We will have engagement today. I welcome Dr. Conor Casey from the University of Surrey, Dr. Tom Hickey from Dublin City University and Dr. Andrea Mulligan from Trinity College Dublin to the meeting today. The format of the meeting will be that all three witnesses will give their opening statements, after which members will ask questions. A member can ask an individual witness a question or address a question to all the witnesses. I call Dr. Casey, who is joining us online. He is very welcome, and I invite him to address the meeting.
Assisted Dying and the Constitution: Discussion
Dr. Conor Casey
I thank the Cathaoirleach and members for the opportunity to address the committee the constitutional context in Ireland for assisted dying. As this committee is aware, in the Fleming v. Ireland case, the Supreme Court held there is no constitutional right to determine the timing and manner of one's death, whether through assisted suicide or voluntary euthanasia. The Supreme Court in Fleming v. Ireland that the current categorical statutory ban by the Oireachtas on both kinds of the intentional taking of life to be constitutionally unimpeachable. An important question left unresolved by the Supreme Court in the Fleming case is whether the Oireachtas has legislative competence to permit assisted suicide or voluntary euthanasia via statutory regime. In my remarks, I will set out reasons I think the most persuasive interpretation of the Constitution, in the absence of a definitive judgment by the superior courts, is that the Oireachtas is not competent to introduce a statutory regime that would permit the intentional taking of life in defined circumstances, whether in the form of a statutory right to assisted suicide or voluntary euthanasia. I reach this position for several reasons that I have elaborated on more fully in the briefing documents that have been circulated to the committee.
First, I do not think we should read the Supreme Court’s obiter comment in paragraph 108 of the Fleming judgment as in any way offering a considered conclusion on the constitutional competence of the Oireachtas, even in principle, to introduce a statutory regime that would permit the intentional taking of life.
The court stressing that nothing in its judgment should be taken as necessarily implying that the Oireachtas cannot legislate to address a scenario like that of the applicant in the Fleming case is quite distinct from providing explicit judicial endorsement of the proposition the Oireachtas has competence to legislate in this area of social policy. To me, the passage reads more like a prudent clarification by the court that it was deliberately not attempting to settle in the abstract and without the benefit of hearing full arguments on the merits, which is a critically important additional legal question only indirectly raised by proceedings.
Second, in leaving this obiter comment to one side, the firm textual commitments in Article 40.3 seem to conflict very sharply with the proposition the Oireachtas could legislate to permit third parties to engage or assist in the intentional taking of human life in any circumstance. It is difficult if not impossible to frame legislation that provides a statutory right to intentional killing as a reasonable attempt by the Oireachtas, in the context of Article 40.3, to either respect, defend, protect or vindicate by its laws the right to life of every citizen as far as practicable.
Third, this understanding of the text and structure of Article 40.3 is bolstered by considering the underlying values and principles of the Constitution. As noted in the Fleming case, the intentional destruction of human life is deeply at odds with the social order envisaged by the Constitution and its understanding of what human dignity and respect for the sanctity of life require. As the then Chief Justice Denham put it in the Fleming case, "the social order contemplated by the Constitution, and the values reflected in it that would be the antithesis" of any legal entitlement to intentionally take life.
Fourth, in very recent judgments of the High Court and Supreme Courts in the Re JJ case, where both courts were very careful to distinguish between the administration of palliative medicine and what the then President of the High Court, Ms Justice Mary Irvine, and Mr. Justice O’Donnell both referred to as the “constitutional prohibition on euthanasia” that encompassed intentionally taking steps to terminate life. Neither judge elaborated on precisely what kind of intentional taking of life they thought was constitutionally prohibited under the rubric of euthanasia, nor whether the Oireachtas could legally provide a statutory right to access, for instance, voluntary euthanasia in defined circumstances. However, their choice of words was not accidental or random and clearly reflects the serious emphasis the Constitution and its underlying principles put on protecting the right to life against the threat of intentional killing, regardless of the motivation behind the intentional act.
Finally, and importantly, regard must be had to what can only be described as the litany of very serious concerns raised by the divisional High Court which sat in the Fleming case about the possible impact and operation of prospective laws that could be devised by the Oireachtas to permit any form of intentional taking of life. These concerns, and the court’s evident scepticism that abuses could ever be curbed entirely, are very relevant to assessing whether such potential legislative reforms can ever be consistent with the State’s solemn duty to protect life under Article 40.3.
In the absence of a determinative judgment of the superior courts, the most persuasive interpretation of the Constitution open to us is that the Oireachtas is not competent to introduce a legislative regime that would permit either a statutory right to assisted suicide or voluntary euthanasia.
I thank the Chairperson and committee members for their attention.
I thank Dr.Casey very much for his presentation and call Dr. Hickey.
Dr. Tom Hickey
I thank the Cathaoirleach and members of the committee very much. It is an honour to be invited to address them this morning. I only have one fundamental point to make, which is that the Constitution does not bar or block the Legislature from legislating as it sees fit in the public interest on this matter. That is to say that if the Oireachtas, as a body of legislators, forms the view that it is in the public interest to retain the blanket ban on assisted suicide, that is something that it is absolutely constitutionally entitled to do. Equally, and for the same constitutional reasons – which I will comment on later – if the Oireachtas, as a body of legislators, forms the view that it is in the public interest to loosen the ban to allow for assisted suicide in certain limited circumstances, that is something it is perfectly entitled to do, constitutionally speaking.
Whichever course of action the Oireachtas takes, if there is a challenge in five or ten years where somebody goes to the High Court seeking a declaration of unconstitutionality, regardless of whether the Oireachtas goes conservative or liberal, let us say, it is very unlikely that litigant would win. This is so for a few reasons I will get to, but basically it is because of this concept we in the constitutional law trade call deference or sometimes comity. That is to say, the courts recognise the Constitution establishes a system in the form of the great organs of State, namely the Legislature, Executive and courts, vests certain functions in each, as members know, and envisages a set of institutional relationships between them. On foot of that, in Article 5, Article 6, Article 15, Article 34 and so on of the Constitution, over the decades the courts have developed certain doctrines, the most fundamental of which is the presumption of constitutionality. We can go back to the very first occasion, which is in 1939. The Constitution came in 1937 and in 1939 there is a case called Pigs Marketing Board v. Donnelly which gets cited every time there is a challenge to legislation. Mr. Justice Hanna identified this doctrine and said
When the Court has to consider the constitutionality of a law it must, in the first place, be accepted as an axiom that a law passed by the Oireachtas, the elected representatives of the people, is presumed to be constitutional unless and until the contrary is clearly established ...
The emphasis there, if we like, is on the word "clearly". I show it to my students every year. There are five or six paragraphs around it I am not sharing with the committee because it is too detailed, in which Mr. Justice Hanna elaborated. I am sure members know the reason. Hanna says the Oireachtas has democratic authority; it has electoral credentials, and the Judiciary does not. The Oireachtas is made up of Members who represent the different moral views, perspectives, and so on and has the competence to consider those, whereas the court has only got the two litigants.
The Oireachtas also has the capacity to call in experts. Constitutional law experts are not the people the committee really needs to talk to. It should call in medical experts, statisticians, psychologists, etc. to try figure out as best it can, and make a judgment call as best it can. When that gets challenged down the tracks the courts will say those guys have made their call and they have the authority under the Constitution to make that call. It does not mean the courts will never strike down but it does mean the presumption is it is constitutional. More particularly - I stress this - over the decades since 1939 the courts have repeatedly made the point, including for example former Chief Justice Susan Denham in Fleming v. Ireland and Others, as well as in plenty of other cases, that the presumption is stronger where the question is especially morally contested. The more morally contested it is, the stronger the presumption is. That also applies the more empirically difficult the question is. I do not know what stage the committee is at, but over the next months or whatever, it will call in these experts and they will talk about what could happen and talk about particular circumstances in Oregon, the Netherlands and so on. The question is contested and empirically difficult. How long do we need? What kinds of safeguards do we need? People have different perspectives. Nobody really knows for sure. In those cases, the presumption is stronger, the point being ultimately that the Oireachtas as the elected representatives of the people has the authority to make its call as it sees fit.
A final point, which Dr. Casey pointed out and members all know, is Marie Fleming famously took a case a decade ago. She lost in the High Court and lost 7-nil on appeal in the Supreme Court. Chief Justice Denham handed down the judgment on behalf of a unanimous seven-judge court that included one former Chief Justice, John Murray, and two future ones, namely, Frank Clarke and the incumbent, Donal O'Donnell. It is true the comment is obiter, as they say, in the sense it is not binding and authoritative. However, speaking as a constitutional lawyer rather than a moral philosopher, medical expert or voter, the most important line in that judgment, for our purposes, even though, as Dr. Casey points out, it is obiter, is at the back-end of that judgment.
It states that there is a constitutional obligation, under Article 40.3.2°, to vindicate the life of every person. There is such an obligation. Equally, in Article 40 and elsewhere, there are, as the committee knows, constitutional norms around dignity, freedom of the individual, moral autonomy, freedom of conscience and so on. Those are all competing constitutional norms. What did former Chief Justice Susan Denham state in a judgment that was backed up by these other judges? She stated:
There can be no doubt but that Article 40.3.2 imposes a positive obligation on the State to protect life ... The precise extent of the State's obligation in any given circumstance is, however, a matter which may require careful analysis and, at least in some cases, require a careful balancing of other constitutional considerations.
It may well be, therefore, that as part of its obligation to vindicate life, the State is required to seek to discourage suicide generally and to adopt measures designed to that end. It does not, however, necessarily follow that the State has an obligation to use all of the means at its disposal to seek to prevent persons in a position such as that of [Marie Fleming] from bringing her own life to an end ... The State is left, therefore, with difficult questions of policy, involving complex issues, both of principle and practicality.
Then follows the key line of the judgment:
Nothing in this judgment should be taken as necessarily implying that it would not be open to the State, in the event that the Oireachtas were satisfied that measures with appropriate safeguards could be introduced, to legislate to deal with a case such as that of the appellant [Marie Fleming].
It is obiter, but it is crystal clear. For the record, I do not have a strong view on this issue, not that my views would matter anyway. It is difficult. However, as a constitutional lawyer, I am saying to the committee members that they are the legislators, they are the Oireachtas, they get to make the call on what is in the public interest. That is my point.
Dr. Andrea Mulligan
It is an honour to be here to talk to the committee about this important issue. Almost everything about how and whether to regulate for assisted dying is complex, except for the primary constitutional question, which is whether the Oireachtas is entitled to legislate for it. The Oireachtas is absolutely so entitled. I respectfully disagree with Dr. Casey and agree with Dr. Hickey on that point. The case of Fleming v. Ireland and Others is crystal clear on the issue of whether or not the Oireachtas has that power. The Supreme Court would be very surprised to hear the judgment in that case described as not a definitive judgment from the superior courts. It certainly is a definitive judgment from the superior courts. That is the way everyone I have ever come across regards it. In that case, the Supreme Court stated that Marie Fleming could not establish a right to die or a right to terminate her life because that was, the court felt, inimical to the underpinning of the Constitution, as Dr. Casey referred to earlier. However, the absence of a right to die does not mean that the Oireachtas is not entitled to legislate for it. The decision to die, in the view of the Supreme Court, is essentially in this neutral space. One does not have a right to it but nor does not the Oireachtas lack the power to legislate for it. The judgment in Fleming v. Ireland and Others is clear on that point.
I will try to build on what the committee has already heard. I will first talk about other constitutional rights of relevance to death and dying. While there is no right to die or to decide to die, there are other relevant rights that it will be useful for the committee to consider. I will talk second about lawful medical practices that result in death. There are decisions that are made routinely in healthcare that result in death. I will talk about some of those. I will also talk a little about how to balance the rights at stake in assisted dying.
I will start with constitutional rights concerning death and dying. We know from the Fleming case that there is no right to terminate one's life or to decide to terminate one's life. That means that decision is not protected by the Constitution, as per Fleming. The State is, for example, entitled to take steps to stop people dying by suicide. It may even be required to try to take steps to stop people dying by suicide, pursuant to the obligation to support life. However, there are other relevant rights. The first I would mention is the right to dignity in death or the right to die a natural death. The Irish Constitution is unusual and interesting in that it has a rich jurisprudence around rights and death.
That comes out of the original case of Re a Ward of Court (withholding medical treatment) (no. 2), which members might have come across. That involved a decision about whether or not to remove life-sustaining treatment from a woman who was described as being in an almost permanent vegetative state and who had been in that state for 20 years. The court's decision was about deciding whether or not to remove treatment that would result in her death. In that judgment the court recognised that there was a right to life but that there was also a right to dignity, and some of the court characterised that as a right to dignity in death or as a right to die a natural death, which is an important right to bear in mind. However, the Supreme Court closely confined that right to being rights around allowing nature to take its course. It expressly distinguished that from anything like euthanasia but said that there is a constitutional right engaged in the end of life and that there are rights to dignity in dying a natural death.
The Constitution strongly protects a right to refuse treatment, which is really important. Even if you make a decision to refuse treatment and you know that will result in your death, the Constitution protects your entitlement to make that decision. You never have to accept treatment that will sustain your life against your will, and that is a very robustly protected right. It is also protected as a matter of common law so it may even exist outside of the Constitution. This extends to the right to refuse food and water, so basic nutrition is included as well as medical treatment, and that is recognised in the case of Governor of X Prison v. PMcD, which is about a prisoner on hunger strike. The court finds that the prisoner has a right to refuse treatment that even extends to the point where he has lost consciousness and capacity. This essentially means the prisoner can make an advanced directive to refuse food into the future. It is important to bear those constitutional rights in mind when it comes to understanding the picture of where death and dying arise under the Constitution.
I want to talk about lawful medical practices concerning death and dying. These are medical practices that members will probably all be aware of but I want to mention them as useful in understanding this area. First, it is lawful, as I have said, to withdraw medical treatment where the treatment is futile. In the case of Re a Ward of Court (withholding medical treatment) (no. 2), the court ultimately ordered that it was permissible to withdraw life-sustaining treatment from the ward, while acknowledging that there was a significant distinction between a positive act, as would be involved in euthanasia or assisted dying, and withdrawing treatment to allow nature to take its course. That is based around a philosophical distinction which is often called the act of passive distinction.
Second, it is lawful to decide in advance that you will not resuscitate a person who suffers cardiac or respiratory arrest, and members will have come across that in the context of what are called do not attempt resuscitation, DNAR, orders. Those orders are medical decisions that are put in place in circumstances where it is believed by the medical team that it would not be in this person's best interests to try to continue their life. That is in circumstances where death is regarded as relatively proximate but it is an important recognition that life is not always in everyone's best interests.
Third, and importantly, it is lawful to provide pain relief to a dying person, even where it is understood and foreseen that this will hasten that person’s death. It is not uncommon at the end of life for a person to be administered morphine, which will treat the pain of the end of life and where it is also known that this will hasten death, and that as a positive act it will bring about death. That is lawful, pursuant to another philosophical concept, which members may have come across, called the doctrine of double effect. There are two different effects to the action but you are intending the pain relief. That is something of a departure from the ordinary position in criminal law. It is important to bear in mind that while assisted dying is unlawful, there are actions that lead to death that take place as a matter of course.
I want to speak about balancing interests in assisted dying. The job of the committee and the Legislature in deciding what to do about this area is to try to balance the interests of the people involved. Even though the Supreme Court overturned the High Court's judgment in Fleming v. Ireland, the discussion of this case in the High Court is valuable on this point. Unlike the Supreme Court, in Fleming v. Ireland the High Court found that there is a right to decide to die, which is protected by the right to autonomy, an important distinction for the Supreme Court. The High Court found that there are important countervailing reasons that allow the Oireachtas to regulate to prohibit assisted dying. That is an important and different way of getting to the same result.
There is a sentence in the Fleming judgment I always read to my students, just as Dr. Hickey has favourite passages he reads to his students. The High Court undoubtedly has huge sympathy for Marie Fleming. It states:
If this Court could be satisfied that it would be possible to tailor-make a solution which would address the needs of Ms. Fleming alone without any possible implications for third parties or society at large, there might be a good deal to be said in favour of her case.
In essence, the court was saying: "We have all the sympathy in the world for you, Marie Fleming, but we have huge concerns about the consequences of regulating assisted dying." Of course, part of the reason for this is that the High Court, as a court, cannot put in place a detailed regulatory scheme. That is the first reason. However, the judgment also suggests the court had concerns that even the Legislature could not put in place sufficient safeguards. That really is the question for the committee. Can the Legislature put in place sufficient safeguards? I really recommend looking at the High Court decision in the Fleming case, which offers a very sophisticated analysis.
The judgment leads to four questions for the committee in terms of what it needs to do. First, should certain people be entitled to assistance in ending their own lives? Second, if so, who are those people and what are the key characteristics that mean they are entitled to seek assistance in dying? Third, does the existence of a regime permitting assisted suicide for one cohort of people pose risks or dangers to others? Fourth, if it does, can those risks be adequately mitigated by regulatory safeguards, such that it is the right decision to legislate for assisted suicide?
I am happy to answer any questions members may have.
I thank Dr. Mulligan. I will now take questions from members, starting with Senator Seery Kearney.
I thank all three of the witnesses for putting forward their positions. This discussion comes to the heart of the question as to whether it is constitutionally permissible to change the parameters of social policy in Ireland by having a provision whereby people, at a time when they are anticipating or approaching incredible suffering, can opt to have assistance in the ending of their life.
At the conclusion of these meetings, we take a vote on publishing the witnesses' opening statements. I want it noted that I object to the publication of Dr. Casey's opening statement as submitted to us and propose instead that it be taken as the statement he gave in public. The statement that was sent into us had language that was unbecoming for this committee. There was reference to such on one occasion in his submission. I remind Dr. Casey that in the JJ case, the Supreme Court noted the following at paragraph 68:
The contention, made both in the High Court and this court, that the orders made were simply constitutionally impermissible, because they amounted to an acceleration of death, deliberate killing [that is the term the court used], and therefore euthanasia, is a striking one. Robust argument can be of considerable assistance in any case. [This next is the most important part.] Language in this area is important. There are occasions upon which it may be essential to bluntly confront euphemism, especially when it conceals an ugly and unpalatable reality. But we do not think that this argument was justified here, and was, if anything, unhelpful to the just resolution of the issues in this case...
I ask Dr. Casey to bear that in mind in any contribution he makes in the course of the meeting this morning.
Under Article 40 of the Constitution, we have the requirement to preserve from unjust attack the right to life. Within it, we have made a specific provision regarding termination of pregnancy. Was that necessary? The eighth amendment was appealed. There was an express provision that had to be removed to look at termination of pregnancies. We had a hierarchy of rights that put two rights at the same level. That is a whole other argument. In Article 40.3.3°, we put in that express provision. Strictly speaking, did we need to do that? If we, as legislators, have the right to put in safeguards and to provide for very narrow instances in which life can be taken, which we are very careful around, did we really need that provision?
Do we need an additional line in this instance? In wanting to legislate and have safeguards, my concern is whether we need an additional line. If we do not need such a line, then we are free to legislate. Why did we need that particular line in Article 40.3.3°? Was it merely that we had to replace the existing provision with something, or not, as the case may be?
I invite Dr. Casey to respond first to the Senator.
Dr. Conor Casey
I thank the Senator. I am a little confused. I totally agree that we need to be very precise with language. In the Fleming judgment, the court used words like "terminated". That was the language used in the Supreme Court. I wanted to make it more anodyne, so I used phrases like "intentional killing" or "intentional taking of human life". I used those terms compendiously to refer to assistance in the taking of one's life through suicide or euthanasia. All these terms like "euthanasia" can be quite loaded but there was no intent to be inflammatory whatsoever. I was trying just to be precise and anodyne, frankly. That is the first point. There certainly was no intention to annoy or inflame, as it were.
The Senator had a question on the eighth amendment. Of course, the amendment itself had to be removed to provide for the termination of pregnancy. There is debate and Dr. Mulligan would know better than I on this question, but I think the reason there was an explicit enabling clause was that there was concern about obiter comments in judgments like the McGee case and G v. An Bord Uchtála, prior to the eighth amendment, in which the Supreme Court had said obiter that the unborn enjoyed constitutional rights, including the right to life. My understanding is that the concern was that even if the eighth amendment was repealed, there might be lingering constitutional entitlements that could be pleaded. Putting in an enabling clause did not take away the justiciability of the courts but it was a sort of signalling device to say this is an area on which the Oireachtas is explicitly entitled to legislate. That is my understanding of why there was not just a straight repeal and why an enabling provision was inserted.
Dr. Tom Hickey
I agree with Dr. Casey. There was no need to insert the words explicitly giving permission to the Oireachtas. It is interesting that he referred to the obiter comments in earlier cases like McGee and so on. In fact, in this instance, we have obiter comments going the other way. Like I said, those obiter comments could not be clearer and more authoritative in the sense that it is a seven-judge court and those guys know exactly what they are saying.
Dr. Andrea Mulligan
I agree with Dr. Casey on the reasons for the unusual clause in regard to the eighth amendment. It is important to bear in mind that the eighth amendment was a very unusual constitutional situation. It was a situation whereby an express right, that is, the right to life of the unborn, was being removed. As I understand it, the reason for the insertion of the specific clause enabling the Legislature to legislate was the concern that, in essence, the unborn had unenumerated rights to life outside of the eighth amendment. There might have been a situation whereby if the eighth amendment was repealed and termination of pregnancy was legislated for, there might yet be other unenumerated constitutional rights that would, in effect, mean that legislation might be unconstitutional.
In essence, that provision was there to provide some kind of constitutional insulation against that situation. There is also the Supreme Court case of I.R.M v. Minister for Justice and Equality, which was decided just leading up to the referendum in March 2018 and deals with that particular issue. It is a complicated issue of constitutional law. For the committee’s purposes, the key issue is that it probably was necessary - I know Dr. Hickey thinks it was not necessary – in that situation and it is certainly not necessary here. The answer is simple for the committee.
I thank our witnesses for coming. Senator O’Loughlin asked me to convey her apologies that she is not physically present, but she is in online. She is meeting the Canadian delegation to the Council of Europe today to gain its perspective and experience on how it has introduced legislation to permit assisted dying.
One of our contributor’s today talked about this being a complex matter. Dare I say, the witnesses have added to the complexity. When I came here at the beginning, I was under the impression that because of the Fleming court case, we had the authority to legislate if we so decided and, equally, we had the authority to leave it as is if we so decided. However, today there is a 2:1 verdict in the other way. Perhaps the reason our courts are so full is that there are always competing arguments in any such case.
That being said, I thank the Samaritans for submitting a briefing document today to the committee on use of language and terminology, which is crucially important when dealing with such a sensitive issue. Whichever side of the argument one is on, it is always critically important to be respectful to this debate. I thank them for that.
When we talk about suicide – perhaps I could get the witnesses’ views on it – there is no right to die by suicide; it simply is fact that the Government and the Oireachtas decided to decriminalise it in the 1990s. There is no right for people to die by suicide. Briefly, from what the witnesses are saying today, we have to make more of a moral and ethical decision rather than a legislative one. One of the contributors started by saying perhaps they were not the best people even to be in giving advice because ultimately it is about palliative care, psychologists, etc. Perhaps witnesses will confirm that to me now. Again, I thank them for coming in.
Dr. Tom Hickey
At the risk of repeating myself, lawyers disagree and we know that. However, here we had seven judges who were unanimous, including, in my view, the most eminent judges in the history of the State – Susan Denham, Donal O’Donnell, Frank Clarke and others. This is speculation, admittedly, but I would be shocked if any of the judges on our current Supreme Court took a different view from me on this. I am sure they have different views; we all do. The only thing we all agree on is that life is important. These are morally contested questions. These are difficult moral, political questions. That is one thing.
The other thing is the Constitution. We are lucky in this country that we have a Judiciary – I will not say they leave their politics at the door because one cannot ever entirely do so – who are, as is Dr. Casey, who I know personally, seriously conscientious people who are aware of their role and function. In that context, it would surprise me greatly if any of the judges on the current Supreme Court took a different view from mine on this matter.
The Deputy said he came in feeling very confident in a view. I would say he should leave feeling just as confident in that view.
Dr. Andrea Mulligan
I agree with that. As a lawyer, I almost never say a question is simple, and I wrote in my opening statement that there was a simple question here. Members have the power to legislate for this or not, and there is no doubt about that. With the greatest respect for Dr. Casey, who I know well, I disagree with his position on this. It is simple.
On the Deputy’s other questions, it is correct there is no right to die by suicide. It is simply decriminalised. There is no right to do it but, equally, it is not unlawful to do it.
The Deputy asked about who else he should talk to. I reassure him that he started in the right place. He has to start with the Constitution. You have to talk about the Constitution and what it permits you to do. That is the starting point. After the constitutional questions, there are legal questions that arise that are not constitutional questions. The Deputy needs to think about what might be called medical law questions. For example, if you regulate assisted dying, how do you do it? Who are the people within the boundaries of who is allowed to seek that? What are the safeguards to put in place? Will you allow people to access it based just on, say, terminal illness diagnosis or the pain a person has suffered? Those are all legal questions that are underpinned by policy judgments. I assure the Deputy that the constitutional question is simple but there are many legal questions that are complicated. Looking at the way other countries regulate this, there are big differences in how they do it. I am sure those are differences the committee will come to as it goes through this process. The decision as to whether to legalise is just one decision. There are hugely complicated decisions beyond that. There are many more legal questions to be answered after the questions being looked at today.
Dr. Conor Casey
I respect my two colleagues immensely but I strongly disagree that this is a simple declaration by the court that the Oireachtas has competence in this question. Courts do not like to address enormously difficult and enormously sensitive questions in the abstract without full argument on the merit of that question. Here, we are talking about the interaction between Oireachtas Article 15 power and the solemn commitment, the structurally explicit commitment, to protect life. The intersection between them and what kind of give the Oireachtas might have is an extremely sensitive question, and the court never resolves sensitive questions in the abstract without hearing full argument. I think this puts too much strain on paragraph 108 to read it as doing that in this particular context. At best, it is ambiguous. I also point out that on the current Supreme Court bench, there is only one judge who sat in the Fleming case, namely, Mr. Justice O’Donnell, who is now Chief Justice O’Donnell. That court will now have to look at it afresh. The full impact of what that obiter comment means will have to be looked at by basically a new court.
I thank everybody for their statements. My first question is for Dr. Casey. There was terminology in his first statement that I find deeply distasteful. He used the word “killing” eight times. It is wholly inappropriate to use that terminology in relation to this issue. I think he should refrain from using that kind of terminology. If the Oireachtas is not competent to legislate for assisted dying, then who is? We are the legislators. There is a court, Supreme Court and so forth, but we are the legislators. If the Oireachtas is not competent, then who is?
Dr. Conor Casey
Once again, I was trying to use the most anodyne language possible, such as “intentional taking of life” and “intentional killing” rather than the language used by the Supreme Court itself, which I could have, but I thought that might-----
I think Dr. Casey should have.
Dr. Conor Casey
I thought “life terminated” might be worse if people did know it came directly from the judgment.
Again, with the greatest respect, there was no intent to inflame whatsoever.
On the question about competence, if the Oireachtas is not entitled or constitutionally able to legislate or make policy within the parameters of the Constitution as it currently exists, then it would ultimately require, in order to make this possible, a referendum. In the first instance, there is no definitive judgment on this question. My colleague, Dr. Mulligan, said that Fleming is a definitive judgment. I absolutely agree that on the questions that were pleaded and argued which concerned the scope of Article 40.3 and the legality of the Oireachtas's statutory ban, it was definitive. However, it is not definitive in another respect because the Oireachtas is always entitled to probe the boundaries of its own authority. Legal advice is always just advice, even from the Attorney General. The Oireachtas is always entitled to legislate if it thinks it has a fighting chance. The Article 26 mechanism is there for a reference to the Supreme Court if the President wants to test the constitutionality of something . Those routes are there in the first instance but if those result in the striking down of legislation, then the ultimate recourse, if the Oireachtas cannot do it under the current Constitution, would be to amend the Constitution.
My substantial question gets to the heart of this issue, which is complex. We talk about the constitutional nature of the judgment in Fleming v. Ireland, which was unequivocal. As legislators, we have the remit to legislate for assisted dying if we so wish. That is unequivocal. Hopefully, some day assisted dying will be legislated for in Ireland.
I wish to pose a question that was raised last week in respect of end-of-life care. Reference was made to people in this situation in the context of the so-called double effect. At the heart of the Constitution is the right to life, but there is also a right to one's life and how one chooses to bring that life to an end when it is nearing its end due of illness. Is it a basic human right to have a say in how someone ends his or her life through legal and medical mechanisms? That is how questions around assisted dying should be posed. What is the difference between somebody who is weeks or months away from the end of his or her life, who is coming to the end through a terminal illness and somebody to whom a doctor will administer morphine that hastens his or her death? That is the fundamental question I want to pose vis-à-vis the submissions made today.
Dr. Andrea Mulligan
The Deputy is getting to the heart of the difficulties here. The first thing I would say is that Deputy Kenny talks about there being a right to decide to end one's life. We are only lawyers, so we are here to tell the committee what the courts have said the Constitution means and the rights that are protected by the Constitution. However, those are not necessarily all of the rights that exist in the world. Ultimately, the Deputy may rightly believe that there is a right to die, and that is a conversation about a pre-existing moral right that he believes in. It is important to distinguish those things. The Deputy may well be right in a moral sense that there is a right to die but all we can tell him and the committee is that the Constitution says there is no right about that. That is the first thing I would say. Deputy Kenny is absolutely entitled to characterise his judgments and views about this in the language of rights if he so wishes.
The second thing I would say in terms of the distinction between palliative care and assisted dying is that people who strongly believe in that distinction would say it centres on the idea of the double effect, that people are trying to relieve pain and are not taking an active step to end life. Essentially, that is just a big philosophical debate. Do you believe those things are different or not? I am sure there have been many thousands of PhD theses written about this. That is why I wanted to talk about these issues because, as legislators, the members of the committee have to make a judgment.
The law says X but do you fundamentally believe there is no moral distinction between actively ending life and passively ending life? That is ultimately a decision for this committee.
Finally, what is very important about drawing the analogy with the palliative care, the morphine administration situation is that it is only really relevant in the context of terminal illness. The huge decision to be made, if you do decide to legislate for assisted dying, is whether the criterion is insufferable pain, for example, or terminal illness. To my mind, there are very big differences in that. Are you saying that people can only access assisted dying if they are very near the end of life, if they know what the end of the road is? That is not the judgment some jurisdictions have made, where they will permit assisted dying for people who may have a very long life ahead, either with pain or without pain. People who are, for example, quadriplegic, might be able to access assisted dying in some jurisdictions but in others they would not be because they are not terminally ill. What of the situation where somebody is experiencing extreme pain but is not terminally ill? That is what is really important for Deputy Kenny and this committee to think about. If you believe in legalising assisted dying and in the rights-based analysis you have presented, then the question is who should access it. Are you saying it should be accessible to people who are terminally ill, with say six months or a year to live? These are difficult things to define and doctors will not be happy with being asked to give dates like that. It is important to bear that in mind. I am sure the committee will be talking to doctors over the course of its work. That is a really important distinction. If you get into the territory of allowing assisted suicide for other reasons that are not about terminal illness, then the palliative care and morphine analogy is not really helpful because that is a totally different world.
I welcome our witnesses and thank them for being here. Dr. Mulligan has pre-empted and answered some of my questions already. There are many questions but essentially we are asking whether we can legislate for this and whether we should legislate for it. Today is very much focused on the question of whether we can legislate. The questions Dr. Mulligan posed at the end of her paper are the sorts of questions this committee will wrestle with in the coming sessions around ethics, safeguards, unintended consequences and so on. I want to focus today on the cold legal question as to whether we can legislate for this. I am struck by the use of the somewhat pejorative term "obiter " in relation to the comments of the court. I appreciate that such comments did not necessarily cut to the heart of the question being answered by the court at the time and are not necessarily binding but they are still a strong legal analysis from eminent legal minds. I would be slow to be dismissive of an analysis simply because it is obiter and would ask whether it is possible for the court to make the comments it did in any way that is not obiter without violating the separation of powers. It seems to me to be unduly dismissive of the court's reasoning to label it obiter and to move on.
I want to dig into the issue of the double effect. I believe it was Judge Sopinka of the Canadian Supreme Court who, in the Rodriguez case, described the difference between omission and a positive act as a "legal fiction". We accept the need to alleviate pain and suffering for someone who is terminally ill even if it hastens death. Is it not simply an arbitrary line when we say we will do this an hour, a day or a week before instead of a different timeline? If our aim, in terms of the double effect argument, is the provision of pain relief and the ending of suffering, then surely that would be allowable given that it is essentially already allowed in terms of palliative care. The courts here have taken a very different view on the distinction between omission and positive act. Our eminent scholars' views on that would be very interesting to hear.
Dr. Tom Hickey
I would have to point out, and Dr. Mulligan would know this more intimately than I, that in the Irish jurisprudence, such as in the Re a Ward of Court case, which I was reading an extract from in the past day or two, in the High Court judgment in Fleming, in the Supreme Court judgment in Fleming and perhaps in another case, the Irish judges have been consistent over the past 25 years in stating that there is a distinction between letting somebody die and taking an active step to bring a life to an end. There is a morally important distinction and a legally or constitutionally recognised distinction between those two things. I would say that is there consistently in Irish jurisprudence. In that sense, it is not a legal fiction. I would also say that, particularly for this Supreme Court led by Chief Justice O'Donnell, and the late Chief Justice Frank Clarke before him, what we are seeing - we saw it in the Gemma O'Doherty and John Waters case, which was about something else entirely, as we know - is that in the jurisprudence, these judges are making the point more and more that they are Irish judges and that their job is to interpret the Irish Constitution and the text and structure thereof rather than the Canadian Charter of Rights and Freedoms, the European Convention on Human Rights or the US Bill of Rights.
That is a kind of by-the-way point. I do not think it is massively relevant here, but there is a conscientious effort now to say that. Again, it has to do with that notion of legitimacy, function and role. They are saying: "We are judges in this setting. This is our job. We are not going to bring our moral views to bear on the world." There is a discipline in that regard. Chief Justice O'Donnell is particularly emphatic on and interested in this point. It is certainly relevant to look at Canadian jurisprudence, which is more progressive, or Swiss, US, State of Oregon jurisprudence or whatever, but, fundamentally, this is the Irish jurisdiction.
I thank Dr. Hickey and call Senator Annie Hoey.
I thank the witnesses for their contributions. I have two simple questions. First, are there any other examples of the Supreme Court noting that there is no right to something unless the Oireachtas legislates for it and then the Oireachtas subsequently legislating for it? Is this the first example of us doing that? I should possibly have sent on the question beforehand so the witnesses could dig through the Supreme Court judgments. I am interested to know if this is the first time we have done something based on a recommendation from the Supreme Court. Has this happened before?
Second, with regard to the phrase "vindicate the life" of every person, there is a positive obligation on the State to protect life. We have touched on the concept of active versus passive actions. This point is hypothetical. In other areas of legislation or things that we do in the Oireachtas, are we, hypothetically, in breach of that part of the Constitution? We make decisions that leave people in poverty, which results in them dying earlier than other members of the population. We make decisions on lots of different things that result, I would say, in people's lives perhaps not being fully vindicated. This is a hypothetical question, and it might tie into the question of active versus passive. Do we make decisions in the Oireachtas that would technically be in breach of that line in the Constitution or am I just going into a kind of moral hypothetical space?
Dr. Conor Casey
The latter question is very interesting. I would say there are no definitive judgments that Article 40.3 places an obligation on the State to take steps to prevent, for example, homelessness or lack of shelter, but there is a very strong stream of Irish scholarship, such as the work of people like Professor Gerard Whyte, which argues that Article 40.3 puts a positive obligation on the State to develop policies that prevent things like homelessness, a lack of basic shelter and so on. Certainly, there is a strand of thinking like that.
On the former matter, what we do see sometimes is the Supreme Court addressing a sensitive policy question. I have cited two in the briefing document - the first in the context of the Oireachtas’s ability to regulate property rights for the common good and the second in the context of regulating a very sensitive area of policy concerning statutory rape. In both cases, the Supreme Court, in addition to settling the immediate dispute before it, said quite emphatically that the Oireachtas has very broad latitude to regulate in this area. It was very explicit in sending a principled signal to the Oireachtas that in likely future cases of policy, it should feel confident in legislating, and it was given a lot of deference.
The gravamen of the disagreement between myself and my colleagues is whether paragraph 108 of the Fleming judgment is best read in this vein or as a sort of clarification and is not deciding in the abstract. There are many examples of the courts saying to the Oireachtas: “This is your bailiwick and if you want to legislate, this is your area and policy domain.”
Dr. Andrea Mulligan
On the former question, I know of situations where the courts kind of kick it to the Legislature. A good example is the regulation of surrogacy. There is a very important 2014 judgment, MR and DR v. An t-Ard-Chláraitheoir, which is essentially about the registration of the genetic mother as the mother in a surrogacy arrangement. In that case, various rights-based arguments were made, and while there are a lot of different judgments, in essence, the court says “This is a matter for the Oireachtas. Over to you, and you should have dealt with this before.” That is still ongoing and I see some of the same members here who were on the committee dealing with that issue.
That is quite a good example. In that situation, some members of the court say there are constitutional rights engaged and some members of the court say there are no constitutional rights engaged, effectively, but everyone agrees it is a matter for the Legislature to deal with the constitutional rights. That is very important. Ultimately, whether the committee believes Dr. Hickey, Dr. Casey or me in respect of the constitutional question, what it is very important to bear in mind is that the Legislature gets a great degree of deference in its assessment of constitutional rights and obligations. I do not think Dr. Casey would disagree with that. Whatever the right question is, and obviously we are adamant it is one way, the decisions of the Legislature are afforded a great degree of weight. The Oireachtas has an obligation to balance the relevant rights and then the courts take that very seriously.
I thank the witnesses for giving their time so freely, which is much appreciated. It is important that we hear different views on this issue. Dr. Mulligan is correct when she says this is complex and that is where those different views are so important to this committee because these are the views of so many other people in our communities and across the State. Nobody has a consensus on this issue and it is up to the Oireachtas committee to tease this out. Dr. Mulligan is also correct when she highlights the need around focusing on whether this should be something that we do, and if we do, who it is going to affect and is there a potential risk to a certain cohort of people, and how we, as legislators, mitigate against that risk?
I want to go back to something Dr. Hickey said at the outset that caught my attention. It was on the three options that we are faced with, that is, we can either maintain the status quo, we can legislate for an individual to choose to end their life or we can loosen what is already there. Dr. Hickey made this reference in the context of a litigant not being successful if they were to go to court and in the context of the presumption of constitutionality, and how, when issues are more contentious, the presumption of constitutionality increases. I do not think anybody in this committee wants to see somebody else end up in court. We were all deeply affected by Marie Fleming, and that has left a profound mark. However, from a constitutional perspective, if the Oireachtas were to make a decision to loosen the criteria that are there at the moment, is there a constitutional impact in that regard? We know we have the authority, the permission or the availability to legislate for this or not legislate for this. However, if the committee were to choose a middle ground, are we creating constitutional issues?
Dr. Tom Hickey
I thank the Deputy. I may have been misinterpreted. What I said at the outset was that the Members of the Oireachtas, as a body of legislators, may form a view that they want to stick with what they have, which is a blanket ban, because after hearing all the evidence, they are not sure. Forget about the Constitution. They may decide that, for moral reasons, they want to protect life. They may make such a decision that on the basis of Article 40.3.2°, they have a constitutional obligation to guard and vindicate life. That may be how they want to call it and that would be perfectly constitutionally permissible. I did not have a third option. I said that if the Members of the Oireachtas want to loosen the blanket ban and allow assisted death in certain circumstances, they could do that. In other words, they have latitude. It bears emphasis that when I say the Members of the Oireachtas have latitude, that does not mean they can do what they want. There is a constitutional obligation to vindicate life.
That is where my question focuses. Are we creating additional constitutional issues by loosening the blanket ban?
Dr. Tom Hickey
Nobody would ever want to do this, but if the Oireachtas were to come up with a legislative scheme that ignored these concerns and did not conscientiously consider the importance of life, morally or constitutionally, and were to come up with some loose, poorly thought through and unregulated scheme that left vulnerable people, including those without medical insurance and whoever else it might be, choosing to die when they do not want to do so, we would be into constitutionally dubious territory. This is not a free-for-all, and I am not saying that. There are options. Do Oireachtas Members want to stick with what it has? Do they want to loosen it conscientiously and thoughtfully based on the evidence they hear and their own sense of the people's views? They are entitled to do that, constitutionally speaking.
I welcome our guests. Having read all of their presentations, I found it stimulating that there was such well-reasoned argumentation in all cases but, significantly, going in different directions. Having read them, I did not spot any language that raised my eyebrows. Though I greatly esteem my friends, Senator Seery-Kearney and Deputy Gino Kenny, the one thing I am devoted to is the concept of academic freedom. One thing I am allergic to, and I am talking about it a lot at the moment, is cancel culture. I will not stand for unnecessary marking of people's language where they are seeking to make explicit their sincerely held analyses on these issues. I have already been criticised for even using the term "assisted suicide" on occasion. Let there be no cancel culture at this committee. I make that appeal to people. Let us offer each other the presumption of good faith as we engage with these ideas.
Having said that, I want discuss with Dr. Hickey the question of deference. Perhaps because I am a university Senator, with another one beside me, I was struck in the recent case of Heneghan v. The Minister for Housing, Planning and Local Government and others that there was not a whole lot of deference. It might have been the case, to refer to The Merchant of Venice, that to do a great right, the court did a little wrong by interpreting a constitutional provision that stated provision may be made by law nonetheless to find a constitutional obligation to change the current arrangements. I do not disagree with the outcome but I do wonder about judicial activism.
In that context, whereas I was surprised that Dr. Casey, in his submission, seemed to close the door completely on the Legislature having any leeway in this area, I was surprised that it was only in the past few minutes that Dr. Hickey has suggested there might be any constraints. There was a strong litany of concern in the High Court in respect of the Fleming case. I could not think of a comparable situation. The court went through all the things that could go wrong. It referred to the change in culture and talked about the language of the shifting of the paradigm. In the Supreme Court judgment, the word "necessarily" was included. The judgment stated: "nothing in this judgment should be taken as necessarily implying". Dr. Hickey quoted from the judgment, stating "in the event that the Oireachtas were satisfied that measures with appropriate safeguards could be introduced", but the court went on immediately to state, "If such legislation was introduced it would be for the courts to determine whether the balancing by the Oireachtas of any legitimate concerns was within the boundaries of what was constitutionally permissible."
They are not talking about whether there are any abuses here that we should condemn; they seem to be reserving for themselves the right to have the final say on this. Was Dr. Hickey sufficiently cognisant of that line in giving the bright green light he has given us today?
Dr. Tom Hickey
I am glad Senator Mullen raised that matter. Before he asked his question, the Senator wanted to emphasise that line. I point out that this line is included in the submission I made to the committee. Before the Senator's intervention, I made the point that the Oireachtas cannot just do what it wants but that it has to take seriously the constitutional norm in Article 40.3.2°. Senator Mullen already read out the line, but, just in case, I will repeat it, "Nothing in this judgment should be taken as necessarily implying that it would not be open to the State, in the event that the Oireachtas were satisfied that measures with appropriate safeguards could be introduced". This is something I am trying to stress. I honestly did not come here with a strong view on this. I would be interested to be on this committee, hear the evidence and figure it out. If you are satisfied with the safeguards, then you have the green light; that is what I am saying. Chief Justice Denham goes on to us the phrase "If such legislation was introduced", and the courts always do this. They always say that the task and function of the judges is to interpret the Constitution in cases of dispute, and that they will do so where necessary.
I want to probe this with Dr. Hickey and throw it open to all three of our experts. What would happen if the Oireachtas were to take this as a strong green light to legislate as it sees fit for whatever category of persons? For example, last week, the Irish Human Rights and Equality Commission asked us not to include disability as a basis. Does this raise a point on equality in a context where the Constitution tells us there is a strong mandate to vindicate the right to life and now the State is suddenly going to open the door to certain categories of person legally having their lives ended? Does that a raise a point on equality that would engage the courts? In other words, that if you allow it for some, then why not allow it for the likes of a person with quadriplegia, as was mentioned, or whatever? Is it a case that once you open the door at all, the courts might then say - if people will excuse my use of a colloquial phrase - that what is sauce for the goose must be sauce for the gander?
Dr. Tom Hickey
I understand, but I would say that the courts would say what they always say. They would say that the Oireachtas considered the matter and this is the regime it came up with. The courts would say that they might come up with a different regime if they were legislators but that they are not legislators. They would say the Oireachtas was conscientious about it and this is the call it made, and the courts would respect that. It would be highly unlikely that they would do as the Senator suggested. I am wary of getting into other domains of law but I mention the Robert Donnelly case. Robert Donnelly and his father took a case on social welfare provision in hospital or out of hospital if the Senator is familiar with that case. Again, Justice Murray mentioned Article 40.1 on equality and effectively said that the Legislature made this call and said this fund was available to people with these situations in these circumstances but not in those circumstances. I will not go bring up the detail of the case, but you could not have happened upon a better case to make the argument to extend welfare entitlement. This kid and family were clearly disadvantaged and had been unfairly treated but all seven of the judges said, with Justice Murray writing the judgment, that the Legislature has to make a call and that it made the call.
I thank our guests for being with us and for sharing their legal expertise. The committee has a big task ahead of us in the next nine months to navigate our way through a very complex area so we appreciate the assistance of the witnesses in that. Today's session is all about whether it is permissible for us to legislate for this or to decide not to legislate at all. Dr. Mulligan has said clearly that this is the only simple question the committee will get and that the answer to that is the Oireachtas has the authority to legislate or not legislate on this issue, and she has used the phrase "crystal clear".
Dr. Hickey said there is no constitutional bar, that the court has shown deference to the Legislature in this situation and that we are constitutionally entitled to legislate on this. From his statement I gather that the Fleming case ruling does not affirm that the Oireachtas is constitutionally competent to rule on this. Does that judgment affirm that the Oireachtas is not competent to legislate on this?
My follow-up question is based on the testimony of the other two witnesses. Is it their opinion that if the Oireachtas legislates on this, that legislation will have presumed constitutionality based on the 1939 ruling that has since persisted? Those are my first two questions for Dr. Casey.
Dr. Conor Casey
On the first question, I think the Supreme Court did not decide either way in the abstract on this intensely difficult constitutional question. In the absence of a definitive judgment on that point, it was not treated or argued. We have to resort to piecing together an interpretation based on text, structure, underlying values and other obiter persuasive authority. I do not think it addressed it either way. If the Oireachtas were to legislate, I would emphatically agree with my colleagues that a presumption of constitutionality would attach.
Not only that, in the Fleming case the court reminded us that in constitutional challenges, the burden of disproving or displacing the presumption of constitutionality is on the challenger. In some constitutional systems, such as Canada I think, someone can bring an arguable claim and it is for the state to defend the burden of proof. However, in Ireland it is actually on the applicant, making it even harder. The standard presumptions and different doctrines would be engaged, but the question is whether they would be overridden by what the court thinks is something that cannot be constitutionally brought in compliance with Article 40.3, possibly in conjunction with Article 40.1.
Dr. Casey is saying there was no decision either way in the Fleming case and that if the Oireachtas were to legislate, it would be presumed to be constitutional, unless proven otherwise.
Dr. Conor Casey
Yes. What I am saying is the courts-----
There is actually considerable common ground.
Dr. Conor Casey
If a challenge is brought, the court would extend a very strong presumption. I totally agree with my colleagues on that.
Maybe we have three on the Bench today regarding that question.
In her statement, Dr. Mulligan summed up pretty perfectly the challenges that will arise from a legal, but more importantly from a moral perspective, and the safeguards and all the huge questions that will arise which the committee will try to tease out over the next nine months.
Senator Mullen spoke about the change of culture and the phrase being used in the Fleming determination. My interpretation of that judgment is that the reason for such reluctance to make a decision in favour of Ms Fleming was there would be implications for society at large and that it is not the remit of the courts to make any determination that would have huge societal implications and new legal parameters and bases. It is up to us, as an Oireachtas, to legislate for that.
Reference was made earlier to the Joint Committee on International Surrogacy, of which I was a member. We navigated through that space with considerable legal assistance. On that change of culture, I ask for clarification that this is the distinction between the Oireachtas and the courts.
Dr. Andrea Mulligan
What is useful about the Fleming case is that it does a very good job of going through all the big risks we need to consider.
In the first instance, it states that the court is only a court and cannot put in place safeguards. Fundamentally, that is why it was not going to go there. The judgment probably also raises flags about whether or not the Oireachtas wants to go there. I am now into the territory of opinion. It is a very contested and very difficult issue. The big issues around a change in culture are significant. Ultimately, this is about whether or not there will be a regime for the State to help people to die. It is not about people choosing for themselves to die; it is about the State helping them to die. It also means having a regime under which people, who may or may not be medical practitioners, can offer someone death as an option. We have to think about that. Is there some way to have death on the table without ever creating a situation in which someone feels pressured into choosing death?
That is the fundamental issue. I would never want to see anyone in a situation in which he or she chooses death for any reason other than his or her own genuine desire. The problem is that people can say they are a burden to their family. People may be a burden to their family but I do not think we would ever want individuals to decide they are going to die because they are a burden either to their family or the State. The question is whether we can create a situation whereby there is safeguarding against that scenario. Can we ensure against a culture shift that changes the narrative around that? I do not think any of us would want to live in a country in which the narrative involves saying to people: "Well, at this stage, you are a burden." I do not think we would ever want to be there. The challenge for the Legislature and for the country in grappling with questions like this is how to stop that happening.
I thank Dr. Mulligan.
I thank the witnesses for this interesting discussion. Dr. Mulligan spoke about the moral hazard associated with this issue. We have all, in our own way, expressed our concerns in that regard. There has undoubtedly been a cultural shift following the train of thought that been happening over the past 40 or 50 years. There is a fundamental question here regarding what I would determine to be the democratic principle of the Legislature having the right to do whatever it chooses and to pass whatever laws it chooses to pass. It is a matter entirely for the President, the Supreme Court or the Council of State to strike down any such law. That being said, we are a cautious body by nature, with various checks and balances within each of our Houses. Those principles are quite strong in this committee and within the Houses.
Having read the opening statements, I am of the view that the conversation has gone down a road I really did not expect, with questions as to whether we have the right or competence, which was the word used, to legislate in this area. Like Senator Mullen, I firmly respect academic freedoms. However, as a parliamentarian for 12 years and somebody who is involved with the Organization for Security and Co-operation in Europe, which is looking at emerging democracies, particularly the former Soviet republics, those principles of democracy are very strong within me and enshrined within my opinions. For somebody to say the Oireachtas does not have competence is peculiar, to say the least.
The questions that have been asked of us by the Dáil in the context of the Constitution are important and represent the right place to start the conversation. From a legal perspective, one of the questions I have, which I am not sure the witnesses will be able to answer, relates to what other jurisdictions have done and the challenges associated with those important questions on the moral issues, the checks and balances to ensure individuals are not put into a scenario in which they feel they have to make a decision on their right to end their life and the protections put in place to ensure there is no coercion.
However, I am not sure the witnesses are the right individuals for those questions. Given we are now a couple of hours into our debate, Deputy Higgins put a question to Dr. Casey to turn the point he made on its head, which was an important one to make and was the only one I had sought to ask at this stage of the discussion.
I thank everyone for their presentations. Most of my contribution will probably be to Dr. Mulligan. Even though we are here in respect of those constitutional questions, she has experience in the medical law side of things. I wish to utilise her time here rather than being repetitive on some of the stuff we have already established.
I am beginning to think about the more nitty-gritty stuff in relation to medical law and perhaps ethics. Dr. Mulligan said earlier that life is not always in the person’s best interest. From a legal or medical perspective, how do we determine those best interests? It also ties into the question of whether we are having a conversation only about those who are closest to death because of terminal illness or whether we are looking at best interests in a much larger sense, which I would hope we are and we are not only being narrow in those who are at a certain arbitrary time from dying. I wish to hear a little bit of insight on best interests.
Dr. Mulligan mentioned a directive, for example, some sort of healthcare or other type of directive. I am looking at the other constitutional rights regarding bodily integrity, the rights to freedom and privacy and all these things. I am thinking of autonomy and agency potentially sitting within those, perhaps bodily integrity. I refer to looking at those safeguards in a directive. Let us say we have a man who is in the earliest stages of dementia, Alzheimer’s or some cognitive disease that will progress and he makes a healthcare directive at the most stable part of his illness early on. Perhaps later on, he accumulates some other comorbidities due to ageing or whatever it may be. Say then, in that healthcare directive, he quite clearly stated he wants to die by assisted dying at whatever stage of that disease. Does something happen then when his cognitive functions are reduced so much that his memory has lapsed? In other words, he does not have any memory of making the healthcare directive. From a legal or medical law perspective, what stands there? Does the healthcare directive made when somebody was at their most functioning stand? I hope it does. How does that then tip over into assisted dying versus somebody having to administer something to somebody who is potentially fighting back because they have no memory of it?
My final question is on assistance. When we come to that question of passive and active, I do not see a moral distinction between the two. If we are looking constitutionally, saying vindicate the right to life but then saying that life will be vindicated differently if the rest of society, our doctors or somebody else is engaging with it in a passive way or an active way, how do we get to that distinction between the two? How was that distinction made? Was that because of court judgments? Where does that come from? For me, the ultimate end is the same. However, it feels like we want to wash our hands of having an active role in helping somebody die well rather than saying that if a person passively rejects things, that is fine, we will all turn the other way and allow that person to do that.
It really seems cowardly to me, in some sense. It feels like we just want to let ourselves off without actually really engaging in what is a very important process for someone in those dying moments. How have those differentiations happened?
Dr. Andrea Mulligan
I thank Senator Ruane. They are brilliant questions. It might take a long time to answer but I will try to answer as quickly as possible.
First of all, I will address the question on the best interests. The best interests principle is a very well-established principle in lots of different areas of law. It is often found referred to in relation to children and it will also be found with regard to non-capacitous persons, which is the context in which we are talking about the end of life. It is, however, quite contested. Obviously, when we are trying to assess another person's best interests, it can be very subjective because we are looking at another person and saying, essentially, how we would feel at that situation. It is a well-established principle but it is also somewhat contested. A key area where it would arise, for example, is in the withdrawal of treatment in cases such as those relating to a ward of court. The best interests framework could be applied. There is now an emerging view within medical law, and members will be familiar with the Assisted Decision-Making (Capacity) Act 2015. The underpinning of that Act is very much to move away from best interests and more towards essentially trying to vindicate the views of the person as they would have wanted them to be to be applied if they were still capacitous. The best interests approach can be contested and you must be careful that you are not applying subjective judgments. That is particularly important in relation to end-of-life law because we could look at someone and say that is an horrific way to live and it is not in the person's interests to be alive, but is that necessarily what is best for them or is that your subjective perception of their experience?
Very importantly, with regard to assisted dying, we only ever really talk in the realm of capacitous people, that is, the people who are able to make decisions for themselves. You would very rarely have an assisted dying regime - I cannot think of any - which was for non-capacitous persons, which would be other people deciding that another person's life would end. The best interests principle would have a pretty limited application in the situations the committee will be looking at. I believe the only situation in which you might find assisted dying for the non-capacitous person would be under the Groningen Protocol, which is a protocol for ending the lives of severely disabled neonates. It is extremely controversial and I would be surprised if the committee members ended up going anywhere near that. I can provide more information on that in due course, if needs be. The best interests principle is probably of limited relevance to the kinds of decisions the committee will be looking at.
The second question is around advance directives, which is a very complicated one. If a person is entitled to make a decision to end his or her own life, the person would make an advance directive about ending his or her life. The directive would say that when the person loses his or her capacity, he or she wants to be administered assisted dying. It is very complicated. Some jurisdictions that might allow assisted dying might not necessarily allow advance directives. The fundamental question that arises is that a person does not know what he or she is going to be like when he or she loses capacity. I was speaking to a gerontologist recently about this who posed the question of the happy demented person. You might think you would be very unhappy if you had dementia and you had essentially become a different person, but you may be very happy. We just do not know. We would never want to end up in a situation where we are administering assisted dying, consistent with the views of who that person used to be, to a person who is now perfectly happy having dementia. If we are going to go down the road of legalising assisted dying, we would not necessarily have to provide for advanced directives at all, but if we do, it is tricky because we would have to think that fundamentally they are different people-----
But if a person makes the decision while he or she has full-on dementia but has moments of clarity, how likely is it that anybody is actually going to meet the person's needs because they will say the person has not got the full capacity to make that decision?
Dr. Andrea Mulligan
Exactly. There is a really important interaction there with the assisted decision-making legislation, which is about a functional test for capacity. It would say that even if a person even fluctuates in capacity, he or she has capacity at certain times in respect of certain decisions. You are always supposed to apply a situation-specific test. That is the test under the Assisted Decision-Making (Capacity) Act. Logically applying that, you would say that if the person has the flash of capacity, then the person can make the decision. Again, that would be a very tricky question of reconciling those two legislative regimes and we must have huge safeguards there. Ultimately, the doctors and the people involved are going to be very antsy about ever administering assisted suicide to a person who may or may not want it. They may never feel comfortable with that. There is a side note that it is possible doctors will not feel comfortable doing it at all.
Obviously the committee would have to talk to them. It does raise very specific, difficult questions.
Finally, the most difficult question on the active-passive distinction, it really comes down to thousands of years of philosophical debate. You may say you do not buy it and many philosophers just do not buy the distinction but it about drilling down into which ethical framework one signs up to. In law schools, we often do the trolley problem where we get people to decide whether they would save one person to save five people and so on. They are very tricky philosophical questions. It is great that the committee is willing to tackle them because they are the questions that underpin the questions that are before it.
The committee is willing to dialogue. I say that lightly and also unlightly to cover myself. I thank our three guests. We have really opened the whole discussion in a very dynamic way today. I thank Dr. Mulligan, Dr. Hickey and Dr. Casey for the intellectual rigour that all three statements have brought. I accept the bona fides of the intellectual rigour of all three.
Dr. Hickey spoke of very conservative or liberal lines. Does he think this is a conservative and liberal discussion?
Dr. Tom Hickey
I am glad the Deputy brought this up. Perhaps I should not have used those labels. I was using them as shorthand to give a picture that the committee has a choice of going blanket ban, let us call that conservative, or using it to allow this in certain circumstances - let us call that liberal for shorthand - to make the point that either option is open to it from the standpoint of the Constitution. I do not really have a view or want to express a view on the substance of either option morally speaking. My view is irrelevant.
Dr. Hickey has said that a number of times and it is very refreshing that he can bring the intellectual approach. I take the objectivity of his presentation.
The reason I ask about the conservative and liberal reference is that I would not like to see those who might have issues with this as being less than progressive and that those who want to see it introduced as being progressive. I speak for myself in saying I am trying to bring a lot of objectivity and neutrality to this and, as I said at the opening session last week, inquisitiveness and curiosity.
Dr. Casey might forgive me as I do not have any questions for him. Dr. Mulligan has done us a great service today, as has everyone, but the four questions she raised are really at the heart of what we have to get to. I take a number of points that she has made. She quoted the Supreme Court in the Marie Fleming case: "If this Court could be satisfied that it would be possible to tailor-make a solution which would address the needs of Ms. Fleming alone without any possible implications for [anyone else], there might be a good deal to be said in favour of her case." There is an acknowledgment of that that but Dr. Mulligan is saying that unlike the Legislature, the court did not have the powers to go into that kind of detail but we do. That is one of the distinctions and one reason the Supreme Court did not go further or perhaps why it did not make a more positive judgment.
One thing I feel very strongly about, and which Dr. Mulligan has answered in her questions, is that the judgment presents the Legislature with the following questions: "1. Should certain people be entitled to assistance in ending their own lives? 2. If so, who are those people and what are the key characteristics that mean they are entitled to seek assistance in dying?" That is very important for me because you are not talking about the key medical conditions. That is a really vital contribution which Dr. Mulligan makes. We have been talking about that off line.
As I said last week, when people discuss this, they think of conditions that would make them not want to continue. The witness's contribution of the set of key characteristics is important. If there were four of you here the score might be 2-2. This is interesting for us. If there were ten of you here it could be 6-4 or 5-5 or 4-6. Great intellectual rigour could be brought to this by different legal views. We still have to take the decision. I am particularly taken by what Dr. Hickey said about the resounding judgment of the Supreme Court in the case.
Suppose then, just for argument's sake, that we do not have the competency to deal with this. How is that resolved in an Irish context?
Dr. Tom Hickey
Ultimately, the Constitution is not just for the courts. It is for the legislators as well. If the legislators, in their wisdom and conscientiousness form the view that they are not entitled to legislate here, they are entitled to do so. This is the Oireachtas and I mean, in a way, Members already have legislated. There is a blanket ban on assisted suicide. That does not have to be changed. Nothing will happen in that case.
Dr. Hickey mentioned a referendum in his contribution.
Dr. Tom Hickey
That is another option, of course. Under articles 46 and 47, the political organs of State, Government and Legislature can bring forward a proposal to amend the Constitution to insert any provision into the Constitution. This can be done to allow the right to do x,y or z or express prohibition on x, y and z. If this is put to the people and they approve, that will then be the new position in the Constitution.
I want to go to Dr. Casey on that matter.
Dr. Conor Casey
I agree with Dr. Hickey. Although I have reached the conclusion based on my understanding of the legal materials, that it is not within the constitutional competence, I have also written in my other work that the Oireachtas is often too timid in testing the bounds of its power, if it is so minded. Legal advice is just advice and opinions are just opinions. The Oireachtas is entitled to legislate and then speak, enter into dialogue with the court through any plans that may be made. I have also made that point in my other writings.
Senator Fiona O'Loughlin is next.
My apologies. I am not in Leinster House. I understand that I cannot contribute at this point but I am just here to listen.
Thank you very much for clarifying that. Deputy Pa Daly is next.
Thank you Chair and I thank the three witnesses for attending today. There has been a very good discussion so far. In particular, I was very interested in what Dr. Mulligan said about people being pressured and about the dangers of a cultural shift. It is important to consider subjective experiences. I have met people in a daycare centre who said something similar to what Dr. Mulligan said. Being warm with a roof over their head is a good day for some people and, subjectively, that might not be worth much to others.
I was interested to hear about the concerns relating to the advanced directives and working outside of terminal illnesses as well. I thought that was interesting because in our own discussions, in preparing the work programme, that certainly came into it. There has been a bit of a debate going on about language. I think we have to be very careful about language. As part of the pre-meeting today we obtained a document from Samaritans Ireland. This outlines what words to use when talking about suicide in general. It advises using phrases like "a suicide", "taking your own life", "ending your own life", but advises against phrases such as "a suicide victim", "a cry for help" or an "unsuccessful" or "successful suicide attempt", for example.
That is the kind of tricky pathway we are going to have to negotiate. I am not too concerned about whether somebody called it a "killing" or a "suicide". The phrase "assisted suicide" was used by some of the contributors. When politics and the criminal law intersect, "killing" is quite a neutral term, whereas "murder" is possibly a legal concept, but if one were to say to someone whose family member had been killed that it was manslaughter, the family member would probably take offence at the use of that term. As such, I would not get too upset about someone using that type of language. It is also interesting that Dr. Hickey mentioned the conservative versus liberal aspect. One could be quite a progressive advocate for disability rights and very strident in that and possibly - though maybe not based on the end of Dr. Hickey's contribution - be described as a conservative.
I want to ask about the obiter in the Fleming case. Would it be a stronger argument that the Supreme Court was suggesting we should legislate? I am wondering whether it was more of a suggestion than a directive or demand. Would it have been a stronger argument if the Supreme Court had not used a double negative in posing the question and simply said it is open to the Oireachtas to legislate here if the appropriate safeguards could be introduced?
Dr. Tom Hickey
The Deputy raises an interesting question. Former Chief Justice Denham was a thoughtful, legitimacy-conscious judge. She was disciplined and very much of the view that certain matters were her job and her function and that was all. She would have thought about how she phrased, "Nothing in this judgment should be taken as necessarily implying ...". I agree there is a little message in there to the Oireachtas. One sees that from judges regularly but they do not want to hit the Legislature across the head and say it must legislate. As I said, the Oireachtas has legislated on this matter and she respects that. She is just saying, "Nothing in this judgment", to clarify means the Oireachtas cannot revise that. She would have thought about it carefully and she is leaving the door open.
Dr. Andrea Mulligan
I agree with that. I mentioned earlier the courts have made some comments about surrogacy and they are a useful contrast. Here the Chief Justice was just saying there is no constitutional right to die, so the appellant was not going to win in the Four Courts and if the Oireachtas wants to legislate for this, it is free to but that she was not telling it to. By contrast, in surrogacy cases the Supreme Court was literally saying surrogacy was happening in Ireland and the Oireachtas was doing nothing about it, so it was essentially in default. I think Adrian Hardiman had some pithy comments along the lines of it being akin to failing to have road traffic law reflect the invention of the motor car. Thus, judges do not mince their words when they think the Oireachtas needs to legislate. They certainly did not do that here. They were just saying if the Oireachtas wanted to, it could.
Does Dr. Casey want to come in on that?
Dr. Conor Casey
No.
That is fine.
Before we move to the second round, I want to highlight something. We have had a good engagement. If a member wants to come in a second time, there is no problem and no problem with time. A member might feel his or her questions have been adequately dealt with. I am not going to rigidly go to every member. If a member wants to come in, he or she should indicate. Of course, they will then be given the opportunity but if that is not necessary, that will speed up the process. I call Senator Seery Kearney first.
I thank the Cathaoirleach. I have two issues to raise.
First, the Fleming case was contested on the basis that a provision was made by the Legislature that stated suicide was no longer a criminal offence but there was a clarification within that that to assist, aid, abet, etc., suicide was a criminal offence. There was that holding position and it was an express provision within the legislation. What was being contested in the Supreme Court case was whether that was discriminatory through the context of a person arriving in a place of disability and unable to exercise his or her own preference for suicide and complete a suicide him or herself.
I have exactly the same regard for Ms Justice Denham that Dr. Hickey does. When I hear her comments, I hear her through that lens where she was saying there was an express provision but it does not mean it cannot be changed. I came today with the fear that the wording of the Constitution prohibited us from being able to legislate. I see the wording in the Constitution does not do that without having an express provision, so I moved to that place. Senator Mullen knows well that was my position last Friday because we were on a radio debate together.
I have moved to a place where yes, we can, but now the key moment is in respect of the safeguards. Who arrives at and who exercises this right? How is it exercised? What safeguards can we put in for the vulnerable who would feel they were a burden to their family? It is not even direct influence; it is the indirect or some sort of societal shift.
We had the case of Re a Ward of Court and the hunger strike case, so you can refuse treatment and sustenance. That is carried through even when you are unconscious, or is that confined to the specifics of that case? We now have assisted decision-making. Theoretically, in the context of a specific diagnosis that has a particular trajectory, do we arrive at a place where that sequence of events could happen now, before ever we legislate, and pain relief administered in the refusal of sustenance and treatment that will, by default, accelerate dying? I accept the double effect and that it is not an intentional act. At this time, could those sequence of events be set up and exercised by an individual in the context of assisted decision-making because you can have an advance directive?
Dr. Andrea Mulligan
That is a good question. Yes, you can have an advance directive. There was essentially a common law constitutional basis for advance directives before that Act and there is now a statutory basis for it.
So we have express provision in legislation now.
Dr. Andrea Mulligan
Yes, and that is to refuse treatment. That is essentially built on this fundamental right to refuse treatment, which extends to refuse nutrition. That Act was only commenced, I think, less than two months ago, so I imagine there are not examples of it happening under that Act yet. As I understand it, you could put in place a directive to say you were going to refuse food and nutrition until the point where you died. I do not know of examples of this happening in Ireland, but in the literature, there are documented examples of people in jurisdictions where assisted dying is not lawful deciding to go down that path. If you wanted to end your life now, the only way to do it, unless you were able to take active steps yourself, is essentially to refuse food, and there is literature on that occurring in other jurisdictions.
And you could have pain relief?
Dr. Andrea Mulligan
Yes, you could have pain relief.
Refusing treatment does not necessarily include not being given pain relief.
Dr. Andrea Mulligan
It would come down to how the directive was drafted. As a matter of law, I think you could draft it so that you want pain relief but nothing else. The corollary of this is also that you will have to find medical practitioners to co-operate with that.
Medical practitioners have a well-established entitlement not to provide treatment if it is not warranted in their clinical judgment. That is another side to it. While I think it is a matter of law - and it would be lawful to have that scenario - I do not know of examples of medical practitioners who would be willing to support that.
Are our witnesses of the view that assisted dying or assisted suicide is happening, albeit in a tiny minority of cases? In our previous session, it was stated that the Director of Public Prosecutions brought one case relating to assisted suicide. Ultimately, that case failed. Could it be happening covertly? The witnesses made the case regarding our ability to make the change. While people sympathised deeply with Marie Fleming and the circumstances in which she found herself, it was felt that the change could not be made because no person is an island and to help one person would have had a knock-on effect, which could be a cultural change going forward. That is just one thought I have been having over the course of this debate.
Dr. Mulligan's area of speciality is medical law. I heard different contributions to this debate. Senator Ruane, for example, mentioned advance directives and how the latter may change later in someone's journey towards its natural conclusion, which is death - the one thing we are all assured of. A position held today might be different tomorrow. I refer to people who contemplate suicide and who get medical, psychological and mental health treatment. Someone who is in a bad state today could be in a different space tomorrow or in a month's time. I mention how someone feels today, how they may feel later on and how that feeling may change. I want to ask Dr. Mulligan about her professional opinion and not her personal opinion on the ethical and moral values of what we are discussing. Can we be confident that rules, legislation and regulations can be so robust as to protect us from failing somebody in an assisted suicide that may once have been wished for but at the time is no longer wished for?
Dr. Andrea Mulligan
Those are interesting and difficult questions. On whether assisted suicide is happening, there is one well-known case of trying to prosecute it. The case was quite complicated, and the person involved went on record to talk about it. There is an interesting question as to whether it might have occurred but the jury was not willing to convict the person. I do not know whether assisted suicide is going on and nobody knows that. If this committee could think of some way to find that out then that would be very valuable. In the UK and the parallel debates, it became known that there were people leaving the UK or being brought by friends and relatives to Switzerland to avail of assisted dying at the Dignitas clinic, which is quite well-known. There are a lot of well-documented cases like that. The other distinction is that the UK's Director of Public Prosecutions had issued some public statements indicating that this happened, that they knew about it and that they did not prosecute for certain reasons. There was interesting data in respect of that matter, and there is interesting data about it in the UK. However, I am not aware of any in Ireland. It would be valuable for this committee to try to find out whether that is the case.
The second question was on whether a person's desires might change. Most regimes would try to identify whether the person's desire to die is a function of clinical depression. As a result, the authorities would try to screen out people who have a mental illness that is causing them to make the decision.
That is very difficult. How does one draw the line between a mental illness and a genuine desire? People with a mental illness still have genuine wishes and desires. It is a very difficult line to draw. The other point is that some regimes permit, in essence, mental pain as a criterion. If a person had treatment-resistant depression, that would be an indication in itself for assistance in suicide. Some regimes do not allow that. I do not know whether that is helpful to the committee. It is a difficult question.
There was reference to frameworks. Obviously, frameworks in different jurisdictions have different models of assisted dying. Some of them are a little more liberal than others. I would take the New Zealand framework as a template. It brought in assisted dying by popular referendum. I refer to the criteria and the definition of those who can avail of assisted dying. In most countries where assisted dying has been regulated, the definition of those who can avail of it is persons who have less than six months to live. That is defined by a number of doctors. In those circumstances, the majority of people may avail of assisted dying if they meet the criteria. There are those who do not avail of assisted dying but it gives people comfort to have that option if their end of life becomes very complicated. That is a fundamental point. Different jurisdictions have different interpretations. In the Irish context, using the New Zealand template would work. It is up to legislators to do that. Obviously, we can hear the voices of legislators and those in the legal and medical professions but the most fundamental voice in this debate is that of those who are in circumstances where they could and may wish to avail of assisted dying. That is the most important voice in this debate. Some of those in that situation may not want to avail of assisted dying . Actually, the majority of people never want to avail of it but there are those who will and that is a fundamental right. Those are my observations in an Irish context.
My next question relates to a hypothetical situation. If we, as legislators, cannot decide to legislate for assisted dying, are there parameters in a constitutional context to hold an indicative referendum, similar to what happened in New Zealand, where there was a referendum and the people were asked whether they favoured assisted dying - "Yes" or "No". In New Zealand, 67% voted "Yes". As legislators, we would then legislate. Are there any parameters for that to happen in an Irish context?
I invite Dr. Casey to respond first on those questions.
Dr. Conor Casey
There are provisions in the Constitution that permit referendums other than a proposal to amend the Constitution. That could be a mechanism for a referendum or what have you.
Dr. Tom Hickey
There is a provision but I cannot speak to it.
It involves a resolution of the Dáil and the Seanad, with a certain threshold to be met in each case.
Dr. Tom Hickey
Yes. Has it ever been used?
Not to my knowledge. There were times when I wished it could be used.
Dr. Tom Hickey
I wish I could be-----
(Interruptions).
The witnesses are opening their minds ever so gradually.
There is scope to do it, but it is highly unlikely.
Dr. Tom Hickey
Ultimately, would there be the political will to do it?
I know.
That is the question: would there be the political will?
I invite Dr. Mulligan to respond on my points in respect of jurisdictions and so on.
Dr. Andrea Mulligan
It would be useful for the committee to consider different jurisdictions.
The methodology for doing that is complicated. If you asked someone who is administering this in a particular regime or jurisdiction, he or she might say, "This is the law, it is great and there are no problems", but I know there is a lot of scholarship about abuses and problems in different jurisdictions. The committee needs to look at how people do it in different places, but in a critical way. You want to be finding out if it is not working. You would want to look at that.
Is there evidence of that happening?
Dr. Andrea Mulligan
Yes. I am not here today with all of that evidence but I am aware of scholarship debating those issues in jurisdictions where it is legal, like the Netherlands, Belgium and certain states in the USA. It is very important to look at them but also to look at them in a rigorous way.
I should have brought my copy of Bunreacht na hÉireann in with me. Even though we are all on the public record, I am going to hazard a guess that it is half of the Seanad and one third of the Dáil asking the President to put legislation to the people, for a determination, as far as I know. We will come back to that, if necessary.
On the subject of liberal and conservative, I was intrigued by Deputy Lahart's engagement with Dr. Hickey. I think it was Pope John XXIII who said that he was glad he was not a liberal in his youth so that he was not then a conservative in his old age. Maybe there is a surprise in all of us.
More seriously, I may have misunderstood her but I think Dr. Mulligan said that there was not a model out there for an assisted dying regime where a person lacked capacity. Maybe I misunderstood her but I have a recollection of a case in the Netherlands which involved a lady who had dementia. There was a murder trial and there was a question as to whether she was submitted to euthanasia against her will. It appeared there was some gesticulation of objection but she had indicated a prior wish. I think, if I recall correctly, the court held that it was possible, even though she could not express her view in the present, where certain other conditions were met. There might have been a change in that area in the Netherlands.
Dr. Andrea Mulligan
I do not recall the specifics of that case right now but I think the situation in the Netherlands is that advance directives are permitted. At least in theory it is possible that it was a legitimate exercise of assisted dying. The question obviously was whether it fell within whatever the regulatory regime was at the time. When I was saying that we are really not talking about people who lack capacity, I meant a situation where the person never had capacity and expressed a will to die. We are not talking about the ward of a court situation, for example, because what happened there was that treatment was withdrawn. We are not talking about deciding to end the life of the ward of court. We are not talking about administering assisted dying to someone who lacks capacity and has never made an advance directive. Obviously, it is possible for the committee to consider that, but even the most liberal regimes do not generally go that far. If the person lacks capacity, it is only allowed because there is an advance directive in place.
Finally, I have question for Dr. Casey. If I understand him correctly, Dr. Casey is saying that in the Supreme Court judgment in the Fleming case, the court was not saying that the Oireachtas does not have the right to legislate, but is it Dr. Casey's view that the court did not say that we do have the right either? Looking at the High Court judgment where the court goes through its list of worries, it talks about it being compelling and deeply worrying that relaxing the ban would bring about a paradigm shift with unforeseeable and perhaps uncontrollable changes in attitude and behaviour. In the context of what Deputy Kenny said earlier, there are undoubtedly people out there who worry that if change is made for some categories of people and those categories include themselves, automatically they are somehow less valued by society and less valued in the eyes of the State because their life may be legally ended and so on. Therefore, what we enable for one does damage to other people's sense of themselves and sense of their life. I do not want to be putting words into Dr. Casey's mouth but is that the type of concern he thinks is relevant? Is he saying that were the Legislature to bring in a regime in the absence of constitutional change, then considerations such as the one I mentioned from the High Court, the idea that we cannot actually have safeguards even if we wanted them, because the situation, to use the court's words, is uncontrollable, are relevant? If he thinks that a majority of the Supreme Court might be persuaded to that view, why then is there not an issue about the fact we decriminalised suicide itself in this country?
I know this was not a positive act that could have been impugned by the court, but would the fact we decriminalised suicide not suggest that even if there was not a constitutional right or a statutory right, and on the basis of what the Department of Justice said last week that what is not prohibited is somehow permitted, there is some sense that there is a right to end one's life, or am I wrong? I tried to tease this out with the Department of Justice last week. I asked the witnesses last week if I were to interfere with a person's liberty or - and I am conscious we are dealing with extremely sensitive stuff but we must tease these issues out - if somebody intervened to prevent a suicide from completion, are they on the same footing? Would they be liable to civil action in the same way as if they had stopped somebody from going into a sports ground and such like?
I must ask Dr. Casey to be brief. I am sorry.
Dr. Conor Casey
No problem. Just let me go in reverse order. I would characterise the statutory situation around suicide not as a right but as an immunity, in that a person is immune from any prosecution on foot of that. Looking at the Dáil debates, the intention of the Oireachtas to decriminalise suicide was actually to protect life. It was to make it easier to seek treatment without the lingering threat of prosecution. The intent was to make it easier to vindicate and protect life.
I cannot remember a case nor have I heard of a case where someone who prevented another person taking his or her own life was then subject to civil penalties for assault. Under section 2 of the Non-Fatal Offences Against the Person Act, which concerns assault, there is a defence on consent to touching that would seem to cover saving a life in such a situation.
My understanding of the Fleming case was that the Supreme Court was just not determining either way in the abstract and in the absence of full argument on this sensitive point. Aside from this obiter comment, I believe the court's main concerns in the Fleming case in the divisional High Court is relevant to any assessment of whether any liberalisation of the categorical ban would be consistent with Article 40.3.2°, including on the points the Senator mentioned such as the High Court's concern around whether safeguards would be difficult or nearly impossible to police adequately. Such aspects would be relevant to an assessment of Article 40.3 compliance.
I have one or two follow-up questions for a additional information. In relation to mental illness and mental pain and suffering, am I right in saying that, from a medical law perspective, suffering is not just physical pain? Are they seen as equal or is there still some sort of disparity, whether it be written within law or a cultural position, that somehow one is more legitimate than the other? I believe this needs to be teased out, potentially, if it is not in the law. They need to be at par in some sense. There is probably some assumption that, with mental anguish or with depression that has been treatment resistant for many years - all that type of stuff - somehow there is something about that person that could actually just not be that thing, that they could just not be in mental anguish or that they could actually fix that psychological pain, and that somehow we are not really giving legitimacy to some of that. I wonder where they stand within the law in terms of suffering or if they do at all within policy?
If we are to look at other aspects, such as who accesses it and who the criteria encompasses if this is the way assisted dying is to go, would we have to insert a right to die within the Constitution to try to pull that out further? Can all of those other questions be done within regulation and without touching the Constitution? Obviously, it is harder with a referendum and it might be easier if we could just regulate, but I am worried in this regard.
Do we verge into that most conservative analysis of regulation and legislation rather than, if it was in the Constitution as a right to die, it being much more open to encompassing all those other conditions and the different times a person may be from death, be it six months or ten years?
My other point is to do with the right of free movement and liberty. Let us consider the Bernadette Forde and Gail O'Rorke case where gardaí intercepted them and stopped them leaving the country. Were the gardaí acting within the law and the Constitution at the time in stopping them from leaving to go to another country to avail of something that was legal there? I think of other things, not to compare them but as a contrast, such as if I go to Amsterdam for a week of cannabis use or to Colorado to take psilocybin or to a place where the sex trade is completely legal. Why were these people intercepted if they were leaving the country to avail of something that is legal in another country? Should that have happened at all?
Dr. Andrea Mulligan
There are a number of different questions here. Regarding the mental and physical suffering question, the law has always struggled to take mental suffering seriously. Historically, in negligence cases there was no recovery at all for any injury that was not physical injury or injury to property. Very slowly, the law started to recognise what it categorises as recognised psychiatric injuries. However, it is still the case that a person can only recover damages for a psychiatric injury when he or she has a diagnosis. Mental suffering is still not compensable as a matter of law, unless a person also has a physical injury. That is just as a general point.
In the specific area of assisted dying, mental injury, or mental suffering presents specific difficulties. This is not to preempt the committee on what it thinks the answer should be, but I imagine it presents difficulties in terms of treating it because it is putting death on the table for a person. It is more complicated in a situation where there is mental suffering, regardless of what we think of the ultimate question on that.
A person who is suffering from a mental illness or is suffering mentally is often physically able to end their own life, and that is an important distinction. Many of the people who we are talking about are physically unable to end their own life. In Marie Fleming's case, that was the evidence. She actually said that she considered going to Switzerland to have her life ended at a time when she would have been able to go but she was physically unable to. The question of whether a person is able or unable to do so is really important.
That is the contribution I would make. I will hand over to my colleagues on the other questions.
Dr. Tom Hickey
Would an express right to die in the Constitution give more scope? I would say, yes, probably. I agree with what Dr. Casey said in his last contribution about what the divisional High Court said in the Fleming judgment, that, while there is no question about it that a Supreme Court judgment is binding and authoritative, the divisional High Court did have a surprising amount to say about the policy questions. Those questions are there, they are not insignificant, and they are the kinds of things the Oireachtas would be taking into consideration, I would have thought. If there were an express right to die inserted into the Constitution by way of referendum, that would change the dynamic for what could be done legislatively. Whether that is a good thing to do, I have to express a view on that. I think it would be ill advised.
Dr. Andrea Mulligan
I agree with that, on the simple question of whether we need to touch the Constitution, my view is that we do not. Even Dr. Casey's view is that he has certain concerns about the legislation being vulnerable to challenge but there is nothing stopping the Oireachtas not going down a constitutional route. It does not need to do something about it.
On people leaving the country, why would the Garda intercept in some cases and not others?
Dr. Tom Hickey
I am a little reluctant to answer this. It is a very interesting question, but I am not sure if I have the legal expertise in the particular question.
Dr. Andrea Mulligan
It is very difficult on the travel question. If we consider the analogy with the termination of pregnancy, it was necessary to insert a specific right to travel to access abortion services.
There is at least an argument that there is an entitlement to stop someone going abroad to end a life, for example. There is probably tacit acceptance that it is quite different from going abroad to take drugs in a jurisdiction where that is legal. It is a tricky question of constitutional and criminal law and how they interact.
Dr. Casey is saying that the concerns of the Supreme Court and it's evident scepticism - that is his interpretation - that abuses could ever be curbed entirely are very relevant to assessing whether potential legislative reforms could ever be consistent with the State's solemn duty to protect life. That is one matter.
I come back to a theme I have mentioned in the context of Dr. Mulligan's four questions, which are going to stay with us for a while. If we do agree with the principle of giving people a right to assistance in ending their lives, who are those people and what are the key characteristics involved? The Samaritans sent us a paper about the importance of language. At this and the committee's previous meeting, I have already heard circumstances being referred to where there is an assumption that it is people with particular conditions who are most likely to seek assistance. Do the witnesses share my view? I will not be remotely put out if they do not. It is a concern of mine that if we get into conditions, we are falling into exactly the category of what the Supreme Court said, that there would be implications for third parties or society at large. I am not even going to name any of the conditions. Our guests know the ones that are stereotypically connected with the matter. On abuses of legislation, what ought we, as legislators, look out for?
Dr. Andrea Mulligan
I do not think it is necessary to name conditions, even if we did go down the road of legalisation. I cannot think of a jurisdiction where they name conditions. I would imagine that it would cause particular policy concerns if conditions were named.
I am not asking that; I was talking about the dangers of making assumptions about conditions.
Dr. Andrea Mulligan
Exactly, I am agreeing.
What are the characteristics that are used?
Dr. Andrea Mulligan
It would be necessary to go for neutral characteristics. If we were going down the terminal illness route, we would be looking at proximity to death, I suppose, and then pain and ways to describe pain. We would be looking for ways to describe those in neutral, legal terms. We would also have to be looking at ways that somebody would be willing to assess. It is difficult. Other jurisdictions have done it. Input from doctors would definitely be needed to describe those things.
What about people who are not close to end of life?
Dr. Andrea Mulligan
As far as I am aware, I know of jurisdictions that go with end-of-life-related criteria and others that go with pain-based criteria. I do not know of any other categories.
Dr. Tom Hickey
Settled will.
Dr. Andrea Mulligan
As well, yes. Off the top of my head, I do not know of anywhere that simply allows individuals to avail of assisted suicide in the absence of either pain or a terminal illness. They have to have one of those two. I do not know of a jurisdiction that just gives a general right to everybody to assisted dying.
Dr. Conor Casey
Just to clarify that on paragraph 21 of my briefing document I was referring to the divisional High Court's discussion of potential dangers of liberalisation. The Supreme Court did not engage in the same very considered setting out of concerns. That was in the divisional High Court. I would note that Mr. Justice Hogan is now on the Supreme Court. On the point of conditions, I think my colleagues would agree that Article 40.1, the equality provision in the Constitution, is a bit of a messy area of law. I think the starting point is that the Oireachtas has a great deal of leeway - some people say far too much - to make distinctions and discriminate between different groups of persons.
There is some important commentary in the High Court judgment. It discusses the combined effect of Article 40.3 and the equality provision, which "commits the State to valuing equally the life of all persons", so it even italicised the "equally" and "all".
It goes on to say:
In the eyes of the Constitution, the last days of the life of an elderly, terminally ill and disabled patient facing death have the same value, possess the same intrinsic human dignity and naturally enjoy the same protection as the life of the healthy young person on the cusp of adulthood and in the prime of their life.
That would be relevant to trying to set neutral conditions were the Oireachtas minded to do that. The divisional court is rich in obiter commentary that would have to be reckoned with.
Dr. Andrea Mulligan
I also referred to the High Court rather than the Supreme Court in Fleming because, as Dr. Casey says, the Supreme Court does not engage with the issues in the way the High Court does. Even though the High Court says there is a right but it can be limited, it still goes into far more detail on the potential abuses. It does advert to some abuses. It is looking at people who do not want to die being coerced and to individuals feeling like a burden and making a decision for that reason. It also adverts to things such as challenges around mental illness and difficulties in assessing pain. It talks about the subjectivity of pain too. Abuse and those kinds of issues are what it was concerned about.
Which of those is the biggest? It strikes me that feeling a burden would be one of the significant ones.
If I may add to that, is there a difference between someone being told they are a burden and not wanting to live as a burden? It could be someone positively affirming they do not want to be a burden regardless of whether people in their lives perceive them as such. They two very different things. One is where someone is making a decision on the basis of something being a threat to their dignity and sense of who they are because they feel they are a burden and the other is someone feeling like they are a burden and that they would feel different.
Dr. Tom Hickey
There is a distinction there. I follow the Senator's line of thought. Surely, however, the State ought to be, and arguably is, under a constitutional obligation to protect people in each of those situations; it is not just the person who is made feel a burden but also the person who feels that he or she is a burden and does not want to be one. We need to protect that person too.
Let us go back to the concept of the protection of life. How far does that go in the Constitution? How far does that push us as legislators? We asked this earlier. There is scholarly thinking around how we do not do things that ensure that in every way possible. Is there an interpretation of that in the context of the expectation on the Oireachtas or is it the idea more up in the sky?
There are two different opinions here on whether the Oireachtas can legislate on this. We have heard about how the Fleming judgement contains a line that the Oireachtas should legislate for it. Will we, particularly when one considers all the other areas of the Constitution, including the protection of the right to life, be able to legislate for it? I might be pre-empting the rest of the committee's work, but is there a space within which we can come up with legislation that would manage all this or does the Constitution contain so many elements that it would make it too complex for us to do that?
Dr. Tom Hickey
That is a really interesting question. The answer to both questions is the same: what does the obligation to vindicate life mean? What implications does it have, constitutionally speaking? I would say that it means you have to take it seriously. People obviously have different perspectives in the world, in our society and in our Parliament, which is appropriate. What Parliament has to do is take the matter seriously and come up with a regime.
The courts will then say that the issue was taken seriously and they can defer presumption of constitutionality. That is the answer to the question from the standpoint of the Constitution.
The Senator's second question was about whether the Oireachtas will be able to come up with a regime or if it is simply too complicated. It is difficult to answer that without getting into my own views. As a constitutional lawyer, I would say that it is possible to come up with a position. As a person with views, I would say it is going to be extremely difficult in practice.
I thank Dr. Casey, Dr. Hickey and Dr. Mulligan for attending. Their engagement has been very invigorating, interesting and thoughtful. We have learned a lot from their expertise. We really appreciate their time, which is valuable and scarce. It is the rarest commodity there is and we do not have enough of it. I thank all the witnesses. At our next meeting, we will continue to look at the constitutional and legal issues around assisted dying.
The joint committee adjourned at 1.41 p.m. until 10.30 a.m. on Tuesday, 27 June 2023.