Dr. Andrea Mulligan:

The Deputy is getting to the heart of the difficulties here. The first thing I would say is that Deputy Kenny talks about there being a right to decide to end one's life. We are only lawyers, so we are here to tell the committee what the courts have said the Constitution means and the rights that are protected by the Constitution. However, those are not necessarily all of the rights that exist in the world. Ultimately, the Deputy may rightly believe that there is a right to die, and that is a conversation about a pre-existing moral right that he believes in. It is important to distinguish those things. The Deputy may well be right in a moral sense that there is a right to die but all we can tell him and the committee is that the Constitution says there is no right about that. That is the first thing I would say. Deputy Kenny is absolutely entitled to characterise his judgments and views about this in the language of rights if he so wishes.

The second thing I would say in terms of the distinction between palliative care and assisted dying is that people who strongly believe in that distinction would say it centres on the idea of the double effect, that people are trying to relieve pain and are not taking an active step to end life. Essentially, that is just a big philosophical debate. Do you believe those things are different or not? I am sure there have been many thousands of PhD theses written about this. That is why I wanted to talk about these issues because, as legislators, the members of the committee have to make a judgment.

The law says X but do you fundamentally believe there is no moral distinction between actively ending life and passively ending life? That is ultimately a decision for this committee.

Finally, what is very important about drawing the analogy with the palliative care, the morphine administration situation is that it is only really relevant in the context of terminal illness. The huge decision to be made, if you do decide to legislate for assisted dying, is whether the criterion is insufferable pain, for example, or terminal illness. To my mind, there are very big differences in that. Are you saying that people can only access assisted dying if they are very near the end of life, if they know what the end of the road is? That is not the judgment some jurisdictions have made, where they will permit assisted dying for people who may have a very long life ahead, either with pain or without pain. People who are, for example, quadriplegic, might be able to access assisted dying in some jurisdictions but in others they would not be because they are not terminally ill. What of the situation where somebody is experiencing extreme pain but is not terminally ill? That is what is really important for Deputy Kenny and this committee to think about. If you believe in legalising assisted dying and in the rights-based analysis you have presented, then the question is who should access it. Are you saying it should be accessible to people who are terminally ill, with say six months or a year to live? These are difficult things to define and doctors will not be happy with being asked to give dates like that. It is important to bear that in mind. I am sure the committee will be talking to doctors over the course of its work. That is a really important distinction. If you get into the territory of allowing assisted suicide for other reasons that are not about terminal illness, then the palliative care and morphine analogy is not really helpful because that is a totally different world.