Today we will engage with officials from the Department of Justice and the Irish Human Rights and Equality Commission, IHREC. The purpose of today's meeting is to look at the current legal and constitutional context of assisted dying in Ireland. I am pleased to welcome officials from the Department of Justice and the IHREC here today and thank them most sincerely for being here. The Department of Justice is represented by Ms Rachel Woods, head of legislation for criminal justice, and Mr. Dan Kelleher, principal officer, criminal justice legislation. The IHREC is represented by Ms Sinéad Gibney, chief commissioner, Mr. Michael O'Neill, head of legal, and Ms Clare McQuillan, senior solicitor. I now invite the Department of Justice representatives to make their opening statement.
Assisted Dying, Legal and Constitutional Context: Discussion
Ms Rachel Woods
Good morning. As the Cathaoirleach has said, I am the assistant secretary with responsibility for criminal justice legislation in the Department of Justice. I appreciate the opportunity to address the committee in relation to the legal and constitutional context in Ireland for assisted dying.
I am sure the committee is already well aware that fundamental rights lie at the heart of this difficult issue and I agree that this is a good place to start. I will provide an outline of those rights and the current position under the criminal law.
Article 40.3.2° of the Constitution guarantees that the State in its laws safeguards the right to life of every citizen. Article 40.1 guarantees that all citizens shall be held equal before the law. The courts have held that together these two paragraphs commit the State to valuing equally the life of all persons. The European Convention on Human Rights provides that everyone’s right to life shall be protected by law. The obligation to safeguard the right to life is why, in the absence of any legal framework to provide for assisted dying, the State has, and must have, laws to protect life.
I am very conscious that all of the language used in this debate has important connotations and meaning so I am using language like assisting suicide specifically because it is the language currently on the Statute Book. The offence of assisting suicide stems from the time when suicide and attempted suicide were criminal offences at common law in Ireland. This meant that any person who was an accessory to a suicide or an attempted suicide could also be tried as if he or she were a principal offender. The Criminal Law (Suicide) Act 1993, decriminalised suicide itself but the offence of assisting suicide was retained and put on statutory footing. Under section 2(2) of the 1993 Act, it is an offence for a person to aid, abet, counsel or procure the suicide or an attempt at suicide of another person. The offence has a maximum penalty of 14 years' imprisonment on conviction on indictment. The offence was retained given perceived dangers in its abolition, that the sanctity of human life had be respected and the law could not condone a person who wilfully encouraged or assisted the taking of a human life, even if the actual act is self-inflicted. The severe penalty was to cover situations where a person deliberately procured the suicide of another for his or her own motives. The law recognises a scale of different offences within that offence. Prosecutions under the 1993 Act are at the discretion of the Director of Public Prosecutions.
The constitutional context was clarified in the 2013 Supreme Court case of Fleming v. Ireland and Others. Ms Fleming, who suffered from multiple sclerosis, challenged the 1993 Act on the basis that section 2(2) was invalid having regard to the provisions of the Irish Constitution and her rights pursuant to the European Convention on Human Rights. While acknowledging the very distressing situation of the appellant, the Supreme Court upheld the constitutionality of the Act. The basis for the decision was that there is no constitutional right to commit suicide or to arrange for the ending of one’s life at a time of one’s choosing. The court further found that it is not possible to identify a constitutional right for a limited class of persons, in this case persons suffering severe pain arising from a terminal and degenerative illness, who have the capacity to consent and wish to have the assistance of a third party to end their lives. It held the prohibition on assisted suicide was neither discriminatory nor contrary to the European Convention on Human Rights. However, the court clarified that its judgment did not prohibit the Oireachtas from legislating for assisted suicide, assuming appropriate safeguards could be introduced. If the Oireachtas were to legislate, the courts would determine if the make-up of such a regime was constitutionally permissible and the practicability of any measure would be assessed in determining its constitutionality. The court, in confirming compatibility of the offence of assisted suicide as it currently stands in Ireland with the European Convention of Human Rights, was guided by case law of the European Court of Human Rights. That court has held that it is primarily for states to assess the risk and likely incidence of abuse if a general prohibition on assisted suicide was relaxed or exceptions were to be made. However, it has cautioned that the risks inherent in such a system should not be underestimated and as such, strict regulations are all the more necessary.
That effectively summarises the current constitutional and legal position. The Department of Justice recognises this matter as complex, giving rise to medical, ethical and moral issues, as well as criminal justice and constitutional issues that need to be considered. Any move to legislate for assisted dying would require changes to the Criminal Law (Suicide) Act 1993. The nature of those changes would depend on the detail of the framework being considered. There would remain a need for the law to provide adequate protection against any inducement, incitement, pressure or force being used in respect of an assisted suicide and those safeguards would need to be enforceable by An Garda Síochána.
Thank you very much. I now invite Ms Sinéad Gibney, the chief commissioner of the IHREC to make an opening statement.
Ms Sinéad Gibney
I am joined by colleagues from our legal department, Mr. Michael O'Neill and Ms Clare McQuillan. IHREC is Ireland's independent national human rights and equality body, but what is also important for today's discussion is our role as the independent monitoring mechanism for the UN Convention on the Rights of Persons with Disabilities, UNCRPD. In 2021, we published our analysis and recommendations to the Oireachtas Joint Committee on Justice on the Dying with Dignity Bill 2020. We welcome the establishment of this committee, which is specifically focused on legislating for the very sensitive issue of physician-assisted dying. This is not an easy or enviable task. Where assisted dying is discussed in the public sphere, any debate must have the utmost regard for the complexity of the difficult issues being considered and the impact they may have on people's lives. All of us recognise the difficulties faced by people living with life-limiting illnesses and the suffering they face, especially if they fear a long, painful and protracted death.
Who could forget the courage and dignity of Marie Fleming, who, when in the final stages of multiple sclerosis, went to court to gain lawful assistance to have a peaceful death at a time of her choosing? As important human rights issues were raised by this case, the court granted our legacy body, the Irish Human Rights Commission, permission to appear as amicus curiae, or friend of the court, to assist its deliberations. Though her claim had to be legally rejected, the then president of the High Court, Mr. Justice Nicholas Kearns, described her as "in many ways the most remarkable witness any of the judges had ever been privileged to encounter".
As Ireland's national human rights institution, it is important that we set out the significant human rights and equality issues that committee's members, as legislators, will need to be mindful of in their upcoming debates and deliberations. These include the right to life, respect for human dignity, personal autonomy and the protection of certain at-risk groups, in particular disabled people, people with life-limiting illnesses, people who may be in relationships where coercive control is exerted and older people.
In our previous submission to the Joint Committee on Justice on the Dying with Dignity Bill, we raised considerable concerns about possible unintended policy consequences, particularly regarding the lack of sufficient safeguards to protect against undue pressure being put on vulnerable groups to avail of assisted dying. If we are to consider assisted dying to be an extension of patient-centred care and a humane response to suffering, we must ensure that these groups are robustly protected from pressure or coercion. As legislators, committee members will fully understand the complexity of creating law, particularly given the need to balance various rights and, therefore, the need to avoid the dangers of unintended consequences. In particular, I emphasise the importance of participation and the proactive inclusion of the voices and perspectives of our most at-risk groups.
The UN Human Rights Committee has warned that states that legislate for physician-assisted dying "must ensure the existence of robust legal and institutional safeguards to verify that medical professionals are complying with the free, informed, explicit and, unambiguous decision of their patients, with a view to protecting patients from pressure and abuse." As such, it is important to remember that legislators are under a legal positive obligation to ensure that adequate safeguards are in place to protect the right to life, especially where the vulnerable groups I have mentioned are at a heightened risk.
We advise that these safeguards should include, but not necessarily be limited to: the positive obligation to protect the right to life; within the protection of the right to life, there is the need for free and informed consent and protections from duress; the right to health and palliative care; and the right to participate in decision making. Specifically, I would make the point that human dignity must be respected at all stages of each individual's life, including terminal illness and death. Palliative care helps to preserve this dignity, providing an appropriate environment and helping individuals and their families to deal with pain and other distressing symptoms.
We are particularly concerned with the active participation of disabled people in decision making. This is a requirement of the human rights model of disability reflected throughout the UNCRPD. It seeks to bring about a paradigm shift in public policy that is based on a new understanding of disabled people as rights holders. This is a powerful and ground-breaking change in attitude and approach, and one that is, quite frankly, long overdue.
As the independent monitoring mechanism for the UNCRPD, it is our job at IHREC to monitor the implementation of the convention as it applies to all people with disabilities. Our strategy statement sets out a specific goal to promote CRPD-compliant legislative reform. We have repeatedly stated that the ratification of the optional protocol is not actually an option, but an imperative. One of the most significant principles of the UNCRPD is the proactive inclusion of disabled people in all areas of life. Naturally, this includes decisions on assisted dying, should they so require it. This aim should be central to the committee's work. It is crucial that the voices of people with disabilities of all ages and backgrounds are heard when drafting laws and policies that affect their rights, especially when we talk about assisted dying.
The UN special rapporteur on the rights of persons with disabilities set out in 2019 that legislation involving assisted dying must be accompanied by strong measures to protect the right to life of disabled people, which we reflected in our own recommendations to the Joint Committee on Justice. These measures include: the exclusion of disability as grounds for eligibility; safeguards ensuring free and informed consent for disabled people; access to alternatives, including appropriate palliative care; rights-based supports and other social measures; provision of accurate information about the prognosis and about peer-support counselling; and accountability regulations requiring the collection and reporting of detailed information about each request and intervention for assistance in dying.
In the coming months, we will further analyse and refine our recommendation to this committee on this issue and we will be available to assist in its deliberations if and when it needs us. However, while we can set out the significant human rights and equality issues that can assist and contribute to the committee's work, it is ultimately for the committee's members and the wider Oireachtas as national legislators to decide what the future law should be on this sensitive and complex subject.
I thank the committee for inviting us to present to it and I wish it well in its work.
I thank Ms Gibney. I call Deputy Lahart, who will have seven minutes to contribute.
I thank the committee secretariat for the work it has been doing in the background to get us to this point. I also thank our witnesses for giving us context. They will accept that, as a member of the committee, I am coming at this from the point of view of inquisitiveness, and while I hope I do not come across as an inquisition member, there may be some direct questions. These will be to try to help inform me and satisfy my curiosity about some of the issues involved. There will be a steep learning curve for most members of the committee and we take our roles in this regard seriously.
Ms Gibney referred to the establishment of this committee and said it was "specifically focused on legislating for the very sensitive issue of physician-assisted dying", or not, which I assume she accepts.
Ms Sinéad Gibney
Yes.
I just wanted to clarify that.
Turning to the Department, Ms Woods outlined how the State had decriminalised suicide. Will she give us a little of the context of what led to that decriminalisation and what its intent was? Will I group my questions, a Chathaoirligh?
Yes. The Deputy should take his seven minutes. Otherwise, we will be going back and forth constantly.
Okay. I would like a little context on why the State moved to decriminalise suicide and the consequences of that.
In the work of this committee, we will hear a great deal about a differentiation between assisted dying and assisted suicide. How do both witnesses' organisations view these terms? Clarifying that would be helpful for us.
To ask a subjective question, if the witnesses were to read the Supreme Court's mind in dismissing the appeal in the Marie Fleming case while leaving it open to the Oireachtas to legislate, what do they believe was the justices' intent? Was it for the Houses to legislate or to consider the subject of assisted dying or assisted suicide?
Both witnesses gestured towards the issue of incidents of abuse and pressure. A number of thoughts struck me, particularly when Ms Gibney said, "with a view to protecting patients from pressure and abuse".
If we turn that on its head, the “pressure and abuse” could come from the opposite direction if this were to be legalised. We have not considered the notion that someone may be pressured or abused into not considering it. I do not know whether that has ever happened, or if there is any experience from other jurisdictions.
As I said, there is a difference between assisted suicide and assisted dying. There is also palliative care. This is really for the public record and for members of the public who might be watching. There are thin lines in the differences between some of these concepts. It would be interesting from the point of view of the committee's work to talk about that. Do the representatives think that palliative care has ever either consciously or unconsciously slipped into the area of assisted dying? The intent may not have been to assist the patient to die, because I think the intent is always to assist the person in their pain. The dignity of the patient is always paramount. However, do the representatives think there is any grey area that the committee should consider? Those are my questions.
Could Ms Woods respond to those queries?
Ms Rachel Woods
I thank Deputy Lahart. He asked first about the context for decriminalising suicide. The 1993 Act was obviously 30 years ago. Prior to that, it was a common law offence, which had existed for a long time in the past. I cannot profess to be an expert on the rationale for the introduction of the law 30 years ago, but it was a move towards recognising that people have a right to make that decision for themselves and that people who are contemplating, who attempt or who commit suicide are in a place in their own lives where they are making very difficult decisions. It was a recognition that it is a matter of help and support, rather than a criminal matter. That was the general rationale for decriminalising suicide.
The rationale for retaining the offence to assist somebody with that was very much driven by the possibility of abuse. While a person may make a decision in relation to their own life and their own bodily autonomy, when another person becomes involved in that, it is a very different decision. This committee will grapple with the very complex issues around when or if a person should be allowed to assist somebody yet we have to recognise that there will be a possibility that people will seek the suicide of somebody else not for the benefit of that other person, but for their own benefit or for other reasons. That is why the criminal law remains an important factor in this. In the absence of a very carefully considered regime - should it be a decision of the Oireachtas to introduce one - the safeguards that will be needed cannot be overstated. I say this because there are people who could and would abuse a loophole or the legalisation of assisted suicide. There is a significant difference between a decision a person makes entirely on their own, and a decision somebody else is involved in making about another person's life.
The second question Deputy Lahart asked was about the distinction in the language. Different people in this debate who have different perspectives will use different language. That language can be very emotive. It is a good question. There are definitions of assisted dying and assisted suicide that I myself have looked into and am working from. The term “assisted dying” tends to be used as a broader term. It refers to helping someone else to die. It includes both euthanasia and assisted suicide. There is a distinction between those two; euthanasia tends to refer to an intervention that is taken to end another person's life, where a doctor or the other person involved takes the final act. On the other hand, in assisted suicide, while there is an intervention by another person to assist a person, the final act is taken by the person themselves. That is generally the distinction and the language the Department works from. As I mentioned in my opening statement, we will also use the language in the Statute Book when referring to that.
The Deputy asked about the intention of the Supreme Court in the decision in the Fleming case. I am very reluctant to tell him what was in the minds of our Supreme Court justices at the time. Yet, two things are very clear from that judgment, namely, that the Constitution does not guarantee a right to suicide or to assisted suicide, and also that it does not prohibit the Oireachtas from legislating. That was the key point that the court wanted to make clear. There is scope within the Constitution to provide a legislative framework for assisted dying and, if the Oireachtas were to choose to do that, it needs to be very careful about the safeguards and the framework it puts in place.
I call Deputy Gino Kenny.
I welcome everybody to this first meeting of the Joint Committee on Assisted Dying. It is a very important and profound debate that is worth having in a public forum. We are finally having it after a number of years. The benchmark for me was ten years ago, when Marie Fleming brought a case against the State in relation to her own situation. We should always be cognisant of those who followed Marie Fleming in wanting to avail of assisted dying.
I understand there are differing opinions on this. We all come from a place where we have experienced loved ones who are in difficult situations when they come to the end of their life. Hopefully, this debate in this public forum will be respectful of everybody's differing opinions on this issue. I look forward to engaging with everybody in that kind of sphere.
I have a number of questions. At the moment, if somebody accompanies somebody to Switzerland and that person goes to Dignitas to end their life, will the person who accompanies that other person be breaking the law? Can they be prosecuted for accompanying them to Switzerland?
My second question is about the 2013 Supreme Court ruling, which was unequivocal, that legislators such as us can legislate for assisted dying, while obviously putting safeguards in place. I think it is possible. It will take guts and political will to move this forward. The public is ahead of politicians on this issue by a million miles. All indications state that the public wants legislative change on this issue.
In a hypothetical situation where somebody else may bring a legal challenge against the State, could that alter the judgment on the legal aspect of assisted dying in Ireland? I refer particularly to the Criminal Law (Suicide) Act 1993.
Ms Rachel Woods
On the Deputy’s first question, the Criminal Law (Suicide) Act is quite clear that a person who “aids, abets, counsels or procures the suicide of another” or the attempted suicide of another shall be guilty of an offence. Therefore, any actions that are taken in aiding, abetting, counselling or procuring the suicide of another person are covered by that. I will qualify that by saying that as far as the Department is aware, there has only ever been one prosecution taken. We have consulted with the Director of Public Prosecutions, DPP, and the CSO to confirm that. We will let the committee know if that is not the position. Yet, as far as we know, there has only been one and no conviction was secured. The DPP has the discretion to take prosecutions. The Supreme Court alluded to that in its judgment as well. On the wording of the of the Act, the answer is "yes", that would be a criminal offence.
For clarity, if a person accompanied somebody else to Switzerland, in this instance to Dignitas, could that person be prosecuted?
Ms Rachel Woods
It would depend on the specific case and precisely what happened, but on the wording of the law, yes, that could fall within aiding, abetting, counselling or procuring. However, it would depend on the specific actions of that person and it would be for the court to decide, if the DPP were to take a prosecution.
There has been one high-profile case relating to Bernadette Forde and Gail O'Rorke, and Ms O'Rorke was acquitted.
Ms Rachel Woods
That is all that I am aware of.
My second question related to a legal challenge.
Ms Rachel Woods
A legal challenge could always change the position. However, the Supreme Court judgment in the Fleming case was fairly clear on the key issue that there is no constitutional right to suicide or to assisted dying but that it is open to the Oireachtas to legislate. It would be difficult to see where the grey area in that judgment is. However, a legal challenge can always lead to different judgments.
I have a caveat to that question. Again, this is a hypothetical scenario. If the Oireachtas was to legislate for assisted dying, according to Ms Woods, the court could challenge that decision made by the Oireachtas.
Ms Rachel Woods
The court would not be able to challenge it but a challenge could be taken and the court will have to have reference to the constitutional position and the European Convention on Human Rights, ECHR, in determining the constitutionality of any regime put in place.
I thank the witnesses. I will start by echoing the words of the previous speakers and the Chair that this is a very important committee and it is very positive it has been set up. It is ten years since Marie Fleming's case. It strikes me that the Supreme Court invited the Oireachtas to look at this issue by saying it was a matter for the Oireachtas. It has taken us ten years to finally get around to having this committee. There are plenty of other areas where the courts have said that something is a matter for legislation and the Oireachtas and the Oireachtas has been very slow to pick up the challenge and live up to its responsibilities. I am glad this committee is finally in place and we can dig into the important subtleties and nuances of what will be a very complex and difficult debate. We have seen much of that here in the talk of safeguards and, perhaps to be a little simplistic, of balancing rights and in some ways competing rights.
I thank Deputy Gino Kenny because his work has contributed significantly to getting us to this point. It is very positive that the committee is in place and some credit is due to him.
I will pick up on a couple of points. I am conscious that disability rights advocates, who will speak to the committee in later sessions, are much better placed to answer these questions than I am. If we are looking at the importance of self-determination and autonomy, Marie Fleming wanted to make a choice for herself around her pain and suffering but that was denied to her essentially because of her disability. She needed assistance to achieve that autonomy and self-determination. Is there an element of regulation being the better option to preserve that self-determination or autonomy? I know we spoke about the risks but I would like to dig into that issue a bit more.
If we are trying to protect vulnerable people and they are making a choice based on self-determination and autonomy, is it not better to recognise that and provide regulations? I am conscious that we need to ensure it is actual self-determination. Ms Woods referred to how complex and dangerous this becomes when someone else gets involved, and I appreciate that.
Is there an inconsistency in the court judgments in this area? We have essentially allowed physician-assisted death in cases where death is not directly the intention of the action and intervention. It is not the direct consequence but it is ultimately the full intention of the actions. There have been cases where parents wanted their children to receive more treatment than doctors were willing to give and the courts stepped in at that point as well. Is there some inconsistency there?
I have a follow-on question for Ms Woods that picks up on what Deputy Gino Kenny said about aiding, abetting and procuring. Where someone accompanies someone else to Switzerland, does simply sitting on the aeroplane with that person fall into the category of aiding, abetting and procuring? If someone has done nothing else and did not book the appointment and so on but is sharing a taxi with the person to the airport and sitting beside him or her on the plane, would that fall under aids, abets and procures?
That is a very pertinent question.
Ms Rachel Woods
On the first question, when we get into the question of whether and what framework or regulation should be put in place, the Department of Justice would not consider itself to be the expert on this. The committee will hear from people with lived experience and with greater expertise on that. The Department of Justice views this as very much an end-of-life healthcare issue and more a matter of health policy and legislation than for criminal justice. We will confine our remarks to current criminal justice law and any subsequent amendments that would be needed. It would be much more appropriate for others, including the Department of Health, to comment on the medical ethics and end-of-life care issues.
Regarding the criminal offence, it is very hard to say what exactly would be a criminal offence or not in any particular circumstance. That matter would be argued in court. It would be very hard to see a prosecution taken against somebody who sat on an aeroplane next to another person. I would speculate that would not fall within the law but it would absolutely be a matter for the specific case and exactly what happened. I cannot give a definitive answer. The offence is reasonably broad but that does not mean it would capture sitting on an aeroplane next to somebody in order to accompany that person. It would depend on the specifics of the case.
I do not wish to echo what previous speakers have said.
Should we ask IHREC for its response to the earlier questions?
My apologies; I should have said that IHREC can reply at any time. That was neglectful of me.
Ms Sinéad Gibney
That is no problem.
Does Ms Gibney wish to respond to the questions asked by Deputies Costello and Lahart?
Ms Sinéad Gibney
I will cover both Deputies' questions. I will be succinct. I will start with Deputy Lahart whom I thank for his questions. He described the steep learning curve and it is very important to highlight that. IHREC shares that steep learning curve. It is very important to manage our expectations about what IHREC is providing evidence on today, namely, our submission to the 2020 Private Members' Bill. It is important to point that out because the safeguards and principles IHREC recommends apply to the particular model described in the Bill. That speaks to the language issues raised by Deputy Lahart around the differentiation between assisted dying versus suicide. In our submission, IHREC identified the two dominant legislative models for providing assistance in dying. These are the Oregon model versus the Benelux model. Beyond the people involved, there is also a distinction that people should be at end of life for the Oregon model versus the Benelux model where it may not be the case that the person has a certain finite diagnosis of end of life. There is a lot more to the two different models. There is a spectrum and other jurisdictions may fall somewhere in between those models. It is very important to get that language right.
I will not jump into the minds of any High Court judges and speculate. My colleagues from our legal department may choose to elaborate on their decision but I am afraid I will not comment on that.
Regarding Deputy Lahart's question about pressure and abuse potentially going both ways, IHREC sees it in terms of the ability of people to make their own decisions. This then speaks to the self-determination and autonomy question raised by Deputy Costello.
Unfortunately, because of the ableist society we live in, people with disabilities do not always have that same level of self-determination, autonomy and decision-making capacity. The Assisted Decision-Making (Capacity) Act 2015, which was commenced this year, goes a long way to addressing that. Overall, we believe the Act falls short of the full UNCRPD human rights model, but we do not have as many concerns in the specific area of decision-making. It has to be thought of in the context where, if we provide for people to make decisions, that will negate pressure coming from either direction to choose or not to choose any given option. We urge that, as legislators, the committee considers this in the round. If it is thought about as a suite of options and choices that may be available to people in any given situation, there could be the potential for legislation to give them the option for assisted dying. There has to be good palliative care available as an option too. There also have to be good social and health supports to allow people to live. That is how we would try to frame it. This is one of a series of options that legislators have to consider.
I will not go over what everyone has said about the importance of the work we are doing on this committee. I know Marie Fleming and her work have been mentioned a number of times. We would also be remiss not to acknowledge Vicky Phelan, who wished to see this introduced, and who unfortunately is not here today. She entrusted it to others to follow her will on what she would like to see done in that particular area. I would like the witnesses to tease out one area for me and people who might be listening in. Both submissions mentioned Marie Fleming, the impact of that case and what she wanted to see done. Obviously, the follow-on was that the courts said that legislators could deal with this. There was also talk in the protective measures around the exclusion of disability as a ground for eligibility. I would like that teased out. Marie Fleming's case was that her multiple sclerosis was becoming unlivable for her because of the difficulties she was having. For people listening in, can the witnesses tease out how something like that would work if we were to exclude disability? It is a remarkable case, and has almost led us to where we are now. How would the witnesses envision legislators like us being able to draft up or do something that would include someone like Marie Fleming or someone in her situation? If we were to include this as a ground, how would we work those two things out? That is my only question.
Ms Sinéad Gibney
I will invite my colleague Mr. Michael O'Neill to start.
Mr. Michael O'Neill
The key question is whether a person's disability is the sole reason that may activate a scenario that will ultimately lead to death. This is as opposed to a scenario in the context of the previous legislation where one was talking about a person coming towards the end of life due to an illness or disability, and for whatever reason is not in a position to take certain decisions relating to that. The nature of the concern is that the fact that a person is old or disabled, in and of themselves, should not be sufficient grounds to activate a scenario, which by that simple fact leads to their death. It is rather a much more complex and nuanced issue.
There is obviously legal language that I do not understand, but is there a way or mechanism for us to work that out?
Ms Sinéad Gibney
I believe so. We can look to other jurisdictions to see how this issue has been dealt with. When we were dealing with this at commission level, we engaged in robust deliberations. As chief commissioner, I was a little surprised at how vociferous the issue was around the vulnerability of people with disabilities in their engagement with medical and social services, and essentially concerns around the value of life. As somebody who did not have a disability, I had probably not understood that. That goes both for the disabled community and older people. That is why it has to be quite clear, as a safeguard, that this is not a reason alone to create a pathway to end of life, as Mr. O'Neill has said. It has to be done in the context of the full reasons for somebody considering this.
We can work a way that does not preclude someone like Marie Fleming in her situation. We could include a clause such as the exclusion on disabilities grounds. There is a way forward. It struck me that I would hate for us to do work here, which would effectively undo something like Marie Fleming's case.
Ms Sinéad Gibney
Ms McQuillan has helpfully reminded me of some wording in our submission. We are happy to share the submission, and any further analysis that comes out of today's discussion. We recommend that:
The wording "is likely to die" [which was in the original Private Members' Bill] be replaced by a more robust and objective test; for instance, "reasonable medical judgment" such that there is a high degree of probability that the person will due within the timeframe as a result of the illness.
As the Senator states, it is about the specific language used.
I thank Ms Gibney. It is really helpful, in particular for people listening in, to be able to tease those two out.
I welcome the witnesses and I agree with what the others have said. This is an issue of profound importance. Even the decision to discuss this issue is interpreted in different ways by people. Sometimes it takes courage to change the law, and sometimes it takes courage not to change the law. There are people who see this issue very much in terms of human autonomy and vindicating people's absolute right to make decisions about how their life ends. There are others who see it in terms of the old line from the poem by John Donne that, "no man is an island," or in more modern language that no person is an island. We are all impacted by decisions that are made, and there is a sense in which people will think that if we change the law then things may never be the same again. I thank the witnesses for helping us on the first day of our public meetings.
I will start with the Department of Justice. They talked about the change in the law around assisting a suicide and why that might have taken place. They used the language in passing that in a sense it in some way recognised that people have a right to make decisions in this area. I think they used the word "right". Yet, the Supreme Court has held that there is not a constitutional right to take one's own life. Does the decriminalisation of suicide mean that there is a right, even of a legislative kind, to end one's own life? For example, if I were to prevent somebody from taking their own life, do I interfere with a legal right that they have?
Mr. Dan Kelleher
I thank the Senator for his question. As Ms Woods outlined, the legislation from 1993 was introduced to take away the offence of suicide itself. It is interesting that when one looks over Dáil debates from that time, the then Minister, Máire Geoghegan-Quinn, acknowledged that she could not actually give an answer as to why suicide was an offence when she introduced the Act to eliminate it as an offence. She noted that the common law offence of suicide was perhaps from a more brutal age going back over hundreds of years, where even the burial arrangements of people who committed suicide were open to question. Her view was that there was no justification for a criminal offence of suicide or attempted suicide. She was clear that people who had suicidal ideation needed assistance, compassion, sympathy and medical help. Interestingly, she placed a lot of emphasis on the tragic situation of suicides in prisons, and the potential impact on suicide policy generally, which is a problem for society as a whole. I am simply intervening to say that was the context in which the Act was introduced in 1993.
However, the then Minister referred to the risk of what she called a dominant personality separate to the person considering suicide who may seek to induce a suicide for his or her own motives. She was clear that a depressed person who had suicidal tendencies and who could be in what she referred to as a moment of despair could be easy prey for a manipulative person who had anything to gain. She was clear that, in her view, that was the need for the offence of assisted suicide. I am not sure if I have answered the Senator's question.
I am just conscious of the time. I am trying to get to the question of whether, given the fact that the word "right" is used, it is thought that there is some kind of right to suicide that someone might interfere with by preventing the suicide.
In the case of the more direct act of euthanasia where a person would end someone's life at the latter's request, what law would be broken? Would it be the common law offence of murder? The law on assisting a suicide was mentioned, but what law would be breached if someone directly ended someone's life at his or her request?
Mr. Dan Kelleher
It is yet to be determined by this committee if there is a right to an assisted suicide. As Ms Woods outlined-----
No. I meant a right to suicide. Is there a non-constitutional right to suicide?
Ms Rachel Woods
The Supreme Court was clear that there was no constitutional right to suicide. It is not a criminal offence and, generally in our system, what is not prohibited is permitted. There is not an explicit right to it but there is no prohibition on it.
Do I interfere with someone's right if I prevent him or her from committing suicide? I know this is a delicate area but this is what we have to do.
Ms Rachel Woods
There is no constitutional right but a person is entitled to do it.
Regarding euthanasia, if you were to end a person's life – at the person's request or otherwise – in the current legal situation, the act could come within the scope of murder. That would certainly be a possibility, depending on the circumstances of the case.
Have I time to ask a further question?
Yes.
I wish to ask something so that I understand the matter correctly. Ms Gibney is not telling us what to do – as she stated, it is our job to decide – but does she recommend a change in the law in this area?
Ms Sinéad Gibney
As a commission, we have not yet come to a position on whether we support physician-assisted dying. That is not to say that we will not come to a position at some point. As most of the committee's members will know, our role is to monitor law, policy and practice, in particular the human rights and equality elements of those. We have a broad mandate and we respond as and when we can to the particular issues that arise, which is why our focus on this issue so far has been on the Private Members' Bill that was before the Oireachtas a couple of years ago. It is a matter that we will examine further but it may be the case that we never come to a position on assisted dying. What we do is highlight and tease out what rights and equality issues are invoked when legislators are dealing with issues. We will assist them with our advice in that regard.
Regarding equality, the commission is saying that disability on its own terms should be excluded as grounds for whatever happens, that is, assisted dying should not be available solely on grounds of disability. If so, would that not raise equality issues were it to be legalised for some categories of people but not for others?
Ms Sinéad Gibney
No. As we explained to Senator Hoey, it is a safeguard rather than a discriminatory ground. It cannot be a reason alone. We explicitly said that because of the dangers of potentially slipping into that area when legislating for assisted dying, as has been proven by the various jurisdictions that have tried to treat it as grounds. It would not raise discrimination issues.
An bhfuil an t-am agam?
The Senator will have another opportunity to contribute. I call Senator Seery Kearney.
I echo the comments of every member who has contributed. I am mindful that the public discourse on this subject is delicate and begin from a place of empathy. I was taken by Ms Woods's words – or perhaps they were Ms Gibney's – about fears over painful and protracted deaths and how a person facing that prospect may wish to access a range of choices from palliative care to ending the suffering they believe they will have to endure. I am mindful of that in how I get my head and heart around this issue.
I wish to raise a few points. When suicide was rightly decriminalised, much of the impetus had to do with stigma, burials and religious implications. An attempt was made to address a gamut of matters. When we set the law, we set the tone for our country, decide what is permissible and what is not and set the values of society. The decriminalisation and the movement in our language from people "committing" suicide to those "completing" suicide – the latter term is used by those who have gone through applied suicide intervention skills training, ASIST, and is what I would say based on my own training – come from a place of non-judgment. That is an important value for our society. However, there are implications to suicide that have not been addressed. For example, not all mortgage protection policies cover a family where a loved one who is the mortgage holder has completed suicide. Not all life assurance policies pay out in circumstances involving suicide. While we have addressed the stigma, the consequences for families have not necessarily followed the change in the law. As we attempt to set a threshold at which an individual can make a medical choice, what are the consequences that may flow from it and that are much more profound even than those that flow from suicide?
I understand the "assisted" element of our discussion to be a positive action that assists an individual in arriving at a point where he or she dies, with the individual's consent, for example, assisting an individual who is unable to get on an aeroplane by himself or herself or is unable to make arrangements independently but has a document setting out that is what he or she wants to do or has given another indication. The action could also be medical intervention, for example, providing the prescription for an individual to end his or her own life or to be assisted in ending it. These are the parameters as I understand them.
I am mindful that Marie Fleming's case was about discrimination. While we may set a threshold, we cannot guarantee that there will not be cases. In Canadian law, there has been an incremental interpretation that has moved away from the initial safeguards. This is where my concerns lie. While I wrestle with my empathy for the individual, the fear of elderly people is that, once we set a threshold, we will by default diminish the value of the lives of those for whom assisted dying suddenly becomes a choice, not because of the third party who is assisting, but because of coercion. I worry about a heap of consequences flowing from that.
My query is about how we set that threshold and safeguards in legislation so that they are immovable. I am not sure statutory provisions can actually do that as they are open to legal interpretation and argument. Incrementalism is a necessity of law as our society grows and evolves. However, I am also mindful that people are taking their own lives because of the influence of social media. The influence of social media on how an individual values his or her own life and on the choices he or she makes is pervasive, perhaps in the case of a family who are struggling to support an individual. This influence is not even intended to be coercive but the interpretation of an individual who is suffering may accelerate him or her towards a decision that he or she otherwise would not make. It comes back to what Ms Gibney said about the need for all of the other supports. I am concerned about that incrementalism and its consequences. Do the witnesses have any comments in that regard?
Ms Rachel Woods
The Senator has articulated all of the most difficult issues with regard to any framework the Oireachtas may decide to put in place. She has articulated very well all of the difficulties and issues that would have to be grappled with. I do not have any easy answers to them. They are there. If legislation were to be put in place, it would have to attempt to address them as well as possible. Other jurisdictions have attempted to do that. As I have already said, the Department of Justice considers many of these to be areas for others with greater expertise. The views of the medical profession would be more expert than our own with regard to any framework to be put in place that involves end-of-life care and decision-making in that regard. There would also be policy issues for the Department of Health.
Legislation is able to provide safeguards. The safeguard we have at the moment, the prohibition, is legislative. That is what is there. We have an outright ban and prohibition at the moment. I have a certain degree of confidence that legislation can set safeguards that are as tight as considered necessary under any recommendations made. However, these are very difficult issues and there are a lot of different views and a lot of choices to be made within that framework.
Ms Sinéad Gibney
I will just make a couple of points. I agree that the Senator has well articulated the challenges the members are facing as lawmakers. The difficulty is that the consequences are death. That is why it is a harder space in which to legislate. The unintended consequences of law are something the members grapple with all of the time as legislators. It is when we deal with an issue as challenging as this that the stakes are raised even further.
There has been discussion and mention of a potential citizens' assembly. While I am in no way calling for an assembly or anything like that, it is a topic that is well suited to such a forum. It is important that, where assisted dying is discussed in the public sphere, the complexity and sensitivity of the difficult issues raised are considered. Others have referenced the importance of voices, particularly from those communities we have referenced. It is not just about the disability community. It must be ensured that the disabled persons' organisations, DPOs, are consulted when we are talking about these issues.
I thank the witnesses for coming before us. I have a sneaking suspicion that I am not alone in believing that everybody on this side of the Chamber has come to this committee with a great deal of concern, and perhaps even trepidation, as to what we are getting ourselves into and what many of us have volunteered for. I am no exception to that. The origins of this discussion are interesting. It flows quite nicely to talk about language in the context of the conversation that was had in this place in 1993, not only because of the gravity of the decision to decriminalise suicide, but also because of the knock-on impact it has had. The term "commit" in respect of suicide is stuck in our dictionary even to this day. It stems from custom, most likely religious custom, as opposed to any particular difficulty with the idea that somebody should have the right to make such a decision and for that right to be vindicated. On the basis that suicide is no longer illegal, what right do we, as able-bodied, relatively healthy individuals in this place, have to determine that another person cannot make that decision? If they are unable to do so unaided, we should recognise that and change the law established in the 1993 Act. To go back to language again, to have included that in the first place is a hangover from the past.
That is where I am coming from but intertwined with that are concerns such as those mentioned by others, particularly Senator Seery Kearney. I am greatly concerned about the unintended consequences and impact of regulation that might flow from any Bill this committee might recommend and that might be made into law leading to others taking advantage of vulnerable persons who may not have capacity. I have great concern about that, not to mention some of the scenarios I can think of and that we have read about in which individuals with limited capacity who have no suicidal ideation are taken advantage of by other individuals, primarily within the family. The right to life is profound and this committee has a great deal of work to do to square the circle and make a determination as to whether any proposal adheres to the request the Dáil made in its deliberative process back in 2020 - I may be corrected on that as I cannot remember exactly when it was, although it was a couple of years ago - in which it made a very clear determination that this is a matter for which it wanted to legislate, leading to a Joint Committee on Justice report - a committee I now serve on although I did not at the time - and both Dáil Éireann and Seanad Éireann deciding to establish this committee, which I welcome. Within all of that, and notwithstanding Ms Woods's point about regulation or legislation being robust and that a framework can be created, I remain deeply concerned about what we are to do in light of the human condition and the fact that there are individuals out there who may wish to manipulate the goodwill of the majority of Members of the Houses should we wish to legislate.
I do not really have a question at this point because the vast majority of questions I had have been covered. However, I will take this opportunity to welcome this first meeting of the committee and to note, for my own peace of mind and for that of those listeners and others who are interested in this particular subject, that, like all other members, we have been grappling with this issue for some time. To put the legislative process in context, we are talking about an Act from 1993 and the conversation has included a court case from a decade ago. I hope Deputy Gino Kenny will correct me if I am wrong, but the Dying with Dignity Bill was published in 2018.
It was 2020.
That is three years ago. When we are dealing with issues in this place, we tend not to do so particularly quickly. That means that we should take the next eight months and 30 days, or whatever is left on the clock, and work out the precise nature of what we should do.
In and of itself, that means we should take the next eight months and 30 days, or whatever is left on the clock, to work out precisely what we should do. I thank the Department and commission for their input on the legal side. I am really going to struggle with the moral and ethical considerations, particularly on the medical side, in dealing with some of our questions. I probably share others' views in that regard. I thank the witnesses for appearing before us.
I welcome all the witnesses and thank them for their contributions. People talk about how long it has taken to deal with this matter but I believe people have been grappling with it since the beginning of time. It is just a case of what happens when you try to legislate for it. It is a matter of life and death and people's decisions. It is quite existential in and of itself. Many of my questions will probably verge into that existentialist space because that is the only way in which I can engage initially with the question of one's subjective sense of life, living, value and dignity and all the words we place in the law and associate with people's implicit rights. Behind these concepts is the subjective experience of them. It is really interesting to try to engage with these so I will try to tease some of this out.
Ms Woods referred to committing the State to valuing equally the lives of all persons. What do she mean by that? Is the value-based merely on existence itself or is there something else? Is it suffering, freedom from suffering, the ability to flourish, the ability to live well or the ability to die well? When statements are made in this regard, are they based on conversations that have been had on what "valuing equally the lives of all persons" actually means?
Another question is on the protection of, or the right to, life. On a very philosophical level, I struggle to uncouple death from life. Regardless of the naming of an implicit right, the mere fact of being born implies you are going to die, so the right is inherent in the very meaning of being human. For me, although there is nothing specific in this regard, it is a case of how we determine the right time to die.
To return to the question of disability, we are saying that people with disabilities should be fully respected and empowered to make decisions in all areas of their lives. This is based on having a disability in and of itself. Of course, we want to meet all the conditions but I am referring to where people see only one option because they do not have access to all that is required to live well with a disability. I wonder whether we are putting forward ideas on the rights of people with disabilities and then somehow diluting them. I struggle to understand what we mean by "coming towards the end of life". We are coming towards the end of life every day, so we are then measuring on the basis of how long we have got left to live. Is that not just arbitrary in and of itself? How do we make such a decision? Somebody with an acquired disability may be expected to live with it for ten years but will say, on having explored all the other options, that is just not what he or she wants. In some cases, disability alone may be the condition on the basis of which a person wants to die. This is not nice and uncomfortable to think and talk about but that might be the reality for some. Do we risk refusing them their right to engage in full consent and their rights to autonomy and agency because the expected lifespan is ten years instead of ten months? How do we begin to say what coming to the end of life is and determine the time period?
I have many more questions but since those I have asked were quite big, I might leave enough time for responses.
Ms Sinéad Gibney
I thank the Senator. On value, which she mentioned first and on which I am sure Ms Woods will have more to say, one could look to compensation models to see how the valuing of life is done. The matter came up more recently during the Covid pandemic in respect of access to critical care. Various models for access to critical care were introduced. Again, this is an area of concern for older people and the disabled community because, in the models, questions are asked about how far from the end of life one might be, based on demographics, statistics and so on. There are value-for-life, VFL, models and these might be what members should consider. When I talk about compensation, I talk about compensation models in the US after the events of 11 September 2001, for example. I know this issue is debated in respect of such models. They may be of use to this committee, although I cannot be sure.
I appreciate the Senator's concerns about allowing somebody with a disability to base a decision on ending his or her life on having that disability alone. This raises the issue that having a disability is not the issue for many; it is the society they live in and how they cannot participate fully by virtue of how we have built it. It is really important to get into this frame of mind.
Let me quote a submission by our counterpart body in England, which gave evidence to a similar committee. Its wording was particularly helpful. It referred to coercion but basically couched everything in the one space of coercion:
It is also necessary to consider coercion beyond the risks posed by individuals. One of the most important protections against people feeling coerced into seeking an end to their life is to ensure social conditions, support, care and services are in place so that people with disabilities or serious or terminal illnesses do not feel that they are a burden to their loved ones or to society. This goes beyond adequate funding and access to health and social services, and must include active efforts to create a society where people are able to live life on equal terms, free from discrimination.
For me, that is a helpful way to extend the frame on coercion to what we as a society are doing by coercing people into having a life that is unpleasant because of the conditions in which they live and because they are not able to participate in society by virtue of their disability. That is why the safeguard is important.
I hear the very strong concerns of Senator Seery Kearney and Deputy Alan Farrell. I do believe safeguards can be put in place to deal with this effectively. Certainly in respect of the Private Members' Bill that has been put forward, we have proposed such safeguards, but we will continue to engage if various models are examined. It is possible to legislate for this.
Ms Rachel Woods
I do not really have a lot to add on this. The Senator's questions are very big and the Constitution is not the place to find clear answers to them. The focus on the right to life is quite specifically related to the life–death dichotomy rather than to all the nuance. Virtually none of the rights in the Constitution are absolute and there is space for the Legislature to add to them and determine what exceptions, if any, should exist and where there should be a balance with other values in the Constitution. Regarding the right to life, the Fleming decision showed there is space for the Legislature to take into account other values and balance them, as it sees fit, with the appropriate safeguards.
I thank the witnesses for coming here today. I feel a huge burden of responsibility as a member of this committee. I do not believe there is anything more profound than dealing with and talking about life and death. When we talk about consequences or unintended consequences, we must note that no matter what penalty is put in place, it will never compensate if somebody has been unduly influenced or coerced into taking a decision to end his or her life early.
I come to this with two ears and one mouth and intend to take full advantage of our witnesses over the nine months in coming to an opinion.
Having listened to all our colleagues in recent weeks, though, including people coming to this debate from different sides of the argument, I was struck by the fact that everybody is coming to this issue with a sense of empathy and compassion and a desire to do the right thing. The courts have said that we can legislate, with the necessary safeguards, but not that we must. There is an option here and these nine months are about teasing out whether it will be exercised.
We talked about the decriminalisation of suicide in 1993. The decision to decriminalise in that instance was made from a stigma perspective. We never really talk, though, about helping people to exercise their right to take their own lives. In fact, we have fundamental debates in the Dáil on ensuring that the right resources and supports are in place to ensure nobody feels this is the only option. I refer to people feeling life is so unbearable that they wish to end it. We must be cognisant of this point.
Ms Gibney, in her contribution concerning the previous Private Members' Bill brought forward, made a suggestion involving using reasonable medical judgment in situations where there is a high probability of death. In my opinion, this is very much objective. What average age do people live to now? Is there a reasonable medical judgment to be made that people who are three or four years beyond the average life expectancy, and have chronic obstructive pulmonary disease, COPD, or other issues, have a high probability of dying? Yes, there is, I would say subjectively. People in this situation, though, may go on to live quite a normal life for some years. I have an issue, therefore, with wording like this. It is too expansive. I welcome hearing Ms Gibney's opinion on this point.
Additionally, do any of the witnesses have an idea of the number of people who travel annually from Ireland to countries where availing of assisted dying, assisted suicide or euthanasia is permitted? Do we have any idea of the number of people who avail of this possibility? I always listen carefully to what Senator Ruane says. I was struck by the valuable point she made in respect of the value we place on people's lives. Unfortunately, this is again very subjective. Some people place a value on lives that are contributing meaningfully to society, in respect of working and resources, while people then have another opinion in terms of placing a value on the lives of people who, because of whatever reason, are unable to contribute to society. These are some of my thoughts and I would welcome feedback on them.
I thank Deputy Troy very much. I call Ms Gibney.
Ms Sinéad Gibney
To pick up on the reasonable medical judgment language, we got this from the Oregon legislation. To qualify under the legislation there, "the person must have a terminal illness that based on reasonable medical judgment will produce death within six months". Terminal disease in this case is defined as "an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months". It is in the context of that model that this language applies and not to the broader question of life expectancy. I hope the Deputy sees what I mean. The medical ethics unit in the Department of Health will be able to provide much more detail on this area and we can gladly follow up as well with any more analysis we have. We got this language, however, from within the model. This is the language that works in other jurisdictions.
Is everybody okay with that response?
Nobody is aware of the number of people travelling abroad.
Ms Rachel Woods
No. There is no reason for people in that situation to inform the State in any way, so we-----
There are no records of it as such.
Ms Rachel Woods
No. We would not have any numbers on it.
I call Deputy Daly.
I have a few initial opening thoughts. I welcome all our contributors and guests. I also welcome that this committee has been established. This is an important discussion to have in this third decade of the 21st century. Going back to the republican Constitution that we have, Article 40 is the most important one in it. This holds that everybody should be held equal in the eyes of the law and the State cannot discriminate between citizens. There is also a need to ensure the full and equal enjoyment of all rights and freedoms by disabled persons and the Disability Act 2005 promotes equality and prohibits any discrimination, especially in the provision of services.
It was interesting that the witnesses from IHREC mentioned rights-based supports and other social measures. It is important that they are all put in place. Coming from a rural constituency, I often see that these supports and services, especially in healthcare, are simply not there. While we do have a gold-star palliative care service in County Kerry, I wonder if there is the same service in other parts of the State and, if so, if it is of the same high quality. I have known dozens of people who have taken their own lives because they felt at the time that life was so unbearable for them. I have also known other people who had anticipated that they might travel to Switzerland, but when it came down to it, they chose not to do that.
I was particularly struck during the Covid-19 pandemic by a conversation I had with someone in St. Patrick's daycare centre in Tralee, which primarily deals with older people. The co-ordinator there told me that a good day for some people was being comfortable and warm, and that was it. Discriminating or classifying people into a different category, then, is probably almost impossible to do. In the context of considering everything in this debate, it is important we recognise that rights-based supports, as Ms Gibney said, are essential, bearing in mind the constitutional rights people have to be treated in exactly the same way. This is not good enough on its own. Extra supports must be put in place for people to allow them to achieve the same rights as other people.
Additionally, I refer to access to alternatives in this area, such as palliative care, counselling and information. Another contributor mentioned coercion and its dangers. People feeling they are a burden is a highly important aspect. There are concerns in the community regarding what has been referred to as unintended consequences. While they may be unintended, surely they are not unforeseeable. This is the challenge we face in respect of deciding whether to leave the legislation as it is or amending it.
Would anyone like to take that?
I am not inviting any replies, but if Ms Gibney or anybody else wishes to comment-----
It is fine if Ms Gibney wishes to reply and also quite okay if she does not.
Ms Sinéad Gibney
I will respond briefly. I do not think anyone here can underestimate how difficult it is for people living in institutional or community settings who have disabilities and cannot access work and education in the same way as everybody else. Access to services and transport is also limited. The committee will hear about this from the representatives of the DPOs and from people with lived experience of disability when they are invited in. It is important to consider this type of situation and it is in this context that we are so careful around opening up an option like this. This is what we are talking about when we say it must be considered in conjunction with the provision of full social services. I say this because the reality now is that people in this situation are not able to access work, education and services in the same way as everyone else. In fact, if people have a disability, their ability to do so is drastically less.
I thank the Deputy and Ms Gibney very much. Before I go back to the members, I will afford Senator Keogan, if she wishes, the opportunity to ask a question. She is perfectly entitled to do so.
I thank the Cathaoirleach, but I will indicate if I have a question.
That is fine. At this stage, we will take any comments the witnesses may wish to make concerning an overview of the situation or go back to the members for further questions for up to five minutes respectively, or as little or much of that time as each person wishes to avail of.
First on that will be Deputy Gino Kenny.
A fundamental question that we have been talking about here and elsewhere is the right to life. That is a fundamental right, but I believe, and others believe, that there is also a fundamental right to have a say over one's life, particularly if one is coming to the end of one's life. When people come to the end of their life, they have fundamental thoughts in their mind as to how their life is going to end. If assisted dying was available, people in that situation could at least have a choice. We have a choice in some manner regarding the withdrawal of food and end-of-life medication, intervention and so forth. However, I believe that it is a fundamental right of those who are in a situation of time-limiting, terminal illness and who are coming to the end of their life, to have a choice. To me, that is a very fundamental right for any human being. I wanted to get the witnesses' thoughts on that right of having a say in one's life. These are deep, profound and philosophical questions but it is a question we need to grapple with on the fundamental right of those who are in that situation.
Most people will never want to avail of assisted dying under any circumstances. They want to live every second, minute and moment of that life but there are those who do not want to do that. To me, the fundamental question is whether we give them a right and a choice. I want the witnesses' thoughts on the fundamental rights around a situation some people may find themselves in.
Ms Sinéad Gibney
We have highlighted the fundamental right to life as being the right that the committee needs to consider first and foremost. I think what the Deputy is talking about is that there are options that should be available to people. I agree, and as we have set out in our responses, having those range of choices available to people is positive and important. It is about having them as a full set of choices though, and not just a set of choices on paper, if one likes. If one is introduced, it is important that those other options are there. Palliative care has to be a good option, as Deputy Daly said. We have positive and strong palliative supports available in certain parts of the country, but it is not consistently available for people. When choices are introduced, one has to allow for all of the choices to be fully and readily available for people, and then one has to make sure that the decision-making to opt for any of those choices is legislated for and facilitated. That is why the Assisted Decision-Making (Capacity) Act 2015 was so important, why it is important to look at this in the context of that Act, and to bring it forward to allow for people where decision-making is not as straightforward. Again, I am talking about people with disabilities here, and that they are facilitated to do so and see that range of options available to them.
I know we discussed disability and issues around coercion, but I was always struck by the New Zealand legislation. One of the main paragraphs concerned those who could not qualify for assisted dying being those of advanced age, those with a disability and those with mental health grounds. I fundamentally agree with that. Others may not, and I know we need to have a very nuanced and progressive debate on this.
Again, it comes down to the choice of an individual, and a say in how a person dies. That is the fundamental right. That is what this committee has to grapple with, and hopefully, at the end, it can recommend some progression regarding situations that people find themselves in. There is no getting away from it. Some people coming to the end of their lives will have a very difficult end. There is no doubt about that, and in that situation, the law should be on their side with regard to hastening that end. That can only be done legally, medically and, fundamentally, as a voluntary decision by the person themselves.
Is there evidence that people can be coerced where assisted dying has been legislated for? The evidence is not there. Where assisted dying has been legislated for such as in certain European countries, certain states in America, New Zealand, Australia and elsewhere, the evidence is not there with regard to people being coerced. It is just not there. Show me where it is. It is not there. Models are not perfect, but we need to have a framework in place where people can have a choice. Again, that is a fundamental right.
Are we all okay with that? Now we will go to Senator Mary Seery Kearney.
I thank the Chair. I have a few questions. First, the safeguards that we talk about are ones that, certainly aspirationally, all legislators would like to see. All of us, I imagine, are in public life to better the quality of life of everyone in our Republic. However, it is flawed. It is not perfect by any means. I am a member of the Joint Committee on Disability Matters, and I am very mindful, week in, week out, of the suffering that is out there, and the lack of equality and opportunity for people. We aspire to do better all of the time, and we advocate to do better all of the time.
I fear that we will arrive at a stage where people will be afraid to complain about their suffering. In other contexts, where people access artificial human reproduction methods, those who come to parenthood through all of that assistance, are then afraid to complain when they are tired as mothers, or because they feel, "Oh my goodness, this is extra". Then I fear about us having it the other way around where, if there is an option of assisted suicide or death, that someone is then afraid to complain or talk about their suffering, and afraid about at what point that discussion will happen with them, and how it will be.
Once we have legislation that provides for assisted dying, how is that right exercised by people? Are they given a leaflet when they get a diagnosis? Do they hit a point where they are told that they now have, perhaps, up to six months left, and these are among their options? How is that triggered? We cannot assume that people will know it as an option, or know that they come within that category, so some level of informing is going to have to happen. Then, by the very fact of the information being given, is that in itself a trigger of a diminution of value?
I am trying to grapple with how we put a safeguard there. There are safeguards we have talked about, and I would dearly like to read the submission in the UK on ensuring social conditions, care and support are sufficient. Yes, but they are always going to be flawed as much as we aspire to them not being flawed. We will never have a perfect scenario. That is one thing, and the second is when that threshold is crossed, how is the information imparted? By having the conversation alone, is that making a statement on the value of life, and how do we cater for the consequences of that?
Ms Sinéad Gibney
The Senator will hear a lot more detail from the medical professionals who will advise on this, and social services and so on. For me, one of the important things is that by having this forum, and also the debate that has happened to date, the taboo is removed, and debate and discussion is encouraged. Deputy Kenny's point is very well made, in that in terms of percentage of the population, most of us will not have to consider this. That is important to remember.
That communication, as with all sensitive subjects in the medical sphere, can be dealt with in the appropriate way. It is difficult for us to imagine and picture what it would look like when it is legislated for. We can look to other jurisdictions and the medical sector to see how it can be done.
Ms Rachel Woods
I agree with what Ms Gibney has said. As has already been mentioned, there are rights to refuse treatment and medication that can have consequences of death but they are not intended to. The medical professions will have views on, and experience of, this issue.
Mr. Michael O'Neill
It is the deviation between the refusal of treatment versus accessing palliative care or a positive decision whereby a person decides they want to contemplate or consider the option of assisted dying if the legislation is in place.
I engage with people in palliative care who speak about the objective of living. When a devastating diagnosis is first given to someone, they project forward and imagine. I am sensitive to people throughout the country who are listening to this and thinking they do not want this option and those who will want it as an option. There is a change in the quality of life. The definition of "quality of life" changes as people move through an illness. Perhaps they become event focused. They think about making it to a child's holy communion or being present as opposed to walking up the aisle at a child's wedding. I am mind-mapping and those in the medical field will be quite insightful.
I want to return to some of the issues that have been raised and perhaps the witnesses will come in on them. My first question is for Ms Woods from the Department of Justice. My impression from a long time back is that when the law was changed on suicide in some ways it was about trying to alleviate the pain and suffering of families and to deal with the stigma in that area without, at the same time, validating the decision itself. I want to go back to what Ms Woods said about what is not prohibited being somehow permitted. Is there a difference in law as to how, for instance, I would be treated if I were to interfere to prevent someone taking that act? I know that in other situations if I were to interfere with somebody doing something that is permitted I might be subject to a criminal or civil action for assault. What exactly would happen if I were to interfere to prevent a person taking their own life? The reason I am asking this question is to get assistance on whether we see this as something falling short of someone's legal right to do what they want, even if it is not a constitutional right as we all know. There seems to be a different legal attitude to doing what is permitted in this area as opposed to what would be permitted in other areas. Perhaps Ms Woods will assist us with this.
In the Marie Fleming case, the court said that legislation subject to safeguards might be possible. The safeguards being presented today are against certain types of wrongs that others might do, such as coercive control of a family member and the abuse of a person's dignity and autonomy by pushing them in a particular direction. It seems to me that so far we have been speaking about safeguards in this area. Had the court in mind, and does IHREC have in mind, the other issue against which safeguards might be needed? This is the attitudinal change that comes about in society no matter what type of other positive supports are there. People do not just feel they are a burden because someone is trying to coerce them into a particular place. There is the potential sullen resentment of the one who is loved but perhaps does not love back. No law and no set of provisions can change these attitudes sometimes. These are the very types of attitudes that might cause people in a given situation to feel they are a burden.
This brings us to the equality point. I am trying to tease out what Ms Gibney wants. She said that she believes it is possible to legislate for it but that IHREC does not recommend a change, at least not at this point. From everything that has been said today what I am hearing is that IHREC believes the law should change but provided there are other positives in place, for example, to alleviate the disadvantage that people with disabilities face. If IHREC does not recommend a change in law, albeit with some positives being there at the same time, why does Ms Gibney say it is possible to legislate for it? If IHREC does not recommend the change, given that Ms Gibney is saying it is possible to legislate for it, what would be the reasons IHREC has not yet come to a view on why it does not recommend it? Ms Gibney has said it can be legislated for but that she wants certain things to be also on the table in people's lives, with regard to validating the full inclusion of people with disabilities, for example.
If assisted dying is introduced for whatever category of people, such as, perhaps, in the limited situation that Deputy Gino Kenny described, is it not a fact that from the moment this happens the law and society would take a different view of some categories of people with regard to the value they put on their lives? Does this not of itself raise an equality issue in two ways? One is that the State would take the view that in certain situations it is okay with someone's life ending. There would be a lack of equality in how the State views people. The other way it raises an equality issue, despite what Ms Gibney has said, is if we make it available for certain categories of people only, such as someone whom a certain number of doctors say in all likelihood will not live beyond a certain period of time. Ms Gibney may call it a safeguard that she does not want to see it legislated for on the grounds of disability alone but a person with a disability might well say that they have heard what has been said about safeguards; that if the law permits it for certain people, it should also permit it for them; and that if we respect them, we should not be so paternalistic as to say they should not be able to access it.
I have asked a number of questions and I would be grateful for the best attempts of the witnesses to answer them. They are sincerely put.
Ms Sinéad Gibney
To clarify, my basis for saying I believe we can legislate for it is because I believe it has been successfully legislated for in other jurisdictions and this is the correct forum to deliberate on how it may be introduced in this particular jurisdiction. This is what I mean when I say I think it can be legislated for, with all of the human rights and equality concerns that we have raised. I am not not recommending a change. What I am trying to say, and what I was putting out at the very start of our contribution, is that we are a 15-member commission with a mandate to protect and promote human rights and equality in Ireland and to promote a culture of respect for human rights, equality and intercultural understanding in the State. As we can imagine, we deal with a large range of issues on any given day, week, month or year. We deal with the most pressing issues we have to deal with in the best way that we can as a functioning commission with 15 commission members and 90 staff.
What we have done to date on the topic of dying with dignity is to respond in our submission to the Private Members' Bill that has come through the Dáil and we are back here today to speak on that submission. We have done some rapid legal analysis on what has happened since then. As a commission we may come to a point where we recommend a change in law but our primary focus is to assist the committee members as law makers. We do not necessarily come out and say we think a law should be introduced in certain areas. We deal with the existing legislative framework we have. We may come out and say the law should be changed or we may choose to continue to raise human rights and equality concerns and show the committee our analysis as it relates to its deliberations. I do not rule out that we might recommend the introduction of such legislation. What I am trying to explain is that as a commission we operate on what we can do across a very broad range of issues and this is as far as we have gone on this particular one.
That is very helpful but I will come back on a point. It seems clear that Ms Gibney is saying it can be done, subject to other measures, but that IHREC is not at the point where it is recommending it. What I am hearing is that it seems less likely it will recommend against a change in the law from everything Ms Gibney has said today. Would that be fair?
Ms Sinéad Gibney
No, it would not. As the chief commissioner of a 15-member commission, I will not pre-empt what we, as a body, will say, but-----
Ms Gibney said we may well come to the point where we make a recommendation to change the law. I do not wish to put words in her mouth, but she does not seem to say we may come to a point where the commission recommends against change.
Ms Sinéad Gibney
We have a range of functions such as section 23, which allows us to look at certain Acts. We also have a legislative observations function, which is what we exercised in this submission. It is our most frequent engagement with policy areas such as this and is likely to be the format in which one will see our contributions made. At certain points, we will also develop policy statements on new, emerging and more longstanding areas of rights and equality, such as a recent policy statement we developed on just transition. We may come as far as to say, regardless of what happens in the law-making sphere, we believe this should happen. In that case, we may suggest legislation is developed-----
Or not?
Ms Sinéad Gibney
-----or not developed.
To be fair to the witness, we have to say that time may evolve her considered view and the view of the other members of the commission.
Absolutely. If the commission got to the point where it recommended a change in the law, the equality issues I raised just now would come very much to the fore. It is entirely for Ms Gibney to recommend a change or not to do so. However, were she to recommend a change, it seems those equality issues would be very much in play.
We have to move on to the next member.
May I get an answer to the other question at some point? It may not be now.
Yes, but we have to move on to Deputy Lahart now.
I thank the witnesses for their contributions and my colleagues for their questions. I will tease out one or two issues. I am conscious this is session 1 and in nine months time we will look back on this. It struck me that if the rest of the natural world was asked for its view on humanity, end of life and assisted dying, its perspective might be very interested in a minority of humanity and it may wonder why human beings spend so much time agonising over this issue, when we have just wreaked havoc on the rest of the natural world without really thinking too long about it. It is a fleeting thought that came across my mind.
I will tease out disability not being a ground for eligibility, because I am interested in the matter. The fact a neutrality has been expressed is positive, because it seems the witnesses have come to the committee with some degree of an open mind. I am interested in teasing that out from the following perspective, because in our private sessions - without breaching any kind of confidentiality - there were conversations one would normally associate with the topic of assisted dying. Many lay people think of assisted dying in their own lives with regard to ending up with a particular ailment or being diagnosed with a particular condition and wanting the option to choose and to make a decision. One of the lessons we have learned from discussions in private session is certain conditions may have been stereotypically associated with those kinds of decisions and dilemmas. That is a dangerous assumption to make, because there are plenty of people living with the most appalling conditions who live their lives with great dignity, purpose, fulfilment and reward and fulfil their potential in their own way.
I am interested in what is said about disability not being grounds for eligibility and yet, one of the points I will take away today is that the question of assisted dying has a more specific resonance with people who have disabilities, because of a general vulnerability they experience in society with regard to rights, care and supports. I do not want to have misinterpreted that. The trap I do not want to fall into is that of a bunch of able-bodied people making a law or recommending one way or the other with regard to legislation, without truly looking at life through the eyes of those who do not have that ability. This is the core of my question, in that it brings us back to disability somehow being a ground for eligibility. It is a genuine question.
Disability is not one of the grounds, as mentioned in Ms Gibney's opening remarks. What are the conditions and protocols? We will tease this out in the next nine months. What would the conditions be, if disability or a stereotypical condition is not one of them? If we do not list X, Y and Z as conditions - I do not ever see us doing that - what are the protocols? The witnesses gestured towards a person reaching an unbearable point in life. Do they see what I am driving at?
Mr. Michael O'Neill
Much depends on the model that will be considered. The debate to date has largely been on individuals who reach end of life by virtue of a condition. Through medical assessment - we all appreciate that is a complicated scenario - and a reasonable judgment by qualified clincians, an assessment is made that there is a limited period of life likely for that individual, as opposed to the broader piece which now exists in some jurisdictions with regard to individuals who are not nearing end of life but who feel that for whatever reason, be it through physical or psychosocial condition, life is unbearable. The discussion is largely around a situation whereby an individual reaches end of life because of a condition, or an assessment that there is a window or time and they wish at that stage to access a service. There is a legislative framework around that discussion. It comes back to the kinds of issues Deputy Troy raised with regard to the need for very clear criteria for how one assesses that period of time and, as the Senator mentioned, the issues with regard to how this issue comes on the table for individuals; as to whether they make a declaration they wish to explore this; the kind of informed consent and making sure the individuals have capacity, etc.
Does either party have a view on our legal view with regard to other jurisdictions and how their framework operates? Without pre-empting the answers, my understanding is some concern is expressed as to how assisted dying operates in other jurisdictions. Do the witnesses have a view on that?
Ms Rachel Woods
There are a number of quite different models in other jurisdictions. Ms Gibney probably has more expertise in this area.
Ms Sinéad Gibney
We have given detail on this in our submission. I would not say it is a review. It is just an overview, in that we set the issue out impartially. This builds on what Mr. O'Neill just said, in that our submission is based on what was proposed here. If the committee is to open up its deliberations, we will be happy to engage with how other models can be legislated for and what other rights and equality concerns are raised in that instance.
Mr. Michael O'Neill
It might be useful to the Deputy that the commission has previously brought to the attention of the Oireachtas the importance of looking back and analysing, that is, the review of individual decisions. If an individual takes a decision, it is important there be some degree of an independent system for review of how that process was achieved. The commission has also brought up the importance of aspects such as disaggregated data, so that policy makers and people who are involved in regulation know exactly the level to which this is operating and how it is operating and that is kept under regular supervision.
I have a couple of questions.
Obviously laws are developed based on moral principles or underpinnings within a particular society. I am looking at the principles of double effect. When one is trying to create law or regulate in a new area, the principles of double effect are when something that is intended to do good also causes harm, whether to people who are left behind, to society's sense of itself, or whatever that harm may be, but the initial intention is to reduce or alleviate suffering, or so on. Two morally opposing things are happening at once, where one is both doing harm and potentially reducing harm at the same time. In the development of law, does one negate the other in the end? Within law, does that make something morally neutral, if that makes sense? If the two things that are intended produce opposing effects for different cohorts, I wonder about how we begin to make laws and regulate from that perspective.
Coercion has come up a fair bit. I cannot help but think about all the other conditions, especially what IHREC says needs to be in place with regard to safeguards, including better access to palliative care and to mental health supports, as well as for housing and poverty. There are all these teams. There is an individual focus on individual coercion, whether relating to families or loved ones, but if an individual is culpable for potentially coercing or putting pressure on an individual, there is no conversation about how we hold the State culpable for its coercion by not providing adequate care. It feels that we should not only be focusing on that, but if we do not fix all the other conditions and then we regulate, are we saying that State coercion is happening by not introducing all the supports or choices that are needed? The person does not have the array of choices. That is still coercion, not on an individual basis but on a State basis. How do we put all the other conditions in place so that there is also a choice of assisted dying? If all the other things that feel like they are bigger to manage or to fix do not happen, then we still let other people down with that other option. It feels like it is a big conversation.
Physician-assisted has been mentioned a few times. I want to clarify that for people watching the meeting. Obviously, there are different levels of physician-assisted, based on the different models. Physician-assisted could mean providing medicine, where one is administering that medicine. IHREC's submission refers to physician-assisted a few times. What is its understanding of physician-assisted when it says that? Regarding the lack of regulation, there is a bigger conversation that is bigger than disability, which has been at the centre a lot today and I think it will be central in many ways. There is a much wider conversation about why people may want to die, which may not be recognised as a specific disability.
What happens if there is no regulation and then the only people able to access assisted dying are the able-bodied because they will continue to travel to states that will cater to people or we force people to travel before they are ready to actually die, because they know that when they get to a certain stage, they are going to need support to get on the plane and book the tickets. They might have a condition that is progressing and affecting their movement, causing a need for wheelchairs, and so on. We would interrupt the process by saying that because we are not going to regulate in this country, those people will have to decide to leave the country five years earlier than they would have liked to, because they know that with the condition their life is headed towards, they will not be able to travel alone. Not regulating is ableist in and of itself because of the other options that are available.
Ms Sinéad Gibney
I will pick up on a couple of those points and then perhaps my colleagues might jump in too, maybe on the definition of physician-assisted and so on. I do not have an answer on the first point. I could follow up on that one. Senator Ruane introduced the state coercion issue. I was calling for that in the language of that submission. I thought it was helpful with regard to positioning. The Senator is right to draw it out further than disability and into socioeconomic circumstance too. There are ways that we can, as a State, cater to these. For example, there is the optional protocol ratification of the UN Convention on the Rights of Persons with Disabilities. I cannot make a committee appearance without once again plugging that we need to immediately ratify that optional protocol. We have also recently called for the protection of economic, social and cultural, ESC, rights in the Constitution. We know there are measures.
Part of our message today is to encourage the committee to see it in the round and to see that those other issues play into this, and to put forward its own recommendations that may fall slightly outside the assisted dying space and into these other areas, where we can see that how we operate as a State also has implications for this question, and ask what we can do in the broader context to address it.
Mr. Michael O'Neill
Physician-assisted arose when we made our submissions on the previous Bill. The real context there was that the intention was that a clinician and doctor would be involved in assisting somebody. Partly to do with that, the commission recommended that secondary legislation be put in place to identify the kinds of drugs that might be used, how they would be administered, etc. The idea was, in the context of that earlier Bill, that there would be greater clarity about how the process would operate.
Ms Clare McQuillan
On the double-effect principle, it struck me that when one thinks of the right to life and the right to die, when one looks at the European Court of Human Rights' jurisprudence, there is no recognised right to die. Instead, it says there is a wide margin of appreciation given to states, and if they so wish, they can decriminalise euthanasia, but to do so, they need to frame that in their right to life. In allowing or decriminalising euthanasia, they have to ensure that they have to protect and do not harm the right to life, which then links back to the appropriate safeguards. That struck me when the Senator talked about the double-effect principle.
I thank all our witnesses for being here this morning. Apologies for missing a lot of this meeting. Unfortunately, I had another commitment but I am really looking forward to being part of this committee and to contributing every week. It is an important debate. This is an extremely complex, emotive and profound issue, but it is a really important debate. I thank each of the witnesses for bringing their expertise to the table and sharing it with us. We have a tough job as a committee over the next nine months to make recommendations in this area and we will be heavily reliant on experts like the witnesses. I thank them. I have read their opening statements. Senator Seery Kearney has brought me up to speed as much as possible too.
From my perspective, safeguards are the issue I am most concerned about. There has been a debate here today on support, education and all the structures that need to be in place to support people who are in this situation, particularly those who might have life-limiting issues as opposed to something that might have repercussions for their lifeline. I would be keen to learn the witnesses' perspectives and recommendations on that and about how we balance rights and the offences that already exist relating to this issue.
Ms Rachel Woods
Safeguards are a key consideration if the Oireachtas chooses to change the law in this area. When we are talking about safeguards, it is hard to talk about them in the absence of any framework for permitting assisted dying in the first place. The approach taken there will determine the kind of safeguards that are required. One would have to be looking at ensuring it is the actual choice of the person at the centre of it, ensuring that cannot be manipulated, pressured or forced in any way, and ensuring that there are criminal laws about acting outside that framework in any way. There are different models and safeguards in legislation in other countries. The committee will probably look much more closely at how well those work and at the experience of those jurisdictions. One would need to tailor a set of safeguards for the specific model and framework that one is considering. I believe that can be done in law but it is hard to assess the specifics of what the safeguards would be without a more concrete view of what framework, if any, is under consideration.
Ms Sinéad Gibney
To add to that, our position on it is clear in the submission that there is a positive obligation on the Oireachtas, if legislation is to be introduced, to develop those safeguards to protect the right to life. The UN has been particularly strong on this. I called out a quote in my opening statement. It is important, as Ms Woods has said. It very much pertains to the model. The safeguards that we have elucidated in our submission relate to the model that was proposed. If another model is pursued or considered, there will be different safeguards to look at.
At this stage, I have to move on to any other business. I propose to publish the opening statements.
I am sorry to interrupt. Is now the time for me to ask for an answer to the first of the supplementary questions I asked?
The only thing I will say about that is that we have finished the second round. If it can be brief-----
I do not have anything further to say except that I had asked a question about-----
It has to be brief, Senator.
I asked whether I would face any civil or criminal sanction if I were to interfere with a person's right to do what is permitted in the area of suicide in a way that would differ from other things that a person might be permitted to do.
Ms Rachel Woods
I will briefly answer that. There is no particular protection for people if they interfere. If they interfere by way of assaulting or restricting the person physically, there would be no safeguard against a prosecution in that case.
Or a civil action.
Ms Rachel Woods
Or a civil action.
I propose to publish the opening statements to the Oireachtas website. Is that agreed? Agreed.
It is proposed to elect a Leas-Chathaoirleach at the next public meeting on 20 June. It is important to have continuity for the meetings if I am indisposed for some reason or another. Is that agreed? Agreed.
Today has been a very important occasion for all members of the committee. We thank the witnesses most sincerely for their time, expertise and what they brought to the committee. It is an eventful day for us and for the witnesses. They are playing an important role. I respect them all for coming here. I thank them most sincerely for their contributions and their time.