The right to die, the right to live, and Marie Fleming’s High Court judgment

by Michael Nugent on January 11, 2013

Tom and MarieMarie Fleming has lost her High Court case seeking the right to die with the assistance of her partner Tom Curran. The family are now considering an appeal to the Supreme Court. They are an inspiration to all of us who are affected by this painful dilemma.

My wife Anne Holliday, who died of cancer in 2011, had made preparations to take her own life if she needed to. Like many who make that decision, Anne died naturally at the end, having had the peace of mind of knowing that she could avoid suffering if she needed to.

Last night I discussed the right to die on RTE’s Prime Time with Regina McQuillan of the Irish Association for Palliative Care. I agree with all of what Regina says about the importance of palliative care, and avoiding people feeling pressurised to die.

In my opinion, both of these issues are complementary. People who choose to live or who are not of sound mind should be given every help to stay alive, with the maximum possible quality of life. And people who are of sound mind and terminally or seriously ill, and who choose to die on their own terms, should also be given help to do that.

Marie Fleming’s High Court judgment

Marie Fleming is an inspirational woman. The High Court judgment said that she was in many ways the most remarkable witness which any member of this Court has ever been privileged to encounter.

Marie was looking for the right to be assisted to die on two constitutional grounds. Under Article 40.3.2, the State must vindicate the personal autonomy of every citizen. And under Article 40.1, she has the right to equality, but able-bodied people can legally commit suicide without assistance, while she requires assistance to do so because of her illness, and assisting suicide is a crime.

The Court accepted that the ban interferes with her rights, but found that the interference is not disproportionate. It found that the risks of liberalization is that it would be impossible to ensure that there would not be abuse by other people of vulnerable people.

There were similar bans upheld in Canada, US, UK and Europe. In one case in Canada a different decision was taken, but on reviewing the same evidence, the Irish court disagrees with the Canadian decision about the existence of abuse.

The Court found that the DPP cannot give Marie and Tom advance guidelines as to whether any proposed way of dying would be breaking the law. However, it would be different if the DPP gets a list of factors after the event.

The Court found that the fact that recent UK guidelines exist must surely inform the exercise of the discretion of the DPP here. The Court felt sure that the Director in this of all cases would exercise her discretion in a humane and sensitive fashion.

Reading between the lines, it seems like a traditional ‘Irish solution to an Irish problem’, although this time based on compassion. It could be interpreted as the Court saying that we cannot allow you to do this, but you are unlikely to be prosecuted if you do.

Whether this satisfies the needs of Marie and Tom and their family is for them to decide.

The right to die and the right to live

Last night I discussed the right to die on RTE’s Prime Time with Regina McQuillan of the Irish Association for Palliative Care. I was speaking on behalf of Right to Die Ireland, a recently founded advocacy group seeking to change the law to enable assisted dying.

I agree with all of what Regina McQuillan said about the importance of palliative care, and avoiding people feeling pressurised to die. It is important that people who campaign for the right to choose to die also campaign for the right to choose to live.

However, the right to die is not just about dying. It is also about the peace of mind and quality of life that you have while you are still alive. Because of her decision, my late wife Anne had a year of quality life free of the worry of suffering at the end.

This is an issue where the Courts and the legislators have to catch up with reality. The courts are not in control of what terminally ill people will choose to do, because terminally ill people have their own ethical priorities and their own autonomy.

One sad impact of assisted dying being illegal is that some people will die earlier than they otherwise would, because they cannot wait for the stage when they need help to do so. And people will die abroad instead of the comfort of their own home.

This is a difficult issue to deal with, because people on both sides of the argument are coming from a place of compassion.

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{ 6 comments… read them below or add one }

1 Gareth Soye January 11, 2013 at 10:19 am

Michael, does the following line from your piece not miss out or misrepresent in a small way what the fundamental issue of this problem is…

“but able-bodied people can commit suicide while she cannot because of her illness”

Marie Fleming can commit suicide but she requires assistance to do so.

2 Michael Nugent January 11, 2013 at 10:28 am

Thanks, Gareth, you’re right.

I’ve changed that to:

“but able-bodied people can legally commit suicide without assistance, while she requires assistance to do so because of her illness, and assisting suicide is a crime.”

3 Gareth Soye January 11, 2013 at 10:50 am

No problem Michael, but unfortunately you still seem to be having the problem where after someone comments they cannot see comments until they comment again.

4 Gareth Soye January 11, 2013 at 10:57 am

Wait, that’s not the problem, the problem appears to be with Google Chrome. Refreshing the page seems to fix it. It works fine with IE.

5 Sean Michael Beasley January 11, 2013 at 5:10 pm

Great read, I recently took a BioMedical Ethics class for my Philosophy degree; had to write a paper on the Deontological and Utilitarianism side of the PAS and Voluntary Euthanasia. It’s such a touchy subject for most even when patients are autonomous they are denied based on other people’s ideologies or beliefs, and we all know what kind of trouble that can bring. Keep up the good work, thanks for writing and bringing it to the surface. Cheers from NYC!

6 ronan January 12, 2013 at 6:13 pm

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