Irish Supreme Court upholds protections in law from assisted suicide with similar evidence as in the Carter case.

By Alex Schadenberg

The recent Irish Supreme Court Fleming decision is significant to all Canadians. 

The seven Justices of the Irish Supreme Court examined similar evidence as Justice Smith and the BC Court of Appeal have considered in the Carter case and they decided that Marie Fleming did not have a right to assisted suicide and that the law did not infringe upon her equality rights based on her disability.

The Irish Supreme Court did a thorough review.

In Fleming, the Irish Supreme Court examined the Rodriquez decision by the Supreme Court of Canada, the Glucksberg decision from the Supreme Court of the United States, the Pretty decision from the House of Lords in the UK and the Carter decision from British Columbia Canada. They then analyzed the issue of assisted suicide in relation to the Irish Constitution.

When examining the Rodriguez decision the Irish Supreme Court quoted Sopinka who stated for the majority that:

“The distinction between withdrawing treatment upon a patient’s request…and assisted suicide…has been criticized as resting on a legal fiction - that is, the distinction between active and passive forms of treatment. The criticism is based on the fact that the withdrawal of life supportive measures is done with the knowledge that death will ensue, just as is assisting suicide, and that death does in fact ensue as a result of the action taken […] 

Whether or not one agrees that the active vs. passive distinction is maintainable, however, the fact remains that under our common law, the physician has no choice but to accept the patient's instructions to discontinue treatment. […] The doctor is therefore not required to make a choice which will result in the patient's death as he would be if he chose to assist a suicide or to perform active euthanasia. 

The fact that doctors may deliver palliative care to terminally ill patients without fear of sanction, it is argued, attenuates to an even greater degree any legitimate distinction which can be drawn between assisted suicide and what are currently acceptable forms of medical treatment. […] However, the distinction drawn here is one based on intention-in the case of palliative care the intention is to ease pain, which has the effect of hastening death, while in the case of assisted suicide, the intention is undeniably to cause death.”

The Supreme Court of Canada in Rodriguez accepted that there is a difference between withholding or withdrawing medical treatment and palliative care as compared to euthanasia and assisted suicide.

The Irish Supreme Court noted that in Glucksberg, the US Supreme Court examined the Common Law history concerning Assisted Suicide and the US Supreme Court concluded that:

"the nation’s history, legal traditions and practices did not support such a right (assisted suicide)"

The House of Lords (UK) Pretty decision:

rejected the argument that s.2 (1) of the Act of 1961 discriminated against those who can not, as a result of incapacity, take their own lives without the assistance of another. As the law creates no right to commit suicide, it was held that this argument was based on a “misconception.” Further, the House of Lords held that, as the criminal provision applies to all persons equally, the provision could not be found to be objectionably discriminatory.

The House of Lords was saying that since there is no right to suicide in the UK that there is also no right to assisted suicide.

The three judge panel from the Irish Lower Court rejected the decisions of Justice Smith in Carter. The Irish Supreme Court, in their decision, simply recognized that the decision by Justice Smith was a trial court decision in British Columbia. The Carter decision has been appealed to the BC Court of Appeal, where the appeal was heard (March 18 - 22, 2013) and that the decision of the BC Court of Appeal will likely be appealed to the Supreme Court of Canada.

The Irish Court then made its decision.
1. They stated that all laws that were made by the Oireachtas (parliament) were considered constitutional unless it is proven otherwise.
2. There is no "right to suicide" that can be found in the Irish constitution, therefore there is no "right to assisted suicide." A right to assisted suicide needed to be found somewhere else.
3. The lawyers for Fleming argued that since Irish citizens have the right to refuse medical treatment, even if death occurs, that in the same way she had a right to assisted suicide. The Irish Supreme Court decided:

The right to life extended to a right to die a natural death or let nature take its course. While at the extremity of any principle distinctions may be fine, nevertheless a competent patient who refuses treatment is making a decision as to how to live the reminder of his or her life even when death results. That case did not decide, therefore, that there was a right to terminate life or a right to have it terminated.

4. The lawyers for Fleming argued that Article 40.3.2 concerning the right to life, also concerns a right to die. The court found that:

"no person has a right to have his or her life terminated."

5. The lawyers for Fleming argued that the values of autonomy, dignity and self-determination in relation to other Irish court decisions also mean't that there was a right to assisted suicide. The Irish Supreme Court decided:

"Thus, insofar as the Constitution, in the rights it guarantees, embodies the values of autonomy and dignity and more importantly the rights in which they find expression, do not extend to a right of assisted suicide. Accordingly the Court concludes that there is no constitutional right which the State, including the courts, must protect and vindicate, either to commit suicide, or to arrange for the termination of one’s life at a time of one’s choosing."

6. The lawyers for Fleming argued that since able bodied people are able to commit suicide then the law prohibiting assisted suicide was a form of discrimination for people with disabilities. In their decision the Irish Supreme Court looked at other decisions, they examined the decision by Justice Smith in the Carter decision in Canada. Justice Smith found that the law protecting people from assisted suicide did discriminate against people with disabilities. The Irish Supreme Court decided that the law:

"is neutral on its face; it applies equally to everybody. ... Any person, without any distinction, who aids, abets, counsels or procures another person to commit suicide, commits an offence. It is not possible for anyone to complain of unequal treatment on the ground that he or she will commit a criminal act by assisting the suicide of another person."

The Irish Supreme Court conclusions:
1. "there is no constitutional right to commit suicide or to arrange for the determination of one’s life at a time of one’s choosing."
2. "As there is no right to commit suicide so issues, such as discrimination, do not arise; nor do values such as dignity, equality, or any other principle under the Constitution, apply to the situation"
3. "The Court rejects the submission that there exists a constitutional right for a limited class of persons, which would include the appellant. While it is clear that the appellant is in a most tragic situation, the Court has to find constitutional rights anchored in the Constitution."
4. "As the court finds the appellant has no constitutional right to commit suicide, and so no right to assistance in the commission of suicide, the issue of the proportionality of any restriction of such a right does not arise for determination in this case."
5. With respect to Article 2 of the European Convention the Court found:

“[Article 2] is unconcerned with issues to do with the quality of living or what a person chooses to do with his or her life… [It] cannot, without a distortion of language, be interpreted as conferring the diametrically opposing right, namely a right to die; nor can it create a right to self- determination in the sense of conferring on an individual the entitlement to choose death rather than life.” [Emphasis added.]

6. Based on the previous Pretty and Haas decisions concerning Article 8 of the European Convention the Irish Supreme Court no right to assisted suicide.

After considering similar evidence that was considered in the Carter case in Canada, the Irish Supreme Court decided that there is no right to assisted suicide, there is no descrimination to Fleming and that the right of the state to protect its citizens was constitutional and would be upheld.

It is also important to not that the Irish Court emphasized that this case wasn't only about Marie Fleming, as tragic as her condition is, but it is about everyone who would consider assisted suicide. 

It is expected that Fleming will appeal the decision to the European court.