Q&A: Halfway through their deliberations, what has the committee on assisted dying found?

It has been more than a decade since Marie Fleming brought the issue of assisted dying into the national spotlight. Fleming, who lost a landmark Supreme Court right-to-die challenge, was in the final stages of multiple sclerosis and had gone to court to be lawfully assisted to have a peaceful death without putting loved ones who helped her at risk of prosecution. She died in December 2013. Finally in June of this year, the first meeting of the Oireachtas Committee on Assisted Dying was held, with sitting politicians tasked with deciding whether to recommend legislation or not. There have been 10 hearings so far, with another eleven expected. In the first hearing, People Before Profit TD Gino Kenny, who was instrumental in getting the committee set up, said it would take “guts and political will to move this forward.” Here’s how the committee hearings have panned out so far.

Before we begin, what does the Constitution say on this issue, and what other laws are relevant?

Article 40.3.2 of the Constitution guarantees that the State in its laws safeguards the right to life of every citizen, while Article 40.1 guarantees that all citizens shall be held equal before the law. Meanwhile, under 1993 legislation, it is an offence for a person to assist in the suicide of another person. The offence has a maximum penalty of 14 years’ imprisonment. Officials from the Department of Justice told members, however, that to the best of their knowledge there has only been one prosecution and no conviction was secured.

What have the courts said about assisted dying?

In the case of Marie Fleming, the Supreme Court clarified that its judgment did not prohibit the Oireachtas from legislating for assisted dying or assisted suicide, assuming appropriate safeguards could be introduced. Any move to legislate for assisted dying would likely require changes to the Criminal Law (Suicide) Act 1993. Effectively the court has said it is open to the Oireachtas to legislate.

There has been a lot of talk of potential safeguards in legislation. Has the committee discussed what these could be?

Yes, at length. The committee has been told by a range of witnesses that there would need to be measures in any proposed law to ensure there can be no inducement, incitement, pressure or force on a person to seek assisted dying, and that these measures would need to be enforceable by An Garda Síochána. The Irish Human Rights and Equality Commission (IHREC) told the committee that it wanted to see strong measures including: the exclusion of disability as grounds for eligibility; informed consent for disabled people; access to alternatives, including appropriate palliative care and provision of accurate information about the prognosis on an illness.

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In its third hearing, the committee again discussed safeguards in depth and heard calls for the inclusion of second medical opinions, statutory waiting periods and reporting reviews. Dr Louise Campbell of the University of Galway also told that hearing that it is “vitally important that screening for comorbid mental illness plays a central role in assessing both capacity and voluntariness in determining eligibility for assisted dying.”

What models, countries or States has the committee examined?

The committee has examined models across the world including Switzerland, Canada and the United States, among others. The IHREC also identified the two dominant legislative models for providing assistance in dying. These are the Oregon model and then the Benelux model.

What is the Oregon model?

In Oregon, the Death with Dignity Act allows terminally ill patients to end their lives through voluntary self-administration of a lethal dose of medications prescribed by a physician. To qualify, the person must have a “terminal illness that based on reasonable medical judgment will produce death within six months”.

[ Opposing views on legalising assisted dying to be heard at Oireachtas committee ]

Did the committee hear evidence about Oregon?

Plenty. In the seventh committee hearing, Dr Tom Jeanne, the deputy state health officer and epidemiologist at the Oregon Health Authority, gave a factual outline of how the law has worked there. He said that since the Act was passed in 1997, 3,712 people have received prescriptions. Most of those patients were aged 65 or older and white.

“Patients’ most common underlying illness was cancer, followed by neurological disease and heart disease. Most patients died at home, and most were enrolled in hospice care.” He said the three most frequently reported end-of-life concerns were decreasing ability to participate in activities that made life enjoyable, loss of autonomy, and loss of dignity. Concerns were raised at that committee about practices in the US, however. Dr Mark Komrad, a psychiatrist on the teaching faculty of the Johns Hopkins Hospital in Baltimore, said there were “critical missing safeguards in our various laws.”

“For example, there are no requirements to consult a psychiatrist prior to lethal prescribing in order to rule out treatable mental disorders.” He said there are only 11 jurisdictions where assisted suicide is permitted in the US.

[ Assisted dying: ‘No slippery slope’ of vulnerable people being forced to end their lives ]

It is worth noting that Fianna Fáil TD John Lahart said he found it hard to take Dr Komrad seriously as a witness because of the “dramatic language” Mr Lahart said he was using, although Mr Lahart did say he had an issue with the regulatory environment in the States.

What is the Benelux model?

Used in Belgium, Luxembourg and the Netherlands, this model permits both euthanasia and self-administered assisted dying. Under the Benelux model, it may not be the case that the person has a finite diagnosis of end of life. Instead, the criteria for eligibility for assisted dying is that the patient is suffering unbearably and there is no alternative way of easing the suffering. The laws in Belgium, Luxembourg and the Netherlands all reference “unbearable” suffering. The committee heard from Dutch academic Professor Theo Boer who said he has concerns about the expansion of assisted dying in the Netherlands. He cited a significant rise in numbers of people availing of assisted dying in the Netherlands, saying it has quadrupled in the last 20 years.

What are the main concerns expressed by TDs in the hearings?

The main issues mentioned are around unintended consequences in the law, such as elderly or vulnerable people being coerced into making a decision or people who may take the decision because they feel they are a burden to their families. TDs have also spoken about safeguarding mentally vulnerable people and ensuring any new law is ethical and doesn’t lead to incrementalism.

[ Should Ireland legislate for assisted dying? ]

Did any families who could be affected by such a potential law give evidence to the committee?

Yes. In its eighth hearing, the committee heard from Tom Curran, husband of Marie Fleming. He said “she did not want a prolonged and possibly painful end. She did not want us to have to watch her die for months and possibly years.” He urged politicians “not to allow Marie’s death to have been in vain” and to enact laws.

Emma Walsh spoke about her son, Donal, who came to national prominence in 2013 as he fought what she said was his “final battle with cancer”.

[ HSE releases appeal video of cancer victim Donal Walsh ]

“In October 2012, he was told he had weeks – maybe months – to live. In December of that same year, he was told to maybe have an early Christmas. In February 2013, he was told he might not see Easter, yet after Easter, in April 2013, following local publicity, he was asked on to RTÉ and had a conversation with Brendan O’Connor. He spoke about valuing life and appreciating every minute.” She said any introduction of “assisted suicide or euthanasia would undermine the trust placed in doctors when it comes to end-of-life care; they would be seen as death-givers”.