Some thoughts on the High Court decision in Fleming

To observers of constitutional law, the outcome of yesterday’s High Court ruling in the Marie Fleming case on assisted suicide was not surprising. The most relevant precedent (the 1996 Supreme Court decision in Re a Ward of Court) had established that the rights to privacy and personal autonomy conferred a right to refuse medical treatment, even where this would lead to death. However, the Supreme Court in that case had also made a point of stressing that “[t]his right, as so defined, does not include the right to have life terminated or death accelerated and is confined to the natural process of dying. No person has the right to terminate or to have terminated his or her life, or to accelerate or have accelerated his or her death.”


Few would really have expected the High Court to depart from this reasoning. Indeed, as a lower court, it would have had to provide compelling reasons for doing so.  Nonetheless, one such reason could have been that that this passage was obiter dictum and not binding, since the question of assisted suicide had not arisen in Re a Ward of Court. This might explain why the High Court in Fleming saw fit not to cite the above passage from Re a Ward of Court at all and to engage in an entirely fresh analysis of the constitutional issues raised.

Having accepted that the ban on assisted suicide engaged and restricted the right to personal autonomy, the High Court addressed the legitimacy of this restriction entirely through the lens of proportionality analysis, applying the classic statement of the proportionality test in Ireland from the Heaney case. Put simply, the logic of the decision is that the State clearly has a compelling interest in the protection of human life. The Court found that the evidence presented in the case showed that it is near impossible to legalise assisted suicide without opening up the possibility of abuse of the law, whether through coercion, complacency, or through vulnerable people disguising their true wishes due to a sense of being a burden on their families. Consequently, the Court ruled that a blanket ban with no exceptions met the requirement of being the least restrictive means necessary to meet the State’s objectives.

It is difficult to find fault with the Court’s reasoning on this aspect of the case. What was a little more disappointing was the Court’s exceptionally brief dismissal of the claim based on the equality guarantee of Article 40.1. Ms Fleming had argued that the ban on assisted suicide discriminated against her on grounds of disability, since no criminal offence is committed where an able bodied person who commits suicide, whereas a an offence is committed where a disabled person who cannot end his or her own life does so with the assistance of another. It would have been extremely interesting to see how this issue played out when viewed through the lens of the text of Article 40.1 (which accepts differential treatment based on differences of capacity, physical and moral, and of social function) and the associated case law. Unfortunately, the Court felt that this was unnecessary, and instead simply held that the differential treatment was justified for the same reasons as the restriction on the rights to privacy and personal autonomy. A more searching examination of this issue would have been welcome.

The elements of the decision based on the ECHR Act 2003 also raise a number of question marks. Again, few will be surprised that the claim for a declaration of incompatibility of the Criminal Law (Suicide) Act 1993 with the Convention failed, since the relevant Strasbourg case law does not support that claim. What was less convincing was the Court’s treatment of the duty imposed on the DPP, as an organ of State, to perform her functions in a manner compatible with the Convention. The Court sought to contrast this duty with the corresponding section of the UK Human Rights Act 1998, which refers to a duty on public bodies to act in accordance with Convention obligations. According to the High Court, the Irish provision is narrower in scope, since it refers only to the performance of functions and not a general duty to act. This distinction is relatively unpersuasive, since a public body can only act when performing a function conferred on it by law. Any action of a public body must be part of its functions; otherwise, it is
ultra vires. Viewed in this light, the distinction drawn by the High Court dissolves.

A further disappointing element of the treatment of the ECHR Act 2003 was the fact that when addressing the scope of its own duties to apply the Convention, the Court focused exclusively on the duty imposed by section 2 of the Act to interpret, so far as possible, statutory provisions or rules of law in a manner that complies with Convention obligations. The Court stressed that the Convention does not have direct effect in Irish law and that any application of the Convention must have a statutory provision or rule of law to hang on. In line with previous cases, such as
McD v L, the Court completely ignored the more general duty imposed by section 4 of the Act that judicial notice be taken of decisions of the ECtHR. Once again, we see the Irish superior courts taking an exceedingly narrow view of the scope of their own duties under the ECHR Act. This prevailing view is severely curtailing the development and utility of that piece of legislation, which remains – 10 years after its enactment – an under-exploited mechanism that is not fulfilling its potential.

The final (and most contestable) element of the decision relates to whether the DPP is obliged to issue guidelines concerning how she would exercise her discretion in deciding whether to prosecute a person accused of assisted suicide. For more on this see here.

Dr Conor O’Mahony
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