Mr. Kevin Kelly:

It is an honour to be invited here to speak to the committee about this pressing issue ten years after the Supreme Court stated that the Oireachtas may provide for assisted dying for persons in similar circumstances to those of the late Marie Fleming.

I would like to highlight the comments of Baroness Hale in the UK who stated that blanket prohibitions on assisted dying force people to stay alive "not for the sake of protecting themselves, but for the sake of protecting other people". She also added that a blanket prohibition could be regarded as a disproportionate interference with the right to privacy under the European convention as "it goes much further than is necessary to fulfil its stated aim of protecting the vulnerable" and "fails to strike a fair balance between the rights of those who have freely chosen to commit suicide but are unable to do so without some assistance and the interests of the community as a whole". This raises the question of how we can implement legal protections for people who are discriminated against by the 1993 Act.

As members of the committee are all aware, in Marie Fleming's case the Supreme Court effectively stated that once the Oireachtas strikes the adequate balance between the right to life and other fundamental rights as against the right to self-determination and bodily integrity of persons who are discriminated against by the 1993 Act, then such healthcare can be introduced, subject to adequate legal protections, and the court will give due regard to the assessments made by the Oireachtas in that regard.

Therefore, the implementation of adequate protections can be regarded as the key to constitutionality in this debate.

With regard to legal protections, which is the first matter I will address, this is an appropriate place to discuss incrementalism, which has been queried previously in this committee. I suggest that incrementalism and the slippery slope argument do not arise here. Unlike other countries, such as Canada, where incrementalism has been observed, the Supreme Court of Ireland has not held that blanket prohibitions on assisted dying are unconstitutional. Therefore, if the current Oireachtas was to introduce end-of-life healthcare as an exception in limited circumstances, it would not be possible to go further than that because of the Fleming judgment and because of the State's constitutional obligation to protect life. In essence, there is a limited window of opportunity in which the Oireachtas can amend the 1993 Act to provide for limited exceptions for people such as Marie Fleming. Unless there is a referendum or the judgment in the Fleming case is overturned, incrementalism is not a substantial issue here.

With regard to legal protections, the Canadian model is an apt exemplar for the creation of an exception under the 1993 Act in respect of competent adult persons who clearly consent to the termination of life and who have a grievous and irremediable medical condition, including an illness, disease or disability, that causes enduring suffering that is intolerable to the individual in the circumstances of that condition. Should such an exception be provided for under the 1993 Act, it would be possible to recharacterise this discussion as pertaining to a right not to be in intolerable pain, where the indirect effect is death, rather than necessarily as pertaining to a right to die. That is an important observation because it is something already permitted in this jurisdiction under the principle of double effect where medication is administered to alleviate pain even where it is known that it will hasten death. I note the legal distinction between acts and omissions in that regard but we must ask ourselves whether that distinction serves a valuable purpose in our society other than holding all of the contradicting practices and judgments in place and whether it protects life when we still allow healthcare to be administered where it is known that it will hasten death.

Healthcare directives could be used by persons who wish to avail of end-of-life healthcare in the future should they, at a later point, satisfy the criteria for the exception or where they already meet the threshold but are happy to extend their life until a certain point. This would allow people to rest assured that, if or when their irremediable condition deteriorates, they will not suffer while locked in their disabled body and will be relieved of their suffering. However, such advance directives would be revocable and, should a person have a directive and then, in a diminished state of cognitive ability, outwardly or otherwise express a will to live, that would be respected and the person would continue to live. The consent process would determine the person's consent at the time of the administration of the healthcare, where possible, rather than only at the time when he or she was cognitively functioning. In Canada, the words, sounds and gestures of cognitively impaired or incapacitated people are assessed when administering end-of-life treatment and revoking advance directives. Therefore, a legal scenario in which cognitively impaired people are treated with life-ending medication against their will simply because they had previously expressed a wish to die would not arise. Their consent would be assessed at the moment of administration, where possible. I urge the members to read my written statement for a fuller overview of this topic but, given the short window of speaking time, I will now turn to the second part of my submission, which relates to legal sanctions.

The question of legal sanctions is not one of great depth. We already operate a legal regime that sanctions those who aid, abet or procure the suicide of another. This means that there would have to be a category of exceptions to provide that assisted dying is not illegal but that, if someone assists another to complete suicide where that person does not meet the eligibility criteria or where that person does meet the criteria but the person assisting fails to observe or implement the procedural safeguards, the person assisting will be committing a criminal offence and will face a maximum sentence of 14 years, as per the current Act. However, upon the regulation of assisted dying, there will be a need to provide for a new offence for persons who unduly influence or coerce another into availing of end-of-life healthcare and for persons who abuse or exploit the existence of such healthcare in respect of the lives of others. In circumstances where this occurs and there is a consequent premature death, it would be appropriate for this to be dealt with similarly to murder given the mens rea, the mental element of a criminal offence, is similar to that of murder.

There would then be a further offence where there is an attempt to unduly influence someone into availing of such healthcare or otherwise but where death is averted. Given the similarities in themens reaof that offence to attempted murder, it would be appropriate that it be dealt with similar to the pre-existing offence.

I believe, therefore, that an adequate balance between competing interests can be struck in this debate and that we can reaffirm the constitutional right to life to continue as a right to life and not impose it as a duty of living for those who are enduring intolerable pain and suffering. One thing that is important to bear in mind is that assisted dying does not apply to all of us. It only applies to those where death is on the horizon or for people in intolerable pain with no prospect of recovery, and then for those who wish to be relieved instead of availing of alternative treatment. We have the benefit of insight from other countries and we have a special opportunity to pick aspects that we like from different jurisdictions and make a system that reflects our particular society while vindicating the right to self-determination for those who are currently discriminated against by our current law.

I hope that was of some assistance. I am happy to take any questions in that regard.