Mr. Finn Keyes:

I thank the Cathaoirleach and members for the invitation to assist in the difficult deliberations on this sensitive issue. I propose to outline the manner in which the courts have dealt with ethical dilemmas that arise in end-of-life care under the current legal regime and to suggest what lessons might be drawn from the court’s resolution of these dilemmas. In particular, I will discuss consent to treatment, the distinction between acts and omissions and the doctrine of double effect, insofar as they have been used by the courts.

On consent to treatment, it is the right of any competent adult to refuse any and all medical treatment for any reason or none, even if death may result. This flows from the constitutional guarantee of the autonomy and bodily integrity of every person. A person who considers that they may at a future point lose the capacity to make such a decision may make an advance healthcare directive, now provided for under Part 8 of the Assisted Decision-Making (Capacity) Act 2015, stipulating their will and preferences in relation to a future treatment decision, including a refusal of treatment that would prolong life. However, there are things to which a person under the current legal regime cannot consent. A person cannot consent to being seriously harmed or killed; therefore, it is no defence to a murder charge or a charge pursuant to section 2(2) of the 1993 Act to say that the person consented to having their life taken.

The circumstances in which a court is required to make decisions about assisted dying arise in cases where the person lacks capacity to make decisions about their care at the end of life. That is, where a person lacks capacity, it may fall to the court to act as a substitute decision-maker, which historically has been under the High Court’s wardship jurisdiction, but going forward will be under the regime established by the assisted decision-making Act.

In cases where the courts have had to act in such a role, they have drawn on two important legal-ethical constructs to distinguish between permissible end-of-life care that may hasten death, on one hand, and impermissible killing, on the other. These are the act-omission distinction and the doctrine of double effect.

On the act-omission distinction or the active-passive distinction, an important principle of criminal law that has particularly weighty relevance in the context of assisted dying is the distinction between acts and omissions. As a general rule, subject to important exceptions, a person is only criminally liable in respect of positive acts and not in respect of omissions. Thus, it is a crime to start a fire but it is not a crime to refuse to put out a fire started by another.

In light of this distinction, the courts have consistently held that a refusal on the part of medical practitioners to continue treatment where the patient cannot obtain any practical benefit from it constitutes an “omission to struggle”, and hence not a positive act for the purpose of the statutory prohibition on assisted dying. The phrase “omission to struggle” entered the legal lexicon following a decision of the House of Lords in Airedale NHS Trust v Bland. That case concerned a 17-year-old victim of the Hillsborough disaster, Anthony Bland, who suffered a hypoxic brain injury in the crush at the stadium, and was left in a permanent vegetative state.

After several years in this condition, his medical team, with the support of his parents, went to court seeking orders to allow them to discontinue life-sustaining treatment, including nasogastric feeding. Lord Goff outlined the centrality of the act-omission distinction to the law in this area and stated that "to act is to cross the Rubicon which runs between on the one hand the care of the living patient and on the other hand euthanasia - actively causing his death to avoid or to end his suffering". In doing so, the House of Lords quoted from a Professor Glanville Williams, a criminal law expert, who stated that when a doctor switches off a life support machine it "is in substance not an act but an omission to struggle" and that "the omission is not a breach of duty by the doctor because he is not obliged to continue in a hopeless case".

A very similar rationale was employed by the Irish Supreme Court in the Re a Ward of Court judgment from the mid-1990s, in which it similarly held that the withdrawal of artificial life-sustaining treatment would not amount to unlawful killing, partly on the basis that such a withdrawal would not amount to a positive act but rather to an omission to struggle in a hopeless case. This of course places a weighty responsibility on the medical practitioner to determine at what point life is no longer in the best interests of the patient.

However, it is important to reflect on what exactly the courts were characterising as an omission in these cases, namely, the action of withdrawing life-sustaining treatment, in the form of turning off a ventilation machine or removing nasogastric feeding. The rationale of these cases allows for a somewhat dubious expansion of the criminal law concept of an omission to facilitate certain humane end-of-life practices and to protect doctors from criminal liability. While characterising the act of withdrawing ongoing treatment as an omission is certainly dubious, it appears to be tolerated as a necessary fiction under the current legal regime.

Moving to the doctrine of double effect, this plays a central role in the cases in this area. It can be defined as a distinction between consequences that are intended and consequences which are foreseen but not necessarily intended. Thus, according to the principle of double effect, it is permissible to do an act intending a good effect, albeit in the full knowledge that it will also result in a second, bad effect. The doctrine, which originated in the work of Thomas Aquinas, has many uses in moral philosophy but has played a particularly important role in end-of-life decision-making. In this context, the doctrine of double effect can justify the administering of palliative care, such as pain relief, that is likely to hasten death if the primary motivating purpose of that treatment is to alleviate suffering and not to cause the death of the patient. By contrast, a doctor who administered the same dose of pain-relieving medication with the intent of hastening death would, under the current legal regime, act impermissibly.

In a recent major decision on end-of-life decision-making, In the Matter of JJ, the Supreme Court placed express emphasis on the doctrine of double effect in justifying orders that would allow doctors to withdraw respiratory support from a young boy who had suffered a catastrophic brain injury. The court quoted approvingly from the evidence of a consultant in paediatric palliative medicine in the case, who outlined the nature of palliative care in this context and stated that:

The intent is never to shorten life. The goal of palliative care is to live well, but it also encompasses the potential to die well. So, the intent is never to hasten death or shorten life. The intent is only to relieve suffering.

Interestingly, while the court placed a great deal of emphasis on the doctrine of double effect, it also stated that it is a less than fully satisfactory basis for dividing the boundary between lawful and unlawful end-of-life care. The court stated: "It is possible to argue that the distinction is no longer feasible, or should no longer be maintained, but so long as the law retains an absolute prohibition on euthanasia, it remains a critical and valid distinction both for medicine and the law". Thus, the court appeared to accept that the doctrine of double effect is necessary under the current legal regime but expressed doubts about its philosophical effectiveness.

In these opening remarks, I have sought to illustrate the very fine distinctions that have been drawn by the courts within the current legal regime to accommodate certain humane end-of-life practices and to protect medical practitioners from criminal liability. These fine distinctions are open to critique and challenge but they are likely to remain a feature of the law for as long as the current legal framework in respect of assisted dying is maintained.

I thank members for their attention and I welcome any questions.