Fleming v Ireland & ors,  IESC 19 (2013)
|Judge:||Judgment of the Court|
THE SUPREME COURT
Appeal No. 019/2013
Ireland, Attorney General and the Director of Public Prosecutions
Irish Human Rights CommissionAmicus Curiae
Judgment of the Court delivered on the 29th day of April, 2013, by Denham C.J.
This is an appeal by Marie Fleming, the plaintiff/appellant, referred to as “the appellant”, from the judgment of the divisional High Court delivered by Kearns P. on the 10th January, 2013, and the order of the same day, refusing the relief sought.
By plenary summons issued on the 23rd October, 2012 the appellant sought orders against Ireland, the Attorney General and the Director of Public Prosecutions, the defendants/respondents, referred to collectively as “the respondents”.
The appellant sought the following:-
(i) An order declaring that section 2, sub-section (2) of the Criminal Law (Suicide) Act, 1993, is invalid having regard to the provisions of the Constitution.
(ii) An order declaring that section 2, sub-section (2) of the Criminal Law (Suicide) Act, 1993 is incompatible with the State’s obligations under the European Convention on the Protection of Human Rights and Fundamental Freedoms.
(iii) In the alternative, an order directing the Director of Public Prosecutions, within such time as to this Court shall seem just and appropriate, to promulgate guidelines stating the factors that will be taken into account in deciding, pursuant to section 2, sub-section (4) of the Criminal Law (Suicide) Act, 1993, whether to prosecute or to consent to the prosecution of any particular person in circumstances such as those that will affect a person who assists the appellant in ending her life.
The case was at hearing before the High Court, a divisional court consisting of Kearns P., Carney and Hogan JJ., for six days.
On the 10th January, 2013, the High Court delivered a reserved judgment in the case. It dismissed the claims made by the appellant.
The appellant filed an appeal against so much of the judgment and order of the High Court as declined to grant the appellant:-
(i) An order declaring that section 2, sub-section (2) of the Criminal Law (Suicide) Act, 1993, is invalid having regard to the provisions of the Constitution; and
(ii) An order declaring that section 2, sub-section (2) of the Criminal Law (Suicide) Act, 1993 is incompatible with the rights of the appellant pursuant to the European Convention on Human Rights.
There was no appeal against the judgment and order in respect of the role of the Director of Public Prosecutions or the provision of offence specific guidelines.
The notice of appeal stated that the appeal would be presented on the grounds that the learned judges of the High Court had erred and misdirected themselves in law and/or fact, on twenty-eight grounds.
Background facts and medical condition
The background facts were found and described in the judgment of the High Court and this Court adopts those findings. The medical facts were corroborated and confirmed by medical reports furnished as agreed evidence by the appellant’s advisors, including those of Professor Niall Tubridy, consultant neurologist, Dr. Paul Scully, consultant psychiatrist, Dr. Niall Pender, clinical neuropsychologist, and the appellant’s general practitioner, Dr. Ann Marie O’Farrell.
The appellant is 59 years of age and lives with her partner, Tom Curran, and has two adult children from previous marriages. At age 32, in 1986, the appellant experienced her first episode of multiple sclerosis and a diagnosis of that illness was made in 1989.
Multiple sclerosis is an immune-mediated inflammatory disease causing neurological deficits which follows a relapsing-remitting pattern. Sufferers initially experience short-term neurological deficits and for some patients the disease involves progressive neurological deterioration and eventually death. Although there are some medications that can modify the progress of the disease in its early stage, there are no drugs to treat the advanced stages and there is no cure.
On the EDSS (Expanded Disability Status Scale), which is a scale used to describe the progress of multiple sclerosis, Professor Tubridy assessed the appellant as an 8.5, which means a person is essentially restricted to bed much of the day with some effective use of arms and some self care functions. However, the appellant feels she has deteriorated since Prof. Tubridy’s assessment, and is now at 9 at best on the EDSS and possibly a 9.5 (difficulty speaking and swallowing). The next point on the EDSS is 10, representing death from the disease.
The appellant gave evidence that she is unable to control an electric wheelchair, has no bladder control, and requires assistance to eat and drink, and to be washed, dressed and repositioned in her wheelchair. The appellant is also frequently experiencing choking episodes whether when drinking or not, which are frightening, distressing and exhausting for her. The eventual loss of her ability to swallow will put her at risk of aspiration and she will become dependant on an medicial apparatus to receive nutrition.
The appellant also gave evidence that she suffers frequently from severe pain from a number of sources, which is sometimes almost unbearable. Some of the pain is neurological in cause and some is caused by the weakening of her muscles and spasms. The appellant’s head, eyes, temples, neck, back, arms, hands, hips, and legs are the most frequent areas of her body suffering extreme pain. The appellant reported taking the maximum doses of analgesia that she can without becoming comatose or her quality of life decreasing further. The appellant’s daily medication does not treat her condition but rather manages the symptoms of it but there are side effects which include dry mouth, heart palpitations, drowsiness and nausea.
However, the disease has not impaired the appellant’s cognitive functions. The appellant was also assessed to establish her competency and she has been advised that there is no underlying mental illness that does or is likely to affect her decision-making capacity. A report of Dr. O’Farrell stated that the appellant’s mind and her forceful clarity “is all that Marie has left”.
While the appellant considering travelling to Switzerland to avail of the facility offered by Dignitas to end her own life five years ago, she postponed the decision because of the wishes of her partner and the location of the clinic. The appellant now claims that she would end her life if she were able to do so and regrets not doing so before she lost the use of her arms. The appellant states that she now lives with little or no dignity and she is horrified at the thought of enduring months without being able to communicate, in pain and isolation, with full consciousness or being heavily sedated to the point of being barely conscious.
The High Court described the oral evidence given by the appellant. This included that she had seven different carers and struggled every single day with the myriad problems outlined above. It left her feeling totally undignified. She had great difficulty trying to keep her head up and has constant pain in her shoulders, limbs and joints. She felt, indeed she was well aware, that her condition was getting worse, but her medication for pain relief was presently at the top dosage she could take without becoming comatose. She is presently taking 22 tablets of different medications every day. Her wish and her request to the Court were for assistance in having a peaceful dignified death in the arms of her partner and with her children in attendance. However, she did not wish to leave a legacy behind her whereby her partner or her children could be prosecuted. Her partner, while willing to help her, would only do so if it was lawful. She did not wish to die in the same way as a fellow sufferer from MS who died of hunger and thirst at the end of her treatment. She believed that with assistance she could self administer gas through a face mask. Alternatively, with medical assistance, a cannula could be put into her arm whereby a lethal injection would pass into her veins.
She told the High Court she had confronted any fears she ever had about dying and was at peace with the world. She had even organised her funeral arrangements so as to include a wicker coffin and an accompaniment of jazz music on the day.
She stated she had nothing to hide and if an independent person needed to validate any steps that were taken she would be quite happy with that. She confirmed that palliative care was not acceptable to her. Massive doses of painkillers might alleviate the symptoms of pain but, she believed, it would keep her in a comatose state which she did not want.
The appellant challenges the constitutionality of s. 2(2) of the Criminal Law (Suicide) Act, 1993, and also seeks an order declaring that this provision is incompatible with the obligations of the State under the European Convention on Human Rights and Fundamental Freedoms, referred to as “the Convention”.
Section 2 of the Criminal Law (Suicide) Act, 1993, referred to as “the Act of 1993”, provides:-
“(1) Suicide shall cease to be a crime.
(2) A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years.
(4) No proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions.”
Written submissions and executive written submissions were received by the Court from the appellant, the respondents, and the Irish Human Rights Commission as amicus curiae. In addition, the...
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