Dr. Simon Mills:

I thank committee members for inviting all of us to set out our various views today and for the work they have done in the meetings to date. I have taken the opportunity to look at what happened at all of the previous meetings. I will be cautious about spending time restating matters members have already heard.

The invitation to us was to address the issue of legal protections and sanctions. In considering the question of legal protections, it is probably of some assistance to think about the various groups to which it will be necessary for legislation to afford legal protections. It occurs to me that there are probably four groups of people that this committee will want to think about in terms of any views it may form about legislation.

The first is protections for those who wish to seek assistance in dying. That is, protections that, as Professor Huxtable just observed, allow them to seek assistance in dying if it is provided for and also protect them against abuse of any legislation that may be in place. The second group comprises those who wish to operate under the legislation and that they will be protected from prosecution as long as, of course, they comply with the legislation. The third is those who wish to exercise a conscientious objection. Again, that is something that Professor Huxtable spoke about. I will come back and talk about one particular aspect of that to which the committee might want to give some thought. It arises out of research that has been done into the abortion legislation and its operation. The final group comprises those who are concerned about an act that is done in good faith under the legislation, but which is not a negligent act or an unlawful act, which might result in harm to the person who requested assisted dying.

On sanctions, members need to think about three different things. First, as Mr. Kelly just observed, is the sanctions that would attach to those who do an act that results in death otherwise not in accordance with the legislation, in other words, somebody who perpetrates what is an unlawful killing because the terms of the legislation were not followed - circumstances where that has happened knowingly or recklessly. The second is perhaps a second tier of offences that any legislation would have to deal with, which are those acts that involved a procedural non-compliance with the legislation, that is, a failure to follow rules that have been set down. I will come back to that when I am talking about safeguards in order to highlight some of the rules that might be in place, such as the reporting of deaths that have taken place under legislation, and failure to comply with that. There might be requirements around record-keeping. Those are, if you like, second tier offences under the legislation.

The third issue that members may wish to consider is in respect of if they put in place particular provisions such as a conscientious objection provision and if a person knowingly or willingly fails to operate in accordance with such a provision.

For example, the legislation may well say that in the event that you have a conscientious objection, you must take the following steps. It may well be appropriate that there would be some recourse for the powers that be in the event that somebody exploits or abuses what they claim to be a power of conscientious objection. I observe that issues of conscientious objection cut both ways, and I will have a specific point to make about that shortly.

In terms of my own personal background, I am currently a lawyer - a senior counsel - who specialises mainly in aspects of medical law. I am the co-author, with one of the witnesses the committee has already heard from, Professor Andrea Mulligan, of a book on medical law in Ireland which deals with, among other things, the area of assisted dying. Before I was a barrister, I was a doctor. I will come clean and say that I was an exceptionally mediocre doctor - one of the reasons I am now a lawyer - and that included, as part of my training, exposure to training in palliative care in Our Lady's Hospice in Dublin.

I want to say a few things about the background to all of what we are engaged in. The first thing is that all of this takes place against the backdrop of the Criminal Law (Suicide) Act 1993, a provision of which criminalises those who aid, abet, procure or counsel suicide. As things currently stand, it would be a criminal offence to do any of those things, and that is currently punishable by 14 years in prison. I would make the following observation, and I will deal with this slightly out of place compared to my written submission. Notwithstanding the existence of that legislation, there have been almost no prosecutions, and in so far as there has been a prosecution in recent years, that prosecution did not result in a conviction. Whether or not some weight should be attached to that is something the committee may want to bear in mind.

Of course, the other thing against the backdrop of which this meeting takes place is the fact it is ten years since the case of Fleming v. Ireland. By way of precursor, I make the observation that I was a junior counsel in the case of Fleming v. Ireland and I acted for Marie Fleming. I have to say that it was one of the greater honours of my professional career to date to get to do so, but it does have one practical corollary, which is as follows. Barristers are not supposed to comment on the rights and wrongs of a case that they have been involved in, so I am simply going to confine myself to talking about what the Fleming decision actually says. It is clear from the case of Fleming that the Supreme Court was not satisfied that there is a right to suicide under the Irish Constitution and still less a right to assistance to commit suicide. That turns on an observation that has been made regularly in the Irish courts, and this has been drawn to the committee's attention by other witnesses so far, going back to in re A Ward of Court and recently articulated in the case of the Governor of X Prison v. McD. This is that the Irish courts have recognised a distinction in a person electing or taking steps the consequence of which will involve their life being shortened but which do not amount to them ending their own life or somebody else ending their life. They have elected to recognise that there is a legal and moral distinction between those things and that remains the case.

However, one thing was very clear from the decision in Fleming, which is that the Supreme Court recognised that this is an area of very significant and complex social policy and it is one of those areas in which the Oireachtas has a special competence to legislate. In the same way that the Supreme Court was disinclined to intervene to try to fashion a remedy either for Ms Fleming herself - it was clear, certainly at the High Court, that if they could have done that, they might have been minded to do so, but they did not - they were conscious of the fact that fashioning law on assisted dying from the Bench was not the way to go about it, and they were also clear that this was a matter that was within the competence of the Oireachtas to legislate for.

To go back to the previous meetings, I heard the submissions of Dr. Casey, Dr. Mulligan and Dr. Hickey when the committee dealt with the legal and constitutional aspects of all of this.

Although I am not specifically a constitutional lawyer, insofar as I have knowledge of these matters and have written and spoken about them, I forcefully disagree with Dr. Conor Casey's interpretation of the Fleming case and endorse the view expressed to the committee by Dr. Hickey and Dr. Mulligan.

I wish to make another observation before I move on to safeguards. We, as witnesses, are here as lawyers and academics to give the committee the benefit of what we think about all of this. There is a substitute for our arid and academic views, which is to understand the lived experience of those with terminal illnesses, of those operating under these schemes in other jurisdictions and of those who have engaged in the legislative rough and tumble of bringing this sort of legislation into being. I stress that, although I hope these sessions are of some theoretical use to committee members, it will be necessary to engage with the nitty-gritty of all of this, as I am sure the committee is aware.

I will deal briefly with safeguards because I know committee members will want to ask questions about all of this in due course. In terms of safeguards, there are a number of headings the committee must consider. The first, in terms of broad limitations, is to what range of conditions any legislation would apply. In different countries, different approaches have been adopted - for example, it must be a terminal condition or in some cases terminal conditions with time limits have been adopted. I am unpersuaded that strict time limits are of particular use. Other conditions allowed are those that involve intolerable suffering. The committee may view that there are elements of subjectivity to the words "intolerable suffering". Other things that have been allowed are psychological conditions - that is to say non-physical. Which of those will the committee choose from? Members may wish to discuss that issue.

The committee also must consider the nature of the assisted dying that will be permitted. Is it to be assisted dying that must be availed of by the person themselves? That is to say, it is the person who is doing the dying who must consume or administer the substance that ends their life or to what extent will assisted dying involve taking medical steps? The committee must consider these things. It is fine to think about all of this in the abstract, but there is a practical output of the committee's considerations, which members must think about, particularly in the context of those at whom legislation will be aimed. The committee must also think about the role of clinicians. Are they to involved at every step? Is it possible to provide a prescription to someone that they consume in their own time and in a place of their own choosing or must a clinician, for example, be present at the time of use of the substance that it is intended will bring about the end of life?

Any legislation must lay out certain tests that must be satisfied, such as proof of the existence of the condition in question and assessment of capacity, noting that we are all presumed to have capacity to make decisions, the provision of the information a person needs to make the decision and any other safeguards the Oireachtas may consider. Other safeguards include what determinations the committee will make about age, as well as autonomy safeguards to ensure this is the settled, voluntary choice of the person. Other issues include reporting, stating what has to be reported and recorded about each assisted dying decision made under the legislation, as well as issue of conscientious objection. I may come back and talk about conscientious objection and precise sanctions in reply to later questions.