Dr. Andrea Mulligan:

I thank Senator Ruane. They are brilliant questions. It might take a long time to answer but I will try to answer as quickly as possible.

First of all, I will address the question on the best interests. The best interests principle is a very well-established principle in lots of different areas of law. It is often found referred to in relation to children and it will also be found with regard to non-capacitous persons, which is the context in which we are talking about the end of life. It is, however, quite contested. Obviously, when we are trying to assess another person's best interests, it can be very subjective because we are looking at another person and saying, essentially, how we would feel at that situation. It is a well-established principle but it is also somewhat contested. A key area where it would arise, for example, is in the withdrawal of treatment in cases such as those relating to a ward of court. The best interests framework could be applied. There is now an emerging view within medical law, and members will be familiar with the Assisted Decision-Making (Capacity) Act 2015. The underpinning of that Act is very much to move away from best interests and more towards essentially trying to vindicate the views of the person as they would have wanted them to be to be applied if they were still capacitous. The best interests approach can be contested and you must be careful that you are not applying subjective judgments. That is particularly important in relation to end-of-life law because we could look at someone and say that is an horrific way to live and it is not in the person's interests to be alive, but is that necessarily what is best for them or is that your subjective perception of their experience?

Very importantly, with regard to assisted dying, we only ever really talk in the realm of capacitous people, that is, the people who are able to make decisions for themselves. You would very rarely have an assisted dying regime - I cannot think of any - which was for non-capacitous persons, which would be other people deciding that another person's life would end. The best interests principle would have a pretty limited application in the situations the committee will be looking at. I believe the only situation in which you might find assisted dying for the non-capacitous person would be under the Groningen Protocol, which is a protocol for ending the lives of severely disabled neonates. It is extremely controversial and I would be surprised if the committee members ended up going anywhere near that. I can provide more information on that in due course, if needs be. The best interests principle is probably of limited relevance to the kinds of decisions the committee will be looking at.

The second question is around advance directives, which is a very complicated one. If a person is entitled to make a decision to end his or her own life, the person would make an advance directive about ending his or her life. The directive would say that when the person loses his or her capacity, he or she wants to be administered assisted dying. It is very complicated. Some jurisdictions that might allow assisted dying might not necessarily allow advance directives. The fundamental question that arises is that a person does not know what he or she is going to be like when he or she loses capacity. I was speaking to a gerontologist recently about this who posed the question of the happy demented person. You might think you would be very unhappy if you had dementia and you had essentially become a different person, but you may be very happy. We just do not know. We would never want to end up in a situation where we are administering assisted dying, consistent with the views of who that person used to be, to a person who is now perfectly happy having dementia. If we are going to go down the road of legalising assisted dying, we would not necessarily have to provide for advanced directives at all, but if we do, it is tricky because we would have to think that fundamentally they are different people-----