Mr. Kevin Kelly:

I thank Senator Mullen for asking this question and for allowing me to clarify this point because I think it caused some confusion. My observation on incrementalism is that in this current system, where we are right now, without looking into a crystal ball to foretell what the Supreme Court might state in another case or what might change, there is a window of opportunity, on foot of the Fleming judgment, to bring in assisted dying in situations where people are in similar circumstances to the late Marie Fleming. In that regard, incrementalism is limited. If we were to introduce assisted dying on foot of the Fleming judgment, then it is a small window of opportunity.

If there is a case where other things change, that might result in incrementalism. Operating in the current sphere in which we find ourselves, however, based on the Fleming judgment, there is a small window of opportunity to provide for assisted dying in a way that is constitutional. I assume we can take this for granted from the Supreme Court's judgment because it has explicitly stated that it would not be not open to the State to provide for assisted dying for people in similar circumstances to Marie Fleming. My point in respect of the slippery slope argument not existing is in relation to the current regime and system in which we find ourselves. If changes were to be made on foot of the Fleming judgment being overturned or the holding of a referendum, then I cannot look into a crystal ball and confirm whether incrementalism would occur.

In the system in which we currently find ourselves and based on the extant case law, however, I think incrementalism is not a risk. If it were to be something that concerned the committee, it could implement legislation to provide for assisted dying and also go for a referendum to ensure the system to be established would have a constitutional protection. If people wished to engage in incrementalism in later years, then, the fact that the people had spoken and we had had a referendum to insert a provision into the Constitution to state that these are the only circumstances in which assisted dying could occur would make it possible to have constitutional protection in this regard and try our best to avoid incrementalism.