Fleming -v- Ireland & Ors - Judgment

Factual and Procedural Background

The Plaintiff is a 59-year-old woman suffering from advanced multiple sclerosis since 1989, resulting in near immobility, intense pain, and severe distress. She seeks to avail of physician-assisted suicide at a time of her choosing and challenges the constitutionality of the statutory ban on assisted suicide under section 2(2) of the Criminal Law (Suicide) Act 1993. Alternatively, she seeks a declaration of incompatibility pursuant to section 5 of the European Convention on Human Rights Act 2003. The proceedings were commenced by plenary summons on 25 October 2012, fast-tracked and heard fully on 5 December 2012.

The Plaintiff’s claims include: (1) a declaration that section 2(2) of the 1993 Act is unconstitutional; (2) a declaration that section 2(2) is incompatible with her rights under the European Convention on Human Rights; and (3) in the alternative, an order directing the Director of Public Prosecutions to issue guidelines on prosecutorial discretion in cases of assisted suicide.

The 1993 Act abolished the offence of suicide but criminalises aiding, abetting, counselling or procuring the suicide of another, punishable by up to 14 years imprisonment. Prosecutions require the consent of the Director of Public Prosecutions.

Defences were filed by the State defendants and the Director of Public Prosecutions, denying constitutional breaches and incompatibility with the European Convention on Human Rights. The Human Rights Commission submitted that personal autonomy rights include the right to take one’s own life in defined circumstances and invited the Court to consider if the absolute ban was justified.

The Plaintiff’s medical condition was extensively documented, evidencing severe physical incapacitation, significant pain, and preserved mental capacity. The Plaintiff gave oral evidence describing her suffering and her wish for a dignified assisted death without exposing her partner to prosecution.

Expert witnesses provided contrasting views on assisted suicide, its ethical implications, risks of abuse, and the efficacy of safeguards in jurisdictions with liberalised laws. The State’s clinical experts expressed serious concerns about risks to vulnerable persons and the societal impact of legalising assisted suicide.

Legal Issues Presented

1. Whether the statutory ban on assisted suicide under section 2(2) of the Criminal Law (Suicide) Act 1993 infringes the Plaintiff’s constitutional rights, particularly the right to personal autonomy under Article 40.3.2 of the Constitution.
2. Whether the statutory ban is compatible with the Plaintiff’s rights under the European Convention on Human Rights, specifically Article 8 (right to private life) and Article 14 (non-discrimination).
3. Whether the Director of Public Prosecutions is obliged to issue prosecutorial guidelines concerning assisted suicide under the existing statutory and constitutional framework.

Arguments of the Parties

Plaintiff’s Arguments

• The ban on assisted suicide impermissibly interferes with her constitutional right to personal autonomy and dignity.
• There should be either a constitutional exemption or a declaration of incompatibility with the European Convention on Human Rights Act 2003.
• The Director of Public Prosecutions should issue clear guidelines on prosecutorial discretion to provide legal certainty and protect those assisting in lawful circumstances.

State’s Arguments

• The statutory provision does not infringe any constitutional or European Convention rights.
• The ban is necessary to protect the common good and vulnerable persons in society.
• There is no right to die under the Constitution or the Convention.
• The Director of Public Prosecutions has discretion to prosecute and is not obliged to issue offence-specific guidelines.
• Issuing such guidelines would infringe the constitutional separation of powers, effectively changing the law without legislative authority.

Director of Public Prosecutions’ Arguments

• The Director’s discretion to prosecute is exercised ex post facto based on the facts of each case.
• There is no statutory duty or constitutional power to issue prosecutorial guidelines on assisted suicide.
• Publishing guidelines would amount to a de facto change in the law, which is a legislative function reserved to the Oireachtas.
• The Director would consider any evidence of compliance with criteria similar to UK guidelines when deciding whether to prosecute after the event.

Human Rights Commission’s Arguments

• Personal autonomy rights include the right to take one’s own life in defined and extreme circumstances.
• The absolute ban on assisted suicide should be reconsidered and potentially replaced with a proportionate legislative scheme balancing the right to life and personal autonomy.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court acknowledged the Plaintiff’s right to personal autonomy under Article 40.3.2 of the Constitution, engaging the protection of the “person” in relation to medical decisions. However, it distinguished the right to refuse medical treatment from the taking of active steps by a third party to bring about death, finding the latter to be a fundamentally different and more serious matter.

The Court found that the statutory ban on assisted suicide is rationally connected to the legitimate and pressing objective of protecting human life and vulnerable persons in society. It emphasized the impossibility of tailoring a legislative relaxation of the ban to individual cases without risking harm to vulnerable groups, citing evidence from jurisdictions with liberalised laws showing real risks of abuse, including cases of legally assisted deaths without explicit request (LAWER).

The Court considered international jurisprudence, noting near unanimity among appellate courts in the US, Canada, UK, and the European Court of Human Rights upholding bans on assisted suicide for similar reasons. It respectfully declined to follow the recent first instance Canadian decision in Carter v. Canada, preferring the earlier Canadian precedent and the weight of evidence cautioning against liberalisation.

On the European Convention claim, the Court found that the ban is compatible with Article 8, as the restriction is justified, proportionate, and pursues legitimate aims including protection of life and prevention of abuse.

Regarding the Director of Public Prosecutions’ role, the Court held that unlike the UK, Irish law does not require the Director to issue offence-specific prosecutorial guidelines. It found that issuing such guidelines would amount to a de facto change in the law, infringing the constitutional separation of powers and the exclusive legislative authority of the Oireachtas.

The Court acknowledged that the Director exercises discretion ex post facto and may consider evidence of compliance with factors similar to those in the UK guidelines when deciding whether to prosecute. This approach preserves the legislative ban while allowing for humane and sensitive prosecutorial discretion in exceptional cases such as the Plaintiff’s.

Holding and Implications

The Court REJECTED the Plaintiff’s constitutional challenge to the ban on assisted suicide under section 2(2) of the Criminal Law (Suicide) Act 1993, finding the ban to be a proportionate and justified interference with the right to personal autonomy.

The Court also REJECTED the claim for a declaration of incompatibility under the European Convention on Human Rights Act 2003, holding the ban compatible with the Convention.

Regarding prosecutorial guidelines, the Court DECLINED to order the Director of Public Prosecutions to issue offence-specific guidelines, emphasizing constitutional constraints and separation of powers. However, it recognized that the Director’s discretion to prosecute remains and that the Director may take into account evidence of compliance with relevant factors post-event.

The direct effect of this decision is to uphold the existing statutory ban on assisted suicide in Ireland and to maintain prosecutorial discretion as currently exercised, without creating new precedent for legalisation or judicially mandated prosecutorial guidelines. The decision underscores the constitutional primacy of the Oireachtas in law-making and the importance of protecting vulnerable persons in society.