Professor Mary Donnelly:

I thank the committee for the opportunity to speak. My opening statement will outline relevant issues to be considered in legislating for assisted dying with particular reference to issues of consent and capacity, and the interaction between any proposed assisted dying legislation and existing legislation relating to capacity.

A growing number of jurisdictions have introduced legislation for assisted dying. This has sometimes followed a political process or referendum, and sometimes because this was required by the courts. There is no single template for drafting a law on assisted dying. Each jurisdiction’s legislation reflects a range of policy choices. Each of these operates in a different way to balance the unavoidable tension between providing access to assisted dying for those who wish to avail themselves of this, and protecting those who are vulnerable from being pressured. That is why it is important to interrogate the question of whether we should introduce legislation for assisted dying alongside the question of what such legislation should look like. In other words, we must be concrete in our deliberations.

Drawing on the experience of other jurisdictions, some relevant policy questions will fall to be addressed. First, should assisted dying be medically administered or simply medically prescribed, leaving the final action to be taken by the individual? The latter is more common in older legislation. However, more recently there has been a move towards medical administration. The main reason for that shift has been to reduce the possibility of error.

Second, there are questions of eligibility. A key question is whether a person should have a life-limiting condition before they can avail themselves of assisted dying. Two of the newer jurisdictions, New Zealand, and Victoria in Australia have opted for this, as have most of the US states. However, Belgium, the Netherlands and Canada have opted for a situation in which a person has, to quote from the Canadian legislation, some form of "grievous and irremediable medical condition". The latter extends access but raises further safeguarding issues.

Third, there are questions of safeguards and standards. All assisted dying legislation throughout the world is based on a requirement for informed consent. Legal and ethical understandings of consent encompass three elements - adequate information, a voluntary choice and capacity.

I will focus on capacity and how assisted dying legislation might interact with our legislation relating to capacity. I will start with the question of age. In Ireland, section 23 of the Non-Fatal Offences Against the Person Act 1997 states that a person may consent to medical, surgical or dental treatment from the age of 16 years. However, most jurisdictions other than the Netherlands and Belgium operate on the basis that someone must be 18 years of age before they can access or consent to assisted dying. This older age requirement reflects a safeguarding concern regarding the validity of consent by young people although, arguably, this is something that could be addressed by requiring judicial oversight as is the case with treatment refusal by young people in this jurisdiction.

For those over 18, we now have the Assisted Decision-Making (Capacity) Act 2015, as amended, which came into force on 26 April 2023. It affirms a functional standard for capacity to consent to an "intervention". This is something that would work equally as effectively were it to be applied in the context of assisted dying. Having said that, there is an absolute need to be extremely careful in assessing capacity. We can talk further about that in the context of the questions.

I wish to draw the committee's attention to a couple of issues regarding simply applying the Assisted Decision-Making (Capacity) Act in the context of assisted dying. The first is that the Act provides for supports in supporting an individual to make a decision. This is a very positive element of the Act and is line with the State's obligations under the UNCRPD. However, it does raise oversight issues in the context of assisted dying that we would have to think about.

I have two further brief points, both of which relate to advance healthcare directives, AHDs. The Assisted Decision-Making (Capacity) Act 2015 allows a person aged over 18 years with decision-making capacity to make an AHD that extends to refusing treatment, including life-sustaining treatment, if he or she subsequently loses capacity. Provided that the AHD is valid and applicable in line with the standards set down in the Act, the treatment refusal is legally enforceable. The question the committee must consider is whether a person should be permitted to request assisted dying. I should point out that to my knowledge, only the Netherlands and Belgium permit advance requests for assisted dying. If we were to do so, we would need to make some changes to the way in which the Act addresses AHDs. I can speak further to those during questions.

A final point it is important to be aware of is a concern that has emerged in a number of jurisdictions where there is a gap. An appropriate safeguarding measure would be a gap between when a person requests assisted dying and a second request so there is a time period between them. Most jurisdictions operate on the basis that the person must have capacity at the time of both requests, in other words, the original request and the subsequent request. This creates problems, particularly where assisted dying is used at the end-of-life stage because there is a real possibility that a person may lose capacity in the interim. My concern in respect of that is that we have seen - certainly in Canada - situations in which people who use assisted dying end up dying before they would wish to because of a concern that they will lose capacity. In terms of thinking about advance decisions and whether it is possible to make an advance request, there is a smaller question - the one I have just raised there - as to whether it should be permissible for a person to waive that second consent in a situation where he or she is likely to lose capacity. I thank the committee for its attention, look forward to answering questions and wish it well with its important work.