Yesterday’s Supreme Court ruling is the latest blow she has received in a decade that has been blighted by pain and suffering.
The court rejected her appeal against a High Court ruling that her rights are infringed by an absolute ban on assisted suicide. The 59-year-old former lecturer is in the final stages of multiple sclerosis. She wants her partner, Tom Curran, to be legally permitted to assist her to take her own life. Yesterday’s ruling has put that beyond legal reach. Europe is still an option for the couple, but time isn’t on their side.
Seven judges of the Supreme Court, and before them three judges in the High Court, have now ruled on this issue. The outcome of their deliberations isn’t surprising. To have ruled other than they did would be to place this country in the vanguard of the movement towards so-called end-of-life solutions. In such an issue, this Republic would be far more likely to move with caution rather than speed.
The court did leave open the option for the Government to legislate to allow assisted suicide in cases like Ms Fleming’s, if the legislature could satisfy itself that such a law would be restrictive. The law’s big fear, as expressed by both High and Supreme Courts, is the opening of what Judge Nicholas Kearns described as a “Pandora’s Box”, which would be impossible to close afterwards, with risks of abuse that are “all too real”. This fear, more often expressed as the “slippery slope”, mirrors one of the key arguments put forward by the anti-abortion lobby in the arguments currently raging over legislation.
For the anti-abortion group, any attempt to find a compassionate solution for a small minority of genuine cases where abortion is deemed necessary to protect the mother, will ultimately “open the floodgates” to abuse. While some will rush to make direct comparisons, there are major differences between the two issues. This is reflected in the courts’ recognition of the “slippery slope” in the end-of-life issue, while the law cannot make provision to prevent the “opening of floodgates” on the pro-life question. Considering the political upheaval currently being experienced by the Government over limiting access to abortion, there is little chance any effort will be made to enact laws in another highly sensitive area. Certainly, not this side of a general election.
However, the issues raised by Ms Fleming won’t go away. In essence, it involves pitting the rights of the citizen against the future, rather than the current, common good, which involves, to a certain extent, gazing at a crystal ball.
What is interesting in this regard is that evidence of abuse of assisted suicide or euthanasia laws as they currently exist elsewhere are open to interpretations.
In the Fleming case, the High Court reviewed statistics from countries where a liberal interpretation of the law allows for some form of euthanasia. In particular, developments in Switzerland, Netherlands, and Belgium, where the laws have been relaxed, were all examined.
This same evidence was also reviewed by the Canadian Supreme Court earlier last year in a case involving doctor-assisted suicide. The Canadian judges “concluded there was no evidence of abuse”. Yet, the Irish High Court judges “reviewed the same evidence and has drawn exactly the opposite conclusions”, according to the ruling in the Fleming case. “The medical literature documents specific examples of abuse which, even if exceptional, are nonetheless deeply disturbing.”
The different conclusions on the same evidence in two western liberal democracies suggests that the interpretation might be attributed to cultural rather than legal issues. There are lies, damn lies, and statistics, but it depends on who is doing the reading.
The cultural differences between here and Canada, for instance, could include attitudes towards religion, and particularly the position of the Catholic Church in relation to the taking of one’s own life. The evolution of society in this country, from a rural agrarian model in theory places greater emphasis on the care of elderly people. Thus, even a remote threat that elderly people could be put under pressure to end their own lives would be regarded with greater fear than it might in other jurisdictions.
These cultural factors are open to change, and, as has been seen in the abortion issue, the law eventually catches up with evolving mores. So far, though, the judges of the highest court in the land appear to be indicating that society here remains in thrall to the possible dangers for the many, at the expense of failing to show compassion to the few who badly require it.
As far as Ms Fleming goes, the High Court did offer an Irish solution to an Irish problem. The law which she had challenged is the 1993 Criminal Law Suicide Act, which provides for a sentence of up to 14 years for anybody who assists in a suicide.
She had asked the court to instruct the DPP to set out guidelines for factors that would be taken into account in any possible prosecution under the act.
The court ruled the DPP could not issue such guidelines, as that would effectively be making law, which is the preserve of the Oireachtas. However, the court did point out that the DPP was free to exercise her discretion as she saw fit, and that the court was “sure” that “in this of all cases”, she would exercise her discretion “in a humane and sensitive fashion”.
In effect, the court was saying that, while the law was the law, there was a place for compassion. While it couldn’t grant Ms Fleming or her partner the legal right to do as they desire, they were offering reassurance that the machinery of legal enforcement would view a case such as this with the utmost sensitivity.
That aspect of the ruling may have been of some comfort, but it could not fully address their fears of prosecution, or their belief that they had a right to act as they see fit, and allow for death with dignity.
Whether this will be reassuring to others in a similar situation is a moot point.
However, the wider issue of euthanasia is here to stay. It is no longer taboo. The plight of people afflicted with terminal conditions, their suffering and the fears of how they will die, will have to be addressed sooner or later in the context of human rights.