Dr. Andrea Mulligan:

It is an honour to be here to talk to the committee about this important issue. Almost everything about how and whether to regulate for assisted dying is complex, except for the primary constitutional question, which is whether the Oireachtas is entitled to legislate for it. The Oireachtas is absolutely so entitled. I respectfully disagree with Dr. Casey and agree with Dr. Hickey on that point. The case of Fleming v. Ireland and Others is crystal clear on the issue of whether or not the Oireachtas has that power. The Supreme Court would be very surprised to hear the judgment in that case described as not a definitive judgment from the superior courts. It certainly is a definitive judgment from the superior courts. That is the way everyone I have ever come across regards it. In that case, the Supreme Court stated that Marie Fleming could not establish a right to die or a right to terminate her life because that was, the court felt, inimical to the underpinning of the Constitution, as Dr. Casey referred to earlier. However, the absence of a right to die does not mean that the Oireachtas is not entitled to legislate for it. The decision to die, in the view of the Supreme Court, is essentially in this neutral space. One does not have a right to it but nor does not the Oireachtas lack the power to legislate for it. The judgment in Flemingv. Ireland and Others is clear on that point.

I will try to build on what the committee has already heard. I will first talk about other constitutional rights of relevance to death and dying. While there is no right to die or to decide to die, there are other relevant rights that it will be useful for the committee to consider. I will talk second about lawful medical practices that result in death. There are decisions that are made routinely in healthcare that result in death. I will talk about some of those. I will also talk a little about how to balance the rights at stake in assisted dying.

I will start with constitutional rights concerning death and dying. We know from the Fleming case that there is no right to terminate one's life or to decide to terminate one's life. That means that decision is not protected by the Constitution, as per Fleming. The State is, for example, entitled to take steps to stop people dying by suicide. It may even be required to try to take steps to stop people dying by suicide, pursuant to the obligation to support life. However, there are other relevant rights. The first I would mention is the right to dignity in death or the right to die a natural death. The Irish Constitution is unusual and interesting in that it has a rich jurisprudence around rights and death.

That comes out of the original case of Re a Ward of Court (withholding medical treatment) (no. 2), which members might have come across. That involved a decision about whether or not to remove life-sustaining treatment from a woman who was described as being in an almost permanent vegetative state and who had been in that state for 20 years. The court's decision was about deciding whether or not to remove treatment that would result in her death. In that judgment the court recognised that there was a right to life but that there was also a right to dignity, and some of the court characterised that as a right to dignity in death or as a right to die a natural death, which is an important right to bear in mind. However, the Supreme Court closely confined that right to being rights around allowing nature to take its course. It expressly distinguished that from anything like euthanasia but said that there is a constitutional right engaged in the end of life and that there are rights to dignity in dying a natural death.

The Constitution strongly protects a right to refuse treatment, which is really important. Even if you make a decision to refuse treatment and you know that will result in your death, the Constitution protects your entitlement to make that decision. You never have to accept treatment that will sustain your life against your will, and that is a very robustly protected right. It is also protected as a matter of common law so it may even exist outside of the Constitution. This extends to the right to refuse food and water, so basic nutrition is included as well as medical treatment, and that is recognised in the case of Governor of X Prison v.PMcD, which is about a prisoner on hunger strike. The court finds that the prisoner has a right to refuse treatment that even extends to the point where he has lost consciousness and capacity. This essentially means the prisoner can make an advanced directive to refuse food into the future. It is important to bear those constitutional rights in mind when it comes to understanding the picture of where death and dying arise under the Constitution.

I want to talk about lawful medical practices concerning death and dying. These are medical practices that members will probably all be aware of but I want to mention them as useful in understanding this area. First, it is lawful, as I have said, to withdraw medical treatment where the treatment is futile. In the case of Re a Ward of Court (withholding medical treatment) (no. 2), the court ultimately ordered that it was permissible to withdraw life-sustaining treatment from the ward, while acknowledging that there was a significant distinction between a positive act, as would be involved in euthanasia or assisted dying, and withdrawing treatment to allow nature to take its course. That is based around a philosophical distinction which is often called the act of passive distinction.

Second, it is lawful to decide in advance that you will not resuscitate a person who suffers cardiac or respiratory arrest, and members will have come across that in the context of what are called do not attempt resuscitation, DNAR, orders. Those orders are medical decisions that are put in place in circumstances where it is believed by the medical team that it would not be in this person's best interests to try to continue their life. That is in circumstances where death is regarded as relatively proximate but it is an important recognition that life is not always in everyone's best interests.

Third, and importantly, it is lawful to provide pain relief to a dying person, even where it is understood and foreseen that this will hasten that person’s death. It is not uncommon at the end of life for a person to be administered morphine, which will treat the pain of the end of life and where it is also known that this will hasten death, and that as a positive act it will bring about death. That is lawful, pursuant to another philosophical concept, which members may have come across, called the doctrine of double effect. There are two different effects to the action but you are intending the pain relief. That is something of a departure from the ordinary position in criminal law. It is important to bear in mind that while assisted dying is unlawful, there are actions that lead to death that take place as a matter of course.

I want to speak about balancing interests in assisted dying. The job of the committee and the Legislature in deciding what to do about this area is to try to balance the interests of the people involved. Even though the Supreme Court overturned the High Court's judgment in Fleming v.Ireland, the discussion of this case in the High Court is valuable on this point. Unlike the Supreme Court, in Fleming v.Ireland the High Court found that there is a right to decide to die, which is protected by the right to autonomy, an important distinction for the Supreme Court. The High Court found that there are important countervailing reasons that allow the Oireachtas to regulate to prohibit assisted dying. That is an important and different way of getting to the same result.

There is a sentence in the Fleming judgment I always read to my students, just as Dr. Hickey has favourite passages he reads to his students. The High Court undoubtedly has huge sympathy for Marie Fleming. It states:

If this Court could be satisfied that it would be possible to tailor-make a solution which would address the needs of Ms. Fleming alone without any possible implications for third parties or society at large, there might be a good deal to be said in favour of her case.

In essence, the court was saying: "We have all the sympathy in the world for you, Marie Fleming, but we have huge concerns about the consequences of regulating assisted dying." Of course, part of the reason for this is that the High Court, as a court, cannot put in place a detailed regulatory scheme. That is the first reason. However, the judgment also suggests the court had concerns that even the Legislature could not put in place sufficient safeguards. That really is the question for the committee. Can the Legislature put in place sufficient safeguards? I really recommend looking at the High Court decision in the Fleming case, which offers a very sophisticated analysis.

The judgment leads to four questions for the committee in terms of what it needs to do. First, should certain people be entitled to assistance in ending their own lives? Second, if so, who are those people and what are the key characteristics that mean they are entitled to seek assistance in dying? Third, does the existence of a regime permitting assisted suicide for one cohort of people pose risks or dangers to others? Fourth, if it does, can those risks be adequately mitigated by regulatory safeguards, such that it is the right decision to legislate for assisted suicide?

I am happy to answer any questions members may have.