JAMES KEOGH

PhD candidate, Department of Sociology & Philosophy, University College Cork, Ireland

Month: June, 2015

O’Rorke to push TDs for new legislation on assisted suicide

May 27th 2015…http://www.irishtimes.com/news/politics/o-rorke-to-push-tds-for-new-legislation-on-assisted-suicide-1.2227024

A woman found not guilty of assisted suicide is to meet TDs today to discuss the need for new legislation in the area.

Gail O’Rorke will be joined by Tom Curran, the partner of the late Marie Fleming who went to the High Court and the Supreme Court to challenge the ban on assisted suicide.

The two will meet Independent TD John Halligan to push for new legislation to be debated.

Mr Halligan said: “It is great to have her support. We will meet TDs to try to garner some support, calling on people to at least have a debate on the legislation.”

Mr Halligan is to introduce the Dying with Dignity Bill in the Dáil in two weeks. He said there needed to be a “dignified, compassionate and thoughtful debate” on the issue.

His Bill, which was drawn up by two barristers, sets out strict criteria before an assisted suicide can take place.

Advertisements

Despite recent cases, law on assisted suicide unlikely to change

May 18th 2015…http://www.irishtimes.com/news/crime-and-law/despite-recent-cases-law-on-assisted-suicide-unlikely-to-change-1.2214153

Gail O’Rorke walked quickly from the Circuit Criminal Court with her husband Barry and into a waiting taxi. Behind her she left four years of pre-trial stress, an acquittal on charges of assisted suicide and a legal headache increasingly shifting toward the political arena.

Under the Criminal Law (Suicide) Act of 1993, it is an offence to help somebody in the pursuit of suicide. O’Rorke’s prosecution on three counts of assisting or attempting to assist in the suicide of her friend Bernadette Forde in 2011 was the first under the legislation.

If there is any confusion as to why it took so long for a case to emerge or why O’Rorke found herself in the dock, then it is merely indicative of far broader systemic uncertainty.

O’Rorke’s trial and the preceding High Court and Supreme Court “right to die” challenges brought by the late Marie Fleming have highlighted disorientation around the law and how it is applied.

Two key words lie at the centre of problems with the laws around assisted suicide: discretion and guidelines. The former is on the part of the Director of Public Prosecutions (DPP) in deciding whom to prosecute, the latter is the missing piece of a puzzle as to how and why such prosecutorial decisions are arrived at.

In 2013, Fleming took a legal action in order to protect her husband Tom Curran should he help her die. She argued that since the DPP had prosecutorial discretion, it should issue a set of guidelines on the law, as is the case in the English and Welsh systems. However, unlike those jurisdictions, the Irish DPP does not have the legal power to publish guidelines.

The High Court ruled against Fleming’s application, which was based on the similar but ultimately successful Debbie Purdy case in the UK, and this was upheld in the Supreme Court. The High Court ruled that the development of such guidelines would indirectly amend the 1993 law, which is a blanket ban, and thus prove unconstitutional. Specifically, it stated that “once guidelines may be characterised as having the effect of outruling a prosecution, they must be seen as altering the existing law and must therefore fall foul of article 15.2 of the Constitution”.

Issue of discretion

While refusing to direct the provision of such guidelines, the High Court pointed to the issue of discretion. Given the specific nature of Fleming’s situation, and that of her husband, the High Court said it felt sure that if it was in line with the Purdy policy in the UK, “the Director [of Public Prosecutions] would exercise her discretion in a humane and sensitive fashion”.

This was essentially a hint that honourable, benevolent motivation in assisting suicide might prompt the State to look the other way. It has, however, been interpreted as something of a double standard.

Dr Catherine O’Sullivan, a lecturer in criminal law at University College Cork (UCC), asks what effect the High Court ruling might have on the public’s “understanding of what the law on assisted suicide now is in Ireland and consequently, on their decision whether to request [or] assist a suicide”.

She also argues that “the legislature is being left off the hook for failing to do its duty to legislate in this controversial area”.

So if the DPP has discretion, and if there has been only one prosecution in 23 years, why was O’Rorke charged?

“We will never know that because the DPP does not give reasons,” says Conor O’Mahony, an academic specialising in constitutional law, also at UCC. “We don’t know what criteria the DPP looks to and that is in a sense the nub of the problem.”

There may be other problems. In 2010, an Irish Times Behaviour & Attitudes poll found that 57 per cent of Irish people were in favour of doctor-assisted suicide for those with severe pain; emerging generations are likely to swell that number.

“The jury result in the [O’Rorke] case hints at that as well. There certainly seems to be a mood among a sizeable section of the public that would rather see the law allow for it,” says O’Mahony. “I think in order for a jury to actually convict, you would have to be looking at a case that is pretty blatant. All you need is to have a few people on the jury to have a strong sympathy with the person who is being prosecuted.

“The judge can direct an acquittal but a judge cannot direct a conviction. That is something that the DPP will now have to be aware of, that securing a conviction in a case like this is not going to be easy.”

If the only way forward is to review how with such difficult cases can be dealt with, then the Supreme Court left that door open in its ruling on the Fleming case when it said there was nothing in it that should be viewed as seeking to prevent the legislature from making a law permitting assisted suicide once it conformed with the Constitution.

This is highly unlikely, at least for the time being. Neither the Department of Justice nor the Oireachtas justice committee is planning on poking a sleeping dog.

“I think the current situation is unsustainable because it leads to a situation where we are likely to see further cases like the Gail O’Rorke case,” says O’Mahony, “[but] there is certainly no appetite for that with the current Government and if I was a betting man, there wouldn’t be with the next government either.”

Confusion about parameters

O’Sullivan expresses a similar view, saying it is “incumbent” on the legislature to legislate. “Until they do, confusion about the parameters of the assisted suicide offence will remain and we will have to wait for a tragic case to force the legislature to act.”

This could mean anything up to and including decriminalisation, where circumstances and safeguards are agreed upon to defend the vulnerable. Ireland appears to be a long way off any such action and for now there seems little in the way of motivation on the part of politicians. In fact, in May 2013, Taoiseach Enda Kenny ruled out any change in the law.

For now, although with some obscurity and debate, the law is straightforward and legal advice can only really flow in one direction. “Basically anyone [considering assisting a suicide] has to presume they will be prosecuted,” O’Mahony adds. “Once you leave an [evidentiary] trail and as long as you have a blanket ban, and in the absence of any guidelines that would indicate what the DPP would be looking at, the only safe course of action is not to do it.”

Gail O’Rorke assisted suicide case: What would I do in her position?

Thurs 30th Apr 2015….http://www.irishtimes.com/opinion/editorial/gail-o-rorke-assisted-suicide-case-what-would-i-do-in-her-position-1.2193916

We cannot know whether the jury in Gail O’Rorke’s trial acquitted her on charges of assisting another to end her life because the case against her was not proven. Or because it did not feel that a “guilty” verdict and the possibility of punishment – up to 14 years in jail – were appropriate for an act they thought she probably had committed and saw essentially as a conscientious act of kindness and mercy, an act even the prosecuting barrister characterised as “out of loyalty, out of love” for her friend.

That probable exercise of discretion is the jury’s prerogative – though advised against by the prosecution – and in rare cases a jury’s willingness to exercise that discretion, to judge the law itself as well as the specific case, allows it temper unjust law with humanity. It is an important rationale for the jury system itself.

Such a decision in this case would beg important questions about the law, specifically the Criminal Law (Suicide) Act, which in 1993 decriminalised suicide but provided for the offence of aiding or procuring the suicide of another. This is a most unusual provision in criminalising the abetting of a legal act, and is now seriously at odds with public opinion, as Tom Curran, whose late partner Marie Fleming went to the Supreme Court on the issue, argued in these pages yesterday. An Irish Times Ipsos/MRBI poll last month found 54 per cent agree there are circumstances where they would be willing to help a family member die.

That is the question the jury was asked rhetorically during the trial – “What would I do if I were in Gail O’Rorke’s position?” It is akin to the question many parents asked themselves in the wake of the X case “What would I do if my daughter became pregnant?” which set in train a profound national recalibration of public attitudes. And what we saw emerge gradually over recent years was a transition from outright opposition to all abortion, or assisted suicide, in principle, to a sharing of new perspectives on both issues which focus on individual personal tragedy and the necessity for humane responses based on the way people really lead their lives. In the real world the black and white of moral absolutes turn grey.

Public opinion apart, there is also the question of whether a law which juries may refuse to enforce is a good law. No more than a law which forces reluctant prosecutors to pursue upstanding citizens who may have just also suffered grievous personal loss. Our blanket ban on assisted suicide should be reviewed to allow rational, terminally ill people who decide they do not want to suffer on to get help from those close to them, while setting out clear guidelines to protect the vulnerable. It has been done elsewhere successfully and without opening “floodgates” of abuse.

The responsibility to protect others like Gail O’Rorke should not be left to the unpredictable mercy of 12 decent men and women.

John Halligan to bring assisted suicide Bill before Dáil

Wed May 29th 2015…http://www.irishtimes.com/news/politics/john-halligan-to-bring-assisted-suicide-bill-before-d%C3%A1il-1.2194292

An Independent TD is to introduce a Bill removing any criminal sanctions against a family member or doctor who assists a suicide.

Waterford TD John Halligan has compiled a dying with dignity Bill to be introduced in the Dáil within weeks. He said there needed to be a “dignified, compassionate and thoughtful debate” on the issue.

“This affects many families and at some point it may affect all of us or a member of our families. You have a right to dignity in life and you have a right to a dignified death.”

The Bill, which was compiled by two barristers, sets out strict criteria before an assisted suicide can take place. The person must have a terminal and incurable illness and must be assessed by at least two doctors before a decision is reached.

The proposed legislation requires the second doctor to be independent and not to have been involved in the patient’s treatment.

Legal capacity

It requires the person seeking assisted suicide to be over 18 and to have the legal capacity to make the request.

Mr Halligan said he believed he had the support of a number of TDs on the Government and Opposition benches.

“This is about a person who is terminally ill and their right to make a decision themselves. Nobody has the right to tell them they must live in horrendous pain. We need to show compassion.” The dying with dignity Bill would remove sanctions against any member of a family who helps a loved one to end their life. It also lays downs that a physician who carries out the act cannot be charged with murder if the provisions in the Bill are followed.

Support

Mr Halligan worked on the legislation with Tom Curran, the partner of Marie Flemingwho took a legal case in the Supreme Court to be allowed to end her life.

“There are a number of TDs who have told me they support this plan. When I raised it with Eamon Gilmore, when he was leader of the Labour Party, he admitted it was time for a national debate on it.

“I hope the Government will not oppose this Bill when I introduce it and allow a conversation to be had on the issue.

“I would also appeal to the Government to allow a free vote on the issue. It is too serious an issue to put a whip on it. We need to show some compassion on the issue.”

The proposed legislation follows the decision by a jury this week to find Gail O’Rorke not guilty of attempting to assist a suicide. Ms O’Rourke had made travel arrangements for her friend Bernadette Forde to go to Zurich.