguments raised were closely aligned with those in Ms Fleming’s case.

Ms Purdy also suffered from multiple sclerosis and wished to end her life at a time of her choosing and like Ms Fleming; she was unwilling to expose her partner to the risk of being prosecuted should he assist her to this end, despite his willingness to do so.

Ultimately, Ms Purdy secured an order requiring the DPP to publish an offence specific policy in England and Wales after the House of Lords held that it was necessary to release an offence specific policy document in order to ensure compliance with Article 8 of the European Convention on Human Rights.

While the High Court last week emphasised the different legislative provisions in force in Ireland and England and Wales, some of the reasoning adopted by the High Court in refusing this relief is certainly open to question.

The court stressed that unlike the legislation in force in England and Wales, the relevant Irish legislation does not impose a duty on the DPP to release policy guidelines. However, general guidelines on the factors which guide the initiation of a prosecution for any crime have been issued in the past and were last revised by the Office of the DPP in 2010.

The court was unwilling to order the publication of offence specific guidelines and held that the “intended effect of obtaining such relief would be to permit an assisted suicide without fear or prosecution”, rejecting Marie Fleming’s assertion that she was simply seeking a statement of factors which would be considered by the Director in making the decision whether or not to prosecute.

Legal certainty

As the guidelines may be characterised as effectively ruling out a prosecution, they were to be considered as altering the existing law and in contravention of Article 15.2 of the Constitution and it was outside the power of the DPP to issue them.

However, it is clear that the guidance sought would allow the parties involved to weigh the risks inherent in the decision to assist another to commit suicide, not to act with impunity.

Indeed in the Purdy case the House of Lords made clear that the issuance of guidelines would not amount to immunity from prosecution for Ms Purdy’s husband, rather the DPP was being ordered to provide information which would allow individuals considering this course of action to make an informed decision on the risks associated with it.

While refusing to require the publication on such guidance in this jurisdiction, the Irish High Court was happy to acknowledge the value of the guidance published in England and Wales “to inform any exercise of discretion” by our own DPP.

It was noted that providing evidence after a crime to the DPP of having complied with the UK guidelines would “greatly narrow” the risk of prosecution, providing a “measure of comfort” for those involved. The court concluded by asserting its confidence that the Director would exercise her discretion to prosecute in this case in a humane and compassionate way after the event.

Clearly one must have sympathy for the Supreme Court if it faces having to rule in a case raising such troubling moral and ethical questions. However, the approach taken by the High Court in refusing relief while hinting strongly that Ms Fleming’s partner would be safe from prosecution is just not good enough.

The court clearly came to this compromise position because of their great sympathy and admiration for Ms Fleming but what of the other suffers out there who yearn for legal certainty?

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

Read: High Court rejects MS sufferer’s challenge in ‘right to die’ case

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Dr Eimear Spain

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