Joint Committee on Assisted Dying debate -
Tuesday, 4 Jul 2023

Legal Protections and Sanctions: Discussion

An Cathaoirleach

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This committee discusses issues surrounding suicide and dying. Support information can be found on the committee web page. Today, we have engagement on the topic of legal protections and sanctions in relation to assisted dying. We welcome Professor Richard Huxtable, University of Bristol; Mr. Kevin Kelly, BL, degree candidate at the Honourable Society of King’s Inns; and Dr. Simon Mills, SC. We are grateful to them for sharing their knowledge and giving their time.

The format is that after all of the witnesses have given their opening statements, the members will then ask questions, and a member can ask an individual witness a question or address a question to all the witnesses. Before we begin, I point out to the witnesses that the clocks will show them that each member has a duration of seven minutes, which includes the answer time. I ask everyone to try to stick to that as best as we can because it makes the running of the meeting more efficient and organised. I invite Professor Richard Huxtable to make his opening statement.

Professor Richard Huxtable

Thank you. I am professor of medical ethics and law at the University of Bristol, where I direct the Centre for Ethics in Medicine, based in the Medical School. My research is funded by, among others, the Wellcome Trust and the National Institute for Health and Care Research, NIHR, and I serve on a range of committees and boards, including those of the UK Clinical Ethics Network, the European Association of Centres of Medical Ethics, the Bristol Clinical Ethics Advisory Group and the research committee of the Institute of Medical Ethics. I also recently served as an expert adviser to a citizens' jury in Jersey which ultimately recommended that assisted dying be legalised in that jurisdiction. However, the views I express in evidence are my own and not necessarily those of the groups with which and for which I work. I have been undertaking research into the legal and ethical aspects of assisted dying and end-of-life care since the mid-1990s. In legal terms, I am most familiar with the law governing assisted dying in England and Wales, and the current focus of my research in this area is primarily on the ethical issues.

My own ethical position on assisted dying distinctively occupies the middle ground, in recognition of the arguments on both sides, which I will briefly summarise. Arguments in favour tend to rest on one or more of the following three claims. First, choice matters. Life has a self-determined value so people who are capable of making the relevant choice should be at liberty to determine the timing and manner of their deaths. Second, suffering matters. Life has instrumental value insofar as it can enable people to achieve that which they do value, and where life has a poor quality or is marked by suffering, this may be a basis for allowing assistance in dying. Third, consistency matters. Some claim that many legal systems already permit practices which rest on identical or similar justifications, so it would be consistent to permit assisted dying as well. Examples include euthanasia of suffering animals, the refusal of life-supporting treatment and withdrawing or withholding life-supporting treatment from incapacitated minors and adults.

Arguments against assisted dying tend to rest on one or more of the following three claims. First, life matters. Life has an intrinsic value, captured by concepts like dignity and the sanctity of human life, so it should not intentionally be brought to an end, and the lives of potentially vulnerable people, including people with disabilities, should be protected. Second, medicine matters. Providing assistance in dying is incompatible with the values inherent to, or adopted in, medical practice. Third, consequences matter. The so-called slippery slope objection holds that if we permit assisted dying in some apparently appropriate situations, then, either as a matter of logic or as a matter of fact, we will come to find ourselves accommodating assisted dying in less appropriate or even wholly inappropriate situations.

I see some of the merits and some of the problems with the arguments on each side, which has led me to defend some possible compromise positions. These include a proposal for a specific, reduced offence that I call compassionate killing, which seeks to reflect the killing aspect that concerns opponents of assisted dying and the compassion side that motivates those in favour.

If a decision were to be made to legalise assisted dying in some form, then my research to date suggests that the following four areas warrant careful attention. The first is to ensure the eligibility and other criteria are clear. As I understand it, models vary internationally. Regarding who may receive assistance in dying, some jurisdictions restrict this to the imminently terminally ill, for example, the death of an adult expected within six months, in Oregon in the USA. However, others are much more expansive, for example the Netherlands and Belgium reportedly allow assisted dying in situations where the patient is neither an adult nor terminally ill. Some jurisdictions only permit assisted dying when the patient takes the final fatal step, sometimes referred to as assisted suicide, while others allow another party to do so, so-called voluntary euthanasia. In those countries that allow the practice in some form, doctors tend to be the people who are legally permitted to assist in dying. However, given opposition from some members of the medical profession, some have queried whether a new group of specialists should be created to provide the service.

The second is to retain and, if necessary, enhance access to palliative care. Although views differ globally, specialist providers of palliative care tend to be opposed to the legalisation of assisted dying, and some express concerns that its availability might in some way compromise the provision of palliative care. Even if assisted dying is to become available, good quality care for the dying will still be needed. If it is judged to be necessary, one option might be to enshrine in law the right to access such care.

The third is to include a right to conscientiously object to participation in assistance in dying. If, as is often stipulated, doctors are to provide assistance in dying, some will object to doing so. If so, they should not be required to provide such assistance and they should be protected if they object. Provision should be made for such objections while also respecting the right or other legal entitlement of the patient to receive assistance in dying.

The fourth is to ensure that there are safeguards, ongoing monitoring and that boundaries are enforced. As I understand it, monitoring mechanisms vary internationally. For example, the Netherlands has a review committee which may refer matters on to prosecutors and in Switzerland all assisted deaths are reported to local authorities and all are investigated by the police. There are, however, periodic reports of legal criteria and processes not being following, but apparently no further legal action being taken. I would suggest that if slippery slopes are to be avoided, safeguards will be needed, the practices should be monitored, and the boundaries should be policed, with suitable penalties available and applied to those who fail to comply.

Mr. Kevin Kelly

It is an honour to be invited here to speak to the committee about this pressing issue ten years after the Supreme Court stated that the Oireachtas may provide for assisted dying for persons in similar circumstances to those of the late Marie Fleming.

I would like to highlight the comments of Baroness Hale in the UK who stated that blanket prohibitions on assisted dying force people to stay alive "not for the sake of protecting themselves, but for the sake of protecting other people". She also added that a blanket prohibition could be regarded as a disproportionate interference with the right to privacy under the European convention as "it goes much further than is necessary to fulfil its stated aim of protecting the vulnerable" and "fails to strike a fair balance between the rights of those who have freely chosen to commit suicide but are unable to do so without some assistance and the interests of the community as a whole". This raises the question of how we can implement legal protections for people who are discriminated against by the 1993 Act.

As members of the committee are all aware, in Marie Fleming's case the Supreme Court effectively stated that once the Oireachtas strikes the adequate balance between the right to life and other fundamental rights as against the right to self-determination and bodily integrity of persons who are discriminated against by the 1993 Act, then such healthcare can be introduced, subject to adequate legal protections, and the court will give due regard to the assessments made by the Oireachtas in that regard.

Therefore, the implementation of adequate protections can be regarded as the key to constitutionality in this debate.

With regard to legal protections, which is the first matter I will address, this is an appropriate place to discuss incrementalism, which has been queried previously in this committee. I suggest that incrementalism and the slippery slope argument do not arise here. Unlike other countries, such as Canada, where incrementalism has been observed, the Supreme Court of Ireland has not held that blanket prohibitions on assisted dying are unconstitutional. Therefore, if the current Oireachtas was to introduce end-of-life healthcare as an exception in limited circumstances, it would not be possible to go further than that because of the Fleming judgment and because of the State's constitutional obligation to protect life. In essence, there is a limited window of opportunity in which the Oireachtas can amend the 1993 Act to provide for limited exceptions for people such as Marie Fleming. Unless there is a referendum or the judgment in the Fleming case is overturned, incrementalism is not a substantial issue here.

With regard to legal protections, the Canadian model is an apt exemplar for the creation of an exception under the 1993 Act in respect of competent adult persons who clearly consent to the termination of life and who have a grievous and irremediable medical condition, including an illness, disease or disability, that causes enduring suffering that is intolerable to the individual in the circumstances of that condition. Should such an exception be provided for under the 1993 Act, it would be possible to recharacterise this discussion as pertaining to a right not to be in intolerable pain, where the indirect effect is death, rather than necessarily as pertaining to a right to die. That is an important observation because it is something already permitted in this jurisdiction under the principle of double effect where medication is administered to alleviate pain even where it is known that it will hasten death. I note the legal distinction between acts and omissions in that regard but we must ask ourselves whether that distinction serves a valuable purpose in our society other than holding all of the contradicting practices and judgments in place and whether it protects life when we still allow healthcare to be administered where it is known that it will hasten death.

Healthcare directives could be used by persons who wish to avail of end-of-life healthcare in the future should they, at a later point, satisfy the criteria for the exception or where they already meet the threshold but are happy to extend their life until a certain point. This would allow people to rest assured that, if or when their irremediable condition deteriorates, they will not suffer while locked in their disabled body and will be relieved of their suffering. However, such advance directives would be revocable and, should a person have a directive and then, in a diminished state of cognitive ability, outwardly or otherwise express a will to live, that would be respected and the person would continue to live. The consent process would determine the person's consent at the time of the administration of the healthcare, where possible, rather than only at the time when he or she was cognitively functioning. In Canada, the words, sounds and gestures of cognitively impaired or incapacitated people are assessed when administering end-of-life treatment and revoking advance directives. Therefore, a legal scenario in which cognitively impaired people are treated with life-ending medication against their will simply because they had previously expressed a wish to die would not arise. Their consent would be assessed at the moment of administration, where possible. I urge the members to read my written statement for a fuller overview of this topic but, given the short window of speaking time, I will now turn to the second part of my submission, which relates to legal sanctions.

The question of legal sanctions is not one of great depth. We already operate a legal regime that sanctions those who aid, abet or procure the suicide of another. This means that there would have to be a category of exceptions to provide that assisted dying is not illegal but that, if someone assists another to complete suicide where that person does not meet the eligibility criteria or where that person does meet the criteria but the person assisting fails to observe or implement the procedural safeguards, the person assisting will be committing a criminal offence and will face a maximum sentence of 14 years, as per the current Act. However, upon the regulation of assisted dying, there will be a need to provide for a new offence for persons who unduly influence or coerce another into availing of end-of-life healthcare and for persons who abuse or exploit the existence of such healthcare in respect of the lives of others. In circumstances where this occurs and there is a consequent premature death, it would be appropriate for this to be dealt with similarly to murder given the mens rea, the mental element of a criminal offence, is similar to that of murder.

There would then be a further offence where there is an attempt to unduly influence someone into availing of such healthcare or otherwise but where death is averted. Given the similarities in the mens rea of that offence to attempted murder, it would be appropriate that it be dealt with similar to the pre-existing offence.

I believe, therefore, that an adequate balance between competing interests can be struck in this debate and that we can reaffirm the constitutional right to life to continue as a right to life and not impose it as a duty of living for those who are enduring intolerable pain and suffering. One thing that is important to bear in mind is that assisted dying does not apply to all of us. It only applies to those where death is on the horizon or for people in intolerable pain with no prospect of recovery, and then for those who wish to be relieved instead of availing of alternative treatment. We have the benefit of insight from other countries and we have a special opportunity to pick aspects that we like from different jurisdictions and make a system that reflects our particular society while vindicating the right to self-determination for those who are currently discriminated against by our current law.

I hope that was of some assistance. I am happy to take any questions in that regard.

Dr. Simon Mills

I thank committee members for inviting all of us to set out our various views today and for the work they have done in the meetings to date. I have taken the opportunity to look at what happened at all of the previous meetings. I will be cautious about spending time restating matters members have already heard.

The invitation to us was to address the issue of legal protections and sanctions. In considering the question of legal protections, it is probably of some assistance to think about the various groups to which it will be necessary for legislation to afford legal protections. It occurs to me that there are probably four groups of people that this committee will want to think about in terms of any views it may form about legislation.

The first is protections for those who wish to seek assistance in dying. That is, protections that, as Professor Huxtable just observed, allow them to seek assistance in dying if it is provided for and also protect them against abuse of any legislation that may be in place. The second group comprises those who wish to operate under the legislation and that they will be protected from prosecution as long as, of course, they comply with the legislation. The third is those who wish to exercise a conscientious objection. Again, that is something that Professor Huxtable spoke about. I will come back and talk about one particular aspect of that to which the committee might want to give some thought. It arises out of research that has been done into the abortion legislation and its operation. The final group comprises those who are concerned about an act that is done in good faith under the legislation, but which is not a negligent act or an unlawful act, which might result in harm to the person who requested assisted dying.

On sanctions, members need to think about three different things. First, as Mr. Kelly just observed, is the sanctions that would attach to those who do an act that results in death otherwise not in accordance with the legislation, in other words, somebody who perpetrates what is an unlawful killing because the terms of the legislation were not followed - circumstances where that has happened knowingly or recklessly. The second is perhaps a second tier of offences that any legislation would have to deal with, which are those acts that involved a procedural non-compliance with the legislation, that is, a failure to follow rules that have been set down. I will come back to that when I am talking about safeguards in order to highlight some of the rules that might be in place, such as the reporting of deaths that have taken place under legislation, and failure to comply with that. There might be requirements around record-keeping. Those are, if you like, second tier offences under the legislation.

The third issue that members may wish to consider is in respect of if they put in place particular provisions such as a conscientious objection provision and if a person knowingly or willingly fails to operate in accordance with such a provision.

For example, the legislation may well say that in the event that you have a conscientious objection, you must take the following steps. It may well be appropriate that there would be some recourse for the powers that be in the event that somebody exploits or abuses what they claim to be a power of conscientious objection. I observe that issues of conscientious objection cut both ways, and I will have a specific point to make about that shortly.

In terms of my own personal background, I am currently a lawyer - a senior counsel - who specialises mainly in aspects of medical law. I am the co-author, with one of the witnesses the committee has already heard from, Professor Andrea Mulligan, of a book on medical law in Ireland which deals with, among other things, the area of assisted dying. Before I was a barrister, I was a doctor. I will come clean and say that I was an exceptionally mediocre doctor - one of the reasons I am now a lawyer - and that included, as part of my training, exposure to training in palliative care in Our Lady's Hospice in Dublin.

I want to say a few things about the background to all of what we are engaged in. The first thing is that all of this takes place against the backdrop of the Criminal Law (Suicide) Act 1993, a provision of which criminalises those who aid, abet, procure or counsel suicide. As things currently stand, it would be a criminal offence to do any of those things, and that is currently punishable by 14 years in prison. I would make the following observation, and I will deal with this slightly out of place compared to my written submission. Notwithstanding the existence of that legislation, there have been almost no prosecutions, and in so far as there has been a prosecution in recent years, that prosecution did not result in a conviction. Whether or not some weight should be attached to that is something the committee may want to bear in mind.

Of course, the other thing against the backdrop of which this meeting takes place is the fact it is ten years since the case of Fleming v. Ireland. By way of precursor, I make the observation that I was a junior counsel in the case of Fleming v. Ireland and I acted for Marie Fleming. I have to say that it was one of the greater honours of my professional career to date to get to do so, but it does have one practical corollary, which is as follows. Barristers are not supposed to comment on the rights and wrongs of a case that they have been involved in, so I am simply going to confine myself to talking about what the Fleming decision actually says. It is clear from the case of Fleming that the Supreme Court was not satisfied that there is a right to suicide under the Irish Constitution and still less a right to assistance to commit suicide. That turns on an observation that has been made regularly in the Irish courts, and this has been drawn to the committee's attention by other witnesses so far, going back to in re A Ward of Court and recently articulated in the case of the Governor of X Prison v. McD. This is that the Irish courts have recognised a distinction in a person electing or taking steps the consequence of which will involve their life being shortened but which do not amount to them ending their own life or somebody else ending their life. They have elected to recognise that there is a legal and moral distinction between those things and that remains the case.

However, one thing was very clear from the decision in Fleming, which is that the Supreme Court recognised that this is an area of very significant and complex social policy and it is one of those areas in which the Oireachtas has a special competence to legislate. In the same way that the Supreme Court was disinclined to intervene to try to fashion a remedy either for Ms Fleming herself - it was clear, certainly at the High Court, that if they could have done that, they might have been minded to do so, but they did not - they were conscious of the fact that fashioning law on assisted dying from the Bench was not the way to go about it, and they were also clear that this was a matter that was within the competence of the Oireachtas to legislate for.

To go back to the previous meetings, I heard the submissions of Dr. Casey, Dr. Mulligan and Dr. Hickey when the committee dealt with the legal and constitutional aspects of all of this.

Although I am not specifically a constitutional lawyer, insofar as I have knowledge of these matters and have written and spoken about them, I forcefully disagree with Dr. Conor Casey's interpretation of the Fleming case and endorse the view expressed to the committee by Dr. Hickey and Dr. Mulligan.

I wish to make another observation before I move on to safeguards. We, as witnesses, are here as lawyers and academics to give the committee the benefit of what we think about all of this. There is a substitute for our arid and academic views, which is to understand the lived experience of those with terminal illnesses, of those operating under these schemes in other jurisdictions and of those who have engaged in the legislative rough and tumble of bringing this sort of legislation into being. I stress that, although I hope these sessions are of some theoretical use to committee members, it will be necessary to engage with the nitty-gritty of all of this, as I am sure the committee is aware.

I will deal briefly with safeguards because I know committee members will want to ask questions about all of this in due course. In terms of safeguards, there are a number of headings the committee must consider. The first, in terms of broad limitations, is to what range of conditions any legislation would apply. In different countries, different approaches have been adopted - for example, it must be a terminal condition or in some cases terminal conditions with time limits have been adopted. I am unpersuaded that strict time limits are of particular use. Other conditions allowed are those that involve intolerable suffering. The committee may view that there are elements of subjectivity to the words "intolerable suffering". Other things that have been allowed are psychological conditions - that is to say non-physical. Which of those will the committee choose from? Members may wish to discuss that issue.

The committee also must consider the nature of the assisted dying that will be permitted. Is it to be assisted dying that must be availed of by the person themselves? That is to say, it is the person who is doing the dying who must consume or administer the substance that ends their life or to what extent will assisted dying involve taking medical steps? The committee must consider these things. It is fine to think about all of this in the abstract, but there is a practical output of the committee's considerations, which members must think about, particularly in the context of those at whom legislation will be aimed. The committee must also think about the role of clinicians. Are they to involved at every step? Is it possible to provide a prescription to someone that they consume in their own time and in a place of their own choosing or must a clinician, for example, be present at the time of use of the substance that it is intended will bring about the end of life?

Any legislation must lay out certain tests that must be satisfied, such as proof of the existence of the condition in question and assessment of capacity, noting that we are all presumed to have capacity to make decisions, the provision of the information a person needs to make the decision and any other safeguards the Oireachtas may consider. Other safeguards include what determinations the committee will make about age, as well as autonomy safeguards to ensure this is the settled, voluntary choice of the person. Other issues include reporting, stating what has to be reported and recorded about each assisted dying decision made under the legislation, as well as issue of conscientious objection. I may come back and talk about conscientious objection and precise sanctions in reply to later questions.

An Cathaoirleach

Dr. Mills may reply to the questions, but if we do not get on to the questions we will run out of time.

Dr. Simon Mills

I am sorry if I-----

An Cathaoirleach

No, I thank Dr. Mills. What he said was very informative.

Senator Fiona O'Loughlin

I thank the witnesses. They have outlined complex areas. Given the short period for asking questions, I will pose a question to each of them.

My first question is for Dr. Mills, who spoke about the Fleming case and the fact the Supreme Court recognised that this is a very complex social issue. There is no doubt that legislation brought into being by these Houses sends a message no matter what. An assisted dying law, no matter how well intentioned, could possibly alter society's attitude towards those who are ill and dying and those who may not have the capacity to make the decision for themselves. It may send a subliminal message that assisted dying is an option people might have to consider. There may be a normalisation of it. This has to be a concern. All of the witnesses spoke about an adequate balance with regard to the safeguards that would be put in place. These would be very important. Of course, safeguards are about what happens in an ideal world. Monitoring would be very important and there is an acceptance that monitoring is carried out in a different way in each jurisdiction where this has been introduced.

Mr. Kelly spoke about those working in health professions and the possibility of them having a right to conscientious objection, which I think is the correct way to go. Would he be in favour of conscientious objectors having an obligation to refer patients to another health practitioner who does not have a conscientious objection? If this is the case could we have a similar situation as we do with the abortion laws, whereby there may not be somebody willing to help in some parts of the country? Mr. Kelly also mentioned having group of elite medical practitioners for whom this would be their sole purpose and focus.

Dr. Simon Mills

Senator O'Loughlin has asked several questions. If she does not mind me saying, wrapped up a couple of presuppositions in them.

Senator Fiona O'Loughlin

Yes.

Dr. Simon Mills

The first presupposition, which is, ultimately, the one the committee has to resolve, is the question of whether assisted dying should be legislated for. In the event it is legislated for, it is inescapable that there would be a degree of normalisation, which is the language Senator O'Loughlin has used. "Normalisation" is one of those words that can mean different things. If Senator O'Loughlin is using it in the sense that it will make a morally wrong thing acceptable, that presupposes someone's view that it is morally wrong. If it is to be assumed that it is an area of society around which reasonable people may disagree but it is a question of allowing people to make the choice if they wish to do so, then it follows that there is a normalisation in that limited sense.

Once it has been decided that it is something that may be permitted, attention turns to the question of preventing abuses. In many different ways there are steps that can be taken to address concerns if we wish to take them. The idea that people will begin to believe that because it is available it is something that they should consider is a choice. It is open to everybody in society to decide, once something is available, whether or not they should consider it. As long as they are engaging with it rationally and free of undue influence or duress, it is a consideration they are likely to engage in.

Another element to point out is that insofar as safeguards are concerned, most countries include a system of safeguards that allows for multiple input from clinicians, starting typically with the person's own treating clinician. That clinician is likely to be one of the people who knows that individual best.

It is worth factoring into this that it is likely to be someone who knows the patient well. Safeguards can be put in place, and we might discuss specific ones later, but I wish to let Mr. Kelly answer the other limb of the question, assuming I have answered this one.

Senator Fiona O'Loughlin

Dr. Mills has, but I also asked about conscientious objection.

Dr. Simon Mills

I am sorry. I thought the Senator had asked that of Mr. Kelly. It will always be the case that conscientious objection involves the balancing of the right of the person to access a medical option that is available to him or her with the right of an individual to refuse it. There should be nothing about the person’s exercise of conscientious objection that closes off the right of the individual to access that treatment. That will always be a difficult balancing act. I understand that there are those who have views about the way in which conscientious objection is framed under the abortion legislation but, because of the necessity to balance those two parts, there will always be that challenge.

Senator Fiona O'Loughlin

Professor Huxtable spoke about a reduced offence that could be introduced. He referred to compassionate killing as a type of compromise. How does that differ from legalising assisted dying and maintaining the status quo? Either we do it or we do not. I am not sure how the compromise fits in, so perhaps Professor Huxtable will enlighten me.

An Cathaoirleach

Professor Huxtable should try to keep within time, as we have run over on this slot.

Professor Richard Huxtable

I will keep it fairly brief. I should preface my comments by saying that the model I proposed is based on my reading of the law in England and Wales, so it may need to be tailored for other jurisdictions, the committee’s included. Essentially, what happens a great deal in our ethical debates about what the law should say about assisted dying is that we tend to put this in terms of whether the practice should be justified or not justified. What I try to do with the proposal of a possible alternative offence is to put it in the language of excuse, thereby splitting the difference by recognising that what we are discussing has a degree of wrongdoing but also a degree of right doing. It might then be a lesser offence than homicide and be dealt with more leniently, particularly where family members are involved and so forth. That is broadly the picture of the proposal. The idea is that it would sit outside regular homicide law and the black and white terms of justified and instead permit a degree of excuse. That is the middle ground I have pondered but I recognise that it has not been well received on either side, perhaps understandably.

An Cathaoirleach

I thank Professor Huxtable.

Senator Mary Seery Kearney

I thank the witnesses. Dr. Mills has given us an excellent framework in which to operate and for us to put flesh on the bones of - the need to put in place safeguards for those who wish to avail of the option, a defence or freedom from prosecution for medical personnel who administer assisted dying, conscientious objection and freedom from harm while also determining whether the safeguards are being violated, whether the death is lawful or unlawful and the procedural implications of whether the option has been administered. I found that helpful in substantive and procedural terms.

Regarding a number of references made in the opening statements, I looked to Professor Penney Lewis’s assessment of the effectiveness of safeguards in the context of the 2021 report of the Netherlands authority. Professor Huxtable is broadly in line with Dr. Mills’s view of where it is we need to concentrate. My overarching concern is that, while I want us to legislate and put in place safeguards, it is only the current composition of the Oireachtas that is interpreting what is being said today.

I am at variance with Mr. Kelly, who stated that incrementalism was impossible because of the difference between the Canadian Supreme Court's finding that a blanket ban was unconstitutional versus our own court's finding.

I checked and found that there are 33 Irish Supreme Court cases that deal with or discuss suicide. Of those, the most recent that is relevant for our purposes is Donnelly v. the Minister for Social Protection, the decision on which was given this day last year. The court made the distinction that the Canadian Supreme Court went from a place of establishing a right to die by suicide to the question of whether it was proportionate to legislate. The terminology used in our Supreme Court by Ms Justice Iseult O'Malley was "no support in the jurisprudence of the court for such an approach and the court accordingly reserved its position for a case in which the issue properly arose". The question has never been put to our Supreme Court thus far, so we are not in a position to make the decision.

What happened in Canada began with the Carter case that Mr. Kelly cited, in which it was found that an absolute ban was unconstitutional. Then there was Bill C-14, which put in safeguards, and then there was the Truchon case, in respect of which it was found that foreseeability of dying was too restrictive and not compatible with the Canadian Charter of Rights and Freedoms. Then there was Bill C-7, which removed the obligation to offer palliative care, removing the ten-day period. Therefore, there was a diminishment. Now there is the prospect of mental illness being a reason for assisted dying. Therefore, in a short period of years, Canada has gone all the way from the constitutional position involving a right to suicide to a position covering quite a wide gamut. I am concerned about how we will safeguard people thoroughly if we provide legislation and safeguards now. The minute we put in the law, the constitutionality of the position will be tested. According to the 2021 report from the Netherlands, there were seven cases that did not adhere to or violated what Dr. Mills would have said are the procedural aspects. None was found to be prosecutable, and there was no reference for a prosecution. I wonder about the diminishing sense of seriousness in that if something is regarded as merely procedural, it is fine. I note that suggestions have been made that it should be fine. Therefore, it would appear that mores have changed as a consequence of legislating.

How do we ensure, by way of oversight, that we do not dilute the value of life? While I look forward with trepidation to hearing directly from those affected, I would say that while there are those for whom choosing assisted dying is a prospect, many others with terminal illnesses and in similar circumstances will not want to exercise the right. There are those who do and those who do not. In a just society, we have a duty to legislate for those who do; however, how do we ensure the oversight is absolute?

Mr. Kevin Kelly

On the comment on incrementalism, I did say that save for Fleming being overturned or there being a referendum, I do not believe incrementalism is an issue. A judgment has been provided in which it is stated that there is a very niche and narrow opportunity to introduce the healthcare in question for people in circumstances such as those of the late Marie Fleming. If in those circumstances that remains the status quo in terms of legal sources, I must ask whether incrementalism applies. If there is a very adequate balance to be struck based on the current Constitution and the current Supreme Court judgment, then there is a very limited margin of opportunity. If there is to be a case where the Supreme Court goes beyond that and holds that the law is unconstitutional, we will have to provide for it anyway. Therefore, I do not see it as an obstacle.

There might be a fear in this regard but in terms of an obstacle to implementation, that judgment means there is a very niche and narrow area to provide for a certain limited group of persons or circumstances that give a right to introduce assisted suicide. Once anything goes beyond that or the right to life becomes tarnished, the Constitution is already there. The Fleming judgment is already there, which states that the State has a positive obligation to uphold life.

Once the slippery slope onsets, any such loosening could be regarded as unconstitutional. If it were to arise that a case is made and is raised properly, as the Senator indicated, and if the court is to find in a subsequent case that it is unconstitutional, that means we will have to legislate for it because it means it is unconstitutional to have a blanket prohibition. Whichever way one looks at it, there is either going to be a limited set of circumstances provided for under the current regime or there is a case that is properly made and the Supreme Court overturns Fleming, in which case we will have to provide for it anyway because it is unconstitutional in respect of the 1993 Act. My point is that in circumstances where Fleming is the leading judgment and the Constitution still provides for the right to life, I think incrementalism is not a poignant fear. If the other case is to be made, then it might be considered that the 1993 Act is unconstitutional.

Senator Mary Seery Kearney

Mr. Kelly cannot rule out incrementalism. There may be cases. He just cited a catalogue of how it can arise, in line with the way it arose in Canada.

Mr. Kevin Kelly

That has not happened here yet. If it were to happen-----

Senator Mary Seery Kearney

The fact it has not happened does not mean it cannot happen. Mr. Kelly has put forward a very absolute position that the matter does not arise. In fact, it does arise for us as legislators. It arises as a very strong possibility that we need to consider. When we are taking statements, exploring the issue and considering the duty on us as legislators, we must consider it as a possibility.

Deputy Robert Troy

I thank the three witnesses for their engagement. I will follow up on what my colleague has been questioning. I am interested to hear the views of the other two witnesses on the possibilities in this regard. Mr. Kelly has taken an absolute position on this. This is a choice of ours, the court's decision being that it is a competence of the Oireachtas. If we choose to introduce this in a very restricted way on day one, is there is an absolute guarantee it will not evolve over time? In previous sessions, some of our witnesses spoke about how such provision was introduced elsewhere in a very restrictive way initially and this had an impact from a cultural perspective, leading over time to a more liberal approach. I am interested to hear the views of Dr. Mills and Professor Huxtable on that.

Professor Richard Huxtable

I have three or four remarks to make. First, reference was made earlier to Penney Lewis's work with Isra Black. Their review seemed to suggest that, on balance across a variety of legal systems that have taken the step to allow some form of assisted dying, the safeguards were effective and there is no evidence of incrementalism or a slippery slope. I would add that from my reading of the literature, the evidence does not all point in one direction. It is contested. The data themselves are contested as to whether there is evidence of slope. For my own part, I observe that looking to the Netherlands, for example, it is notable that provision began in the early 1970s with instances of incurable and terminal illness and moved in the early 1990s to psychiatric suffering as a ground for euthanasia. Since then, there has been a long-running debate around the status of so-called life fatigue, that is, being tired of life, as a basis for euthanasia or assisted dying. There have even been protocols applying euthanasia-type practices to critically ill children, which is a considerable distance from the application to adults originally envisaged under the law. I personally think there is some evidence of slope out there. I even query if we are seeing such evidence in Canada as well with regard to media reports around whether assisted dying or assisted suicide is being motivated by poverty, a lack of social support and so on. The data are contested and we can disagree about whether a slope is evidenced.

However, in the interests of balance, I note that more commentators seem to feel the Oregon model, which, as I understand it, is more what we might call assisted suicide with the patient taking the final fatal step and the process being restricted to those with terminal illness, has not resulted in a slippery slope.

On the question of whether we can introduce absolutely watertight legal boundaries to ensure there is no slide, I fear we probably cannot. I am struck by a remark, which I believe was made by Mr. Griffiths writing in an academic law report in the early 1990s, pointing out the human tendency to test the limits of regulation. I suspect there is something in the nature of the law that evolution might well happen.

I wonder whether we might approach the question not merely by looking at assisted dying in isolation, but by looking at a suite of laws or policies more generally. For example, if we are concerned with protecting people with disabilities, is there more we can do to protect them and to improve their situation in myriad ways? Related to that, could we introduce some sort of palliative care process or filter such as I have mentioned? Beyond that, do we have adequate provision of good quality care for the dying? I wonder if part of the answer involves not merely looking at assisted dying in isolation, but looking at a potential suite of social measures.

Deputy Robert Troy

To be very clear, in Professor Huxtable's opinion, there is no way we can introduce a cast-iron guarantee that it will not expand over a period of time?

Professor Richard Huxtable

I fear not because law is not static but I do------

Deputy Robert Troy

I thank Professor Huxtable. I would just-----

Professor Richard Huxtable

-----defer to colleagues who are more expert in the Constitution.

Deputy Robert Troy

I would just be interested in-----

An Cathaoirleach

I call Dr. Mills.

Dr. Simon Mills

I believe Professor Huxtable was just finishing an answer when Deputy Troy spoke across him. I believe he was going to say something that I was going to say, which is that this is a parliamentary democracy and none of our laws are preserved in amber, although some of them may perhaps be the same as they are now in 100 years. It is no sort of answer for a parliamentary democracy to say that it cannot introduce a law because the law might change in the future. With the greatest respect to this committee, that would be an absolute abdication of responsibility on the part of the Oireachtas.

I will go back to something that may answer Senator Seery Kearney's question as well as Deputy Troy's. I refer to this fear of incrementalism. First of all, is it a justified fear? On one analysis, it may be but, bearing in mind that laws change and have always changed, is this incrementalism something to be feared or something to be weighed in the balance among all the other things that must be considered whenever the Oireachtas legislates? If it does nothing, the next Fleming case could come along in six months or a year with a different set of facts and different evidence and the Supreme Court may make a decision that is way more far-reaching than something the Oireachtas might legislate for. One of the things members must be alive to is that, if what they are concerned about is the unknown, they should legislate. Why not legislate for what the Oireachtas determines are the appropriate limits? There is an important aspect of the Fleming case. The aspect that led to the case being lost is also the aspect that will lead to members being able to have some confidence that what they decide to legislate for will be respected by the Supreme Court. For exactly the same reason the Supreme Court said that this is an area of complex area of social policy and must be a matter for the Oireachtas, if the Oireachtas decides to legislate a certain way, the court will show great deference to what the Oireachtas has decided to exclude.

I will echo one thing that Professor Huxtable said. In fact, it is what I was originally going to start with but I did not want to piggyback on him so shamelessly. The idea that we would introduce legislation about assisted dying without properly funding palliative care, healthcare services, social services and educational services is rather shameful. There is an idea that assisted dying exists as a right on its own. It exists along with the right of every citizen in this country to live a dignified life right up until the moment of their dignified death. That is something that must be borne in mind in approaching this whole area which, as the Supreme Court said, is an area of complex social policy.

Deputy Gino Kenny

I thank the witnesses for their engagement in what has been a great discussion. I refer to Mr. Kelly's opening statement. It is important to talk about incrementalism because it is an important element of our consideration of provision for assisted dying. It is a fallacious argument to say that if A is introduced, B and C will follow. Where assisted dying has been introduced, including in the United States, Australia and New Zealand, the remit of that legislation has generally been basically static. In the Benelux countries, provision has become more liberal, which is a matter for debate. It is important to note there are regimes where provision has remained static. There is a narrative, which almost trivialises the issue of assisted dying, that if someone with a terminal diagnosis who is coming to the end of life avails of assisted dying, then somebody with a condition other than a terminal illness can say: "If they can get it, why cannot I?" That trivialises the whole issue. It is important that Mr. Kelly mentioned that point.

On conscientious objection, my understanding of legislation on abortion is that if a doctor conscientiously objects to somebody availing of a termination, that doctor can refer the person to another doctor. That is my understanding of the current law. There are parallels there with what we are discussing.

Going back to the point raised regarding a slippery slope, there is a certain element of fearmongering in this. We have seen that happening in respect of many social issues over the past 20 years, including marriage equality, abortion and divorce, with the argument being made that if something is implemented, then things will fall apart. Generally, that has not happened. Where legislation is introduced, it can be reviewed over time. That is part and parcel of the legislative process.

I understand Dr. Mills was close to the Marie Fleming case. This committee is trying to ascertain whether assisted dying can be legislated for in an Irish context, having regard to safeguards and all the criteria of international experience. If that is possible, we have to thrash out what the remit of the legislation should be. As part of that, we must look at different models. The models I would look to are those in New Zealand and Oregon. Provision is time-limited, with people with a terminal diagnosis having the ability to avail of assisted dying. If we are to legislate for assisted dying, that should be the model we choose.

What are the witnesses' views on conscientious objection and how assisted dying can be legislated for in an Irish context?

Dr. Simon Mills

I will try to answer the Deputy as quickly as possible. One of the things that is always important around all of this is the use of language. As should be clear from what Professor Huxtable has said today and what Dr. Louise Campbell said when she appeared before the committee last week, it probably is not fair to describe those who point to slippery slope arguments as being engaged in fearmongering. That is not helpful language. It is absolutely true that where people are not careful in how legislation is framed and how the terms of assisted dying are framed, there are examples around the world whereby the way in which assisted dying is delivered has changed over time. I do not think anybody is helped by saying somebody is fearmongering by pointing out this can happen.

That leads on to the Deputy's next question. If the slippery slope concern is a legitimate one, which I think it is in the sense that it is a concern people legitimately have, then how do we address it? We are already halfway along the road to doing so because we are talking about discriminating between the different types of legislation that are out there. The Deputy pointed to two models that certainly seem to me, from my reading of the various comparative Acts, to have attractions other legislation does not have. I refer to the New Zealand and Oregon examples.

That is a sensible place to look. It is helpful also that New Zealand has a legal background similar to ours. Clearly it is possible to legislate for it. The simple answer to the question is: "If you do not want the consequences that may be regarded by reasonably-minded people as unacceptable consequences of, for example, the Belgian legislation, then do not introduce the Belgian legislation." If you do not want the consequences of the Dutch legislation then do not introduce the Dutch legislation. I realise that making laws is very complicated but on this one point, it is not rocket science. Conscientious objection can be managed in a number of ways. I want to draw specific attention to the fact that this is a service that is going to be delivered by clinicians. One thing that became clear from a review of the abortion legislation is the position of those who are lower down in the medical hierarchy, such as junior doctors and non-consultant hospital doctors who work in institutions that may have an ethos that is one way or the other. In the sense of assisted dying let us assume it is an institution that is culturally less welcoming towards assisted dying or culturally more welcoming towards assisted dying. The position of those who are within the medical career structure and their freedom to exercise their conscientious objection, whether it is in favour or against abortion or in favour or against assisted dying, is something we need to give some thought to in any guidance that would accompany legislation. It can certainly be legislated for.

Mr. Kevin Kelly

It might appear that Dr. Mills, Professor Huxtable and I are of different opinions in regard to incrementalism. My contribution is not that incrementalism is not a thing. It is not a thing save for a referendum taking place or the Supreme Court overturning the Fleming judgment. I agree there is a risk of incrementalism if the circumstances in which we currently find ourselves were to change. However, I think that fear is telling us that we fear this is going to happen in ten years anyway so why not provide legislation which allows people to vindicate the right of self-determination at this moment in time. Why are we waiting for someone else in ten years' time to bring it in anyway in a more liberal way when we can do it now in a way that respects our views and society's views on this issue? I do not understand the reason for not wanting to introduce it out of fear that it will result in something and become more slippery or more loose because that means we are accepting that in ten or 15 or 20 years this might happen anyway, and it might happen in a more liberal form than any of us here approves of. Our fear is that it might happen, so let us just not do anything about it. I do not think that is an appropriate observation to have when you can bring it in in a way that for the time being respects the views of the committee on the matter and respects the current Constitution and the Fleming judgment. Are we going to fear the inevitable and just allow people's rights to self-determination and bodily integrity to be disregarded until someone more liberal, in terms of wanting to have a loose regime, comes into power? I do not think that is a fair way of looking at it. I know it is a risk. If we are fearful of it happening in any event, why not bring it in and regulate it in a way that respects our own views on this? I do not see a safeguard as to how we prevent something from being loose in the future. For the same reason, I do not see how we can avoid this from happening anyway. It is inevitable. If our fear is that this might be loosened, we are basically saying “we appreciate this is going to happen.” I do not understand why we would not provide for it now in a way of which we approve, to allow people who are alive now to end their suffering.

An Cathaoirleach

I now call Deputy Patrick Costello and we will go for the next reply immediately to Professor Huxtable.

Deputy Patrick Costello

What I wanted to explore more was some of the angles around the conscientious objection. Dr. Mills pre-empted my questions to a certain degree. We have the issue of conscientious objection in regard to abortion. I would love to hear more about the experiences in regard to that and other areas of healthcare. Have there been cases where doctors felt the punishment, not just in regard to abortion but in other areas?

Have we drawn up the legislation in this area correctly? What are the particular details we should be looking at if we were to recommend legislation in the area of conscientious objection? From Professor Huxtable's perspective, how has this aspect panned out in England and Wales and what lessons could we in this jurisdiction take from the legal position around conscientious objection in that jurisdiction?

Professor Richard Huxtable

I will happily pick up on conscientious objection. I will start with a reflection on the ethics of all this. Conventionally, and this is a word I will reuse in a moment, the position that tends to be adopted, whether regarding embryo research, abortion or assisting dying, has been labelled a "conventional compromise". This is where lawmakers attempt, on the one hand, to provide for, if it is to be a legal right, the rights of the patient to be honoured while at the same time trying to ensure the consciences of the relevant professionals are protected. The compromise consists in the fact that there will nonetheless be a bottom line, such as a duty to refer on the part of the objecting clinician to a colleague who will be willing to vindicate the patient's legal rights.

In this regard, one of the things I would like to introduce, which we have not really picked up on, although it was referred to by Dr. Mills, is the position of not only the senior clinician, the consultant doctor, let us say, but other doctors as well, including junior doctors. I would like to widen our sphere of concern in this regard. If we envisage a model where the patient takes the final fatal step, as I have mentioned a couple of times, such as self-administration of some medication, presumably this medication needs to be prescribed and provided by a pharmacist. Presumably as well, there will be situations where the patient is in contact with the relevant doctor via the involvement of administrative staff. One of the tasks this committee will have to reflect on, therefore, is how far a right of conscientious objection should extend.

I apologise for not recalling the case name, but I do recall there was at least one legal case in England and Wales regarding the rights or otherwise of a secretary to type a referral letter concerning the termination of pregnancy. In that case, the court had to engage with the question of what counted as an act for the purposes of the relevant Act of Parliament in that instance. In that context, I think we should be thinking about a whole suite of people and, ethically, it is right we should do so. As mentioned, these are positions or ethical debates on which reasonable people can and will disagree. There will also be a sense that people will have their own conscientious objections, whether they are clinicians, pharmacists, administrators, etc. These are a few reflections I hope can go some way to answering the question.

Dr. Simon Mills

I agree with Professor Huxtable. I was probably excessively narrow in identifying the position of junior doctors, but they exemplify one aspect of this concept if we are to properly understand what is meant by conscientious objection, which is the free exercise of will insofar as it is possible to do so within the parameters of the legislation. To some extent, the committee had the dream witness on the matter of conscientious objection in front of it some weeks ago when Dr. Andrea Mulligan was before it. She is one of the authors of the Conscientious Objection after Repeal: Abortion, Law and Ethics, CORALE, study, which looks at the operation of conscientious objection under the abortion legislation. This work is either near publication or has been published. What this may well do is give the committee some insights into how those conscientious provisions are working, and they will probably give the committee a far greater insight than anything I might be able to say.

In addition to the case identified by Professor Huxtable, there has also been a Scottish case. Again, the name of it eludes me. I am sure we are both impressing the committee with our lack of preparation here. The Scottish case concerned a midwife who again asserted the right of conscientious objection in circumstances where she was not being asked to participate in terminations of pregnancies. I will try to find both cases and forward the information to the committee so the members can read about them.

Senator Annie Hoey

I thank the witnesses for their contributions. We went through this before when we talked about a dignified death. I do not know that we even provide now for a dignified death for every person in Ireland.

We touched on this before in the committee, in terms of people dying homeless on the streets or suffering because medicine has not caught up. I asked previously if it is possible to introduce something like this when the other side of it is not yet perfectly right. I will not rehash that question.

There was talk around the Supreme Court - it has not yet ruled on a case that could change this issue or look differently at it. We consistently go back to the Fleming case. I may be asking an impossible question but what would such a case involve? I am trying to think of other areas that have not been tested. Is that too much of a hypothetical question? What has not yet been examined by the Supreme Court which could, therefore, potentially result in a different ruling to Fleming or others? Am I plucking into the air?

Dr. Simon Mills

Is that question for me?

Senator Annie Hoey

Yes. For the two Irish-based witnesses.

Dr. Simon Mills

There are three possible answers to that. The first is a completely differently composed Supreme Court and that in half generation's time or a generation's time, it simply takes a different view. It could be exactly the same case and it takes a different view. The second is a case with different facts in which, for whatever reason, the court feels the particular circumstance of the particular person does, in fact, identify. I cannot imagine what that would be. The third, which the authors of Kelly: The Irish Constitution discuss, is the idea that there may be a case with a large number of interveners, that is to say, people who are not actually bringing the case but are able to bring a wide range of evidential and additional information to bear to the court, such that the court is satisfied there is a ruling it could make. Other possibilities might be that, by the time such a case comes to court, there is a slightly different legislative background - perhaps section 2 is no longer in place, has been tweaked or changed in some way or there have been decisions of the courts about the prosecution of section 2 of the Criminal Law (Suicide) Act 1993. Each of those is unlikely, but none of them is impossible. All I am doing is identifying the fact that, in the absence of doing something, there are other actors and certain decisions could be taken out of the hands of the Oireachtas. I think it is unlikely but not impossible.

Mr. Kevin Kelly

There is not much more to add. I completely agree with Dr. Mills. It is well known that the courts will always demonstrate a degree of deference to the Legislature and regards the Oireachtas as the administrative and policy engine of the State. With changes being implemented in legislation, there can be a sense of appreciation or acceptance of certain societal shifts. Through those, in conjunction with other factors, the court may respect that there is a change in society and could then implement that in a judgment.

Senator Rónán Mullen

I thank the witnesses for attending the committee and sharing their legal views, it is fair to say, to a considerable extent, their political views as well. I wish to address a question to Dr. Mills. It is an issue that came up briefly at previous meetings and in private session. In the event that we decided to bring forward legislation and, on foot of a petition from the Dáil and Seanad, it was referred by the President to a referendum on the grounds of its national importance as an issue and it was accepted, I presume that would not shield that legislation from further constitutional scrutiny. It would simply enable people to have a say on whether it should be enacted. Is that correct?

Dr. Simon Mills

Is that question directed at me?

An Cathaoirleach

Yes.

Dr. Simon Mills

There are a few different parts to that answer. The first is that it presupposes that some form of constitutional referendum would be required. Constitutional scholars have attended the committee previously.

Senator Rónán Mullen

I am not presupposing that it is required. I am suggesting that, for political reasons, it might be thought neat to put an issue like that to the people.

Dr. Simon Mills

I was going to go on and deal with that in a moment. One possibility is that it presupposes that it is required; I am not sure that it is. The second issue that arises is whether it might be thought an appropriate step to take, politically. If there was a referendum on the Constitution and there was a positive statement, as with abortion legislation, that the Oireachtas may legislate for assisted dying, then that would seem to strengthen the underpinning of any legislation that might be introduced, but it is not necessary because any legislation introduced by the Oireachtas has the presumption of constitutionality. That is the end of the story, to some extent. For anyone wishing to challenge the legislation, it would be to impugn the presumption of constitutionality. Even if there was a referendum which introduced it, I think the same test would still apply to challenging the presumption of constitutionality. I stress that I am not and would never hold myself out as being a constitutional lawyer. If this remains a live issue for the committee and it has outstanding points of concern, although I am more than willing to come back and help the committee with any questions further down the line, I suggest if the committee has outstanding points of concern that one of the constitutional lawyers who previously attended the committee may be of assistance in addressing those outstanding points of concern. As I said, I think the answer, ultimately, is that any legislation introduced would have the presumption of constitutionality. The comments made in the Fleming case about legislation and issues of complex social policy, as interpreted by Dr. Mulligan and Dr. Hickey, which I think is the correct interpretation of Fleming, are also something the committee could reasonably bear in mind.

Senator Rónán Mullen

I will stick with Dr. Mills - Mr. Kelly may wish to come in on this issue as well. I think it is fair to say that Dr. Mills reserves particular contempt for the idea that we might fail to introduce a law because of how that law might change in the future. He seems to be advising us to hedge against the possibility of the Supreme Court changing the law in the future and cling to the legislative nurse for fear of getting a worse Supreme Court perhaps in the future. Is it not fair to say that it is always appropriate for legislators to consider how attitudes might change as a result of a change in the law? For example, there has been a lot of reference to abortion. There is clear evidence that abortion rates have gone up as a result of a change in the law. Changes happen as a result of new dynamics brought about by a change in the law. It might well be considered appropriate to factor that in. In the context of Dr. Mills mentioning, for example, the legal protections and the categories he named, is there not an admission of that category of person who feels that, if the law changes in such a way that it allows certain people to have their lives ended legally, with the permission of the State, that changes how people see themselves in the context of illness and how others see them? It may not be a legal issue but it is a philosophical issue and perhaps an anthropological issue that everybody is entitled to wrestle with, is it not?

Dr. Simon Mills

Firstly, I want to deal with the opening part of the remark, which was the suggestion that I demonstrated any contempt for or towards the Oireachtas or any member of this committee-----

Senator Rónán Mullen

No, the proposition-----

Dr. Simon Mills

I ask the Senator to let me finish. I hope I have not done that. I do not like it to be suggested-----

An Cathaoirleach

No, Dr. Mills has not.

Senator Rónán Mullen

Nor was it said.

Dr. Simon Mills

I think it was said - that is why I am dealing with the word "contempt".

Senator Rónán Mullen

I wish to clarify. I suggested that Dr. Mills had contempt for the proposition. I assure Dr. Mills that I did not mean anything denigratory by that.

Dr. Simon Mills

I do not-----

Senator Rónán Mullen

He was quite forceful in making that point.

Dr. Simon Mills

I may well have been forceful but I hope I did not make it in a contemptuous or dismissive fashion. It is an important point. I should say that I am not entirely sure what the Senator's question is. At the tail end of it seems to be whether there are complicated philosophical issues about how society might view itself in the event that the legislation was changed.

There may well be scope for complicated philosophical discussion, but it is just that - philosophical. Is it a philosophical discussion that would prevent members from legislating? I am not sure. Is it a philosophical discussion that might frame the legislation they sought to introduce? Perhaps. There are complicated philosophical discussions involved with every single piece of legislation the members introduce. The fact that this concerns issues of living and dying attracts a particular scrutiny because we are who we are. We are conscious of our mortality and the fact that we die. We are conscious of all sorts of things. We reserve a special status for our own life and death that we do not necessarily reserve for the life and death of other living creatures. All of that makes this important but they are part of the conversations that are had around every piece of legislation that is introduced. No particular philosophical issue is ever going to be a bar on the Oireachtas coming to a conclusion that there is a solution to the philosophical questions that are raised.

That is not to say that I accept the Senator's contention. I think it is a discussion for another occasion that there is necessarily some moral or cultural shift that must follow the enactment of legislation. It may be that there has been a moral and cultural shift that prefaces the legislation. It may be that there has been no moral or cultural shift but that it is simply a way in which people view living and dying in a world where we all live a lot longer than we used to and die in a manner that is very different from how we used to. It may all reflect other shifts in how we live and die in our modern lives rather than any sense of the value of death or the value of life. These are very complicated questions that may be for another day. I am here as a lawyer rather than as a philosopher. I would be more than happy to discuss that with the Senator on another occasion.

Senator Rónán Mullen

Of course. I thank Dr. Mills. He is certainly not accused of being contemptuous of anybody. However, I do hold to my point that I think he was wrongly contemptuous of the proposition that we might refuse to change laws because of the impact that very change might have in leading to future laws, the effects of which might be undesirable. Dr. Mills spoke eloquently on the subject of conscientious objection. It is something we are going to have to consider. Dr. Mills talked about people lower down in the food chain, so to speak, if I may use that expression. He is right to do so. There are people like secretaries in institutions, people who do not have power within establishments who might well be affected by changes of the law if we are not mindful. One thinks as well, of course, of institutions that are providing care for people. Will they at risk in the future if we create a right of being required in some way or in some circumstances to facilitate the exercise of that right? There may be a difference in the end, therefore, between creating a legal right to something and simply decriminalising it in certain circumstances.

An Cathaoirleach

We will have to take the reply to that in the second round. To be fair, I have to go to Deputy Higgins.

Deputy Emer Higgins

I thank our guests for being with us today and sharing their expertise on a particularly complex area of potential legislation. Following on from the previous contribution, we are ten years on from the Marie Fleming case and neither society nor this Legislature has faced up to this issue yet. I want to legislate for assisted dying in a way which ensures that we introduce and legally enforce safeguards and parameters that protect people. The problem, as we have discussed today, is that those safeguards and parameters could be overturned over time. We have teased that out in a legal sense thanks to the contributions of Senator Seery Kearney and others. The reality is that we do not have a crystal ball. We cannot accurately project the societal trajectory or the culture at a different point. We cannot pre-empt the conclusions the Legislature or the Judiciary will draw in the future. However, the good news is that it is not our job to do that. It is our job to legislate for the here and now based on current and previous experience, and to future-proof legislation as best we can with a view to always protecting our citizens. We can do that in the comfort of knowing that we operate in a functioning democracy and that our future parliamentarians will be democratically elected and accountable to their electorate as we all are here today. We will be judged on whether we introduce legislation or not and, if we do, on whether we introduce adequate and appropriate safeguards.

I thank all the witnesses for their opening statements.

I really liked what Professor Huxtable said about looking at enshrining in law the right to palliative care. That would be a significant step for us to take as a society and an important message. I fully agree with everything he said on the right to conscientious objection. I was quite struck by what Mr. Kelly said about being able to reaffirm the right to die without conferring a duty to live. That eloquently sums up where we are at. I would be interested to hear more about the criterion of eligibility of intolerable pain that will result in death. When Dr. Andrea Mulligan was with us - I hope I interpreted her correctly - she seemed to be saying that the most legally straightforward way of introducing this would be for only the terminally ill. I would be quite interested to hear all three guests' perspectives on that.

We have heard a lot of debate about incrementalisation. The reality is we have seen dramatic increases, sometimes tenfold, in assisted dying over a short period of years where it was introduced in other countries. Of course, we have to be cognisant of that. Dr. Mills provided us with a list of safeguards, which I think are great for us for us to bear in mind, even as a work plan. Having sat on the health committee recently in respect of abortion, I am conscious that medical oversight comes with huge workload demands for medical practitioners. We need to look at that. Ultimately, on the criterion of terminally ill versus the inclusion of intolerable pain which leads to death, what are the legal ramifications? How do we define intolerable pain in legal terms?

If we have time, I would also be interested to hear about how we protect people who are now incapacitated but may have already signalled when they had capacity. I am quite concerned about that too.

Professor Richard Huxtable

I would reiterate the Deputy's question, although it is unhelpful. How do we define it? More helpfully, I hope, I would associate this question of how one can define intolerable pain or suffering approaching the end of life to the question of who gets to define it. For example, do we want this to rest entirely on the judgment of the person him or herself, the patient? Should it be the view of the patient shared by a clinician who will attest this is the case? Will we need a second opinion or even something beyond that? The question of how this is defined has to be intimately tied up with who gets to define it. Otherwise we are back to a debate we have had a great deal of today around incrementalism, slippery slopes and the like. I will not say anything further on that.

Mr. Kevin Kelly

On the Canadian test, which is what I am using as a reference, it is defined as intolerable to the individual in the circumstances of his or her condition. It is definitely a hybrid between objective and subjective, which I know might seem alarming. In the Canadian test, they have a procedure involving an independent witness, that is, a non-clinician, someone who could not be a beneficiary from the person's death, who is not in the person's will and who has no incentive to act as an independent witness. I think there may also be two independent clinicians. The independent witness will stand to the person's subjective suffering and whether the person is in intolerable pain. The clinician input will be in respect of the objective medical condition and the pain in the person's life due to that. It is a hybrid between subjective and objective. I do think the safeguards imposed by the clinicians' assessment of objective suffering are one of the ways.

Deputy Emer Higgins

Does that take place in a courtroom or in the hospital grounds?

Mr. Kevin Kelly

I am not sure. It is definitely not in a courtroom. I think it is in a hospital or clinical setting, within the normal process of end-of-life healthcare. I am confident it is not court related. It might be solicitor related or something, to oversee that the witness is acting independently. I do not think it involves the court.

Dr. Simon Mills

I do not have much to add to what Professor Huxtable said. It is true to say the more objective the criteria that underpin legislation, the more robust the foundation on which legislation might reasonably be built. There are issues of subjectivity that surround questions of intolerable pain and suffering.

There are issues of elision, as in the slide between what is physical pain and suffering and what is emotional pain and suffering. Going back to what Deputy Higgins said about future changes, one of the opportunities the legislation would provide for is an opportunity for the Oireachtas to control the starting point.

Deputy Alan Farrell

I thank the witnesses for the fairly comprehensive discussions this morning and afternoon. I have been tuned into proceedings since they started; I was just not physically present. I have found this discussion to be very useful. Perhaps to a certain extent, for me at least, it draws a line under the legal question being pondered by the committee as to whether we can legislate. This is something that has already been set out in Supreme Court decisions but nonetheless it is worth exploring as to whether we can do it. The next question is whether we should.

Two areas I want to focus on are conscientious objection and the sanction associated with non-compliance with any law that might be set out. I will start by referencing Professor Huxtable's remark that life has a self-determined value such that people who are capable of making the relevant choice should be at liberty to determine the timing and manner of their deaths. I broadly agree with that statement, but I find I am exploring aspects of it, for instance, where an individual might be subject to a neurodegenerative condition or where he or she might not necessarily have expressed any opinion, or certainly not a definitive one, on his or her desire to end his or her life. Where would it leave clinicians, families and others if a person's right to a quality of life was compromised either by their condition or by conditions associated with neurodegenerative conditions, which, unfortunately, is often the case.

Several other matters were mentioned by the witnesses. One of those relates to compliance with the conditions set out. A secretary's letter was referenced. Perhaps the witnesses might like to extrapolate on that somewhat. There is also the import of the case of the Scottish nurse Dr. Mills mentioned. Perhaps that is something he might be able to expand upon. I have a simple question; that is, it as simple a question as one can put in this circumstance. Do the witnesses believe that the sanctions associated with, for example, the abortion legislation would be sufficient for the nature of any legislation that might flow from this committee's report and-or the decision of the Cabinet or the Oireachtas? Perhaps each of the witnesses might comment on those points.

Professor Richard Huxtable

I thank the Deputy. I have several observations. I hurriedly did my homework and found the source of the legal case regarding the secretary and the abortion referral letter that I mentioned earlier. It was a 1989 case, Janaway v. Salford Health Authority. The headline of the ruling, which, notably, was handed down quite some time ago, was that the conscientious objection available under the Abortion Act in England and Wales was to be applied only to persons directly involved in the provision of the abortion procedure. I admit that the case law may have moved on, but this is the case I recall. In that instance, it was quite a narrowly-drawn right to conscientious objection. As we are speaking about professionals in the plural, all of whom might have their own professional views and their own personal consciences, and they may well differ on this important question, I would invite the committee to give thought to how far the right to conscientiously object should extend. Beyond this, the committee should consider whether further safeguards in respect of conscientious objection will be needed.

One encounters remarks occasionally in the legal and ethical commentaries to the effect that there is somewhat of a quelling effect on people's careers. I confess that I do not have the data on this. It may well be that other witnesses would be better placed to furnish it to the Deputy. It is a sense that failure to perform a procedure that is legally permitted, and is the right of the patient, might well lead to some curtailment of employment or career prospects.

Deputy Farrell asked a direct question about sanctions and whether abortion provision might be the right model. I confess I do not know in detail whether that would be right but I broadly think, if we refer back to the observations made by Dr. Mills earlier, that we will always have the homicide law in the background so that would certainly be one avenue. There will need to be careful thought given to the process and procedural irregularities, whether there should be penalties, and whether those penalties should be criminal or should involve some form of professional sanction. It is not a concrete answer, but I suggest that to ensure the law is respected and has integrity, there will need to be a suite of sanctions to cover various sorts of wrongdoing.

Dr. Simon Mills

I do not have much to add to what Professor Huxtable said on the issue of sanctions. That is correct. The sanction to apply will have to be proportionate to the wrong that is being alleged. Certainly, the way in which the New Zealand legislation is framed is that it remains the case that to bring about the death of a person otherwise than in compliance with the legislation is homicide. If people fail to follow procedural requirements for record-keeping and matters other than the causing of death there are lesser penalties of fines equivalent to approximately €5,000 and imprisonment for up to either three or six months, I cannot remember which.

Deputy Farrell raised the issue of a person with a neurodegenerative condition. If that is a terminal illness and if it was decided that terminal illnesses would be covered by the legislation, then it would be covered. If what the Deputy is saying is that if that person comes to lack capacity, then one of the issues, and we may not have time to deal with now but we might deal with it in a second round, is the question of whether a decision made prior to the person becoming terminally ill should be binding if the person wishes to activate it. Perhaps that is something we can speak about later.

Mr. Kevin Kelly

The proportionality point is with regard to procedural flaws. For undue influence or coercion the homicide model could be fitting. I am not too aware of the abortion sanctions. I will defer to the previous comments of Dr. Mills and Professor Huxtable.

Senator Lynn Ruane

I thank all of the witnesses for their contributions. In this first round I will probably speak mainly to Professor Huxtable. I read the paper he wrote, Splitting the Difference? Principled Compromise and Assisted Dying. It is matched by his submission, which states that arguments against assisted dying tend to rest on a number of claims. The claim among these that I will focus on is that life matters and life has intrinsic value. The paper states Mullock and Holm give a fair account of the main moral dimensions of assisted dying whereby pleas for self-determination and mercy confront appeals to the intrinsic value of human life. The intrinsic value of human life and the fact that life matters are somehow in opposition to assisted dying or confronting the arguments on the other side. I get a bit stuck when I think about life being intrinsically good in and of itself. There are schools of thought that would say that the ability to experience is what is intrinsically good about life rather than life in its physical sense of aliveness. If life gains its intrinsic value from the ability to experience, should we not then consider the case of someone who is experiencing intolerable pain or suffering? Many philosophers and thinkers taking a utilitarian view would say that pain has a negative intrinsic value. Plato says it is intrinsically bad.

Many schools of thought say pain and suffering is intrinsically bad. It replaces the person's ability to experience life, not just in the physical sense but to exist in the human experience as one desires in the context of pleasure being intrinsically good. Would it not be fair to say the arguments against assisted dying do not stand up as a confrontational opposition to assisted dying? I ask that because Professor Huxtable's paper was interesting in respect of seeking compromise. As legislators, we try to find a compromise and think that is necessarily based on safeguards, but it is not. It is really based on how we understand value and the intrinsic value of life. I ask Professor Huxtable to comment on that. Dr. Mills said he is not here as a philosopher but I am hoping Professor Huxtable is here in that capacity because I am getting a bit stuck on how the intrinsic value of human life is one that involves pain as an intrinsic value.

An Cathaoirleach

I invite philosopher Huxtable to respond, please.

Professor Richard Huxtable

The huge existential question arises at this stage. I will not be able to answer it fully. The main thing I am doing in my evidence and in that article and various books is laying out the sheer existence of these different views. One can frame and express them in different ways. I readily concede the Senator's points. Some people would say that what is intrinsically valuable for life is a life of good quality and what is intrinsically harmful or devalues a life might be suffering, pain, distress and so on, whereas others would say the instrumental value lies in life in and of itself. I will further complicate things with two further points. The first is that I was trying to give a snapshot of the types of clusters of views that are out there and they will be expressed differently. The second point to note, which muddies the waters even further, is the sanctity of life position. If we take that as classically stated, which tends to be in Judaeo-Christian thinking and particularly in Roman Catholic thinking, for example, the sharp focus there is on the intentional ending of life, whether by action or omission. If we then start to explore what is meant by intention, we will realise there are limits. We may, for example, be able to foresee death as an outcome of our behaviour, provided we do not intend it. Things get much murkier much more quickly. I will not be able to resolve this issue but I readily take the Senator's point. There are different ways of expressing the clusters of broadly competing values that are out there.

Senator Lynn Ruane

I thank Professor Huxtable. I have time to ask a question of Mr. Kelly. There are two things in his paper that interest me. If I do not have time to address the second one in this round, I will come back to it. The paper refers to having to meet the medical criteria to avail of assisted dying in the case of it being regulated and that being set out, but it makes the point that persons who have certain mental health conditions, perhaps, would not be foreseen under particular frameworks. Within that, if there is both, where does that leave people who have a terminal illness and meet some sort of medical requirement, whether that be distance from death, the level of pain they are in or the diagnosis, but who, in addition, have suffered throughout their lifetime from some form of mental health illness, such as any sort of psychosis, schizophrenia or manic depression? When those two things meet, is there a risk of such a person's capacity and consent not being accepted because of the mental health issues on his or her record even though all the other criteria are met? How can one be balanced against the other? It could end up with a person who meets all the medical criteria being discriminated against based on the fact that he or she had some other conditions throughout his or her lifetime.

Mr. Kevin Kelly

As regards persons who meet the test in terms of a physical medical condition but whose mental health gives rise to there being a difficulty with competence, I am not very familiar with it but I am sure the Assisted Decision-Making (Capacity) Act would intervene and a third party could makes decisions. In circumstances where a person is conveying a will to end his or her life because of a degenerative illness or physical medical condition but, due to capacity, is deemed not able or competent to avail of assisted dying, if the incompetence is to a certain extent, the person could avail of the Assisted Decision-Making (Capacity) Act and probably have a third party act on his or her behalf.

An Cathaoirleach

I thank Deputy Lahart for his patience.

Deputy John Lahart

I thank the Cathaoirleach and the witnesses. Like some of my colleagues, I was following the meeting online. Several of the questions I wished to ask have been put. I will ask one question and invite each of the contributors to respond on it. It is a general question because I am conscious the public are watching these proceedings and there has been a lot of complicated, albeit interesting and stimulating, debate. Opinion polls carried out seven or eight days ago indicate there is very strong support for legislation in this area. If the witnesses were speaking to an ordinary member of the public and accepting there is a strong sentiment in favour of it, what would they outline as the real challenges that face legislators?

An Cathaoirleach

That is a very well posed question.

Dr. Simon Mills

I think I covered this in my opening statement, which I do not wish to revisit as it was cut off the first time round. There are obvious challenges. Members of the public who may be listening should think about how would they want themselves or their loved ones to be protected if this legislation was available. How would members of the medical profession or one of the other professions want this service to be delivered and resourced with all the emotional supports that are necessary for everybody involved? Those who are against it and believe there are better alternatives would want to know that such alternatives would be properly resourced in order that they are available to those considering assisted dying. The reality is that one needs to treat every opinion poll with a degree of caution. I do not know what questions were asked or the context for the questions. It seems that people consistently want these things but I am reminded of an observation by the humorist H.L. Mencken, who said many years ago that for every complex problem there is an answer that is simple, direct and wrong. This is a complex issue and it requires complex handling. The public may be correct in their view that this should be introduced but it will require careful handling by legislators to deal with things that make people satisfied they are adequately protected if it comes to their time to think about it.

Mr. Kevin Kelly

It is a difficult question to answer. The first hurdle in introducing a system that is constitutional is that one must respect the State's obligation to protect life. As such, there needs to be a system that is an exception to the current regime, rather than it being the general rule. Second, one needs to ensure there are sufficient and adequate safeguards and measures that are robust and nuanced and provide for all sorts of circumstances that may arise from the introduction of such healthcare. The third hurdle, which is probably more practical, is the need to ensure alternatives are accessible and public health services sufficiently funded that all options are accessible alternatives and that the alternatives to end-of-life healthcare are available to a degree that will allow a person who is in suffering to seek relief.

Professor Richard Huxtable

I will not labour my answer as I endorse readily a great deal of what Dr. Mills said in particular. I would ask the person in question - I have had these discussions many times - who they think should be allowed to have this, who should be allowed to provide it, who should not be allowed to have access to it and who should not be able to provide it. Depending on how that conversation goes, I would typically ask why the person has the views he or she has. I would not put it as baldly or potentially confrontationally as that, but it is always worth exploring what is motivating this. In my experience, one sometimes finds this is seen to be a cleaner, clearer and perhaps tidier and more comfortable way of dealing with something that will confront us all, namely, the dying process and death itself.

Sometimes one appreciates, as I do, that people are not always as well informed as one might hope about hospice care, palliative care and the various things that can be done to support people, including when they confront difficult diagnoses and prognoses. There is always more excavation and discussion to be had and more questions to be asked. Echoing Dr. Mills I point out, with caution, that some work was done by the organisation Care Not Killing. It ran a survey more than ten years ago, which was concerned about the framing effects of some of the opinion polls. These revealed high levels of support for assisted dying, which I admit are very much across the board. That survey suggested that sometimes people were potentially being influenced by when and how the questions were asked. Perhaps they did not have all of the information they needed about what is currently available or what the gold standard of care might be. They found that if the various options are put, support goes down. However, it is important to note in the interests of balance that, although support came down, it was still majority support exactly along the lines of recent Irish opinion polls. That is majority public support stacked in the direction of assisted dying.

An Cathaoirleach

I thank Professor Huxtable. We will move to what I call a mopping up exercise for any additional questions. We will try to keep these as concise as we can.

Senator Mary Seery Kearney

I thank the witnesses. This has been a fruitful conversation. My reflection on the poll is, while I agree with the sentiment of the outcome as published, I thought the questions were simplistic. They did not reflect the depth necessary so I have caution with regard to that poll.

My quick mopping up is that, with due respect, I utterly reject the characterisation of raising incrementalism. as fearmongering. There is no intention on my part to do that. It is a legitimate conversation to have. Ultimately, we will be presented with a choice of who comes within the criteria and who does not. We have to consider where the law in other countries has moved to, and whether taking that on board is worthy of us. We will do that in the international module. It is important that we discuss and consider it and consider the limitations on how we reflect the current mores of our society. I also object to any characterisation that raising it indicates, or may be deduced as indicating, that I am afraid of legislating; I am not. I take my job as legislator very seriously. I believe in a just society we should legislate for even that small minority who may wish to avail of this. However, in doing so, by default we will end up doing what Senator Ruane brought to the table so incredibly eloquently. We are going to be making decisions on value of life, and the implications of value of life, and how that happens. I am mindful that whatever we do will have the presumption of constitutionality. What we are doing is serious and, therefore, it is important we look at the passage of how things have changed in the countries therein. I will go back over the transcript but Dr. Mills, in particular, has given us a lot of frameworks and pieces to work with, which will help us find those boundaries for ourselves, and how to set them in this legislation. There is no question. I just needed to respond to what had been said previously.

Dr. Simon Mills

I would like to make an observation, although it is not really in reply to the Senator's comments. It is something that arose from what Deputy Farrell said. Lots of the principles for what it means to have capacity to consent to something are reasonably well established. The tests are well established legally. I mention this in case it does not come up in reply to any other questions. Two issues need to be built into the committee's consideration. First, although alternatives should be discussed and resourced, nothing about resourcing palliative care or anything else changes the law in terms of a person with capacity preferring to refuse palliative care and adopt the route of assisted dying.

Professor Huxtable may disagree with this but I do not think so to judge from his body language. It is important to point out that when we state all of those alternatives must be present, they must be present for the choices afforded the person considering assisted dying to be meaningful. That is not the same as saying those choices must be adopted as a precursor. A complicated question, which Mr. Kelly touched on earlier, is the issue of capacity at the time of exercising one's right to assisted dying. That is something the committee should come back to. It is the question of whether advance directives have any role to play here, and how a right to assisted dying is going to be tied into the Assisted Decision-Making (Capacity) Act 2015 and whether decision-making representatives and other such persons have a role to play. That is something the committee needs to come back to, and is a conversation I would be happy to help with.

Deputy Robert Troy

As someone who comes to this committee undecided on how I will go at the end of it, I think it is important that we probe and ask questions. Sometimes it may seem basic to people with much wider experience in this area than we do. However, it is important that we probe and are free to ask whatever questions we feel are right. I have a question on palliative care. Professor Huxtable referred to the right of access to palliative care enshrined in law. Can he give any example of where that is currently in place? Rightly or wrongly, and I would say wrongly, the provision of palliative care can vary from one community healthcare organisation, CHO, or HSE region to another. Sometimes I feel that a person of a lower socioeconomic background with fewer available resources will be forced to take a decision that somebody with greater resources may not be forced to take.

Dr. Mills raised the issue that to date there have been no convictions in Ireland for assisting somebody with assisted dying. There is only one case we are aware of. Does he suspect that is an adequate reflection of what has happened over the past 30 years or does he suspect this practice may be happening under the radar?

My final question is on the advanced directive. I knew a gentleman who had signed up to travel to Switzerland. He made a conscious decision that when the time came, he was going to avail of this medical procedure and had signed up for it. However, when the time came, he changed his mind and did not want to. He was in the fortunate position to have the mental capacity to change his mind and exercise that change of mind. My concern is for somebody who has made an advance directive at one point. However, when the time comes, even though he wants to change his mind, that may not be recognised because of his state of mind.

Deputy John Lahart

Will the Chair just clarify the advance directive? Most of us know what it means, but it is the note in advance where someone is setting out what they want to happen if a certain thing happens to them.

Dr. Simon Mills

Professor Huxtable could also answer. An advance statement is a statement made at a time when one has the mental capacity to make a treatment decision. It is made at that time with the intention of being relied upon at a future date when the person no longer has capacity to make that treatment decision.

To some extent, it happens every day in every Irish hospital. When a person signs a consent form for surgery, it states that he or she consents to undergo the operation and any procedures that may be necessary during the course of the operation. The person in that situation has given an advanced directive. The medical staff cannot wake up that person on the operating table and ask if he or she wants to have the additional procedure. What I mean is that the medical staff could do so, but, in general, I think they probably should not.

The issue of advance statements is a particularly complicated area of law in which there is substantial philosophical disagreement, including on the question of whether someone is the same person when he or she makes the advance statement as he or she is when the statement comes to be relied on. Dr. Mulligan referred to this wonderful discussion between the philosophers Dresser and Dworkin, I think it was, about the issue of how a person changes as he or she loses capacity. This is worth revisiting at some length further down the line. My view is that people should have the capacity at the time of exercising a decision to end their lives and that it should not be left to advance statements. That is my personal view. I can see there is a basis for contrary arguments and I would be very interested to hear a debate about this issue because I maintain an open mind, but this is my personal starting point.

An Cathaoirleach

I thank Dr. Mills. It is an important view. I call Deputy Gino Kenny.

Deputy Gino Kenny

I want to clarify a remark I made at the start. I was not implying that the Senator Seery Kearney was scaremongering. There are those, however, who oppose assisted dying, for all sorts of reasons, who do go into the territory of scaremongering, but I was not saying the Senator was scaremongering. I just wanted to clarify this point. I do not at all doubt the bona fides of the Senator concerning this issue.

I have one question. If we were to legislate for assisted dying and a limited system of those who could avail of assisted dying, what would happen where someone, for example, falls within a time-limiting criterion in respect of a determination of a diagnosis of less than six months to live? If this person has the capacity but physically cannot self-administer the medication to end his or her life, does this change the parameters in the legislation? The general remit of assisted dying is that the person concerned will self-administer the medication. If a person has not got the physical capacity to self-administer the medication, however, then a physician will have to administer the medication to that person. Does this change the context?

An Cathaoirleach

I will bring in Professor Huxtable to address this point.

Professor Richard Huxtable

It is a very important question indeed. I thank the Deputy for asking it. Primarily, a great many of these debates are premised on the ethic of respect for individual autonomy or self-rule. Some jurisdictions remain very much in the camp of what in previous decades we called assisted suicide, where the person or patient takes the final step. In my reading, for example, this certainly seems to be the model in use in Oregon. The sense there is that if the person concerned is taking the final step, he or she is really expressing and exercising his or her autonomy. The Deputy rightly raised the question of what would happen if that person was to lose the physical ability to take the final step himself or herself near to the relevant qualifying time.

There is then the example of the Benelux countries. These have allowed for a model whereby there can be another person who intervenes, such as a doctor, and takes the final step. As I mentioned at the outset, this more closely resembles what we used to call active voluntary euthanasia. This would very much be a question for the committee and the Parliament to consider. I refer to whether there is a desire to consider all these possible situations. This is one of a potential variety of more borderline cases where we might wonder if this person is eligible, then why would that person in that circumstance not be eligible as well. I would turn this matter back over to the committee as legislators to consider how far they want the qualifying criteria to extend.

Deputy Gino Kenny

I am guessing the situations where this would happen would be unique. I refer to someone not having the physical ability to self-administer the drug. These would be unique circumstances, but I am sure such a situation could be accommodated. I think this happens in New Zealand. If people there cannot physically self-administer the medication, then they are helped by a physician. Again, though, I do not think this changes the parameters of assisted dying in respect of the New Zealand model.

An Cathaoirleach

Would Professor Huxtable like to finish his point?

Professor Richard Huxtable

Yes, I will, briefly. I thank the Cathaoirleach. There may be one other case to consider in this regard as well. I confess I do not have the data or reference to hand, but I recall reading somewhere instances, thankfully very rare, in which there was a failure, to use the rather clunky language of the paper concerned, to complete the assisted dying or assisted suicide. These were cases where, for example, the medication had been taken but had not, or not quickly, resulted in the end of the person's life. There is then the lingering question of what the observing party, such as the doctor, should do, if anything, if he or she is constrained by an assisted suicide-only law. This would mean they could not do anything that could potentially result in the patient having a fairly poor, to put it mildly, dying process. I will happily try to find this reference for the committee, if this would be helpful.

An Cathaoirleach

I thank Professor Huxtable very much. I call Senator Mullen.

Senator Rónán Mullen

I again thank our three witnesses again. I addressed many of my previous comments to Dr. Mills, so now I will focus on directing my queries to Mr. Kelly and Professor Huxtable, if I have time. Starting with Mr. Kelly, he used the phrase "very niche and narrow" a couple of times. Am I right in saying that some would say that what has happened in Canada is that we have seen a cascading effect? Mr. Kelly is telling us this will not happen in Ireland because in Canada this arose because it was found that a prohibition was unconstitutional to some extent, whereas in Ireland it is constitutional. Is this his only basis for saying that we could not have this expansion in Ireland? We have come up against, on the one hand, and not just in this session, reassurances that the courts are very deferential to the Oireachtas, and then, on the other, we soon tend to hear the exact opposite, which is that the courts might find that what we have done is problematic. In the Fleming case in the Supreme Court, it was clear from the language used as well. What is it, then, that Mr. Kelly is saying is very niche and narrow? Is it the scope for the Oireachtas to legislate in this area?

Mr. Kevin Kelly

I thank Senator Mullen for asking this question and for allowing me to clarify this point because I think it caused some confusion. My observation on incrementalism is that in this current system, where we are right now, without looking into a crystal ball to foretell what the Supreme Court might state in another case or what might change, there is a window of opportunity, on foot of the Fleming judgment, to bring in assisted dying in situations where people are in similar circumstances to the late Marie Fleming. In that regard, incrementalism is limited. If we were to introduce assisted dying on foot of the Fleming judgment, then it is a small window of opportunity.

If there is a case where other things change, that might result in incrementalism. Operating in the current sphere in which we find ourselves, however, based on the Fleming judgment, there is a small window of opportunity to provide for assisted dying in a way that is constitutional. I assume we can take this for granted from the Supreme Court's judgment because it has explicitly stated that it would not be not open to the State to provide for assisted dying for people in similar circumstances to Marie Fleming. My point in respect of the slippery slope argument not existing is in relation to the current regime and system in which we find ourselves. If changes were to be made on foot of the Fleming judgment being overturned or the holding of a referendum, then I cannot look into a crystal ball and confirm whether incrementalism would occur.

In the system in which we currently find ourselves and based on the extant case law, however, I think incrementalism is not a risk. If it were to be something that concerned the committee, it could implement legislation to provide for assisted dying and also go for a referendum to ensure the system to be established would have a constitutional protection. If people wished to engage in incrementalism in later years, then, the fact that the people had spoken and we had had a referendum to insert a provision into the Constitution to state that these are the only circumstances in which assisted dying could occur would make it possible to have constitutional protection in this regard and try our best to avoid incrementalism.

Senator Rónán Mullen

Is it not the truth, though, that the Supreme Court in the Fleming judgment did not delimit the extent to which legislation could be brought forward in this area?

Mr. Kevin Kelly

I think it did. It definitely stated that it would give any due regard to the assessment of the Oireachtas of how it tried to strike a balance between rights. It limited it in the sense that the entire judgment outlines why it found the prohibition to be constitutional.

Senator Rónán Mullen

That does not mean mandated. It just meant that the prohibition was not in violation of the Constitution. It did not decide that there was a "thus far and no further" situation in terms of how the Oireachtas might legislate in this area, should it wish to do so. It simply stated the courts might have to have regard to whether balances were taken into account, but did not discuss the extent of it.

Mr. Kevin Kelly

It did not discuss the extent of it but, at the same time, it also stated what it stated. In applying that rationale, it has stated that it finds that there is a small window of opportunity for the Oireachtas to legislate.

Senator Rónán Mullen

Who said the window of opportunity was small?

Mr. Kevin Kelly

It explicitly stated that it is for persons in similar circumstances as that of the appellant. That is the test. It for persons in circumstances such as those of the appellant. That is a very small number. There is not a large number of persons in similar circumstances.

Senator Rónán Mullen

However, it did not state it would be ruled out in other cases.

Mr. Kevin Kelly

Neither did it state it would.

Senator Rónán Mullen

That is my point. It has not actually delimited the extent to which legislation could be brought forward in this area.

Mr. Kevin Kelly

It has limited the extent in that it has explicitly stated that it is for persons in similar circumstances as the appellant.

Senator Rónán Mullen

Is that Dr. Mills's view?

Dr. Simon Mills

I think the only reasonable reading of Fleming is that it specified, or at least envisaged, that it was specifying that it would be legislation with appropriate limits. The Senator is correct to say that it did not specify those limits. I think there was specification of what kind of legislation might be introduced by the Oireachtas, but not specification of the specific limits that would be introduced by the legislation. While recognising that as a matter of broad principle, the Legislature has carte blanche to legislate generally, it does not have carte blanche as to what goes into that legislation, because there will always be certain constitutional tests to be met. It is a slightly vague answer, but that is because, as the Senator identifies very fairly, the Fleming decision states what it states and does not go any further than what it states. However, what it states points in a particular direction.

Senator Annie Hoey

Professor Huxtable might be able to answer this question. I am still trying to get my head around the concept of morality and right and wrong in different countries. Unfortunately, it feels rather pressing on this particular issue that we somehow get this right. I do not know how we come about that. In some countries this has been deemed permissible and then in other countries it has been deemed impermissible and there is a whole moral element to this.

How did how do we find a way forward to square the circle? Obviously, we have to look at the context that exists in Ireland but Ireland also exists in a global context. We do not exist in a silo. We can do things in other countries, even though they may not be legally permissible here. We are not prevented from doing those things. That could be travelling to Switzerland to avail of something or it could be going to Amsterdam for a weekend. What we get held accountable for here is not always the same elsewhere. Is there a way forward for us to square that moral circle? How does one manage that examination of morality in the legal context? Medical morality and medical ethics, probably very aligned to the law, is a separate thing in and of itself. Can Professor Huxtable suggest a way forward? How do we weigh up those two things in terms of the international context, while looking at the Irish context? Is there a guidance piece he could give us as to how we individually or as a committee balance that?

Professor Richard Huxtable

Another huge head scratcher of a question. I did not have a magic formula for this, but I will offer a few observations. These are partly informed by what some other committees, broadly along the lines of this one, have done in other jurisdictions. I think part of what is being sought is a sharp focus on the jurisdiction in question. That means a sharp focus on Ireland and the diverse stakeholders across and within Ireland but also informed by international experience. I will outline some of the things that can be done with a view to the populations that are being served. There are elements or approaches such as the so-called citizens' jury, that have being used, as I mentioned earlier, in Jersey to gather the views of the population who hear a range of evidence themselves and offer some thoughts.

A referendum has already been mentioned as a possible route to gathering the will of the people. Beyond that, I would say that one of the things to seek to balance is the quantitative elements, the numbers saying this, that and the other, with the deep qualitative experience. That would be the experience of, for example, the citizens at large but also people with direct experience of terminal or other illness.

The second part of my proposition is that the committee needs to be informed by evidence from beyond the jurisdiction. By this I mean something similar to what the House of Lords Select Committee on the Assisted Dying for the Terminally Ill Bill did in 2005. It visited places like Oregon and the Netherlands to get under the bonnet of those systems to see how they work and gather those perspectives.

It is not the neatest formula. In my work I try to figure out how to balance quantitative views at large with qualitative in-depth views which are led by particular stakeholder lived experiences, while also making room for the experts. I have no magic answer I am afraid, but hopefully there are some useful suggestions at least.

Senator Lynn Ruane

I have one question for Dr. Huxtable and one for Dr. Mills. Dr Huxtable spoke about the ethical position on dying and some of the arguments that may be put forward. He emphasised the importance of consistency in relation to legal systems which already permit practices that rest on identical or similar justifications. I would like him to elaborate on that.

My question for Dr. Mills, and correct me if I have misunderstood, relates to advanced healthcare directives. Comments were made that we do not know who we will be or what type of person we will be at a future point in time. We could have a case of something being in an advanced healthcare directive, and then maybe capacity is impacted and somebody asserts that they want to live. Obviously, the advanced healthcare directive would not be held up at that point, but instead what is being said in the particular moment. Dr. Mills himself used the example of not waking somebody up on the operating table who had a do not resuscitate order. To link the two questions, if Dr.Huxtable is right in saying that consistency matters in relation to euthanasia, then in what other areas does consistency matter? If we do not know who we will be at a point in time, how can we take any health or advanced healthcare directive about we want to be treated, be it surgery or anything else? Whatever the directive may be, are we saying that advanced healthcare directives stand up everywhere else? For example, in mental health treatment, if a person says they do not want a particular type of treatment, are we not recognising that the person may not be the same person they were when they made the directive? Are we only saying that holds true if it is in relation to the right to die or the right to live? I feel that there need to be consistency in how we actually think and talk about these things.

Professor Richard Huxtable

I welcome this question. On the one hand, we do want consistency, not least in our law and the messages the law sends but I will make three remarks to problematise that proposition.

I have three remarks to problematise that proposition. First, we can ask of those examples I gave earlier whether they truly are equivalent to assisted dying. Mr. Kelly mentioned the so-called distinction between acts and omissions. Some would say on that basis that refusing life support is very different from actively assisting someone to die. Equally, with regard to animals being euthanised where they are suffering, some would of course say that humans and animals are very different moral creatures. Second, we might say that an argument regarding consistency only takes you to a crossroads. It only points out that, on one hand, you believe this and, on the other, you believe that. It does not tell you which road to take. Simply because we allow people to refuse life-sustaining treatment or withdraw or withhold it from those who are lacking capacity does not necessarily mean we should be committed to the next step. Robert Burt, writing in the Hastings Center's report, stated that perhaps there is an inconsistency but then specifically states, “Preserving these ‘illogical’ lines ... is in the service of promoting conscious awareness of moral discomfort”. Perhaps there is value sometimes in retaining an inconsistent position.

Dr. Simon Mills

There are no circumstances on earth in which I would be able to put it any better than Professor Huxtable just did, so I will not take up any more of the committee’s time.

Deputy John Lahart

I refer to Mr. Kelly’s submission. I will not be asking him to comment on the paragraph I intend to quote from, but I would like Dr. Mills’s and Professor Huxtable’s response to it. The paragraph states:

It would appear that for the purpose of protecting vulnerable persons, and ensuring [competency] and capacity are duly regarded, assisted dying may not be available for those suffering with psychiatric or psychological illnesses and will be reserved only for those suffering with physical illnesses, diseases or disabilities. That is not to be read as implying that physical disorders are more profound than mental-health-related disorders, but it is a consideration which needs to be looked at when ensuring that competence and capacity are central requirements in order to avail of such healthcare. Moreover, the lack of certitude towards our understanding of long term mental health disorders also raises questions as to whether such illnesses can be medically certified as irremediable in nature. [I presume he means resolvable or treatable.] This eligibility distinction also reaffirms the rationale of introducing such healthcare ... This may be perceived as discriminatory, but in the absence of medical certification and the existence of queries surrounding competence and capacity, the safeguards may in effect differentiate between physical and mental illness.

Perhaps Professor Huxtable could respond.

Professor Richard Huxtable

This goes back to the principal ground on which we might seek to allow assisted dying. Broadly, to refer to some philosophical arguments, I think the arguments often boil down to, on one hand, the pure autonomy view in that it is all about what the person wants and that gives us our ground for performing or allowing assisted dying. The alternative is the so-called joint view, where you put together the autonomous wishes of the person and their suffering. If suffering enters the equation and if it is all about autonomy, we will hear from people with psychiatric suffering, distress and the like that there will be discrimination if they are excluded from it because they could give an account that their suffering is such that it should qualify.

I would, however, distinguish one question. For a moment, I wondered if there are two things to separate out. The first is that a person can have capacity to make a great range of decisions while also having some sort of psychiatric condition or suffering. However, really the question is whether psychiatric suffering should be a basis. In that context, I would express reservations, although there is a lively debate going on in the past ten years at least around, for example, treatment-resistant depression. As soon as one brings in the notion that something is treatment resistant, then perhaps there might be limited scope. However, I would have reservations.

Dr. Simon Mills

I do not disagree with any of that. The main point I would make about capacity elides into a question that Senator Ruane asked earlier about the coexistence of physical illness and psychiatric illness.

Clearly, where somebody with a physical illness that fulfils the criteria that may be set down by legislation also has a psychiatric illness, the psychiatric illness will not exclude them availing from the legislation if they meet the criteria under any physical grounds that are set out, unless the nature of the psychiatric disorder is such that they lack capacity. It is fair to say that under most models of capacity that are now adopted by the courts, and certainly in this jurisdiction after the decision of Fitzpatrick v. F.K. and in the assisted decision-making legislation, the mere fact that a person has a mental disorder does not mean that person lacks capacity. It will be about the condition that person has and whether that undermines their ability to make a decision. It may well be for many conditions that as the condition is treated, a person’s capacity may return.

The Deputy asked us to comment on the paragraph. I could go through it sentence by sentence and spend ten minutes on each one. Is there a particular point the Deputy would like me to comment on in respect of that paragraph or something he takes out of it that he would like me to deal with? It is an interesting paragraph. In respect of many sentences, there could be reasonable disagreement. Does the Deputy have a question?

Deputy John Lahart

I found it not provocatively provocative. However, it is provocative in terms of raising the issues for the committee, certainly for me as a member of it, and differentiating between competence and capacity when it came to physical and psychiatric.

Dr. Simon Mills

Once there is a proper discussion about this and the Deputy has heard from people on issues of capacity - it would be helpful to go back and listen to Dr. Campbell’s evidence because she was very good on it – there is a world of difference between having a psychiatric condition and lacking capacity. They can be separated out. It is then a question of pivoting and considering whether the person who just has a psychiatric disease and has capacity could consent to the ending of their life purely because they have a psychiatric disease. As Professor Huxtable said, I see the difficulties with going down that course because of the difficulties of setting limits to what is, if you like, an actionable psychiatric or psychological suffering as opposed to one that falls outside any legislation.

Deputy John Lahart

What does "irremediable" mean?

Dr. Simon Mills

It means incapable of being remedied.

Deputy John Lahart

Is that a distinction? Mr. Kelly seems to be drawing a distinction and saying that in the case of psychiatric and mental illness, there is a potential for irremediability that does not exist with physical. No, he is not saying that.

Mr. Kevin Kelly

No. The word “irremediable” comes from the Canadian test. Basically, if the person satisfies the physical irremediable condition but they also have a psychology injury or they only have a psychological injury, it would be difficult for that to be guaranteed or as readily subject to the exception because there are more difficulties for medical certification with regard to deeming a psychiatric or psychological illness as irremediable.

An Cathaoirleach

On behalf of the members, the secretariat and me, I thank most sincerely Professor Huxtable, Mr. Kelly and Dr. Mills for coming to the meeting. It has been engaging and informative. We sincerely appreciate the three of them for giving their time, answering the questions and debating in what I would call in a comprehensive and workpersonlike way. We appreciate their expertise and knowledge very much.

The next meeting of the joint committee will continue to look at the constitutional legal issues around assisted dying. The joint committee is adjourned until Tuesday, 11 July 2023.

The joint committee adjourned at 1.29 p.m. until 10.30 a.m. on Tuesday, 11 July 2023.