Guidelines outlining the factors to be considered when deciding whether to prosecute for assisted suicide would be tantamount to providing a “road map” for committing a crime, the Director of Public Prosecution has told the High Court.

Lawyers for Claire Loftus, the DPP, said she would be aiding a crime if she granted a request from a terminally ill woman to provide such guidelines, the Irish Independent reports.

Paul O’Higgins, counsel for the DPP, told a three-judge High Court that providing factors relevant to the DPP’s prosecutorial discretion before a crime of assisted suicide occurs would amount to the DPP helping someone avoid prosecution.

Mr O’Higgins was making submissions in a challenge to Ireland’s ban on assisted suicide by MS sufferer Marie Fleming.

“I can’t make it (assisted suicide) lawful by any advance indication that it won’t be prosecuted in a certain way,” said Mr O’Higgins.

Ms Fleming (58) is challenging Section 2.2 of the 1993 Criminal Law Suicide Act which makes it an a offence, punishable by up to 14 years in prison, to help someone take their own life.

Alternatively, she wants an order requiring the Director of Public Prosecutions to issue guidelines setting out what factors are taken into account in deciding whether to prosecute anyone who helps her to die at a time of her choosing.

Mr O’Higgins said it was “simply unacceptable in a modern democracy” for the DPP to grant immunity from prosecution.

It would effectively be “quasi-legislating” when the DPP could do neither, he said.

While the DPP recognised the situation confronting Ms Fleming is “appalling” and it was reasonable for her to seek guidelines to avoid her partner Tom Curran being prosecuted, should he assist her in taking her own life, what was being sought was outside the constitutional remit of the DPP, added Mr O’Higgins.

The DPP in Ireland has issued guidelines relating to prosecution of crime. But Mr O’Higgins said those were general and effectively indicated the more serious the crime, the more likely a prosecution.

Shane Murphy, counsel for the State, said the DPP must take into account all factors in deciding whether to prosecute but could only do so after commission of an offence.  

Meanwhile, the Irish Human Rights Commission has told the High Court that people have the right to commit suicide in “defined and extreme” circumstances.

It said this right flowed from personal autonomy rights.

The commission asked the court to consider whether the ban on assisted suicide was justified, suggesting that the ban interfered with personal autonomy rights.

The legislative option would be a “measured and proportionate” reconciliation of the right to life, reflecting the sanctity of life, with the personal rights of privacy and personal autonomy and equality rights.