Mary Seery Kearney (Fine Gael)
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I thank the witnesses. Dr. Mills has given us an excellent framework in which to operate and for us to put flesh on the bones of - the need to put in place safeguards for those who wish to avail of the option, a defence or freedom from prosecution for medical personnel who administer assisted dying, conscientious objection and freedom from harm while also determining whether the safeguards are being violated, whether the death is lawful or unlawful and the procedural implications of whether the option has been administered. I found that helpful in substantive and procedural terms.

Regarding a number of references made in the opening statements, I looked to Professor Penney Lewis’s assessment of the effectiveness of safeguards in the context of the 2021 report of the Netherlands authority. Professor Huxtable is broadly in line with Dr. Mills’s view of where it is we need to concentrate. My overarching concern is that, while I want us to legislate and put in place safeguards, it is only the current composition of the Oireachtas that is interpreting what is being said today.

I am at variance with Mr. Kelly, who stated that incrementalism was impossible because of the difference between the Canadian Supreme Court's finding that a blanket ban was unconstitutional versus our own court's finding.

I checked and found that there are 33 Irish Supreme Court cases that deal with or discuss suicide. Of those, the most recent that is relevant for our purposes is Donnelly v. the Minister for Social Protection, the decision on which was given this day last year. The court made the distinction that the Canadian Supreme Court went from a place of establishing a right to die by suicide to the question of whether it was proportionate to legislate. The terminology used in our Supreme Court by Ms Justice Iseult O'Malley was "no support in the jurisprudence of the court for such an approach and the court accordingly reserved its position for a case in which the issue properly arose". The question has never been put to our Supreme Court thus far, so we are not in a position to make the decision.

What happened in Canada began with the Carter case that Mr. Kelly cited, in which it was found that an absolute ban was unconstitutional. Then there was Bill C-14, which put in safeguards, and then there was the Truchon case, in respect of which it was found that foreseeability of dying was too restrictive and not compatible with the Canadian Charter of Rights and Freedoms. Then there was Bill C-7, which removed the obligation to offer palliative care, removing the ten-day period. Therefore, there was a diminishment. Now there is the prospect of mental illness being a reason for assisted dying. Therefore, in a short period of years, Canada has gone all the way from the constitutional position involving a right to suicide to a position covering quite a wide gamut. I am concerned about how we will safeguard people thoroughly if we provide legislation and safeguards now. The minute we put in the law, the constitutionality of the position will be tested. According to the 2021 report from the Netherlands, there were seven cases that did not adhere to or violated what Dr. Mills would have said are the procedural aspects. None was found to be prosecutable, and there was no reference for a prosecution. I wonder about the diminishing sense of seriousness in that if something is regarded as merely procedural, it is fine. I note that suggestions have been made that it should be fine. Therefore, it would appear that mores have changed as a consequence of legislating.

How do we ensure, by way of oversight, that we do not dilute the value of life? While I look forward with trepidation to hearing directly from those affected, I would say that while there are those for whom choosing assisted dying is a prospect, many others with terminal illnesses and in similar circumstances will not want to exercise the right. There are those who do and those who do not.In a just society, we have a duty to legislate for those who do; however, how do we ensure the oversight is absolute?