Constitutional Analysis: Personal Autonomy & Dignity in Assisted Suicide, Schemes and Mind Maps of Human Rights

Download Constitutional Analysis: Personal Autonomy & Dignity in Assisted Suicide and more Schemes and Mind Maps Human Rights in PDF only on Docsity! THE SUPREME COURT Appeal No: 019/2013 High Court Record No: 2012 / 10589P BETWEEN MARIE FLEMING APPELLANT AND IRELAND, THE ATTORNEY GENERAL AND THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENTS AND IRISH HUMAN RIGHTS COMMISSION AMICUS CURIAE OUTLINE SUBMISSIONS ON BEHALF OF THE IRISH HUMAN RIGHTS COMMISSION Filed by Sinead Lucey, Solicitor, Irish Human Rights Commission, Jervis House, Jervis Street, Dublin 1 1 Table of Contents A. Introduction 2 B. Issues before this Court 2 C. High Court Judgment 4 D. Asking the Wrong Question – Re-Interpreting In Re Ward of Court 6 E. The Proportionality Test 10 F. Equality Argument – Questions of Classification 14 G. The Issue of a Remedy 20 H. Conclusion 21 4 (i) the lack of legal coherence arising from the blurring of the distinction between assisted suicide and euthanasia which emerges from the decision in the High Court; (ii) the application of the proportionality test by the High Court; (iii) whether the classification by the High Court of those persons protected by section 2(2) on its objective justification analysis (more specifically in respect of an Article 40.1 analysis which prohibits discrimination on grounds of disability) was correct; and (iv) the question of a remedy. C. High Court Judgment 8. In its judgment the High Court records the evidence in this case to the effect that the Appellant is a fifty-nine year old lady who has been diagnosed with a terminal illness which is reaching its end stages. Her quality of life is extremely diminished. She is in significant pain and has lost much of her personal autonomy. She has been psychiatrically assessed as mentally competent. The compelling evidence, which so evidently impressed the High Court, is that her deeply felt wish to die in her own home and at a time of her choosing is a freely formed and freely held wish. It was accepted that hers is not a coerced decision and is a decision informed by a rational wish to minimise suffering and pain where her quality of life is severely diminished. 9. The High Court found that the Appellant’s decision to seek assistance to end her own life in the face of her illness is in principle engaged by the right to personal autonomy which lies at the core of the protection of the person by Article 40.3.2 stating (at p. 52): “it is rather a facet of that personal autonomy which is necessarily protected by the express words of Article 40.3.2 with regard to the protection of the person.” 10. The Court then found that: “there are here powerful countervailing considerations which fully justify the Oireachtas in enacting legislation such as the 5 1993 Act which makes the assistance of suicide a criminal offence.” 11. The Court drew a distinction between a competent adult patient making the decision not to continue medical treatment on the one hand – even if death is the natural, imminent and foreseeable consequence of that decision - and the taking of active steps by another to bring about the end of that life of the other. The Court acknowledged that one necessary feature of the Constitution’s protection of the “person” in Article 40.3.2 is that the competent adult cannot be compelled to accept medical treatment even where the inevitable consequence is death but stated that the taking of active steps by a third party to bring about death is an entirely different matter, even if this is desired and wished for by an otherwise competent adult who sincerely and conscientiously desires this outcome. 12. In an important statement the Court went on to say: “If this Court could be satisfied that it would be possible to tailor-make a solution which would address the needs of Ms. Fleming alone without any possible implications for third parties or society at large, there might be a good deal to be said in favour of her case. But this Court cannot be so satisfied. It certainly cannot devise some form of legislative solution which would be an impermissible function for the Court.” 13. Following a review of the evidence before the Court, the Court found that the State had provided an ample evidential basis to support the view that any relaxation of the ban on assisted suicide would be impossible to tailor to individual cases and would be inimical to the public interest in protecting the most vulnerable members of society. 14. At paragraph 104 of the judgment the Court stated by reference to the decision of the Canadian courts in Carter that it: “cannot at all agree with Lynn Smith J.’s finding that the risks inherent in legally permitted assisted death have not materialized in jurisdictions such as Belgium and the Netherlands, even if it is true that the incidence of LAWER in those jurisdictions has “significantly declined” since liberalisation.” 15. The Court did not separately address the case made on Article 40.1 grounds to any significant extent confining its judgment on this aspect of the case to paragraphs 121-123 of the judgment. The Court did 6 recognize, however, that unlike its European Convention on Human Rights counterpart, Article 14 ECHR, Article 40.1 is a free-standing equality guarantee, the application of which is by no means contingent on the operation of a separate and distinct constitutional right. The Court further allowed that inasmuch as the 1993 Act failed to make separate provision for persons in the Appellant’s position by creating no exception to take account of the physical disability which prevents the Appellant taking the steps which the able bodied could take, the precept of equality in Article 40.1 was engaged. The Court went on to say, however, that: “for all the reasons which we have set out with regard to the Article 40.3.2, we consider that this differential treatment is amply justified by the range of factors bearing on the necessity to safeguard the lives of others which we have already set out at some length.” D. Asking the Wrong Question – Re-Interpreting In Re Ward of Court 16. There is an apparent blurring of the lines of distinction between assisted suicide and euthanasia, both passive (the withdrawal of life preserving treatment if indeed that is properly to be characterised as euthanasia) and active (active steps to hasten death), in the decision of the High Court. Throughout its deliberations the Court relies on research relating to euthanasia without apparently addressing the extent to which that research can permissibly be relied upon in a case where a person wishes to take a determining step in the act of suicide but needs assistance in completing all aspects of her decision to take her life. 17. Passive euthanasia has been lawful in this jurisdiction since the decision of the Court in In Re A Ward of Court as a result of the recognition by the Court of personal autonomy rights of the individual in that case with precise procedural safeguards to guard against abuse not elaborated in declaratory principles in the absence of legislation.1 Although the judgment of the High Court in this case appears to equate assisted suicide with active euthanasia, the material fact that the death is achieved through the final direction or actions of the deceased in the case of assisted suicide does not appear to have elicited separate or particular consideration by the Court in terms of determining the 1 [1996] 2 IR 79. 9 the distinction between passive and active euthanasia is indeed a fine one.2 23. In its decision in the High Court in this case, the right identified by Hamilton CJ in Ward that if mentally competent there was “no doubt” but that an individual had the right to forego or direct that treatment be withdrawn leading to their death, was differentiated from active “physician-assisted” suicide.3 A slippery slope rationale was not therefore sufficient to prohibit the withdrawal of life preserving treatment but is, on the authority of the High Court in this case, sufficient to prohibit the provision of assistance to another person who wishes to end their own life by their own act. Logically, the rationale for the distinction between passive euthanasia (Ward) and assisted suicide (Fleming) is difficult to reconcile in circumstances where both raise similar issues of autonomy and quality of life. 24. From the perspective of the wishes of the person and the weight to be attached to those wishes as aspects of vindicating one’s right to autonomy and right to self-determination (or preserving the “private sphere”) the apparent demarcation between active and passive euthanasia which emerges on the authority of the High Court in this case, when read together with In Re Ward of Court, also raises further questions, not least for persons deemed to lack mental capacity to consent to treatment, or consent to withdrawal of treatment or consent to non-treatment which are not easily reconciled. The Commission apprehends that the demarcation which is at the heart of the decision in the High Court in this case may militate against the development of a coherent and consistent response to the issue based on individual and constitutionally protected rights. 2 Denham J. saw “no difference in principle between the artificial provision of air by a ventilator and the artificial provision of nourishment by a tube.” 3 Thus the court stated that “there is an enormous and defining difference between the decision of the competent patient to refuse treatment and physician assisted suicide”. Whereas the State cannot constitutionally “compel the competent adult patient to accept medical treatment” on the basis that this would be “wholly at variance with the obligation to protect the person in Article 40.3.2” it would be a “fallacy” to suppose that physician assisted suicide “can be equated with this, precisely because it involves active participation by another in the intentional killing of that other, even if this is genuinely and freely consensual”; at para 93. 10 E. The Proportionality Test 25. From the reasoning of the Supreme Court in Re Ward of Court, the question arises whether there is scope for this Court to conclude on this appeal that there is a freedom to seek the assistance of another in the act of suicide without risk of criminal sanction in limited and clearly defined circumstances as part of the right to bodily integrity, autonomy or the right to privacy of a person. If this is the case and such a freedom is identified, then it is submitted that it must follow that the blanket criminalisation of assisted suicide gives rise to an undue interference with the said rights if a more nuanced approach provides equally effective safeguards in ensuring due respect for the right to life. In other words, if the identified interference fails the proportionality test in the manner in which the objective is sought to be achieved, then Article 40.3 is infringed. 26. In addressing the proportionality of the prohibition on assisted suicide the High Court concluded that the prohibition on assisted suicide was rationally connected to the fundamental objective of protecting life. The Court apprehended that to unravel a thread of this law by even the most limited constitutional adjudication in the Appellant’s favour might open a Pandora’s Box and the Court was particularly troubled by the fact that a decision favourable to the Appellant might have the unintended effect of placing the lives of others at risk. The Court based this concern on its conclusion “even the most rigorous system of legislative checks and balances” could not ensure that “the aged, the disabled, the poor, the unwanted, the rejected, the lonely, the impulsive, the financially compromised and the emotionally vulnerable would not disguise their own personal preferences and elect to hasten death so as to avoid a sense of being a burden on family and society.” 27. It is unfortunate, however, that in reaching this conclusion the Court appears to have primarily relied on evidence relating to risks associated with euthanasia (which is not at issue in this case) or systems where inadequate or different safeguards existed and even systems where prohibitions are in place but risks still exist. In reviewing the evidence offered by the State, the High Court did not focus exclusively on the evidence pertaining to assisted suicide but included in its considerations studies relating not to assisted suicide but to euthanasia and identified problems which were apprehended or identified in systems where it 11 seems safeguards were not in place to counter the risks identified or where the incidents reported were indeed unlawful in that jurisdiction. 28. For example, at paragraph 70 of its judgment the Court looked at the risk of coercion and cited a specific example referred to as Case 3: The Netherlands. A wife was reported as no longer wishing to care for her sick, elderly husband and gave him a choice between euthanasia and admission to a nursing home. Afraid of being left to the mercy of strangers in an unfamiliar place, he chose euthanasia. In the case cited, his doctor ends his life despite being aware that the request was coerced. 29. Clearly, where safeguards are in place under a restricted regime which permits assisted suicide in very limited and tightly controlled circumstances including a requirement for expert assessment of factors such as competence, state of mind and freedom from coercion, the Case 3 example relied upon by the High Court could not lawfully occur and the physician would be guilty of an offence notwithstanding that the prohibition on assisted suicide (or in that example, euthanasia) was not an absolute one. This example, remote as it is from the circumstances which arise in this case, was described by the Court as “deeply disturbing” and as showing “that the risks of abuse must be regarded as real and cannot simply be dismissed as speculative or distant” (para. 71). 30. As noted above, the High Court placed particular emphasis on risks associated with a relaxation in the absolute ban on assisted suicide of persons being “euthanized” without their explicit request drawing on studies in the Netherlands and Switzerland cited in the Carter case whilst stating (at para.102) that “[t]his practice is acknowledged to be unlawful.” If the practice is acknowledged to be unlawful but is still occurring, this suggests that even where a prohibition is in place, risks arise. But if the same level of risk occurs notwithstanding a prohibition in law, this begs the question whether the prohibition may be disproportionate if not effective in curbing the risk. In any event, the analysis of risk should relate to the defined class of persons to whom the person belongs, rather than a broad category of “vulnerable” persons. 31. It is considered that the Court may have fallen into error in the manner in which it applied the proportionality test on the facts in this case. It is recalled that the main thrust of the evidence led by the State was to 14 any judicial decision which the Court might be called upon to make.” 38. However, this approach to the concept of proportionality is problematic - both in relation to equality and personal autonomy rights. It is submitted that the threshold prescribed by the Court is set impermissibly high - the Appellant would have to present a case where the solution would be only for her benefit, have no impact on anyone else and fit within separation of powers deference. It is hard to see how this can be a correct test of whether a statute that applies in an indiscriminate, blanket fashion - is unconstitutional, and indeed the decriminalisation of suicide under section 2(1) could never meet this test on a reverse application of the Court’s reasoning. 39. Further whilst a legislative solution is of “general” application, there is no impediment to the careful crafting of a limited exemption which would only apply to persons in the same narrow, defined class as the Appellant namely: persons who are terminally ill, profoundly physically disabled, but fully mentally competent. F. Equality Argument – Questions of Classification 40. Considering the weight which was attached to the constitutional right to equality in argument before the High Court, the level of consideration given to this limb of the case in the decision of the Court may not fully reflect the weight and thrust of the argument before the High Court. 41. The Commission considers the decision of the Madam Justice Lynn Smith of the Supreme Court of British Columbia of 15 June 2012 in Carter v Canada4 to be of the first importance to the deliberations on this appeal in light of the careful consideration given to the issues in that case and the similarity between the constitutional equality guarantees in Canada with our own constitutional equality guarantee. 42. In Carter, the Court concluded that the provisions regarding assisted suicide (the same as the Irish provisions) have a more burdensome effect on persons with physical disabilities than on able-bodied persons, and thereby create, in effect, a distinction based on physical disability. The 4 [2012] BCSC 886. 15 Court concluded that the impact of the distinction is felt particularly acutely by persons who are grieviously and irremediably ill, physically disabled or soon to become so, are mentally competent, and who wish to have some control over their circumstances at the end of their lives. The Court ruled that this distinction is discriminatory because it perpetuates disadvantage. The Court then went on to also find that the infringement of section 15 equality rights is not demonstrably justified. The purpose of the prohibition was identified as being to prevent “vulnerable persons from being induced to commit suicide at times of weakness”. It was acknowledged that this purpose was pressing and substantial and the absolute prohibition against assisted suicide was rationally connected to it. The Court went on to find however that a less drastic means of achieving the legislative purpose would be to keep an almost absolute prohibition in place with a stringently limited, carefully monitored system of exceptions allowing persons who are grievously and irremediably ill and who are competent and fully informed, non- ambivalent and free from coercion or duress to access assisted death (in question in that case physician assisted death). Given that the prohibition failed to impair the person’s equality rights as little as possible and had severe adverse impact on persons in the Plaintiff’s situation, the absolute prohibition was found to fall outside the bounds of constitutionality. 43. It is submitted that the reasoning adopted in Carter in explaining its application of the equality principle to the facts in the case is clear and coherent and wholly consistent with the jurisprudence under Article 40.1 which has developed in this jurisdiction. 44. The High Court in this case was not persuaded by Lynn Smith J.’s reasoning in Carter, particularly insofar as its assessment of risk was concerned for the purpose of an application of a proportionality test. From its judgment the High Court here appeared to accept that section 2(2) of the Criminal Law (Suicide) Act, 1993 prima facie indirectly discriminates between those who wish to end their lives and are able bodied, and those that wish to end their lives, but are physically incapable of doing so (para. 122) while ultimately finding that the discrimination is objectively justified and proportionate for the same reasons identified in relation to Article 40.3.2 rights and thus no breach of Article 40.1 occurs. It is noteworthy that while accepting the distinction drawn between the disabled and the able bodied person 16 when concluding that Article 40.1 is engaged, the Court did not then proceed to apply this distinction in terms of an examination of the justification. 45. The Commission recalls the judgment of this Court in Blascaod Mor Teo v. Commission for Public Works,5 where the Court found the Blascaod Mor National Park Act, 1989 to be unconstitutional. The Supreme Court ruled by reference to such cases as Quinns Supermarket Ltd. v. Attorney General6 and Brennan v. Attorney General7, and notwithstanding the findings in those cases to the effect that Article 40.1 is not a guarantee of absolute equality for all circumstances and the recognition that the legislature is entitled to classify citizens into groups for legislative purposes, that such classifications must be for a legitimate legislative purpose i.e. relevant to that purpose and fair. The Court said: “in the present case the classification appears to be at once too narrow and too wide. It is hard to see what legitimate legislative purpose it fulfils. It is based on a principle – that of pedigree – which appears to have no place (outside the law of succession) in a democratic society committed to the principle of equality. This fact alone makes the classification suspect.” 46. Applying the test to the evidence in this case, it is submitted that the High Court failed to consider whether the classification (or absolute prohibition) is too wide in failing to differentiate adequately between the nature and type of assistance, the reason why assistance is required and the nature and type of decision to commit suicide for the purpose of the (legitimate) legislative objective identified by the State. It is submitted that it was necessary to rigorously and dispassionately carry out this analytical exercise, especially given the emotive subject matter of the proceedings. 47. The decision of this Court in MD is particularly instructive. The Court reiterated at paragraph 42 of its judgment that Article 40.1 recognises that perfectly equal treatment is not always achievable; rather the Article recognises that applying the same treatment to all human persons is not always desirable because it could lead to indirect 5 [200]] 1 IR 6. 6 [1972] I.R. 1. 7 [1983] I.L.R.M. 449. 19 a person who is of that narrow class of person who is terminally ill, profoundly physically disabled, but fully mentally competent is proportionate. In applying the proportionality doctrine, the High Court appeared to factor in concerns arising from the abuse of an exemption for assisted suicide by other “vulnerable” persons including able bodied persons. But the Appellant has never made the case that there should be an exemption for persons assisting able bodied persons. The case she has advanced is that persons in her particular, narrowly drawn, category, should be permitted to avail of assistance in committing suicide without fear of criminal sanction. 52. It is the Commission’s respectful submission that the breadth of the classification applied by the High Court in this case when it factored in the concerns of a wide group of “vulnerable” may be flawed. The correct test, it is submitted, is to consider the purpose for the prohibition in the context of the narrow classification of persons to whom the Appellant belongs and then to examine whether the means employed to achieve the objective do so in a proportionate manner (rational connection, minimising the impairment of the right and tailored as closely as possible to achieving the objective). It is a matter for the Court as to whether the State presented evidence which demonstrates that a blanket ban provides such greater protection when compared with a narrowly drawn exemption for that class of person to whom the Appellant belongs as to justify the blanket ban. It appears to the Commission that there may be an evidential lacuna in this regard in that the State did not lead evidence to deal with the differences in terms of risk between a blanket prohibition and a narrowly crafted exemption in relation to the class of persons to whom the Appellant belongs. 53. The stark reality of the situation from an equality perspective is perhaps illustrated by comparing the position of a hypothetical person, in the same situation as the Appellant, namely, a physically disabled person, with a person who is physically able. On an application of In re Ward of Court, the person in the Appellant’s circumstance may refuse life preserving treatment including the withdrawal of hydration and nutrition, thus ultimately realising by her own actions her wish to die at a time of her choosing. However, a death by starvation and dehydration, is likely to be relatively protracted and accompanied by much suffering and indignity. Contrast this with the position of the able bodied person who can lawfully give effect to a decision to end their life in a manner which minimises or eliminates pain and suffering. It is unclear from the 20 judgment in the High Court whether the Court was willing to countenance this type of outcome but in line with the Ward case, it would appear that the State would have no right to intervene in an invasive way to compel a person to accept life sustaining measures in those circumstances. G. The Issue of a Remedy 54. The Appellant seeks relief by the impugned provision being struck down as unconstitutional, in the absence of the possibility of severance, which relief is within the jurisdiction of this Honourable Court to order. The other relief canvassed in the High Court was whether a remedy could be tailored and the High Court indicated that if it could tailor a remedy just for the benefit of the Appellant which did not have consequences for others, then it might be prepared to do so. The Appellant did not suggest that the Court should tailor a solution for her alone but rather that through its decision, the Oireachtas would be required to do so. On the other hand, applying the same approach as the Canadian courts, the Commission considers that there is, in principle, no impediment to the Courts, in upholding the Constitution by means of a grant of declaratory relief, tailoring an individual exemption in this specific case or in any case, on a case by case basis, where vindication of constitutional rights so requires. 55. The Commission relies in this regard on the approach of the Court in B.G. v Murphy8 (in like terms with that previously followed by the Court in the Carmody case9 and the S.M. (No. 2) Case10) in relation to the appropriate remedy. Rather than find the provision unconstitutional by reason of the unjust conferring of a privilege on one category of person while withholding it from another (and not to suggest by a reliance on this case that the right to commit suicide is a “benefit” or “privilege”), the Court instead declared that in the event that the Plaintiff was found fit to plead and pleaded guilty in the Circuit Court that it would be unconstitutional as contrary to Article 40.1 of the Constitution were the sentencing Judge to apply a maximum sentence of more than the equivalent sentence that would have been available in the District Court on a guilty plea. This approach was adopted as a “temporary” or interim 8 B.G. v. Murphy, DPP and Judges of Dublin Circuit Court, [2011] IEHC 445. 9 [2010] 1 IR 635. 10 [2007] 4 IR 369. 21 solution to “permit a transient cure in respect of otherwise unconstitutional legislation pending a thorough review of the offending statutory provisions”. 56. As we see in the Carter case, the Canadian Courts crafted a similar style of “temporary” solution in a case involving the criminalisation of assisted suicide which may be of interest to this Court (in the Carter Case). The remedy ordered by the Court in Carter, in addition to the declaration of invalidity which was suspended for a year to allow Parliament to decide how to respond, was to constitute a “constitutional exemption” during the period of suspension of the declaration of invalidity on specified conditions whereby Ms. Taylor could obtain an assisted death.11 57. It is understandable that the Courts would be reluctant to fashion an individual remedy in any case involving policy considerations on the basis that the precise parameters of any change in the law in this area is a matter for the Oireachtas. However, mindful of delays in the legislative process, the complexity of the issues and the circumstances of the Appellant, this is the type of case which might warrant the Court, upon a finding of a breach of a constitutional right, tailoring an individual exemption for the Appellant in vindication of her personal autonomy and equality rights as protected under the Constitution because otherwise the circumstances of the case are such that she may be left without a remedy. It is respectfully submitted that it is entirely consistent with a separation of powers doctrine that the Courts should so intervene recalling its role as guardian of the Constitution. H. Conclusion 58. The Commission would wish to see a coherent and consistent approach - based on fundamental rights - developed in answer to the lack of clarity 11 The decision is on appeal from the Supreme Court of British Columbia to the Court of Appeal for British Columbia. Notice of appeal was lodged on 13 July 2012, and the appeal is scheduled to be heard over 5 days commencing on 4 March 2013. It is common case that regardless of the decision of the Court of Appeal, it is likely to be appealed to the Supreme Court of Canada. An application to stay the constitutional exemption permitting the plaintiff to seek a physician-assisted suicide death was refused by the Court of Appeal. An application for a stay on the declarations of invalidity was however granted.