Despite recent cases, law on assisted suicide unlikely to change

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.”