Proper debate on controversial issue is a matter of life and death

CONTRARY to popular belief, the right to die has been enshrined in Irish case law — but only for those who are physically incapable of voicing their desire to end their own lives.

This week’s recommendation of the UK’s Commission on Assisted Dying, that terminally ill adults should be allowed end their lives with the help of their doctor, has again raised the controversial issue of euthanasia. Having described the current UK law as “inadequate and incoherent”, the commission’s year-long review concluded by recommending that those with less than a year to live should be allowed end their lives as long as some stringent guidelines — including, any lethal medication must be self-administered and two independent doctors must be satisfied with the terminal diagnosis — are adhered to.

While the debate between opposing camps in this divisive debate has been freshly ignited by the UK report, incoherent and inadequate is also an apt description for Irish jurisprudence on euthanasia with courts here taking a rather dichotomous approach to this life-and-death issue.

The Supreme Court has ruled that patients in a permanent vegetative state (PSV) can be allowed to die following applications being made on their behalf by family members but has drawn a clear line of demarcation between this “natural death” and physician-assisted death. According to our courts, removing the feeding tube from a comatose patient and allowing them to starve to death constitutes a natural death while the autonomous decision of a terminally-ill patient, living in agony, to end their own life at a time of their own choosing cannot be countenanced.

“[The right to a natural death] does not include the right to have life terminated or death accelerated and is confined to the natural process of dying,” was the judgment of Chief Justice Liam Hamilton in 1996, in a landmark case concerning a 46-year-old woman who had been in a coma for over 20 years following an accident.

The rationale goes something like this — there is a constitutionally protected right to a natural death, by refusing medical treatment, but there is no provision in law for anyone to decide to intervene to terminate his or her own life.

In the case of a PSV patient, the courts, demonstrating an enviable ability to dance on the head of a pin, have ruled that the ultimate cause of death, if nourishment is withdrawn, is the original accident that caused the injuries and not the inevitable starvation that’s an obvious consequence of the removal of the feeding tube. Of course this approach, which is unlikely to be diverged from without a change in the current law (the Criminal Law (Suicide) Act 1993, under which it is an offence to aid, abet, counsel, or procure the suicide of another person, punishable by up to 14 years in prison) raises an obvious question. If the court is willing to make this life-and-death decision for an unconscious patient then why is the same court loathe to give credence to the express wishes of a fully compos mentis patient who, presumably, is among the best placed to judge what’s in their own best interest?

Courts often make decisions having regard to policy concerns for the greater good and fear the potentially far-reaching precedential power of a “hard case”. Indeed a broad consensus has built up in all common law jurisdictions that allowing euthanasia, even in very circumscribed cases, would open the floodgates to inevitable abuse. The American Supreme Court, which in 1997 overturned a ruling from a lower New York State court that found physician-assisted suicide was Constitutional, said that such a ruling would result “in a slippery slope leading predictably to the voluntary killing of the unwanted”.

However, this implicitly presumes that those applying to the courts for permission to allow their PVS relatives to starve to death, albeit in a natural way, have the best of intentions and are not just acting in their own selfish interest. If the court feels capable of making judgments in these tragic cases then why are physician-assisted suicides thought too fraught with the potential for the abuse of vulnerable people to even be considered?

Just as the law is not static, and must evolve over time, huge advances in medical science mean that patients suffering from chronic diseases, which would formerly have proved quickly fatal, can now live for many years with constant pain and little quality of life.

Why should their autonomous desire to hasten the inevitable, and escape a life of torment, be considered criminal while the choice of patients who refuse to accept treatment, in the knowledge that they are hastening their deaths, is deemed acceptable? The ruling of the Irish court in 1996 that, “the benefit to [X] of sustaining her life by abnormal artificial means of nourishment was far outweighed by the burdens of so sustaining life with absolutely no prospect of any improvement in her condition” and “it was in the best interests of [X] that the artificial nourishment be terminated allowing her to die with all such palliative care and medication as was necessary to ensure a peaceful and pain-free death” would suggest that the courts can clearly see that sometimes, in rare tragic cases, life is simply not worth living.

However, this explicit acknowledgement has not been brought to its logical conclusion — that terminally-ill patients suffering from severe pain, with no hope of any recovery or relief, should have the right to die with dignity and without unnecessary suffering.

This, in turn, begs further questions. Is it fair, as the UK commission has recommended, that only those who imminently face the prospect of death, and not those suffering from chronic and incurable diseases, be allowed the option of ending their agony? Or that only those who are still capable of administering a fatal dose of medications themselves, and not those who are so physically debilitated by their disease that this is impossible, be allowed to die?

English author Terry Pratchett, who was diagnosed with early-onset Alzheimer’s disease in 2008, has recommended euthanasia tribunals to rule on individual cases and make a determination about whether an assisted suicide, or assisted death as he prefers to call it, be allowed to proceed.

While this suggestion may unfortunately be reminiscent of the so-called “death panels” that Sarah Palin infamously warned would be a consequence of President Barack Obama’s healthcare reform, it would at least provide a transparent safeguard to protect against vulnerable people being bullied into ending their own lives.

At the very least, the issue is worthy of a considered debate, one that is unlikely to happen in this country if the experience of Professor Len Doyal, a British medical ethics expert, in 2009 is anything to go by. He had to be escorted from a debate on euthanasia in Cork University Hospital when a hysterical mob started loudly chanting the rosary and shouting that he was a “murderer” and a “Nazi criminal”.

Faced with such a divisive issue our politicians, ever fearful of losing votes, would rather wash their hands of any responsibility to legislate and instead condemn the hard cases to throw themselves on the mercy of the court.