Irish and UK legislation

Frequently we hear reports of Irish people travelling to Switzerland to avail of the assisted suicide services which are legal there. The purpose of this essay is to investigate the laws that govern suicide and assisted suicide in Ireland with the aim of examining the legal repercussions of the decisions made by Irish citizens to travel abroad to die and the legal consequences their helpers face on their return to Ireland. I will also examine the laws governing assisted suicide in Switzerland and how it has evolved over time.

This essay will discuss the similarities between the Irish and UK legislation on assisted suicide and consider whether Ireland should adopt the same guidelines the UK did in 2008 in relation to prosecuting people who assist loved ones to die. Finally I will give my recommendations on how the Criminal Law (Suicide) Act 1993 should be amended and the possible legalisation of assisted suicide in Ireland. Historically, under common law suicide was considered self-murder and was a felony in Ireland. No one had the power to take their own life. It was two offences in one, an offence against God and the King.

If an individual tried to kill themselves but unintentionally killed another person they were guilty of murder under the doctrine of transferred intent. The punishment for a successful suicide attempt was being buried in unconsecrated ground with a stake through the body and all of the individuals possessions would be repossessed by the King. These laws remained in place until the late 1800’s. After the repeal of these archaic laws suicide remained an un-punishable offence in Ireland until 1993[1]. The Criminal Law (Suicide) Act was introduced in Ireland in 1993 mirroring the Suicide Act 1961 in England and Wales.

Section 2 (1) of the act states suicide and attempted suicide are no longer criminal offences and the doctrine of transferred intent no longer applies. It is, however, an offence to aid or abet a suicide under section 2 (2) of the act. Section 2(2) of the act reads: “A person who aids, abets, counsels or procures the suicide of another or an attempt by another to commit suicide shall be guilty of an offence and shall be liable on conviction of indictment to imprisonment for a term not exceeding fourteen years. ” In May of last year two Irish women had to cancel their trip to Switzerland.

One was traveling for the purposes of assisted suicide the other as her aid. If they had gone through with their plan the woman who assisted the dependant would be liable for prosecution and up to 14 years in prison. In the case of Dunbar v Plant[2] a woman was found guilty of aiding and abetting a suicide when she survived the suicide attempt her and her fiance simultaneously took part in. Under Irish law if a suicide pact occurs where one individual dies but the other survives the surviving person is guilty of murdering the other.

The English approach is different, under section 4 (1) of the Homicide Act 1957 if two people enter into a suicide pack and one survives then they may only be guilty of manslaughter not murder. In the English case of AG v Able[3] an injunction was sought against a euthanasia society who were distributing leaflets containing information on how to commit suicide. Woolf J. decided that distributing these leaflets to people who were at risk of committing suicide was an offence contrary to section 2 of the Suicide Act 1961 in England and Wales.

Assisted suicide is not illegal in Switzerland unlike most European countries. Swiss law is regulated by their Penal Code. Article 115 of the Swizz Penal Code states: “Every person who shall for selfish motives encourage or assist another person to commit suicide shall be liable for imprisonment for a term not exceeding five years. ” An assisted suicide must be declared to the authorities and an inquiry will be started, as is done with all non-natural death cases in Switzerland[4]. The police will consider the motives of the assistant and the circumstances surrounding the suicide.

Most of these inquiries are dealt with very quickly and without any prosecutions. A prosecution will only occur if the authorities question the mental capacity of the deceased to make the decision to commit suicide and their ability to request the help of a third party[5]. Switzerland is the only country to allow non-residents to avail of their assisted suicide services. Private organisations such as EXIT and Dignitas can legally provide non Swiss nationals with the service as long as they are not providing it for selfish reasons.

Dignitas recently released information on all assisted suicides that have occurred there since 1998. To date six Irish citizens have died there and they currently have 29 Irish members[6]. In order to use their services you must become a member and pay the membership fee, this suggests that as many as 29 Irish citizens are currently considering assisted suicide in Switzerland. Under Swiss law assisted suicide is defined as a third party helping or encouraging another to commit suicide.

The actual act of suicide, by means of lethal pills for example, must be carried out by the person wishing to die[7]. Swiss law states that assisted suicide is separate from active and passive euthanasia. Active euthanasia can be either direct or indirect[8]. Direct euthanasia is the act of administering an ill person with lethal medications in order to help them die whereas indirect euthanasia is where an individual is given pain medication to help ease pain but this medication shortens their life. The aim of indirect euthanasia is to relieve pain not cause death.

Passive euthanasia is the act of removing life support. All of these activities are dealt with differently under Swiss law. Direct euthanasia is illegal in Switzerland and governed by article 114 of the Swiss Penal Code which states: “Every person who shall for honourable reason especially mercy, kill a person on his or her serious and pressing request be liable for imprisonment” Subject to the specific facts of each case the individual may be guilty of murder under article 111, aggravated murder under article 112 or manslaughter under article 113.

Suicide was legalised in Switzerland in 1893 as it was deemed a rational decision in certain circumstances. In the same year article 52 of the then legal code outlawed assisted suicide stating: “Every person who shall encourage or assist another person to commit suicide shall be liable to imprisonment for three months to one year. ” Eventually in 1918 article 102 of a draft penal code was submitted and approved by parliament and became article 115 of the Swiss Penal Code in 1937 and has been in force since 1942.

According to article 115 an assisted suicide is only illegal if four elements are present[9]. Firstly if there has been a suicide or attempted suicide, secondly a third party helped or encouraged the other to commit the act of suicide, thirdly the third party acted on selfish motives and finally that the third party acted deliberately with the intention of causing the individuals death. In relation to the first element, an individual must be in control of their suicide. They can ask for assistance but ultimately they must have come to the conclusion of suicide themselves.

The second element stresses that a third party can assist another to commit suicide but they can’t administer the drugs themselves also they cannot have planted the idea of suicide in the individuals mind. The third party must not assist due to selfish grounds. They can’t take part in the assisted suicide if it will be of benefit to them, for example, if they are to inherit money after the individual dies or if they get the individual’s job after their death. One of the main arguments against the legalisation of assisted suicide in Ireland is how it could be regulated.

If we were to legalise assisted suicide we could mirror our law on the law in Switzerland which has been tried and tested for decades. Switzerland is the only country that has legalised assisted suicide without the requirement of a doctor being part of the process. The involvement of a physician in the process is not just based on moral reasons but also on practical issues. It can be argued that physicians are the only individuals that are capable of knowing how to facilitate a painless death.

Article 115 of the Swiss legal code does not create a right to assisted suicide instead it allows an individual to request assistance from a third party and then that third party can make up their own mind on whether or not to help. This article has led to the opening of private clinics such as EXIT and Dignitas to provide assistance for individuals who cannot find it anywhere else. As mentioned earlier six Irish citizens have died in the Dignitas clinic in Switzerland since 1998.

It is reasonable to believe that not all of the Irish people who died at the Dignitas clinic got there unassisted yet no Irish people have been prosecuted for assisting with these suicides. The buying of an aeroplane ticket could be considered assisting and as it is rare for a terminally ill person to be part of the work force it would be rational to assume that their ticket would have been bought by someone else. There have been no prosecutions for assisting in a suicide in Ireland. In 2002 Mr George Exoo assisted in the suicide of an Irish woman and then immediately returned to America afterwards.

The Irish government tried to extradite him back to Ireland to investigate the incident but in 2007 after spending three months in a West Virginian prison the American government confirmed that they were unable to extradite Mr Exoo owing to the fact that assisted suicide is not illegal under federal or West Virginian law[10]. Without a prosecution there is no precedence which leaves Irish people torn when it comes to making the decision to travel with a loved one or not. This situation is reminiscent of when Irish women travelled to the UK for abortions without knowing what legal repercussions they would face on their return.

Abortion is illegal in Ireland under the Offences Against the Persons Act 1861 but the Baby X case in 1992 created an exception to this law which allowed Irish woman to have an abortion if the pregnancy poses a real and substantial risk to their life including a risk of suicide[11]. In this case a 14 year old rape victim became pregnant and sought an abortion. The courts deemed that she was entitled to an abortion under article 40. 3. 3 of the Irish constitution which states that there should be “due regard to the equal right to life for the mother”.