No right to assisted suicide has been found in the European Convention on Human Rights despite claims to the contrary by the legal team of Marie Fleming, an MS sufferer whose right-to-die case is currently before the High Court.

Brian Murray SC and Ronan Murphy SC, arguing for Ms Fleming, told the High Court that Ireland’s ban on assisted suicide breaches the Constitution and European Convention on Human Rights, the Irish Times reports.

Mr Murray the State has no right to say its interest in a person’s life or “some theory of natural law” overrides that person’s absolute right to decide the course of their own lives.

Ms Fleming is challenging the ban on assisted suicide set out in Section 2.2 of the Criminal Law Suicide Act 1993. She also argues the DPP is required to provide guidelines as to what factors are taken into account when deciding whether or not to prosecute in a case of assisted suicide.  

However, the ECHR, which is charged with interpreting the Convention, has considered the issue of assisted suicide on a number of occasions, and never found that any State was obliged to legalise it.

In the case of Pretty v United Kingdom in 2002, in which the applicant had argued that there was a right to die under the Convention, the ECHR found unanimously held that there was no right to assisted suicide.  

They further ruled that Member States may in fact have a duty to ensure the protection of an individual whose life is at risk.

Last year, in the case of Haas v Switzerland, the applicant argued that Article 8 of the Convention, which concerns the right to respect for private life, conferred a positive obligation on Switzerland to ensure that he could avail of assisted suicide.  

Switzerland permits assisted suicide, but the applicant, who suffered from bipolar depression, was seeking the assistance of the State to commit suicide by ensuring that he had access to sodium pentobarbital without a prescription.

The ECHR in this case again did not concede that there was a right to assisted suicide, and said that if even if there was, the State was not in breach of its obligations in this particular instance.

The ECHR acknowledged in Haas that “that the right of an individual to decide how and when to end his life, provided that said individual was in a position to make up his own mind in that respect and to take the appropriate action, was one aspect of the right to respect for private life” under Article 8 of the Convention.

However, it said that this right was subject to two conditions, one linked to the free will of the person concerned, the other relating to their capacity to actually take one’s own life.  

Further, the ECHR held that the Convention had to be read as a whole, and therefore it referred to Article 2 of the Convention, which protects the right to life.  

It noted that the vast majority of member States place more weight on the protection of an individual’s life than on the right to end one’s life and that the States have a broad margin of appreciation in that respect.  

The ECHR has, however, held that Member States should publish guidelines as to what factors are to be considered in deciding whether or not to prosecute a case of assisted suicide.

The ECHR is currently considering a case, Gross v Switzerland, which concerns the same issues.

Lawyers for Ms Fleming also told the High Court that society’s interest in discouraging suicide did not justify the State’s blanket ban on assisted suicide in the case of a terminally ill woman who wants to die at a time of her choosing but is unable to take her own life.

In exchanges with the President of the High Court, Mr Justice Nicholas Kearns, who asked whether concerns about rising suicide rates were a factor to be considered, counsel agreed there is a societal interest in discouraging suicide but argued the State has failed to show how the interests of the common good restrict Ms Fleming’s rights.

Cases involving suicide pacts and mercy killings being relied on by the State are not relevant in the circumstances of Ms Fleming’s case, he submitted.

Strict safeguards and protocols had been introduced in other jurisdictions to address concerns about vulnerable people being encouraged by relatives or carers to take their own lives when they had not made such a decision themselves, he said. Such safeguards would afford more protection to the vulnerable than a total ban on assisted suicide, he said.