THE Dáil recently agreed to formally discuss a Dying with Dignity Bill which would allow for people who are terminally ill to request assistance in ending their life. The 1994 law that decriminalised suicide in Ireland still criminalises the act of assisting suicide so if this Bill passes it will represent a significant change in the law.
At the heart of the Bill is the idea that we all have a right to die with dignity. The Irish Supreme Court responded to Marie Fleming’s assertion that she had a right to die in 2009 by saying the Irish Constitution does not contain such a right. But its absence from the Constitution does not prevent the Oireachtas from identifying and enshrining a new right in legislation.
At the Irish Council for Civil Liberties, we believe a range of existing rights are relevant to, and may underpin, a right to die with dignity. These rights include the right to exercise agency and autonomy over one’s body and life, the right to private life, the right to freedom of religion, conscience and belief, the right not to be discriminated against and the right not to be subjected to torture or ill treatment.
Other countries have already legislated for a right to die such as Canada, Switzerland, and the Netherlands, as well as some States in the USA.
Proponents say that people who are terminally ill and suffering should be able to decide how and when they die to avoid having to endure a significant deterioration of their health to the point where they are alive but no longer able to live a dignified life.
Legislating for a right to die would enable them to die with dignity and in a way that minimises their suffering.
Some opponents say that medical advances in pain relief mean that very few people have to suffer unendurable pain. They say what really need are more resources to ensure that terminally ill people are provided with the range of supports they need to continue to live a decent life.
Separating a right to die from a right to proper support is very important. They are by no means mutually exclusive. Adequate resourcing, including funding, for supports should be an urgent priority. But adequate resourcing does not just relate to ensuring people are comfortable at the end of their life. It is also hugely important in order to ensure that people who may lack full mental capacity are supported when making such significant decisions.
We already have a law that would create these support mechanisms but it’s not in force. It’s called the Assisted Decision Making (Capacity) Act and it’s been on the Statute Books since 2015. It’s high time the Government gave this law life and funded the decision making supports it envisages, including the Decision Support Service. This service been set up but not yet properly funded. It has a working website that will inform you the service is “not currently operational”. That’s just not good enough for people who need these services.
The Assisted Decision Making Act also provides for Advance Decision Making Directives. This would allow a person to decide on their medical treatment in advance. This may be particularly important where it is foreseen that a person may lose full mental capacity in the future.
Some have raised concerns that legislating for assisted suicide may see vulnerable people pressured into ending their own life. Balancing a person’s ability to exercise their own agency with safeguards to protect those who might be vulnerable to influence will be one of the challenges for this legislation. Properly balancing these considerations in a way that reflects our societal values and concerns is why significant public and political debate around the contents of the legislation is necessary.
Concerns that we may be opening up a door to assisted suicide without proper consent may be assuaged by the fact that existing criminal law can go some way towards addressing this situation. Assisting a suicide without consent could be prosecuted as murder or manslaughter.
The need for proper guidelines for prosecuting such cases was an issue raised by Marie Fleming in her court case. Prosecutor Guidelines will be important if the Dying with Dignity Bill is passed but could go some way to clarifying the current situation even if it isn’t. A proper code of ethics and guidelines for medical practitioners will also be vital. In fact, some have expressed the view that if we decriminalised assisted suicide and provided proper guidelines for prosecutors and doctors new legislation may not be necessary at all.
What is clear is that we must ensure that this legislation responds to real needs on the ground. That requires in depth research into the current situation in Ireland around the treatment and desires of terminally ill people. But most importantly it requires that we hear from terminally ill people themselves. We need to know what it is they need and what it is they want to see in legislation providing for a right to die with dignity. This is the first step to taking an approach that prioritises individual agency and autonomy over a paternalistic institution-centred one. We’ve seen far too much of the latter in this country.