Right to die: ‘An ethical issue that this country will have to address’

Though the last prosecution in Ireland for a suicide attempt was in 1967, the jury is still out on the topic of assisted dying.

Tom Curran and Marie Fleming. Pic:Garry O'Neill

Debate around assisted dying has been a slow burner in Ireland, where up to 25 years ago, suicide and attempted suicide were still criminal offences.

The last prosecution for a suicide attempt was in 1967, the Seanad was told in 1991, when then-justice minister Ray Burke spoke on a new bill proposed by Fine Gael’s Dan Neville, seeking to decriminalise suicide.

“The view of the prosecuting authorities — which is one shared by me — is the people who attempt suicide are in need of sympathy and treatment, not punishment,” said Mr Burke.

There was no such sympathy for the idea of someone assisting a suicide. In the course of the debate on the bill, several parliamentary questions were put to then-health minister, Dr John O’Connell, about the role of doctors in what was then called voluntary euthanasia.

He said he had no information in relation to the topic; he had no plans for legislation on it, and “such practices would be completely unacceptable within the Irish health service”.

The Criminal Law (Suicide) Act of 1993 was passed and it decriminalised suicide but it also, as a widely welcomed safeguard, created a new offence of assisted suicide, which to this day still carries a 14-year jail sentence.

The issue did not trouble the houses of the Oireachtas again until December 1998, when a spat erupted over tributes paid to Dublin GP Dr Paddy Leahy, who had recently died.

Dr Leahy had been an outspoken campaigner for contraception at a time when it too was illegal and, in his later years, he turned his attention to the issue of euthanasia.

Dan Neville

He spoke publicly of having helped numerous patients to die, beginning when he was working in England during the war and met people suffering terribly from bomb injuries.

He said he continued to be contacted by dozens of people every year, begging for help and, after being diagnosed with cancer, he announced he would arrange his own death.

The spat, between those who sought to pay tribute to him and those who were outraged by his views, was short-lived and once again, the debate fizzled out.

Then in 2002, the death of a woman in a house in Dalkey drew attention, after evidence emerged that she had arranged to die with the help of a controversial American right-to-die advocate, Reverend George Exoo.

Rosemary Toole was suffering from depression and claimed also to be physically ill, although her medical condition was somewhat vague. The Garda investigation dragged on but in 2004, extradition proceedings were commenced.

Exoo was detained by police in the US in 2007 on foot of the extradition application but after several months in jail, he was released when a judge refused to approve his handover to the Irish authorities.

Gardaí finally threw in the towel and Ms Toole’s inquest went ahead in 2009. The coroner could establish no proof that she had been actively assisted in taking her own life, and a verdict of suicide was delivered.

The issue faded from public view again but then in 2011, Bernadette Forde, 51, a former human resources manager in the late stages of multiple sclerosis, was found dead at her Dublin home.

Gail O'Rorke

Her friend, Gail O’Rorke, had been reported to gardaí by a travel agent after making inquiries about flights to Switzerland for a person who was ill and with limited mobility.

She immediately fell under suspicion and in 2013 she was charged with assisting Ms Forde’s suicide and remanded on bail to await trial.

In the meantime, the story of Marie Fleming had been attracting headlines.

Marie, a former university lecturer in the late stages of multiple sclerosis, launched a High Court case to challenge the law on assisted suicide.

She argued it discriminated against people with disabilities because, if she was able-bodied, she could legally take her own life, but because her movement was so restricted, she needed help, and helping was a criminal offence.

Her partner of 18 years, Tom Curran, had agreed to help her but Marie did not want him exposed to the risk of a criminal prosecution.

If she couldn’t overturn the law, then the least Marie wanted was a statement from the Director of Public Prosecutions clarifying what factors would be taken into consideration when deciding when to prosecute.

Marie’s case was heard and lost in late 2012, with the only comfort she could draw from the outcome being the judges’ view that they expected the DPP would exercise her discretion in a humane and sensitive way.

Marie Fleming

Determined to fight on, Marie lodged an appeal to the Supreme Court which was heard in early 2013. She lost that too but she gained praise from taoiseach of the day, Enda Kenny, among many other public figures.

Some comfort was drawn from the fact that the judges ruled there was nothing in the Constitution to stop the Oireachtas legislating for assisted dying.

In November of that year, Gail O’Rorke was charged with aiding or abetting a suicide by attempting to make travel arrangements for Ms Forde and helping to procure lethal medication from Mexico.

The next month, a few days before Christmas, Marie died, at home with Tom. In April 2015, the jury in the Gail O’Rorke case acquitted her of all charges after an eight-day trial.

In December 2015, Independent TD John Halligan introduced a Dying with Dignity Bill in the Dáil, saying it was inspired by Marie Fleming and declaring: “It is an ethical issue this country will have to address sooner or later.”

Mr Halligan was made a junior minister following the general election in early 2016 and his bill vanished without ever being debated.

In June that year, Tom Curran gave an interview to this newspaper about Marie’s death and the many approaches he had received to help other people plan their deaths. He has been under Garda investigation since. 

Last November, the Oireachtas Committee on Justice held hearings on the “right to die with dignity”, inviting presentations from both sides of the debate, including Mr Curran, as well as broadly neutral legal and ethical experts.

The committee has not yet published its report and recommendations.

Oregon in the spotlight during 20 years of assisted dying in the state

With 20 years of legalised assisted dying behind it, Oregon in the United States is regularly under a spotlight from advocates on both sides of the debate.

And with a population of just over 4m — close to Ireland — it may give an insight into how a similar law might operate here.

The state was the first in the US to legalise assisted dying, passing the Death with Dignity Act in 1994 by a narrow popular vote of 51% to 49%.

However, implementation of the act was held up by legal challenges until October 1997.

By that time, the margin in favour had grown and when a question asking voters if they wanted to repeal it was added to the election ballot of 1997, the electorate chose to retain it by 60% to 40%.

Since then, the Oregon Health Authority has published annual reports on the operation of the act, collecting statistics on patients such as their medical condition, gender, age, race, marital status, level of education, their reasons for wanting an assisted death and the means by which it is carried out.

The health authority itself takes no practical part in assisted dying, leaving it to doctors and patients to make arrangements although there are mandatory procedures that must be completed and the Oregon Medical Board will investigate any suspected breaches.

By law, a patient must be 18 or older, resident in Oregon, capable of making and communicating their decisions and diagnosed with a terminal illness with death expected within six months.

Patients must make two requests to their doctor, at least 15 days apart, and that doctor must refer them to a second doctor to verify that all the conditions are met.

If a doctor has any doubt about their patient’s state of mind or their ability to make decisions, they must also refer them for pscyhological or psychiatric evaluation.

When cleared to proceed, a prescription can be written and the prescribing doctor must report all the details to the health authority.

There is no obligation on any doctor to write a prescription or facilitate an assisted death.

From 1997 up to the end of last year, a total of 1,967 people had prescriptions written for lethal medications and 1,275 were confirmed to have died from taking the drugs so around one in three did not go ahead with their plan for an assisted death and subsequently died of other causes.

That ratio has been relatively stable from the start.

In 1998, the first full year that the Death with Dignity Act was in operation, 21 people received prescriptions but just 15 used them.

What has changed over time is the numbers availing of an assisted death.

The 21 who got prescriptions in 1998 grew to 218 last year. In 1998, of every 10,000 deaths in the state, five were assisted deaths. The rate in 2017 was 40 for every 10,000 deaths.

The age at which patients are likely to opt for an assisted death was 69 in 1998 and 74 in 2017. More men opted for assisted death than women — 53% were men in 1998 and 58% in 2017.

Cancer is by far the main underlying illness, accounting for 86% of those who requested prescriptions in 1998 and 78% in 2017 although, interestingly, those suffering from lung, ovarian or breast cancer collectively made up 60% of the group in 1998 and just 23% in 2017.

In 1998, just 13% of the group were married while the biggest group were widowed, and just over half were either divorced or never married.

By 2017, married people, or those in civil partnerships, accounted for 52% of the group.

On average every year since 1997, just over half had private health insurance although this dipped to 31% last year.

Every year, the vast majority are enrolled in hospice services — an average of 90% — but few actually die in care facilities, with an average of 93% choosing to die at home.

The reasons for opting for an assisted death have been fairly constant over the 20 years and, somewhat surprisingly, pain is not the number one issue. Loss of autonomy and inability to engage in activities that make life enjoyable are the main concerns.

Pain was a fear of 7% in 1998 and 21% in 2017. In 2017 just over half listed fear of being a burden on others as a significant concern compared to just 13% in 1998.

Just 5.6% last year listed the financial cost of prolonging their treatment as a significant concern but nobody mentioned this as a concern in 1997.

Since 1997 there have been seven patients who regained consciousness after taking lethal medications and subsequently died from their underlying illnesses.

No breaches of the law were resported last year.


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