Committee is right to recommend a conservative approach to assisted dying

The issue of assisted dying is controversial, not least when you consider its use by non-terminal patients suffering from extreme mental health problems

In Canada, the law on physician-assisted dying was extended to persons with ‘grievous and irremediable’ mental illness in 2021 Picture: PA 

The debate on legalising assisted dying is quite pertinent in Ireland, with the publication of the final report of the Oireachtas Joint Committee on Assisted Dying, in which the committee recommended that assisted dying should be introduced through legislation and permitted in Ireland, in certain restricted circumstances.

Although suicide was decriminalised in Ireland under the Criminal Law (Suicide) Act 1993, the act of ‘aiding, abetting, counselling, or procuring’ the suicide of another person remains illegal and punishable by up to 14 years’ imprisonment.

Thus, current legislation prohibits euthanasia, where one person ends another’s life at their request, and assisted dying where, at their request, one person is provided with the means necessary to end their life by another person.

Further, it has long since been established by the courts that, under the Constitution, there is no ‘right to die at a time of one’s choosing’ that must be vindicated by the State.

Previously, there was an attempt to legislate for assisted dying when the Dying with Dignity Bill 2020 was initiated by Gino Kenny, TD.

While the bill constituted a well-intentioned attempt to address the need for legislative reform, the subsequent report on scrutiny of the Dying with Dignity Bill by the Joint Committee on Justice was critical of the bill’s ‘ambiguities and errors’ and it was not progressed further.

Instead, in 2023, the Oireachtas Joint Committee on Assisted Dying was formed to consider and make recommendations for legislative change in this controversial area of law.

Legal, medical, social, and ethical issues

The committee examined the various legal, medical, social, and ethical issues related to assisted dying and heard from Irish and international experts and other relevant stakeholders.

It has recommended legislation that would allow for access to assisted dying in Ireland ‘in certain restricted circumstances’.

Access to either euthanasia or assisted dying has been proposed for terminally ill persons who have been diagnosed with an illness or medical condition that is incurable, irreversible, progressive, advanced, and will cause death within six months, with the time limit set at 12 months for persons with neurodegenerative diseases, illnesses, or conditions.

Further, it is recommended that the disease, illness, or medical condition must be causing suffering to the person which cannot be relieved in a way that the person finds tolerable. Persons who satisfy these stringent criteria will be eligible to be assessed for assisted dying.

The joint committee’s final report recommends the introduction of a limited, well-regulated statutory regime to facilitate assisted dying in Ireland, with the entire process overseen by medical practitioners, nurse practitioners, psychiatrists, and a State regulatory authority. Indeed, restricting access to assisted dying is crucial to prevent persons in other vulnerable categories from seeking to prematurely end their life. 

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Persons with mental health issues may be able to receive successful, ongoing treatment that is in accordance with international best practice, and live a very full life managing their condition. 

Additionally, there are people for whom mental health issues can be temporary, and overcome, with appropriate treatment.

However, what if a person with mental health issues has explored and exhausted all available and approved treatment options to no benefit, and argues that their illness is such that it is causing them daily suffering that cannot be relieved in a way that they find tolerable?

The committee proposes that a terminally ill person will be able to seek access to assisted dying where there is no other means of relieving their intolerable suffering, yet persons with mental health conditions in a similar situation, albeit not terminally ill, will not be eligible to access even an assessment for physician-assisted dying, and must endure ongoing suffering that they claim is unbearable.

Canadian model

In contrast, in Canada, the law on physician-assisted dying was extended to persons with ‘grievous and irremediable’ mental illness in 2021.

Last month, Canada’s minister for health, Mark Holland, stated that the Canadian government accepts the equivalency of mental and physical suffering.

Despite this pronouncement, persons with mental illness are not yet able to seek access to physician-assisted dying in Canada. The law was due to commence last week, on March 17, but it has now been delayed for three years, until March 17, 2027.

Reasons for the delay include challenges surrounding the assessment of the ‘irremediability’ criterion and an overstretched mental health service.

As stated, an individual’s experience of mental health issues can vary significantly, and if there are challenges in producing robust criteria for assessing the suitability for assisted dying of those persons with a very severe mental illness that they claim cannot be treated successfully, then Canada’s pause seems very worthwhile, and other jurisdictions should take heed of this. 

Rather than rushing to include such persons within the ambit of any laws on assisted dying, we would argue that the approach of the joint committee, which recommends ‘the need for much increased mental health supports to help identify and respond to mental health issues, especially age-related mental health challenges’ should be preferred in the first instance.

In any event, we hope that, for now, the Oireachtas will act on the Joint Committee’s report and legislate for tightly regulated access to assisted dying for those terminally ill persons who are suffering intolerably and have waited for far too long for laws enabling them to end their life on their own terms and in a humane manner.

Incremental change in this complex, sensitive area is preferable to the current legislative inertia.

• Brian Tobin is associate professor in law, School of Law, University of Galway.
• Diarmuid Kilgallen, BCL candidate, School of Law, University of Galway.