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Programme: BA (Hons) in Economics, Politics and Law in Dublin City University

Module:Healthcare Law and SocietyAssignment Title: The law in Ireland regarding assisted suicide

and euthanasia

Word Count: 2402

Author: Ed Cuddy

Introduction

Euthanasia is a contentious issue, with the heart of the debate lying at active or voluntary euthanasia

and assisted suicide. The recent Supreme Court decision of Fleming v Ireland, is a timely invitation

to examine state of the law on euthanasia and assisted suicide in Ireland. This paper will critically

evalute the statement by Kearns, J. in Fleming v Ireland & Others [2013] IEHC 2 at paragraph 74:

“…the State has a profound and overwhelming interest in safeguarding the sanctity of

all human life…”

in the context of the seminal cases regarding assisted suicide and euthanasia in Ireland.

Consequently, it will examine that in upholding the constitutional ban on these practices,

determined by law safeguarding the sanctity of human life? Firstly, this essay explain the legality of

euthanasia and assisted suicide in Ireland and provide insight into the legal distinctions within and

between both. Secondly, this paper will analyse the ways in which the law has both attempted and

failed to protect the essential elements for a life worth living. Finally, this paper argue the courts in

upholding ‘slippery slope’ argument for the sake of a theoretical ‘sanctity of life’ infringe on an

individuals constitutional rights. Finally, this paper explores how “autonomy, beneficence, non-

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According to Kearns, J:

“…the State has a profound and overwhelming interest in safeguarding the sanctity of all human life…”

(Fleming v Ireland & Others [2013] IEHC 2 at paragraph 74)

Critically evaluate this statement in the context of the law in Ireland regarding assisted suicide and euthanasia. You must support your answer

with discussion and analysis of any relevant case law and academic commentary.

maleficience, and justice” and ‘critical interests’ allows for “sanctity of human life” to be better 1

fulfiled by its termination with dignity, in a manner of ones own choosing.

The current legal position in Ireland

In Ireland the Criminal Law(Suicide) Act 1993 decriminalised suicide but it allows for the 2

criminalisation of assisted suicide at Section 2(2). Assisted suicide occurs where one takes one’s

own life with help from another, including information and medication. The maximum penalty for 3

this offence is 14 years in jail. The Act also stipulates, under s.4, that proceedings shall be instituted

for an offence except with the consent of the DPP. It is not against Irish law to switch off life

support or stop certain treatments if requested by the person themselves or their next of kin .

However, the guidelines for doctors are unambigious in stating: they “must not participate in the

deliberate killing of a patient by active means”. Euthanasia and assisted suicide are broad terms. 4

Euthanasia is considered to be the deliberate ending of another’s life by a third party and may be

active (voluntary) or passive (involuntary), such as when an individual is unable to express a desire

to die. While the former is the subject of academic and legal debate, the latter, however, is clearly 5

homicide, and therefore illegal. 6

Case law in Ireland

In 1995, the Supreme Court in (re. a ward of Court No 2 1996 2IR 70 p.100) (re a Ward) ruled that

the “right to die” included the right to die in a “dignified and natural” manner. But the court would

Beauchamp T, Childress J: Principles of Biomedical Ethics. (7th edition. New York: Oxford 1

University Press; 2013).

Section 2(2) of the Criminal Law (Suicide) Act 19932

Deirdre Madden, Medicine, Ethics and the Law, (Cromwell Press 2002 ) 534.3

Medical Council, 2009,Guide to professional conduct and ethics for registered medical 4

practitioners 7th edn para. 22.6

Madden (n 3) 528.5

ibid6

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not condone any bid to actively bring about a person's death. This case upheld the “Doctrine of the 7

Patient’s autonomy” with respect to consent or to withholding treatment as the patient deems fit but

as to withdrawing treatment such action requires the criteria set out in the case. Thus, if a patient

meets these criteria they would be deemed not be “competent” and a “best interest” test applies. 8

The “Doctrine of Double” effect is an exception to acting to shorten a patient’s life and Madden

states that it is possible to administer pain relief even if it this shortens a patients life provided the

intention is pain relief and not to shorten life. This is also on the provision that pain relief is stopped

when enough medication has been given . Madden makes the point that an advance statement made 9

and containing no directive that was in itself unlawful would have legal validity in the Courts on the

basis of the “re a ward” case which “favoured personal autonomy”. 10

In 2013, the Supreme Court adhering to “one judgment rule” , upheld the decision of the High 11

court. The judgement rejected a challenge to Irish State’s ban on assisted suicide and that the

principle of equal treatment does not confer a “right to assisted suicide”. The plaintiff/appellant 12

Marie Fleming, a woman with Multiple sclerosis (MS) argued that the prohibition on assisted

suicide in Ireland denied her equality under the law and infringed her constituional rights. Ms. 13

Fleming, wished to “die at a time of her choosing” assisted by her partner without the threat of

criminal sanction. To achieve this end, the appellant went before the courts arguing that Section 2(2)

should be declared invalid under the Irish Constitution and incompatible with the European

This case involving a woman who had been in a near Permanent Vegetative State (P.V.S) for 7

more than 20 years. The Supreme Court in this case laid down what it called guidelines for the  withdrawal of treatment for patient in or near (P.V.S). The Court further ruled that the “ right to life” includes the “right to die peacefully and naturally” and not to have ones life prolonged by abnormally artificial means which have no curative effect.

Madden (n 3) 528.8

ibid 506. 9

ibid “An advance directive is a statement made in advance of an illness about what type and 10

extent of treatment one would want, on the assumption that one may be incapable of participating in decision-making about treatment when the need arises “

This one judgment rule, previously located in Article 34.4.5 of the Constitution, meant that when 11

the Supreme Court considered whether or not a law was Constitutional, the decision of the Court had to issue as a single unanimous judgment; it was not revealed as to whether any of the judges dissented. After 2014 referendum this was removed from Article 34.

Eimear Spain, ‘Fleming and the Right to Die’ (date of publication) Human Rights in Ireland < 12

http://humanrights.ie/civil-liberties/fleming-and-the-right-to-die > 11th April 2015

ibid13

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Convention on Human Rights (ECHR). Ms. Fleming appealed to the Supreme Court these aspects 14

of the High Court decision. The High Court’s refusal to issue an order requiring the Director of 15

Public Prosecutions (DPP) to “clarify the policy on the factors in favour or against prosecution for

assisted suicide” was not appealed. Therefore it was not considered by the Supreme Court. 16 17

The Supreme Court in its first important decision in this case found that the “right to die” was not

“a corollary” of the “right to life” under Art 40.3.2 of the constitution. The court also found that 18

was no right to commit suicide or “to have one’s life terminated” in any other articles of the Irish

constitution. Explicitly, the court held that the “right to life” does not evoke a “right to terminate 19 20

life or have life terminated”. Consequently, this decision by the court affirmed the distinction 21

drawn “re a Ward” between allowing nature takes its course and actively taking steps to end a life.

The Supreme Court also rejected the argument that s2(2) was incompatible with the Constitution. 22

The appealent argued on the grounds of equality which would require the State to permit an

exception to the ban on assisted suicide for those incapable of taking their own lives. Ms. Fleming’s

counsel argued the state had in effect indirectly discriminating against those who are unable to

Fleming v Ireland & Others [2013] IEHC 214

Fleming v Ireland & Others [2013] IESC 1915

as above (n12)16

ibid17

Nicholas Liddane, Abandoned To Principle: An Overview of the Law on Euthanasia and Assisted 18

Suicide in the UK and Ireland, and the Case for Reform [2013] COLR 79

as above (n 8)19

as above (n 18)20

as above (n 8) para 11321

Fleming v Ireland & Others [2013] IESC 19 104. In Re a Ward (withholding medical treatment) 22

(No. 2) [1996] 2 I.R. 79 at 124 Hamilton C.J In that case the court held that the right to life included a right to die a natural death and consented to the withdrawal of all artificial nutrition and hydration of a patient in a near persistent vegetative state (PVS). The actions proposed by Marie Fleming would amount to positive action to end her life rather than dying a natural death and are therefore not within the boundaries of Art 40.3.2. Thus, the appellant laid the foundation of her case on the express right to life in Article 40.3.2. However, that right to life does not import a right to die.

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commit suicide without assistance. The Supreme Court held that there was no breach of the

constitutional principle of equal treatment under Art 40.1., stating : 23

“ that neutral laws will affect individuals in different ways: in the absence of impact on

a fundamental right that does not normally give rise to any unconstitutionality ”. 24

The court further found against the appealent on the “compatibility” of s2(2) with the European

Convention on Human Rights, particularly Article 8 of the convention, Finally, and arguably most 25

importantly in the context of this essay, the Court also rejected the appellent’s claim that the legal

ban on assisted suicide infringed her (enumerated and unenumerated) rights to “autonomy, bodily

integrity, and self-determination”. Denham CJ, commentary in the context of a constitutional 26

challenge to the criminalisation of assisted suicide brought by the Ms. Fleming, are instructive:

“The appellant has not sought to identify any unenumerated right other than such as

flows from the respect for and protection of life and of the person within the terms of

Article 40.3. Within that context however the appellant invokes constitutional values of

autonomy, self-determination and dignity. It is undoubted that the Constitution

recognises and respects these general values in the rights protected by it.” 27

In Fleming the operation of the “one judgment rule” for issues involving the constitutionality of an

Act of the Oireachtas disallowed for dissenting voices on the Supreme Court. However going

forward the Supreme Court will be able to issue multiple judgments in cases involving such

challenges. This will allow the Judiciary the freedom, to give judgments, including minority

judgments, on important matters such as euthanasia and assisted suicide. Consequently, should

as above (n12) “It was held that the fact that an objectively neutral provision affects able bodied 23

and disabled bodied individuals differently does not amount to a breach of the constitutional principle of equal treatment under Art 40.1. This differs from the reasoning of the High Court who found that this failure to differentiate between able bodied and disabled people amounted to unequal treatment but such treatment was a proportionate interference given the necessity to safeguard the lives of others.”

as above (n 8)123 -13624

The court relied heavily on a decision of the European Court of Human Rights in a case taken by 25

Diane Pretty (Pretty v United Kingdom), a woman suffering from motor neuron disease, where it was held that it was primarily for individual States to assess whether an interference with the right to private life under Art 8 was proportionate bearing in mind the risks of abuse if the law on assisted suicide was relaxed.

as above (n8) at para.24. 26

ibid at para.110.27

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more cases similar to Fleming, come before the Supreme court there would be greater insights from

all the Judges as to the scope of unenumerated rights in the Constitution.

The ‘slippery slope’ argument and individual autonomy

It has been accepted in the Pretty , as well as Fleming case, that the “right to private life” granted by

art.8 of the European Convention on Human Rights (ECHR) is engaged by the prohibition on

assisted suicide. However, art.8 is a qualified right and can be the subject of interference where

deemed necessary by the State under art.8(2). The European Court of Human Rights (ECtHR) has

taken the view that a ban on assisted suicide is justified and acceptable by reference to art.8(2), in so

much as indivdual states are entitled to consider that such a ban is necessary to prevent abuse and

exploitation of vulnerable indivduals . The most “common consideration advanced” against

proposals to legalise euthanasia, is the “slippery slope argument” and it was a particularly strong 28

component of the judgment of Kearns P in Fleming (HC) . Although a number of judges have 29

given dissenting judgments in some of these cases, no appeal court has “upheld the claims of a

litigant” in such a case. As Kearns P. said in the Fleming case this is not because judges are

indifferent to acute human suffering, but because

“…it is impossible to craft a solution specific to the needs of a plaintiff such as Ms

Fleming without jeopardising an essential fabric of the legal system namely respect for

human life – and compromising these protections for others”.

This Kantian position is central to those who advocate or “support” the “intrinsic value” or sanctity

of life over its “quality”. This means, the very fact that we are human, has value in itself. Human

life is deemed sacred and thus holds an “intrinsic value” and should be safeguarded at all costs by

the State. Whilst the applicants in these cases acknowledge that the laws prohibiting assisted 30

suicide are rationally aimed at a legitimate objective of protecting the vulnerable, they argue that the

Liddane (n 18) “The slippery slope argument contends that if we begin making concessions to 28

the current prohibition in order to facilitate assisted suicide, then any line of restriction that we attempt to draw subsequently will be unable to withstand the pressure of the underlying principle of autonomy and will be extended to permit suicide for malicious reasons, facilitate preying on the vulnerable or providing a cloak for murder.”

ibid29

Immanuel Kant, Grounding for the Metaphysics of Morals 3rd ed [1785] translated by James W. 30

Ellington (Hackett, 1993) 43.�7

prohibitions are disproportionate. The applicants argued that they extend too far and there is no

necessity in safeguarding. Any concession on the prohibition by State should operate from four

principles put forward by Beauchamp and Childress: “autonomy, beneficence, non-maleficience,

and justice”. These are generally regarded as “the origin of the principles-orientated bioethics 31

method in Western societies” , that underpin medical ethics around issues such as euthanasia and 32

assisted suicide. Autonomy essentially means self-determination making one’s own decision. 33

Beneficence is drawn from the Hippocratic oath which often lends itself to “non-maleficience or

the duty not to do harm”. It is recognised that the principle aim of medicine is to “provide net 34

benefit”, understanding that whilst that some harm will “inevitably” be caused in doing so. 35

It is widely acknowledged these principles autonomy and beneficence would allay the fears for the

vunerable expressed in Fleming, when adhered to with great diligence. Therefore it is posited that 36

the combination this respect for autonomy and beneficence is an “important component” of the

forceful argument in refuting the ‘slippery slope argument’. 37

Beauchamp T, Childress J: Principles of Biomedical Ethics. (7th edition. New York: Oxford 31

University Press; 2013). Beauchamp and Childress’ Four Principles is one of the most widely used frameworks and offers a broad consideration of medical ethics issues generally. Therefore, not just applicable in a clinical setting.

Madden (n 8) 25-26.32

J Griffiths, H Weyers & M Adams Euthanasia and Law in Europe (1st Ed, Hart Publishing 2008) 33

513-514

Liddane (n 18)34

ibid35

Madden (n 8 ) 25-26.36

Liddane (n 18)37

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Autonomy and Dignity

Ronald Dworkin claims that the failure to respect the right of the individual when competent to

determine how he shall be treated when no longer competent, amounts to an infringement of the

individual's right to, what he terms, “precedent autonomy” . However with regard to advance 38

statements, Dworkin identified the issue that

“[p]eople are not the best judges of what their own best interests would be under

circumstances they have never encountered and in which their preferences and desires

may drastically have changed”. 39

Therefore, he posited another “theory of autonomy” namely “Critical interests” that justifies

respecting an individuals wishes contained in an advance directive. Critical interests are described

interests that in the “satisfaction of which make a life a genuinely better one and the frustration of

which makes a life worse”. Critical interests are things that will contribute to an individual’s 40

“good life” and that one should want, such as having a close relationship, or fulfilling a duty. These

are deep convictions about what helps to make a life good on the whole. Dworkin’s notion of

“critical interests”, are therefore, those interests an individual possesses and when practiced,

substantially makes one’s life better, or worth living as with Fleming, raises the concern that death

in itself could be a “critical interest”. This means that an individual should have the right to die 41

with dignity, in manner of their own choosing that ultimately echoes the entirety of their life.

Accordingly, in Fleming the Supreme court denied the appellent the opportunity to affirm her life,

by ending it with dignity in a manner of her choosing. Dworkin further posits on that

“making someone die in a way that others approve, but he believes a horrifying

contradiction of his life, is a devastating, odious form of tyranny.” 42

Ronald Dworkin, Life’s Dominion: an argument about abortion and euthanasia (Harper Collins, 38

1993) 226-229.

ibid39

Seana Shiffrin, UCLA40

Forthcoming in Dworkin and His Critics, (Blackwell UK), ed. Justine Burley (Submitted 6/94)Autonomy, Beneficence and the Permanently Demented page 179

Ronald Dworkin, Sovereign Virtue: the theory and practice of equality (1st Harvard University 41

Press, 2001) 245.

Dworkin (n 38) 217.42

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The sanctity of life is better fulfiled by its termination with dignity as opposed to when a terminal,

and debilitating disease has reduced its quality irrevocably for the patient. The prolonging of a life 43

with pain and suffering negates any sanctity of life of the terminally terminally ill. Euthanasia

should be seen among other things, about the scope of personal autonomy. Personal autonomy

requires that individuals be free to make such choices. A terminally ill person therefore the right to

choose dignity in death. In Ireland, when we examine the concern of how the State safeguards this,

in relation to euthanasia and assisted suicide, we find a disparity between the notion of autonomous

beings and the Irish constitution. As John Stuart Mills notes, “the individual over himself, over his

own body, is sovereign”. The “death with dignity argument” is one which could be said to be 44

concerned with autonomy and control over ones life. Accordingly when deprived of any quality of

life and the prospect of a slow death, due painful and degenerative physical condition, many

individuals feel their autonomy has been taken. To these individuals, actively taking or seeking

assistance to end, their own life, offers them personal autonomy and dignity.

Conclusion

In conclusion, This essay contends that “…the State has a profound and overwhelming interest in

safeguarding the sanctity of all human life…” therefore that the law should not place stringent

limits on an individual’s autonomy in respect of end of life decisions; any such limitation should be

imposed and regulated by legislation. Every person hopes for a peaceful, swift and painless death.

unfortunately for many such a death is no longer possible, an individuals autonomy should not be

violated for the sake of a theoretical ‘sanctity of life’ or ‘slippery slope’ argument. Autonomy and

beneficence allow for justice and dignity in the ending life rather than forsaking these abstract

justifications for prolonging it.

 Liddane (n 18)43

John Stuart Mills, On Liberty (Ticknor and Fields Boston, 1863) 23.44

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Bibliography

Legislation and Cases

Fleming v Ireland & Others [2013] IEHC 2.

Fleming v Ireland & Others [2013] IESC 19.

Heaney v. Ireland [1994] 3 I.R. 593.

Section 2(2) of the Criminal Law (Suicide) Act 1993.

Books

Beauchamp T, Childress J: ‘Principles of Biomedical Ethics’. (7th edition. New York: Oxford University Press; 2013).

Dworkin, R. Life’s Dominion: an argument about abortion and euthanasia (Harper Collins, 1993).

Dworkin, R. Sovereign Virtue: the theory and practice of equality (1st Harvard University Press, 2001) 245.

Griffiths, J., Weyers H. & Adams M. Euthanasia and Law in Europe (1st Ed, Hart Publishing 2008).

Kant, I. Grounding for the Metaphysics of Morals 3rd ed [1785] translated by James W. Ellington (Hackett, 1993).

Madden, D. ‘Medicine, Ethics and the Law’, (Cromwell Press 2002 ).

Mills, J. On Liberty (Ticknor and Fields, Boston 1863).

Shiffrin, S. 'Autonomy, Beneficence and the Permanently Demented' in Justine Burley (ed), Dworkin and His Critics, (Blackwell, UK 2004).

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Journal Articles

Madden, D. ‘Is There a Right to a “Good Death”?’ [2013] Medico-Legal Journal of Ireland 60-67

Liddane, N. ‘Abandoned To Principle: An Overview of the Law on Euthanasia and Assisted Suicide in the UK and Ireland, and the Case for Reform’ [2013] COLR 79.

Other Medical Council, 2009, Guide to professional conduct and ethics for registered medical practitioners 7th edn.

Spain, E. ‘Fleming and the Right to Die’ (date of publication) Human Rights in Ireland < http://humanrights.ie/civil-liberties/fleming-and-the-right-to-die > 11th April 2015

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