The Need to Revisit Ireland’s Ban on Assisted Suicide

The modern era of medicine is characterised by an increased emphasis on the relief of pain and suffering, particularly for those with life-limiting and terminal illnesses. While palliative care increasingly becomes the most accepted way to achieve emotional and physical relief for such patients, it is frequently questioned whether this method properly respects the autonomy and dignity of physically-incapacitated individuals. Consequently, calls for a liberalised reform of assisted suicide legislation have arisen in many jurisdictions.^[1]

 

I contend that Ireland’s universal ban on assisted suicide under s 2(2) of the Criminal Law (Suicide) Act, 1993 (the 1993 Act) is unconstitutional. In so arguing, I examine the current constitutional position on this topic through Denham CJ’s judgment in Fleming v Ireland and Others, the only case to challenge s 2(2) to date. I then analyse the relevant articles and rights of the Constitution to illustrate how they are incompatible with Ireland’s blanket ban, concluding by balancing these rights with policy concerns raised in other cases to confirm that the ban does not pass the proportionality test.

1. Fleming v Ireland

Marie Fleming suffered from advanced multiple sclerosis — an incurable disease that causes neurological deterioration, resulting in death. At the advanced stages, there is no treatment.^[2] Despite her restricted bodily functions, she retained control of her cognitive functions.^[3] She sought to commit suicide to avoid living with her disease’s progression, but due to her condition, was unable to do so herself.^[4] Her partner was willing to help her only if doing so was legal.^[5] She brought a case against the State to the Supreme Court to prove that s 2(2) was unconstitutional and incompatible with her rights found in the European Charter of Human Rights (ECHR), however her appeal was rejected.^[6] I have identified three main lines of reasoning in the judgment:

1. There is no constitutional right to suicide;^[7]
2. S 2(2) is generally applicable;^[8]
3. The European Court of Human Rights (ECtHR) did not agree with her claim that a ban on assisted suicide violates the ECHR in analogous cases.^[9]

I will analyse the first two identified lines of reasoning in light of the ‘margin of appreciation’ afforded to parties of the ECHR in Haas v Switzerland to determine the importance attached to the protection of life and the right to end life.^[10]

1. Reasoning in Fleming

 

Right to Suicide

Article 40.3.2° of the Constitution outlines the State’s responsibility to protect the lives of its citizens.^[11] There is no enumerated right to suicide or to determine the nature of one’s death. Consequently, Mrs Fleming had to identify these as unenumerated rights or elsewhere as an express right, as well as the right to have assistance in exercising these rights.^[12]She based her case on the unenumerated rights of Article 40, including the right to dignity and autonomy in Article 40.3.1°.^[13]  Regarding Article 40.3.2°, counsel argued that the right to life included the right to a dignified death as death is a part of life.^[14] The Supreme Court rejected this claim as the ‘right to life does not import a right to die’.^[15]

The Court took Hamilton CJ’s obiter comments in In Re a Ward (withholding medical treatment) (No 2) as persuasive authority on the constitutional interpretation of the right to life: ‘The right to life necessarily implies the right to have nature take its course and to die a natural death…This right, as so defined, does not include the right to have life terminated or death accelerated’.^[16] This position on the right to life is underpinned by the Catholic principle of the sanctity of life — life has an inviolable intrinsic value.^[17] Yet, s 2(2) as it currently stands does not wholly reflect this value. Denham CJ illustrates this when she remarks that Mrs Fleming would have been able to commit suicide prior to the deterioration of her condition.^[18] S 2(2) causes those suffering from a progressive degenerative disease, such as Mrs Fleming, to take their lives earlier than they would prefer to as they anticipate the inability to commit suicide at a later date.^[19] Therefore, s 2(2) does not just impugn individual’s personal and bodily autonomy but also violates the right to life.

Even if this point were to be disregarded, the case of Mrs Fleming raises some significant questions about the need to revise the legal interpretation of the right to life to adapt to modern-day contexts. Some jurists have argued that the right to life should consider the quality of life. Scholar, Ronald Dworkin, believes that the sanctity of life principle is not a natural moral, but a religious one.^[20] By adopting this view, the courts impose a religious morality on citizens. Dworkin nonetheless attests that life has intrinsic value, but it requires individuals to confront the most ‘fundamental questions of the meaning and value of their own lives for themselves’.^[21] As such, Dworkin’s sanctity of life principle would require the courts to recognise the difference in reasoning that gives every individual life meaning, given that they are mentally capable. Crucially, the principle recognises death as a part of life and thus, by respecting an individual’s choice regarding the nature of their death gives their life sanctity.

Developments in this direction can be seen in the UK in the case of Airedale N.H.S. Trust v Bland, where the Court contemplates the value of the life of a ‘permanently insensate’ being.^[22] The judgment abandoned the principle of sanctity of life in terms of existence and indicated that English jurisprudence is starting to consider the patient’s quality of life when making a decision.^[23] In considering the same issue, Irish courts initially based their reasoning on religious morals, referencing Walsh J in Quinn’s Supermarket v Attorney General,^[24] that the Constitution ‘reflects a firm conviction that we are religious people’. Crucially, although not central to the argument, they did similarly contemplate quality of life in reaching its judgment and agreed that the right to life is not absolute.^[25] This decision means it would not be unreasonable or too far a stretch for the courts to adopt Dworkin’s principle into Irish constitutional law.

Considering the growth of religious diversity and rise in atheism in Ireland,^[26] the Irish cultural, social, and moral landscape has shifted in a manner that places greater emphasis on individualism and personal autonomy. From a legal viewpoint, this is compounded by recent changes in the social tone of the Constitution, including the legalisation of divorce, homosexual marriage and abortion. Therefore, I do not believe that the identification of a right to determine the nature of one’s death, and thus suicide, as an unenumerated right under Article 40.3.2° would go against social order, as claimed by Denham CJ.  Rather, I submit that the Court should adopt Dworkin’s principle of the sanctity of life to maintain the law’s social and moral potency, as it follows underlying changes in the Irish social fabric. Thus, s 2(2) impugns the right to termination of life by a third party due to physical incapacity, as established.

Discrimination

Ms Fleming claimed that s 2(2) infringed her rights to equality under Article 40.1 because it discriminated between able-bodied persons and physically-incapacitated persons.^[27] Denham CJ rejected this reasoning based on earlier precedents that discrimination is only established when the action is unfairly designed with prejudicial intent to include or exclude. She notes that this can occur in seemingly neutral legislation but is rare, concluding that s 2(2) is not discriminatory as it applies to everybody without distinction.^[28] Yet, this decision neglects to consider indirect discrimination.

The House of Lords used reasoning similar to Denham CJ’s to reject alike claims to Mrs Fleming’s in R. (Pretty) v DPP.^[29] Professor Antje Pedain states that discarding Ms Pretty’s claims because the law applies objectively to everyone reflects a misunderstanding of discrimination.^[30] She attests that even when a law is neutral, if, when applied to individuals in analogous situations, one is treated different than the other on account of attributes that they possess, discrimination occurs. Quinn’s Supermarket identified this feature of Article 40.1.^[31] While it was certainly not the legislative intent of the 1993 Act to discriminate against this sub-group, it has created indirect discrimination that prevents the physically-incapacitated from exerting autonomy over their body and life.

 

• Proportionality

 

For a constitutional right to be legally violated, it must be justified by the objective of the violation.^[32]  The proportionality test is loosely employed in Ireland,^[33] and Heaney v Ireland states that the objective must:

1. ‘be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;
2. impair the right as little as possible, and
3. be such that their effects on rights are proportional to the objective.’^[34]

 

Balancing

The main argument for the existence of s 2(2) is that it protects the vulnerable from abuse^[35].  The interests of protecting the vulnerable must be balanced against the interests of the individual in this case. Canada^[36], the UK^[37] and the US^[38] have ruled that the objective of protecting the vulnerable outweighs the interests and autonomy of physically-incapacitated individuals in ending their life. They fear individuals requiring care may feel motivated or pressured to commit suicide so as not to become a burden on their families or state resources.^[39] They determined that any safeguards implemented with the aim of counteracting these concerns would likely be ineffective.^[40] Denham CJ implies this in Fleming when addressing the fear that recognising a right to termination of a life by a third party for the physically-incapacitated ‘would sweep very far’.^[41] Yet, many jurisdictions have already legalised assisted suicide and euthanasia with safeguards. Colm Scott Byrne, in his analysis of the impact of legalisation in the Netherlands and Oregon, contends that these fears have not materialised. In the Netherlands, there is no evidence to prove that doctors take a more utilitarian approach by prioritising state resources over patient lives by encouraging vulnerable terminal patients to undergo assisted suicide. Similarly, in Oregon, most of the individuals availing of assisted suicide are not from marginalised groups.^[42]  This suggests that the implementation of effective safeguards allows the fears underpinning the objective behind s 2(2) to become significantly weaker than the value of upholding individual rights. This illustrates that in light of the effectiveness of these safeguards, maintaining public safety and social order can be similarly satisfied in measures other than a blanket ban.

At the same time, s 2(2) serves to violate vulnerable members of society’s dignity as the only means of suicide left available to those with progressive degenerative diseases are lengthy, torturous, and insufferable. The trial judge in Carter v Canada recognised this when she stated that a blanket ban ‘[imposes] a disproportionate burden on persons with physical disabilities, as only they are restricted to self-imposed starvation and dehydration [to commit suicide]’.^[43]Therefore, the blanket ban is an excessive legislative measure and a disproportionate violation of the rights of physically-incapacitated individuals.

Minimum Impairment

The linguistic rigidity of the minimum impairment requirement of the proportionality test has diluted since Heaney. Professor David Kenny submits that it exists in three forms:

1. ‘…the means adopted are necessary for the achievement of the objective;
2. … the objective can be attained by other methods which may be more conveniently applied;
3. … the method chosen is the least restrictive and the disadvantage caused is least disproportionate to the aim.’^[44]

As discussed above, s 2(2) has not fulfilled the proportionality aspect of the third form of minimum impairment.

There are many critics of the conclusions that s 2(2) is necessary. They contend that the success of safeguards implemented in other jurisdictions, including the Benelux countries and Oregon, proves this wrong, and that these safeguards have the capacity to just as effectively be implemented in Ireland.^[45] These countries enforce alike criteria of due care, including:

1. Patient must have unbearable suffering with no improvement or is terminal;^[46]
2. Be provided with knowledge of all alternative treatment options, including palliative care;^[47]
3. Have control over their mental capacity;^[48]
4. Make the decision voluntarily, free of duress.^[49]

In Oregon, the patient must take a “cooling off period” after their request to prevent decisions of a transitory nature.^[50]

Importantly, these jurisdictions require the opinions of two doctors.^[51] The doctors must have no connection to each other and nothing to gain from the patient’s death to prevent abuse. Currently, Irish common law states that doctors have the necessary competence to determine when it is appropriate to withhold life-saving treatment without consulting the courts in cases where the treatment causes the patient harm or pain that outweighs the benefits.^[52] This principle can apply to this safeguard.

At the core of any potential criteria used to identify an individual capable of making a qualified, determined decision to end their own life within the Irish jurisdiction should include the criteria outlined by Lady Hale in R. (On Application of Nicklinson and another) v Ministry of Justice:

1. “[The individual] would… have to have the capacity to make the decision for themselves.
2. …have to have reached the decision freely without undue influence from any quarter.
3. …have had to reach it with full knowledge of their situation, the options available to them, and the consequences of their decision[.]
4. …have to be unable, because of physical incapacity or frailty, to put that decision into effect without some help from others.”^[53]

When effectively implemented, these criteria protect those that the 1993 Act seeks to protect as they simply would not qualify for assisted suicide, eradicating the need for a universal ban on assisted suicide. Notably, criterion (d) differs from many of the jurisdictions outlined previously by explicitly limiting the option to individuals suffering from any and all forms of physical incapacitation. This is because the basis of the legalisation of an exception to the universal ban under s 2(2) is the right to bodily autonomy, therefore the option is limited to those that would be physically incapable of exercising this right. The strictness of this criterion allows the implementation of assisted suicide to occur in a controlled and extremely specified manner in order to prevent the abuse of the system, in addition to any potential manifestations of the “slippery slope” feared by the Supreme Court in Fleming.

One of the loosest regulations on assisted suicide is the Belgian Euthanasia Act (2002), such as allowing non-terminal patients and patients suffering from psychological illnesses to avail of the option.^[54] The looseness of these safeguards has led to claims of abuse arising from the Act, such as in the case of Mortier v Belgium.^[55] In this case, the ECtHR ruled that Belgian authorities violated Article 2 of the ECHR by not having an impartial board reviewing the case.^[56]This suggests that safeguards must be as stringent as possible, while still leaving room for the reasonable exercise of the rights of the physically-incapacitated. However, it does not mean that appropriate safeguards are unattainable. Overall, these safeguards’ success proves that there are alternative methods to respect the autonomy and dignity of physically-incapacitated individuals, whilst preventing abuse of the system and exploitation of the vulnerable. While these may not be as convenient as a blanket ban, they may be the only way to safely respect individual rights.

Invalidity

When legislation is unconstitutional, it is declared invalid and the relevant article or the Act itself are rendered void ab initio.^[57] Ruling s 2(2) as unconstitutional would hold inherent risks as it would cause assisted suicide to be legal without any safeguards. This means that there would be no regulatory oversight into the way in which the procedures are carried out and the patients are assessed. Additionally, it would legalise murder on the grounds that the individual had expressed suicidal intent. This could legalise acts such as in the UK case of R v McGranaghan, where an inmate had persuaded his cell mate, who was disabled, to commit suicide. The accused made the victim and noose, assisted him in writing his suicide note, and helped him to climb upon the cupboard below the noose. However, the courts cannot change or fix legislation directly.^[58] In Canada, a new remedial development has occurred through suspended declarations of invalidation. The invalidation of the relevant unconstitutional law is suspended for a particular period to allow the government to enact legislation in situations where immediate invalidation would pose a risk to the public, threaten the rule of law or deprive deserving individuals of benefits to which they are entitled.^[59] Kenny observes that NHV v Minister for Justice and Equality^[60] and PC v Minister for Social Protection^[61] introduced a semblance of this process in Ireland.^[62] In 2023 this process was formally clarified in Heneghan v Minister for Housing, Planning and Local Government, Government of Ireland, Attorney General and Ireland to occur in rare instances, such as ones in which a declaration of immediate invalidity “would imperil the rule of law, and remove the possibility of the invalidity being capable of being remedied”.^[63] This is one such case. Considering the changing remedial culture and possibility of suspension, the consequences of invalidity should not be a barrier to declaring the 1993 Act unconstitutional.

1. Conclusion

It is clear that calls for a liberalised reform of assisted suicide legislation in Ireland are not unfounded nor lack merit. The basis upon which the 1993 Act is founded — the sanctity of life principle — grows increasingly at odds with the changing social, moral and legal climate in Ireland. Additionally, the law neglects to consider the success of the legalisation of assisted suicide in other jurisdictions, leaving Ireland with a rigid and uncompromising universal ban that disproportionately prevents physically-incapacitated persons from exercising their right to bodily autonomy and dignity under the auspices of their protection. In this sense, the 1993 Act, as it currently stands, appears to lack thoughtful and dedicated consideration of alternative options to fulfil its legislative intent. Based on evidence from other jurisdictions, allowing physically-incapacitated individuals to exercise their bodily autonomy through assisted suicide and the protection of the vulnerable are not wholly incompatible. Through the implementation of the appropriate safeguards, both of these interests can effectively and safely be achieved .

^[1] See Mari Eccles, ‘Ireland moves to allow assisted dying’ (Politico, 20 March 2024) <https://www.politico.eu/article/ireland-moves-allow-assisted-dying-social-reform-catholic-liberalization/> accessed 23 October 2024.

^[2] Fleming v Ireland [2013] IESC 19 [2013] ILRM 73 [11] (Denham CJ).

^[3] ibid 15.

^[4] ibid 16.

^[5] ibid 17.

^[6] Fleming v Ireland (n 2) 6.

^[7] ibid 114.

^[8] ibid 136.

^[9] ibid 163.

^[10] App no 31322/07 (EctHR, 20 January 2011), para. 55.

^[11] Art. 40.3.2°.

^[12] Fleming v Ireland (n 2) 99-102.

^[13] ibid 24, 103-104, 109.

^[14] Fleming v Ireland (n 2) 113.

^[15] ibid 104.

^[16] [1996] 2 IR 79 [124] (Hamilton CJ).

^[17] Colm Scott Byrne, 'A Time to Change the Law on Euthanasia and Assisted Suicide in Ireland' (2013) 16 Trinity College Law Review 15.

^[18] Fleming v Ireland (n 2) 134.

^[19] Stevie S. Martin, 'Assisted Suicide and the European Convention on Human Rights: A Critical Analysis of the Case Law' (2018) 21 Trinity College Law Review 244.

^[20] Ronald Dworkin, ‘Life's Dominion: An Argument About Abortion and Euthanasia’ (Harper Collins, 1993).

^[21]ibid.

^[22] [1993] UKHL J0204-1[1993] 1 FLR 1026 (Lord Keith of Kinkel).

^[23] Subhash Chandra Singh, ‘Euthansaia and Assisted Suicide: Revisiting the Sanctity of Life Principle’ (2012) 54 Journal of the Indian Law Institute 196.

^[24] [1972] IR 1 (23) (Walsh J).

^[25] In Re a Ward (n 16) 124.

^[26] See Carl O’Brien, ‘Census 2022: Catholicism declines, ‘No Religion’ and Hinduism climb in latest data’ (The Irish Times, 30 May 2023) <https://www.irishtimes.com/ireland/2023/05/30/census-2022-catholicism-declines-no-religion-and-hinduism-climb-in-latest-data/> accessed 24 October 2024.

^[27] Fleming v Ireland (n 2) 116-125.

^[28] ibid 131-136.

^[29] [2001] UKHL 61 [2001] 1 FLR 268.

^[30] Antje Pedain, ‘The Human Rights Dimension of the Diane Pretty Case’ (2003) 62 The Cambridge Law Journal 181.

^[31] Quinn’s Supermarket v Attorney General (n 24) 13-14.

^[32] David Kenny, 'Proportionality and the Inevitability of the Local: a Comparative Localist Analyst of Canada and Ireland' (2018) 66 The American Journal of Comparative Law 537.

^[33] ibid.

^[34] [1994] 3 IR 593 (Costello J).

^[35] This fear has materialised in other jurisdictions.  See R. V Howe [2014] EWCA Crim. 114 [2014] WLR D 77 (Lord Justice Treacy); R. V McGranaghan (Terence) [1987] 9 Cr App R (S) 447; R. V Ruscoe [1992] 8 C.R.N.Z. 68.

^[36] Rodriguez v British Columbia [1993] 3 SCR 519.

^[37] R (Pretty) v DPP (n 29).

^[38] Washington v Glucksberg [1997] 521 U.S. 702.

^[39] See Washington v Glucksberg (n 38) 732; Byrne (n 17).

^[40] Rodriguez v British Columbia [1993] 3 SCR 519.

^[41] Fleming v Ireland (n 2) 113.

^[42] Byrne (n 17).

^[43] [2015] SCC 5 [2015] 1 SCR 331 (29).

^[44] Kenny, 'Proportionality and the Inevitability of the Local: a Comparative Localist Analyst of Canada and Ireland' (n 32).

^[45] Byrne (n 17).

^[46] Termination of Life on Request and Assisted Suicide (Review Procedures) Act 2002 s 2 (1) (b) (Netherlands).

^[47] Death with Dignity Act s 3 (1) (b) (E) (Oregon).

^[48] Death with Dignity Act s 1 (Oregon).

^[49] Termination of Life on Request and Assisted Suicide (Review Procedures) Act 2002 s 2 (1) (a) (Netherlands); Death with Dignity Act s 2.

^[50] Death with Dignity Act s 3.

^[51]Termination of Life on Request and Assisted Suicide (Review Procedures) Act 2002 s 2 (1) (e) (Netherlands); Death with Dignity Act s 3 (1) (c).

^[52] Mary Donnelly, ‘Patient-centred dying: the role of law’ Mary Donnelly and Claire Murray (eds) Ethical and Legal Debates in Irish Healthcare (Manchester University Press 2016) 225; In Re a Ward (n 16).

^[53] [2014] UKSC 38 [314] (Lady Hale).

^[54] Kasper Raus et al. ‘Euthanasia in Belgium: Shortcomings of the Law and Its Application and of the Monitoring of Practice’ (2021) 46(1) The Journal of Medicine and Philosophy: A Forum for Bioethics and Philosophy of Medicine 80.

^[55] App. 78017/17 (ECtHR, 4 October 2022).

^[56] ibid 171-178.

^[57] Article 15.4.2° of the Irish Constitution.

^[58] Article 15.2.

^[59] Schachter v Canada [1992] 2 SCR 679, (715-16).

^[60][2017] IESC 35, [2017] 2 ILRM 105 (O’Donnell J).

^[61][2017] IESC 63, [2017] 2 ILRM 369 (MacMenamin J).

^[62] David Kenny, 'Remedial Innovation, Constitutional Culture, and the Supreme Court at a Crossroads' (2017) 40 Dublin University Law Journal 85.

^[63] [2023] IESC 18 (O’Donnell CJ) [39].