October 11, 2020
From social ‘evil’ to Supreme Court Scrutiny: journey to Ireland’s landmark assisted dying vote
THE POSSIBILITY OF assisted dying being made legal took a huge step this week when TDs voted to send the Dying with Dignity Bill to committee stage in the Dáil.
The bill seeks to legislate for assisted dying in limited circumstances and allows for medical professionals to help some terminally ill patients to end their own lives.
In that instance, Ireland would follow Belgium, the Netherlands, Luxembourg, Switzerland, Canada, Colombia, the US states of Oregon and Washington and the Australian state of Victoria in legalising the medical practice.
The proposal has quickly transformed from a peripheral idea to a real possibility, and the bill is set to face further scrutiny in the Oireachtas over the coming months.
There is even a chance that full legislation could be enacted as early as next year, though sensitivities about the practice and trepidation among some politicians means the process will more likely be slower than that.
Regardless, the vote was seen as a landmark moment in attempts to legislate for assisted dying in Ireland, with People Before Profit TD Gino Kenny (who tabled the bill) describing it as “a significant step”.
He also praised assisted dying campaigners Tom Curran and Vicky Phelan who helped him launch the bill. They are among many who have seen high-profile court cases and previous attempts to legislate for the practice pass come and go without progress.
Although the passage of the Dying with Dignity Bill seems to have come as a bolt from the blue, the debate on assisted dying has been bubbling away for decades.
It has been a long journey for an idea that was previously seen as highly contentious, but which now has a significant level of public support.
Perhaps reflecting that support, a notable feature of the discussion around assisted dying in recent weeks has been the largely respectable nature of debates about it.
Last week’s Dáil debate on the Dying with Dignity Bill saw Government TDs thank Kenny for bringing the bill forward, despite seeking to amend it, while Kenny himself gave up speaking time to allow Louth TD Peter Fitzpatrick, who opposed to bill, to air his views.
In contrast, mentions of medical assistance in dying historically tended to come in rhetorical flourishes about Ireland’s moral decay.
From the 1970s onwards, euthanasia (which is technically different from assisted dying) was occasionally held up in the Oireachtas as a logical end-point of contentious social issues, including in debates about contraception, abortion and supports for people with disabilities.
“As soon as we have contraception in there will be abortion, divorce, euthanasia, all the other evils of venereal disease and everything that will follow,” Fianna Fáil’s Michael F Kitt predicted in 1974.
More considered discussions around medical assistance in taking one’s own life did not surface until the early 1990s, when the Dáil voted to decriminalise suicide.
Then, newspapers and Dáil debates brought the idea into the mainstream, particularly as high-profile cases abroad were reported in the media.
In a 1992 column in the Irish Times titled ‘Debating the Right to Die’, Dr Maurice Gueret opined that “the liberal agenda in other countries has motored on without us” and pointed to a US-based “suicide doctor” who had recently been acquitted of manslaughter.
The Dáil also discussed the morality of medical suicide around its consideration of the Criminal Law (Suicide) Bill, which eventually became law in 1993.
Fine Gael TD Tom Neville was among those to raise concerns, quoting points made by Irish suicide researchers on euthanasia, in a foreshadowing of one point of contention among opponents of the Dying with Dignity Bill.
“It is not far-fetched to envisage a time in the western world when the cost of maintaining and preserving life will be seen as too great,” Neville quoted in 1991.
“If doctors enter into the business of assisting suicide then those who see the treatment of the chronically disabled as being an unproductive loss of society’s resources may also find means to reward surreptitiously those professionals who put a medical stamp of approval on the dispatch of the disagreeable.”
Former Labour TD Eamon Gilmore expressed further concerns about the implication of proposed legislation on the provision of medical care two years later.
He fretted over section 2 of the bill, which specifies that a person who “aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide” would be guilty of an offence punishable by a prison sentence of up to 14 years.
“There is a very complex area in relation to medicine, for instance, with regard to people being sustained on life support machines and the decision at some point to remove the person from the life support machine,” he asked. “Would this bill affect that situation?”
The bill eventually became law and Gilmore’s concerns fell by the wayside for almost two decades – but the discussion around section 2 of the bill was not over yet.
The ‘slippery slope’
The conversation about suicide as a medical option continued over the next few years, gradually gaining traction in the media.
In 1997, an editorial in the journal of the Irish College of General Practitioners even argued in favour of “voluntary euthanasia”, with the author of the piece Dr Leonard Condren describing the idea as “the ultimate expression of patient autonomy”.
The idea may have seemed slightly radical in late 1990s Ireland, but autonomy has since become one of the main points highlighted by those in favour of assisted dying.
Five years later, there were questions about how much individual autonomy was involved when Dublin woman Rosemary Toole Gilhooley took her own life, allegedly with the assistance of two men from the US, in a high-profile case.
An inquest later found no evidence that she was influenced by anybody or assisted to end her own life, but the case nonetheless complicated the issue of assisted dying for the public, not helped by some who used the case to make a political point.
Highlighting the case in the Dáil, Tom Neville claimed the the idea an assisted suicide could be planned and carried out in Ireland was “of extreme legal, moral and ethical concern”.
“In the Netherlands, assisted suicide and euthanasia are allowed under certain circumstances,” he noted.
“Suffering need not be physical and a person may not be terminally ill for euthanasia to be permissible. We must guard against such a situation developing here… The slippery slope is on the way to involuntary euthanasia for social reasons.”
Marie Fleming case
If the issue had been muddled by the Toole Gilhooley case, a more clear-cut argument presented in 2012, when 58-year-old Marie Fleming from Wicklow took a challenge to the law on suicide in a landmark assisted dying case.
Fleming, who suffered from multiple sclerosis, sought to overturn section 2 of the Criminal Law (Suicide) Act – the subject of concern by Eamon Gilmore almost two decades previously – which made it a criminal offence for a person to assist in a suicide.
She argued that this section of the Act was invalid under the Constitution and was incompatible with the European Convention on Human Rights, telling the court that she was forced to live in pain and indignity against her will.
Fleming said she considered travelling to a Dignitas assisted suicide clinic in Switzerland in 2008, and that her partner Tom Curran had promised to help her die – but only if the law permitted it.
“Tom has promised to help me, only if it’s lawful,” she said. “Otherwise, I will die a horrible death which could take months or even a year.”
She also argued that she was ultimately likely to die by choking on her own saliva if her condition was permitted to deteriorate further.
However, her case was dismissed by the High Court in January 2013, as was a Supreme Court appeal that April.
Fleming died of natural causes later that year, but her case was seen as a significant moment in the campaign for assisted dying in Ireland.
Crucially, the court ruled that there was nothing to stop the Oireachtas from legislating for assisted dying in cases like Fleming’s, once appropriate safeguards were put in place.
Even before her death, Fleming’s case was mentioned by TDs in the Dáil who urged the Government to legalise assisted dying.
A month after the Supreme Court rejected her appeal, Independent TD John Halligan raised the former college lecturer’s plight with Taoiseach Enda Kenny.
“Would you consider introducing measures which would allow rational and terminally ill people to have a dignified death at a time of their choosing, with appropriate safeguards to ensure that they are choosing this rationally and without external pressure,” he asked.
Later that year, then Independent TD Stephen Donnelly also called on Eamon Gilmore (who was Tánaiste at the time) to introduce legislation for people like Marie Fleming, and called for an expert report on the topic to be carried out.
For his part, Gilmore agreed and suggesting that a Dáil committee should look into the subject – but only after another assisted dying case before the courts had concluded.
In another landmark case beginning in December 2013, Gail O’Rorke appeared in front of the Criminal Courts of Justice, accused of assisting in the suicide of 51-year-old MS patient Bernadette Forde in Dublin in 2011.
The case was the first attempted prosecution of under section 2 of the Criminal Justice (Suicide) Act 1993, which made helping another person to take their own life punishable by up to 14 years in prison.
The case was not heard in full until 2015, when it was alleged that O’Rorke ordered a lethal dose of barbiturates from Mexico which were later taken by Forde to end her life.
The court also heard an allegation that O’Rorke attempted to help Forde get to the Swiss euthanasia clinic Dignitas, a plan that was thwarted when a travel agent alerted gardaí.
O’Rorke was later acquitted of all charges, and judge Pat McCartan later described her as an “honest, decent woman faced with a huge dilemma”.
The case served to further heighten the awareness of the plight faced by those with aggressive multiple sclerosis who wished to end their own lives, like Fleming and Forde.
Its conclusion allowed Halligan to finally introduce the Dignity with Dying Bill 2015, a move which he said was inspired by Fleming’s court case.
Launching the bill, Halligan revealed that his own father had suffered a stroke eight years previously and had “had a terrible existence” in the final years of his life.
“Suicide has been decriminalised but we still criminalise a person who assists somebody who is terminally ill to die,” he said.
“That is unfair, inhuman and against the human right of the person who wants to exit this life of their own free will because of immense and intolerable suffering.”
The bill was not selected for debate after the 2016 election, as Halligan became a junior minister and therefore could not progress his own bill, but further developments were to come in the new Dáil.
In November 2017, the Oireachtas Committee on Justice and Equality announced that it would discuss the Right to Die with Dignity.
At the time, committee chairman Caoimhghín Ó Caoláin of Sinn Féin noted that the issue had been long-debated, although he did not specify why the issue was being discussed at the time or commit to a specific goal other than to hold an informative debate.
The committee heard from both proponents and opponents of assisted dying over two days, with advocates and doctors among those to provide their views.
Among those who addressed TDs was Tom Curran, who told the committee that people were taking their own lives for medical reasons “all the time”.
“Just because something is illegal does not prevent people from doing it, just as making assisted dying illegal is not preventing people from doing it,” he said.
Also appearing before the committee was the Irish Association for Palliative Care, whose consultant Regina McQuillan argued that there needed to be greater awareness among the public and healthcare staff about the value of palliative care.
“Suicide is rightly considered a blight on society and there are many efforts made to reduce it,” she said.
A report published the following year urged the Oireachtas to consider referring the issue to the Citizens’ Assembly for deliberation, with the possibility that it could be referred to an Oireachtas Special Committee after that.
It appeared that assisted dying was not something that would happen any time soon, but the committee at least set a standard for further debates on the issue.
Not only had the term ‘assisted suicide’ officially been replaced with ‘assisted dying’, but gone too were the decades-old claims that Ireland was sinking into a pit of immorality by even considering the matter.
Despite the progress, the issue fell somewhat by the wayside until the Dying with Dignity Bill was put forward in September.
The Citizens’ Assembly still to deal with issues relating to gender and workplace equality, and meetings were postponed after the 2020 election as a result of the Covid-19 pandemic.
If the matter was to be dealt with by a Citizens’ Assembly, it did not seem likely that it would happen any time soon.
Nor was there any mention of assisted dying in the Programme for Government launched by Fianna Fáil, Fine Gael and the Green Party in June.
Even Kenny himself spoke about the bill as something which would kick off a conversation at its launch last month, rather than something that was likely to pass.
“Today is about starting a discussion on the merits of this legislation,” he said at the time, before calling on party leaders to allow a free vote if there was not a clear party position on the matter.
To most, the launch of the bill passed under the radar until the following week, when Green Party leader Eamon Ryan suggested a conscience vote was a “real possibility”.
“It’s not the norm in this house but where there are matters of complex conscience, where there’s very different views, that tends to be a possibility,” he said. “So I certainly would not rule that out.”
A number of Fine Gael TDs and Senators subsequently told a party meeting that they favoured a free vote on the legislation, before the party later announced that it would allow such a vote to take place.
And though the Government tabled an amendment to have a special Oireachtas committee examine the issue instead, only Cabinet members were whipped to vote in favour of this.
The cross-party support for the issue was evidenced during a debate on the bill last week, when only one TD spoke against it (although two TDs – Mattie McGrath and Aontú’s Peadar Tóibín – sought to but couldn’t due to how speaking time was allocated).
Almost every TD who spoke, including Fine Gael’s Helen McEntee and Alan Farrell, commended Kenny for putting the bill forward in the first place.
However, it was still expected that the Government’s amendment would pass, a process which Kenny claimed would “unduly delay the process” and likely bury his bill.
It came as a surprise to some when the amendment was defeated on Wednesday evening.
For assisted dying campaigners, something had finally fallen their way, with the allowance that a full free vote on Kenny’s bill could take place.
In the end, 26 Government TDs voted in favour of sending the bill to committee stage, a significant factor in getting it over the line.
Speaking on Thursday, Kenny himself acknowledged that this wasn’t the end of the process, but he was in a celebratory mood nonetheless.
“We’re still not there yet and there’s still a long way to go to change the law… but it was a good day for democracy,” he told TheJournal.ie.
The next steps on the long road are now expected to be taken next spring, when the issue comes before the Oireachtas Committee on Justice and Equality for the second time in recent years.