Nicholas Liddane graduated from University College Cork with a BCL (Hons) in 2012 and University College Dublin with a LLM (Commercial Law) in 2013. During his time in UCC, he was Editor-in-Chief of the 11th Edition of the Cork Online Law Review. Currently, he is a trainee solicitor with Arthur Cox in Dublin.
A seven-judge Supreme Court, speaking through the Chief Justice Susan Denham, has rejected the landmark appeal of Marie Fleming in her challenging of s.2(2) of the Criminal Law (Suicide) Act 1993, and the State’s blanket ban on assisted suicide. This letter seeks to highlight that two issues of notable importance can be deduced from the Supreme Court ruling in Fleming v Ireland. First, our current constitutional and legislative framework does not sanction assisted suicide, nor can this be altered through the forum of the superior courts. Secondly, it is also deductible from the judgment that tackling this ethical Goliath is not precluded from our legislators, if they see fit; the slingshot is firmly within the grip of the Oireachtas. Therefore, while the Irish courts have upheld the proscription of assisted suicide, they have also attempted not to determinatively close the door on its being potentially reformed in the future.
A whistle-stop tour of the case is merited. Marie Fleming is in the latter stages of multiple sclerosis, an immune-mediated inflammatory disease, and was seeking a declaration of incompatibility of the State’s ban on assisted suicide under the European Convention on Human Rights (ECHR). Secondly, arguing under Bunreacht na hÉireann, she essentially sought to establish that she had a right to die, a right which she was being denied through the State’s ban on assisted suicide, a ban which also contravened her unenumerated rights. Thirdly, she sought to establish that the State’s current ban on assisted suicide was perpetuating unjustified inequality in her personal circumstances (specifically by virtue of her having a disability). There was no appeal from the High Court ruling of Kearns P in relation to the role of the DPP, nor any purported obligation of the DPP to promulgate offence-specific guidelines.
The Supreme Court, having extensive reference to Pretty v UK, determinatively rejected Marie Fleming’s argument regarding the State’s obligations under Article 2 of the ECHR; a right to die could not be deduced from Article 2 of the Convention. The European Court of Human Rights jurisprudence of both Pretty and Haas v Switzerland was held to be determinative of this issue. This jurisprudence also vested a wide discretion in the State by virtue of Article 8 of the Convention (derogation from the ECHR in accordance with law) to address pertinent and divisive issues of social policy such as assisted suicide. Likewise, the Irish State was held to have exercised its wide discretion under Article 8 in this area of social policy by promulgating s.2(2) of the 1993 Act.
The Supreme Court held that the right sought under the Bunreacht, namely a right to die, was not explicit, and thus either had to be unenumerated, or deduced from another constitutional provision, of which it was held it could be neither. Traditional logical deductions, such as a right to dissociate from a right to associate, were held not to be applicable in this case, i.e. a right to die corresponding with the express right to life in Article 40.3.2. It was emphatically held that ‘[i]n the social order contemplated by the Constitution, and the values reflected in it, that would be the antithesis of the right rather than the logical consequence of it.’ Further, the Supreme Court acknowledged, having regard to seminal Irish unenumerated rights case law that such rights sought by Marie Fleming could be established at a sufficient level of abstraction, but such judicial discourse was not permitted with our current constitutional social order.
On inequality, what was held to be an objectively neutral law which has at its aim the vindication of Article 40.1, could not correspondingly violate the equality provisions of Article 40.1, by virtue of Marie Fleming being a person with a disability. As Marie Fleming had failed to establish a constitutional right to commit suicide, or have assistance provided in her wishes to commit suicide, there could thusly be no constitutional rights which s.2(2) of the 1993 Act could infringe. The Supreme Court declined to accede to Marie Fleming’s argument in this regard. The decision rejected every ground of her appeal, through reasoning which permitted the Court to avoid ruling on a separate proportionality argument. While leaving it open to the State to legislate with appropriate and necessary safeguards to encompass cases such as that at hand, the Court dismissed the appeal in this very tragic, ‘heartrending’ case.
This Supreme Court pronouncement is incontestably clear: our current constitutional and legislative framework does not sanction assisted suicide, nor can the courts be utilised to alter this. Libertarian arguments about how dirigiste we think the State should be were held not to be conducted within the confines of our courts; the social policy as set out by the Bunreacht precludes such judicial discourse. However, while the courts were held not to be the appropriate forum to undertake this reform, the Supreme Court has left it open to the Oireachtas to revisit s.2(2) of the 1993 Act in the future if it sees fit, which vests much confidence in the 31st Dáil.
Assisted suicide is amongst one of the most divisive issues affecting ethical and legal discourse within the realm of medicine internationally, not least in Ireland. The two primary facets of such debate are firstly, establishing a system which facilitates the tragic plights of individuals such as Marie Fleming, and secondly, equipping such a system with watertight safeguards operated with the highest standards of vigilance to ensure such a system is not utilised as a front for depraved eugenics. These are not inevitably irreconcilable goals. However, the courts are not an appropriate venue through which they can be achieved.
When the dust settles after this Supreme Court pronouncement, it should be acknowledged that while engaging in the assisted suicide debate under our current legal framework is effectively precluded, a reforming agenda can and should be undertaken elsewhere. In this time of potentially expansive constitutional overhaul in Ireland, it should be hoped that this case will not be forgotten, and will finally transcend discourse within Leinster House, not the Four Courts. It is only a progeny of this branch of State which will possess the suitable safeguards and nuances required to vindicate plights such as those of Marie Fleming, while also necessarily defending the most vulnerable in our society, those most susceptible to abuse of any such system, were the floodgates to burst.
Is mise le meas,