A FORMER UCD lecturer, Marie Fleming (58), and her partner, Tom Curran, have mounted a legal challenge against the State claiming that the law surrounding assisted suicide in Ireland is unconstitutional. Ms Fleming was diagnosed as suffering from multiple sclerosis in 1986 and is currently in the terminal stages of the illness. She is in constant pain, no longer has the use of her limbs and requires full time care.

Ms Fleming’s wish is to die at the time of her choosing with the assistance of her partner since she is physically unable to take any action herself. Mr Curran, a recipient of the Wicklow Carer of the Year award, has expressed his willingness to carry out his partner’s wishes however, he cannot do so without the fear of prosecution and imprisonment. Although Mr Curran has stated that he will go to prison if needs be, Ms Fleming does not want to risk such repercussions.

Mr Curran told the Irish Independent:

It would give Marie such comfort, such peace of mind, to know that I will be there for her and that she will not have to suffer needlessly. It would give her comfort to know I could help without the threat of prison. Peace of mind, that is what this case is about.

The relevant legislation is Section 2.2 of the Criminal Law (Suicide) Act 1993, which “renders it an offence to aide, abet, counsel or procure the suicide of another”. Those prosecuted under this section face a maximum 14 year jail term. Ms Fleming’s children who are supporting her constitutional challenge would also face possible imprisonment if they were to be present in the room where someone was helping their mother to die.

The only legal option available to Ms Fleming would be to travel to the Dignitas clinic in Zurich, Switzerland and although she joined Dignitas five years ago Ms Fleming has said that she does not want to die “in an industrial estate far from home.” Ms Fleming’s legal case is that this legislation discriminates against disabled people breaching her rights under both the Constitution and the European Convention on Human Rights. She is also calling for the Director of Public Prosecutions to outline the factors to be considered in deciding whether to prosecute cases of assisted suicide.

Vegetative state

Evidence and legal submissions concluded in the six-day case on 14 December 2012 and judgment will be delivered by a three-judge High Court tomorrow, January 10 2013. This being the case it should be considered whether the change in the law that Ms Fleming is seeking is foreseeable.

Previously, the Supreme Court decided in 1995 that the right to die included the right to die a natural death. That case involved a woman who had been in a near-persistent vegetative state for over twenty years. The Court allowed the woman’s feeding tube to be withdrawn so that she could die a natural death however, it was made clear that it would not condone any bid to bring about a person’s death through positive action.

Assisted suicide is also illegal in the UK however, there does appear to have been a shift in attitude in recent years with the Director of Public Prosecutions, Keir Starmer QC, issuing guidelines in February 2010 recommending that those assisting another in committing suicide should not be prosecuted in certain circumstances.

These guidelines were issued in response to a legal challenge by Debbie Purdy, another sufferer of progressive Multiple Sclerosis, who wanted to ensure that her husband would not be prosecuted should he play a part in her death. In addressing the need for a new legal framework, twelve advocates for change formed the Commission on Assisted Dying in November 2010. It was commissioned by the campaign group Dignity in Dying and funded by the author, Terry Pratchett, who is himself a sufferer of Alzheimer’s disease, and Bernard Lewis, a businessman.

Safeguards

Following a year’s investigation the Commission published a lengthy report on January 5 2012. This concluded that the current legal status of assisted suicide is both inadequate and incoherent and opined that assisted dying should be offered as a choice to terminally ill patients provided that stringent safeguards are observed. The Commission not only suggest a new legal framework but also recommend that substantial improvements are made to health and social care services so that high quality end of life care is universally available.

The Commission has implemented strict eligibility criteria which a person must comply with before they can proceed with requesting an assisted death:

The person concerned is aged 18 years or over and has a diagnosis of terminal illness;

The person is making a voluntary choice that is an expression of his or her own wishes and is not unduly influenced by others;

The person has the mental capacity to make a voluntary and informed choice; and

The person’s decision-making is not significantly impaired as a result of mental health problems such as depression.

In addition to this, certain safeguards would be put in place such as:

The person who requests an assisted death is fully informed of all the options available to them for treatment, care and support and still wishes to proceed;

An assessment to determine if the person meets the eligibility criteria is provided by at least two doctors who are wholly independent of each other; and

The patient must take the final action to end their own life.

The report has angered pro-life campaigners such as the Care Not Killing alliance who fear that a change in the law will increase the pressure on vulnerable people to end their lives so as not to burden their loved ones. It is expected that a bill on assisted dying will be tabled in the House of Lords this year.

Similar arguments were made by the State in Ms Fleming’s case. Dr Tony O’ Brien, a physician in palliative medicine at Cork University Hospital and Chair of the Council of Europe Expert Committee on palliative care, said that “[T]he beauty of the current legal situation is that it is clear. I am fearful that if we start modifying that and making exceptions, it will significantly muddy the waters”.

His recommendation was that Ms Fleming’s life could be “greatly enhanced and significantly improved” by active engagement with palliative care professionals and consultant led pain services. Professor Rob George, a British specialist in palliative care, was also called to the stand where he laid out his concerns in relation to a “slippery slope”.

This is no doubt that Ms Fleming is in an untenable situation. However, if assisted suicide is permitted, even in the most exceptional circumstances, it would have to be considered if the floodgates could be kept closed. For now, we await receipt of what will be a landmark judgment.

Sharon O’Connor is a solicitor with Beauchamps Solicitors.