Moral compass
Simon Mills SC said that ‘normalisation’ of assisted dying can mean different things, depending on whether one’s initial stance is that it is morally wrong or not. This is an area of society on which reasonable people in society may disagree, he said.
“Once you've decided that it is something that may be permitted, your attention then turns to the question of preventing abuses,” he said, with steps that can be taken to address concerns. Assisted-dying safeguards in other countries include multiple inputs from clinicians, the barrister and doctor said.
“The idea that we would introduce legislation about assisted dying, without properly funding palliative care, healthcare services, social services, educational services would be, I think, rather shameful,” he said.
A previous committee session had heard of regional discrepancies in the availability of palliative care for the dying.
Senator Mary Seery Kearney said that social mores had changed as a consequence of legislation in other jurisdictions, so the question was how to ensure that the value of life was not diluted.
There was a duty to legislate for those who choose assisted dying, she said, but the question was how to make sure that oversight was absolute.
Positive obligation to uphold life
The Fleming case established that the State does have a positive obligation to uphold life, the committee heard.
Professor Huxtable said it was notable that, in the Netherlands, assisted dying began with instances of incurable and terminal illness, before moving to psychiatric suffering as grounds for the process.
There had been a long-running debate about so-called ‘life fatigue’, or ‘being tired of life’, as a basis for assisted dying, he said.
Evidence of incrementalism
Protocols applying euthanasia-type practices to critically ill children, which are a considerable distance from what was originally conceived, are evidence of “incrementalism”, he said.
In Canada, reports suggest that assisted dying or assisted suicide is being motivated by poverty and a lack of social support, so the data is highly contested, the academic added.
As to whether watertight boundaries can be legally established, he pointed to the human tendency to test the limits of regulation.
The question might be approached, not merely by looking at assisted dying in isolation, but by protecting people with disabilities and improving their situation, he suggested.
Adequate provision of good-quality palliative care of the dying was also part of the answer, he added.
Right to conscientious objection
Prof Huxtable said that the committee should give thought to how far the right to conscientiously object should extend, given that legal and ethical commentaries pointed to a “quelling effect” on medical careers.
He referred to "a sense that failure to perform a procedure that is legally permitted and within the rights of the patient might well lead to some curtailment of one’s employment or career prospects”.
Senator Lynn Ruane stated that the intrinsic value of human life was based on the ability to experience life, and that intolerable pain or suffering was a negative intrinsic value that replaced the ability to experience life, so arguments against assisted dying did not stand up.
“I'm just getting a little bit stuck on how the intrinsic value of human life is one [where] we are saying that pain is an intrinsic value,” she stated.
Prof Huxtable responded that it could be said that the instrumental value lay in life, in and of itself. The sanctity-of-life position, classically stated, was seen in Judeo-Christian thinking, he added.
Competing values
“I readily take your point [that] there are different ways of expressing the clusters of broadly competing values that are out there,” he said.
The committee heard that for every complex problem, there was an answer that was simple, direct, and wrong.
The main hurdle in introducing an assisted-dying system that is constitutional is in respecting the State’s obligation to protect life.
Public-health services must be sufficiently funded to a degree that will allow the person who is suffering to seek relief, the committtee was told.
The co-existence of physical illness and psychiatric illness won't exclude patients from availing of assisted dying, if it is legalised, however.
Under assisted-decision-making legislation, having a mental disorder didn’t mean that a person lacked the capacity to decide to end their life, the committee heard.