Irish Examiner view: Court struck justified note of caution

Dying with Dignity Bill seeks to 'make provision for assistance in achieving a dignified death'

At the launch of the Dying with Dignity Bill at Leinster House on September 14 were, from left: Tom Curran, Vicky Phelan,  Gino Kenny  and Gail O’Rorke. Picture: Gareth Chaney/Collins

Solidarity-People Before Profit TD Gino Kenny has brought a bill on assisted dying in Ireland back on the political agenda. The Dying with Dignity Bill, first introduced by former TD John Halligan, seeks to “make provision for assistance in achieving a dignified death". The name of the bill is deliberate, as, in contrast to euthanasia and assisted suicide, assisted dying would apply to terminally ill people only.

It is being supported by cervical cancer campaigner Vicky Phelan, Tom Curran, husband of Marie Fleming, and a number of politicians including Labour leader Alan Kelly. "I believe the time is now to deal with this issue, I believe as legislators we should do so," he said on launch day.

This was also the opinion of the Supreme Court in the Marie Fleming case in 2013 when it determined that it was up to the Oireachtas to decide the legislation and restrictions in this area. However, should such an important matter be up solely to legislators? 

Given the enormity of the consequences, there is an argument for ensuring that the matter is dealt with by the people, by way of referendum. After all, neither abortion services nor same-sex marriage were considered appropriate for the Oireachtas alone. 

In any event, discussion and debate on assisted dying should not be confined to politicians, judges or, indeed, the medical profession. It is a moral dilemma as much as a legal, social, medical, or political one.

It is five years since John Halligan introduced a bill in the Dáil seeking to introduce assisted dying in Ireland. It came after the late university lecturer Marie Fleming, in the late stages of multiple sclerosis, took a landmark challenge to the High Court. 

She lost that case in 2013, with the three-judge court concluding that, “even with the most rigorous systems of legislative checks and safeguards, it would be impossible to ensure that the aged, the disabled, the poor, the unwanted, the rejected, the lonely, the impulsive, the financially compromised and emotionally vulnerable would not avail of this option to avoid a sense of being a burden to their family and society”. She also lost on appeal to the Supreme Court, dying later that year.

The concerns voiced by the High Court judges cannot be discounted. Already in some countries and states, assisted suicide rates are growing as restrictions are eased. In the state of Victoria in Australia, it amounts to assisted suicide, as the patient need not be terminally ill, simply expressing a wish to die. 

In April, the Dutch Supreme Court ruled that doctors would no longer be prosecuted for carrying out euthanasia on dementia patients who have previously given written consent. Before then, they would have needed to confirm their request. Euthanasia is now legal in Belgium, Canada, Colombia, Luxembourg, and the Netherlands.

There is also the issue of unwanted involvement. While this bill specifically states that presiding medical practitioners will not be forced to participate, others — such as pharmacists and the delivery person who brings the lethal vial — will also play a part, even if they are conscientious objectors.

According to the legal adage, hard cases make bad law. We must ensure that sad cases do not follow suit.