Professor Mary Donnelly:

I will first talk about the relationship between the courts and the Oireachtas. How the courts respond would depend on the question placed before the courts. Undoubtedly, consideration by the Oireachtas would be a relevant factor. I should point out that one of the reasons there has been an increase in numbers in Canada is further court interventions. The expansion of the scope of assisted dying in Canada was because of the involvement of the courts. The Supreme Court was quite sensible in the Fleming case in not seeing this as a matter for the courts and in leaving it to the Oireachtas to take responsibility for this kind of decision. These decisions are better made in a democratic, responsible and answerable forum. That does not take away the necessity for the Oireachtas to exercise its duty in that regard.

The other question is a fair one: how on earth do we balance all the sets of issues and how can it be done in legislation? The only example I can give is in respect of advanced healthcare directives in the Assisted Decision Making (Capacity) Act, which provided for the establishment of a committee, which I chaired, to develop a code of practice. The Oireachtas and the legislation should set out the fundamentals. That is something for which the Oireachtas is responsible. However, anything in this area needs to be cognisant of the people on the ground, including the clinicians who would operationalise this, individuals and their families, public representatives and representatives of people with disabilities. It would be almost impossible for the Oireachtas to set out a full framework. It would not be possible. The Oireachtas could set out high-level principles and the code would be subject to oversight and so on by the Oireachtas and the relevant Minister. It would have to happen on that kind of dual level. The Oireachtas could never put enough detail into statute to deal with all these questions. However, it can certainly set principles.