'Make provision for the assistance in achieving a dignified and peaceful end'

This week's legal column with John Lynch

John Lynch

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John Lynch

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John Lynch of Lynch Solicitors

Dying with Dignity Bill 2020

The new legislation seeks to enable terminally ill citizens, who have a clear and settled intention to end their lives, to be helped to die with medical assistance.

The person would achieve this by making a declaration setting out their wish to end their life. The purpose of this Bill is to “make provision for the assistance in achieving a dignified and peaceful end of life”. At present, such practice is illegal under the Criminal Law (Suicide) Act 1993. The Act provides a penalty of up to 14 years’ imprisonment for anybody who “aids, abets, counsels or procures the suicide of another”.

Terminology – what does it mean?
The legislation defines a terminally ill person as a person who has been diagnosed, by a registered medical practitioner, as having an incurable and progressive illness.

Therefore, such illness must be irreversible by treatment, meaning that the person is likely to die as a result. In addition to being terminally ill, the person must be over the age of 18. They must also be a resident of Ireland for over one year.
Moreover, they must have the capacity to understand the nature and consequences of the decision.

What this means is that the person making the Declaration to end his or her life must be able to: Firstly, understand the information relevant to the decision; Secondly, retain that information; Thirdly, use that information when making the decision, and; finally, communicate the decision.

Are there safeguards?
If a person meets the criteria and wishes to end their life, they would have to set out their intention in the Declaration. A person would have to sign this Declaration in the presence of a witness. This witness must be somebody who would not benefit from the estate of the person after their death.

Additionally, two independent medical practitioners’ roles would be central to creating a valid Declaration. The Declaration would have to be signed by two registered medical practitioners - the medical practitioner from whom assistance to end life is requested and another independent medical practitioner. A relative, partner or colleague in the same practice or clinical team as the attending medical practitioner cannot be a second witness.

The test
These two practitioners would have to examine the person separately and reach the same conclusion:
Firstly, that the person is terminally ill; Secondly, that the person has the capacity to make this decision and has a clear and settled intention to end his or her life; Thirdly, that the person has reached the decision voluntarily and on an informed basis; Fourthly, that the person has reached the decision without coercion or duress, and; finally, the person is fully aware of alternative options available to them, such as palliative and hospice care.

The legislation seeks to introduce a 14-day “cooling-off” period after the Declaration is signed - or six days if the medical practitioners agree that the person’s death is reasonably expected to occur within one month of the day of the Declaration. The cooling-off period means that the Declaration would only become active after fourteen days. Or six days from the day the person signed the Declaration.

Moreover, the medical practitioner would have to check that the person has not withdrawn. More importantly, check that he or she does not wish to change their mind. Once the “cooling-off” period would pass, a doctor would prescribe the substance, enabling them to end their own lives.

Then the medical practitioner must remain with the person until they have self-administered the substance. Or have it administered by a medical practitioner.

Are these safeguards adequate?
There are worries that this new legislation could be open to abuse. There are fears that other family members could coerce vulnerable people into agreeing to end their own lives. Most importantly, where they believe to be a burden on other family members. Fears that the procedure could progress from terminally ill people to other parts of the population, such as people with disabilities, also exist.

Therefore, in light of these fears, the Irish Human Rights and Equality Commission (IHREC) warned that the proposed legislation needs “significant changes”.

The IHREC claimed that before the Government can pass any legislation, a framework must be in place to protect a person’s right to life, health and palliative care, and the right to participate in decision-making. The Committee warned that the legislation is flawed.

This is because there is no requirement for medical practitioners to inform and advise the person of their right to withdraw from the process at any stage. The IHREC also asserted that the legislation should establish “an independent oversight mechanism”.

This “mechanism” would be responsible for reviewing and affirming a person’s Declaration that they wish to end their life. Also, the Committee recommended that the “cooling-off” period should be extended further.