Guidelines and Assisted Suicide

The Irish Supreme Court will shortly deliver its judgment on litigation commenced against the State by Marie Fleming. Ms. Fleming is terminally ill with multiple sclerosis. She has asked the courts to declare unconstitutional Ireland's prohibition on physician-assisted suicide.

At first instance, a very strong three-judge High Court (Kearns P., Carney and Hogan JJ.) upheld the challenged provisions of the Criminal Law (Suicide) Act 1993: Fleming v. Ireland, 2013 IEHC 2. I want to focus on one component of the judgment: the conclusion that the Act was a limit "in accordance with the law" within the meaning of the European Convention on Human Rights. I think the High Court's conclusion on this point is unsustainable (indeed, quite odd) and hope the Supreme Court reverses course.

Section 2(2) of the Act sets out the offence of assisting suicide, but according to s. 2(4), prosecutions can only be brought "by or with the consent of the Director of Public Prosecutions". Relying on the decision of the House of Lords (indeed, the last decision ever rendered by that body) in Purdy v. Director of Public Prosecutions, 2009 UKHL 45, counsel for Ms. Fleming argued that the Director of Public Prosecutions was obliged to develop a "code of conduct" which would give guidance to individuals on how the prosecutorial discretion provided for by s. 2(4) would be exercised.

The starting point here is Article 8(1) of the Convention, which guarantees the right to private and family life. This has been interpreted expansively. As the European Court of Human Rights explained in Haas v. Switzerland (2011), 53 EHRR 33:

51.  [A]n individual’s right to decide by what means and at what point his or her life will end, provided he or she is capable of freely reaching a decision on this question and acting in consequence, is one of the aspects of the right to respect for private life within the meaning of Article 8 of the Convention.

As the High Court observed, however, the European Court of Human Rights has consistently upheld prohibitions on assisted suicide as reasonable limits under Article 8(2). The High Court reached a similar conclusion in respect of the Irish Constitution. Section 2(2) of the Act -- the provision that sets out the offence of assisted suicide -- was thus constitutional and Convention-compliant.

The problem, however, is the discretion vested in the Director of Public Prosecutions by s. 2(4) of the Act. Discretionary powers can amount to limitations "in accordance with the law" for the purposes of Article 8(2), but only in some circumstances. A test of foreseeability and accessibility must be imposed, as Lord Hope of Craighead explained in Purdy:

[41] ...[Article 8(2)] implies qualitative requirements, including those of accessibility and foreseeability. Accessibility means that an individual must know from the wording of the relevant provision and, if need be, with the assistance of the court’s interpretation of it what acts and omissions will make him criminally liable. The requirement of foreseeability will be satisfied where the person concerned is able to foresee, if need be with appropriate legal advice, the consequences which a given action may entail. A law which confers a discretion is not in itself inconsistent with this requirement, provided the scope of the discretion and the manner of its exercise are indicated with sufficient clarity to give the individual protection against interference which is arbitrary...(citations omitted, emphasis added).

In Purdy, the House of Lords held that the Director of Public Prosecutions' general guidelines for the exercise of prosecutorial discretion were insufficient. A new set of guidelines was required to bring the Director of Public Prosecutions into compliance with the Convention.

The High Court wriggled out of Purdy in unconvincing fashion. It noted that, in the UK, the Director of Public Prosecutions was required by statute to issue general guidelines to prosecutors. No equivalent provision had been enacted in Ireland.

With respect, this is rather beside the point. First, the question in Purdy was whether s. 2(4) constituted a limitation "in accordance with the law". In Fleming, the question is the same. Whatever about the prohibition in s. 2(2), the power to choose not to prosecute is problematic. An individual who wishes to help a terminally ill individual end his or her life has no access to the principles which will guide the Director of Public Prosecutions' discretion to bring criminal charges.

Second, public bodies have an inherent power to issue guidelines which will regulate their exercise of discretion. The Director of Public Prosecutions is no different. Indeed, general guidelines to prosecutors have already been issued! As the High Court sheepishly acknowledged, their logic suggests that the Director of Public Prosecutions has no power at all to issue guidelines (at para. 167); presumably, the existing guidelines are unlawful. This conclusion surely cannot stand.

The High Court mustered two other flawed arguments in support of its position. One was based on the means of incorporation into Irish law of the Convention. Unlike in the UK, where s. 6 of the Human Rights Act, 1998 imposes an obligation on all public authorities to act in a Convention-compliant manner, the Irish legislation only requires Convention compliance by public bodies in the exercise of their "functions". According to the High Court, there were no "functions" at issue because the Director of Public Prosecutions had no authority to issue guidelines. But this runs into a serious objection: exercising discretion to prosecute or not under s. 2(4) is as plain an example of a statutory function as one will find. And if one disagrees with the High Court's conclusion that the Director of Public Prosecutions has no power to issue guidelines, the Convention argument is weaker still: at the moment, the Director of Public Prosecutions is not only exercising discretion under s. 2(4), but doing so by reference to guidelines. There is an air of unreality about the conclusion that this arrangement cannot be brought into line with the Convention.

The other argument was based on the Irish Constitution. Article 15 vests legislative power in the Oireachtas (Houses of Parliament). Power can be delegated to public bodies, but only if principles and policies are set out in the legislation. The High Court held that requiring the Director of Public Prosecutions to issue guidelines would breach Article 15 by undermining the law-making authority of the Oireachtas:

166. It seems clear to this Court that the effect of any direction requiring the Director to issue guidelines of the kind now sought by the plaintiff would infringe these basic constitutional principles. While the plaintiff asserts that she is seeking no more than a statement of factors which would influence the decision of the Director whether or not to prosecute, the reality of course is that, for her own very good reasons, she wishes to know that the Director will not in fact prosecute in her case. Whatever the stated objective of seeking guidelines may be, there can be no doubt but that the intended effect of obtaining such relief would be to permit an assisted suicide without fear of prosecution. No amount of forensic legerdemain can alter that fact. For, absent such effect, one is driven to ask what practical purpose or value lies in seeking such guidance? There is, in truth, none. It follows therefore that in this context ‘effect’ is every bit as important as ‘object’...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...

But if this is correct, the next logical step is to declare the grant of discretion in s. 2(4) to be unconstitutional because it does not contain the requisite principles and policies. Here lies the fatal flaw in this argument: it simply cannot be less democratic to have the Director of Public Prosecutions decide on a case-by-case basis, with no information about the reasoning process made public, than to have a set of guidelines which would be available to all and the subject of public debate and comment. The offence to democracy lies in the unbounded discretion of the Director of Public Prosecutions. If anything, requiring guidelines would be more democratic.

The oddity of this position is underscored by two other points the High Court made. They suggested that the Director of Public Prosecutions, in exercising discretion under s. 2(4), should have regard to the guidelines issued in the UK (at para. 171). Pause for a moment to consider how strange this conclusion is. The High Court held that it would be undemocratic for the Irish Director of Public Prosecutions to issue guidelines, but is entirely comfortable with reliance on guidelines developed in another jurisdiction. Worse, the High Court also suggested (at para. 172) that regard could be had to the relevant factors identified by Smith J. in Carter v. Canada (Attorney General), 2012 BCSC 886. One might reasonably ask what democratic mandate the Irish people had accorded to her honour.

In short, requiring guidelines would be unlawful and undemocratic. However, case-by-case exercises of discretion would not be; exercises of discretion by reference to factors developed by an administrative decision-maker in another jurisdiction would not be; and factors developed by a foreign judge would not be. This conclusion is very odd and I trust the Supreme Court will not sustain it.

UPDATE: Well, the Supreme Court has refused the appeal. The guidelines aspect of the High Court judgment was apparently not appealed. Having pondered this a little, I suspect that Ms. Fleming may have got as much as she could have hoped for from the High Court judgment. Successfully appealing would have required the Director of Public Prosecutions to spend a significant amount of time developing guidelines, time that Ms. Fleming may not have. And unsuccessfully appealing might have meant the Supreme Court shutting off the avenues that the High Court left open: reference to guidelines in other jurisdictions, for example.