The very difficult subject of assisted suicide is coming into sharp focus, with the Oireachtas Justice Committee having received written submissions on the somewhat dubiously named Dying with Dignity Bill. There has been fair criticism of the wording of the Bill and the dangers resulting from that wording. The biggest problems with the Bill though do not arise only from its specific terms, but attach inevitably to any assisted suicide legislation, and so cannot be solved by a change of words.

That said, while assisted suicide proposals are by their nature dangerous, this particular Bill is at the more disastrous end of the spectrum. Looking at just some of the main flaws:

1.The Bill allows assisted suicide even for someone who is not in pain at all. This is clear from sections 7 and 8. The word ‘pain’ does not occur anywhere in the Bill.

2. The Bill applies to a person if he/she has been diagnosed by two doctors “as having an incurable and progressive illness which cannot be reversed by treatment, and the person is likely to die as a result of that illness or complications relating thereto”. This is very broad. For example, neither of the doctors involved is required to have a specialisation relevant to the illness concerned, and the test is “likely to die” rather than anything approaching certainty that the person would ever die as a result of the illness “or complications relating thereto”.

3. The Bill contains no requirement at all that death be expected within any period of time. Therefore a person who has years of life left can qualify for assisted suicide under it. Even if the Bill did prescribe a timeframe, predictions about how long someone is likely to live are sometimes quite wrong, but the absence of any requirement that death be expected within some particular time is still striking.

4. The Bill in effect allows for assisted suicide even where the person is choosing it to avoid being a burden to others, or for all kinds of other reasons. It allows for assisted suicide even where the person’s professed wish to die arises from factors other than the illness or its effects.

5. Section 9(3) is founded on naïve and highly unrealistic assumptions about a doctor’s ability to determine some of the matters it refers to – such as whether the person concerned “has a clear and settled intention to end his or her own life which has been reached voluntarily, on an informed basis and without coercion or duress.” Doctors are not omniscient, nor are they mind readers. There is also no requirement for either doctor involved to have a relevant specialisation, such as psychiatry – although again even a psychiatrist is not a mind reader.

6. There are various errors in s. 11. In addition, s. 11(2)(c) and 11(5)(d) appear to go beyond assisted suicide and into euthanasia.

7. The Bill is very lacking in relation to monitoring and control mechanisms. There is reference to a Review Committee in the Bill, but without provision for it to have any relevant powers.

Questions also arise as to the constitutionality of the Bill and whether it complies with the ECHR. In Marie Fleming v. Ireland the plaintiff was suffering terribly and challenged the ban on assisted suicide (s. 2(2) of the Criminal Law (Suicide) Act 1993), with a view to ending her life. The Supreme Court, like the High Court, rejected the constitutional challenge to s. 2(2), but said:

Nothing in this judgment should be taken as necessarily implying that it would not be open to the State, in the event that the Oireachtas were satisfied that measures with appropriate safeguards could be introduced, to legislate to deal with a case such as that of the appellant. If such legislation was introduced it would be for the courts to determine whether the balancing by the Oireachtas of any legitimate concerns was within the boundaries of what was constitutionally permissible.…

This indicates that some provision for assisted suicide might possibly be constitutional. Even assuming that some provision of that nature would be constitutional though, the attempted safeguards in this Bill are very weak. The European Court of Human Rights has also emphasised the need for safeguards where assisted suicide is legal.[i] There are questions too regarding the validity of s. 13(3) of the Bill. Section 13(3) purports to force doctors (and possibly members of other health and social care professions) to be involved, by way of a referral (“transfer of care”) obligation. Since the process is directed toward an intentionally-caused death, this raises obvious questions regarding conscience rights.

However bad all of this may be, it brings us to a further set of problems that no amount of amending can fix, because the principal dangers arising from legislation permitting euthanasia or assisted suicide are dangers inherent not merely in the wording of a particular Bill, but in any legislation permitting such measures. A whole array of negative consequences fall into this category, too numerous to discuss here but articulated and expanded on by others elsewhere. For a broader and far more detailed review, see for example the 2017 Assisted Suicide Position Paper of the Royal College of Physicians of Ireland (RCPI) and the 2020 Update by a Working Group of the RCPI, both available here.

In Fleming, having reviewed expert evidence on both sides and practice in other jurisdictions, the three-judge High Court observed: 

…if this Court were to unravel a thread of this law by even the most limited constitutional adjudication in [Ms. Fleming’s] favour, it would – or, at least, might – open a Pandora’s Box which thereafter would be impossible to close. In particular, by acting in a manner designed to respect her conscientious claims and to relieve her acute suffering and distress, this Court might thereby place the lives of others at risk. The Court is well aware that such is not the intention of Ms. Fleming and we are fully conscious that those who urge such change profoundly disclaim any such intention. But such might well be the unintended effect of such a change, specifically because of the inability of even the most rigorous system of legislative checks and balances to ensure, in particular, that the aged, the disabled, the poor, the unwanted, the rejected, the lonely, the impulsive, the financially compromised and the emotionally vulnerable would not disguise their own personal preferences and elect to hasten death so as to avoid a sense of being a burden on family and society. The safeguards built into any liberalised system would, furthermore, be vulnerable to laxity and complacency and might well prove difficult or even impossible to police adequately. [underlining added]

The Court went on to note that “experience has shown that it would be all but impossible effectively to protect the lives of vulnerable persons and to guard against the risks of abuses were the law to be relaxed…. it is impossible to craft a solution specific to the needs of a plaintiff such as Ms Fleming without jeopardising an essential fabric of the legal system – namely, respect for human life – and compromising these protections for others and other groups of individuals who sorely need such protections.”

Despite good intentions to spare people from suffering, this highlights the unintended but unavoidable dangers arising from legislation in this area. That may help to explain why the great majority of countries prohibit assisted suicide, and why there is such strong and widespread opposition to legalisation of assisted suicide among medical bodies, disability rights organisations and healthcare professionals.

Assisted suicide is often presented as a solution for terminally ill people in terrible pain. It is readily understandable that this concern leads many people to incline toward supporting legalisation of assisted suicide. In this regard though, the RCPI 2017 Position Paper notes:

With advances in medicine, in palliative care and in mental health treatments, effective treatments at the end of life are available to the vast majority of people – to ensure that nobody should be suffering either mentally or physically. In New Zealand, expert evidence from both sides indicates that in the worst cases, palliative sedation was available to address intractable physical pain. In Ireland, as in Europe, palliative sedation in the context of palliative medicine is used to relieve the burden of otherwise intractable suffering in a manner that is ethically acceptable to the patient, family and healthcare providers.

There is a concern that a move towards assisted suicide would result in a shift in focus away from the development and the delivery of palliative care services and cure, and that research into palliative care may be discouraged.[ii]

Moreover, the Oregon Health Authority Data Summary for 2019 notes that 59% of people who died through assisted suicide there in 2019 cited being a ‘burden on family, friends/caregivers’ as a reason for undergoing it. This far exceeded the number of people who gave either ‘inadequate pain control, or concern about it’ as a reason. Similarly, expert evidence was given in Fleming that from the experience of other jurisdictions “uncontrolled pain typically ranks quite low down in the hierarchy when people are identifying reasons why they wish to have their life ended”. The Oregon Data Summary also shows the huge increase that has occurred in the number of people undergoing assisted suicide there in the years since legalisation – from 16 in 1998 to 188 in 2019. Tragically, this is one instance of an internationally common theme of increased resort to assisted suicide or euthanasia.

The High Court in Fleming also referred to other evidence of dangers with legalisation of assisted suicide, such as undetected coercion or depression; abuses of the legislation; misdiagnosis of terminal illness; and persons putting themselves under undetected pressure to end their own lives in order to avoid being a burden to others. The Court noted that legalisation of assisted suicide “might well send out a subliminal message to particular vulnerable groups – such as the disabled and the elderly – that in order to avoid consuming scarce resources in an era of shrinking public funds for health care, physician assisted suicide is a “normal” option which any rational patient faced with terminal or degenerative illness should seriously consider.” The Court also highlighted the risk of gradual “unintentional erosion of moral and ethical standards among medical practitioners”, and the importance of factors such as “preserving the traditional integrity of the medical profession as healers of the sick and deterring suicide and anything that smacks of the “normalisation” of suicide”.

We should be mindful too that for healthcare professionals, witnesses and anyone else involved in an assisted suicide – such as family members or close friends – any regret felt later over involvement in the process could have a ruinous impact on their lives.

As the RCPI Position Paper concludes:

It is the position of RCPI that the potential harms of assisted suicide outweigh the arguments in favour of legislation for assisted suicide. A majority of professional healthcare and medical bodies worldwide are of the same view.

Even looking solely at the dangers discussed above, it is not difficult to see why. The principal dangers arising from legislation permitting euthanasia or assisted suicide are dangers inherent not merely in the Bill under consideration here in Ireland, but in any legislation permitting such measures. The Bill should be rejected, not just amended. There is no merit in seeing what has happened in other jurisdictions and pretending the outcome will be different here, that our legislation and its implementation in practice will somehow overcome intractable problems, simply because we can use different words to make the same mistake.

 


 

Geoffrey Sumner


 

[i] For example, in Haas v. Switzerland (European Court of Human Rights, 20th January 2011) https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22\%22CASE%20OF%20HAAS%20v.%20SWITZERLAND\%22%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-102940%22]}

[ii] https://www.rcpi.ie/news/publications/topic/assisted-suicide/ [references omitted]