Patrick Costello (Dublin South Central, Green Party)
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I welcome our witnesses and thank them for being here. Dr. Mulligan has pre-empted and answered some of my questions already. There are many questions but essentially we are asking whether we can legislate for this and whether we should legislate for it. Today is very much focused on the question of whether we can legislate. The questions Dr. Mulligan posed at the end of her paper are the sorts of questions this committee will wrestle with in the coming sessions around ethics, safeguards, unintended consequences and so on. I want to focus today on the cold legal question as to whether we can legislate for this. I am struck by the use of the somewhat pejorative term "obiter" in relation to the comments of the court. I appreciate that such comments did not necessarily cut to the heart of the question being answered by the court at the time and are not necessarily binding but they are still a strong legal analysis from eminent legal minds. I would be slow to be dismissive of an analysis simply because it is obiterand would ask whether it is possible for the court to make the comments it did in any way that is not obiterwithout violating the separation of powers. It seems to me to be unduly dismissive of the court's reasoning to label it obiterand to move on.

I want to dig into the issue of the double effect. I believe it was Judge Sopinka of the Canadian Supreme Court who, in the Rodriguez case, described the difference between omission and a positive act as a "legal fiction". We accept the need to alleviate pain and suffering for someone who is terminally ill even if it hastens death. Is it not simply an arbitrary line when we say we will do this an hour, a day or a week before instead of a different timeline? If our aim, in terms of the double effect argument, is the provision of pain relief and the ending of suffering, then surely that would be allowable given that it is essentially already allowed in terms of palliative care. The courts here have taken a very different view on the distinction between omission and positive act. Our eminent scholars' views on that would be very interesting to hear.