Proposals for Reform of the Law Regarding Euthanasia and Assisted Suicide

Introduction: As part of my Law Reform Project module, we have been asked to select a topic of our choice to examine and make proposals on for reform. The topic I have chosen to discuss is Euthanasia and Assisted Suicide in Ireland. This topic has been in the spot light recently as Dublin woman Gail O’Rorke has been in court charged with attempting to assist the suicide of her friend Bernadette Forde by making travel arrangements to Zurich for her to have the procedure and getting the medicine for her to end her life. Today, the jury of six men and six women delivered a not guilty verdict. This is the most recent case in Ireland however this issue has been tackled in the courts previously, which I will discuss later. History of Euthanasia: “The word euthanasia stems from the Greek words “eu thanatos” meaning “good death” and refers to the action of a third party, usually a doctor to deliberately end the life of an individual.”[1] The concept of Euthanasia was founded in ancient Rome BC long before the Christian religion came to be. The value that is placed on an individuals life today is not the same as it was then and doctors often committed ‘mercy killings’. The famous philosopher Plato wrote that “Mentally and physically ill persons should be left to death; they do not have the right to live."[2] The first change in attitude came after the Hippocratic Oath was created which states that “I will give no deadly medicine to any one if asked, nor suggest any such counsel” [3] following this, the act of euthanasia in Rome was considered to be a crime of murder, however many carried on these ‘mercy killings’ to relieve patients from the pain they were suffering. This shows that the practice of Euthanasia has been around since nearly the beginning of time and people will always have different opinions on the matter either legally or morally. What is Euthanasia? In order to discuss how I believe the law needs to be reformed in this area, it is important to have a firm understanding what Euthanasia and Assisted Suicide is. There is different kinds of Euthanasia and Assisted Suicide:

• Voluntary Euthanasia - This is when a person consents to their life being ended by a third party deliberately (Active Euthanasia)
• Non – Voluntary Euthanasia – this may be when a person is unable to seek the procedure and another person makes the decision for them i.e. a family member, this will usually happen when it has previously been expressed by the patient.
• Passive Euthanasia – This is where treatment is withheld that is seen necessary to maintain a person’s life and therefore causing their death. An example of this is to withhold antibiotics from someone with pneumonia.
• Assisted Suicide – this is when a person gets information/guidance or medication from another person and takes their own life.
• Physician Assisted Suicide - in this case a person may go to a doctor and then be provided with information/guidance or in some cases medication to end their own life.

These procedures are carried out usually to relieve pain and suffering of terminally ill people. Each country has different laws in relation to Euthanasia and Assisted Suicide, but in most jurisdictions the practice of non – voluntary euthanasia is illegal. In countries that have legalised the procedures, there are strict safe-guards and restrictions in place in order to protect the vulnerable. In Ireland and the United Kingdom, the practice of Euthanasia and Assisted Suicide is completely outlawed. Euthanasia in Ireland: “Suicide was decriminalised in Ireland in 1993, but it remains a criminal offence punishable with up to 14 years in prison for anyone who helps someone else to end their life.”[4] Both practices of Assisted Suicide and Euthanasia in Ireland can be regarded as either Manslaughter or Murder depending on the individual circumstances of each case, it therefore may be punishable by up to 14 years in prison for helping someone to end their life, this is governed by the Criminal Law (suicide) Act 1993. No person has actually been charged with this crime in Ireland so there has been no precedent set. In 1995, a case came before the Supreme Court where they granted permission to remove the feeding tube of a woman who was in a permanent vegetative state, however the made it clear that the courts would not permit ending a person’s life through positive action such as the use of drugs. Another case which happened in the UK in 2009 involved Debbie Purdy and her husband Omar. In this case, Debbie had been suffering from Multiple Sclerosis and argued to find out if her husband went with her to Switzerland to have the procedure, would he then face criminal charges when he returned. The court stated in this case that it would not be a criminal offence to do so as long as her husband had no active part in helping her to die. This case set a spotlight on Irish law relating to Euthanasia and Assisted Suicide. This case resulted in the Director of Public Prosecutions in the UK issuing a set of guidelines which recommends that persons assisting another to end their life should not be prosecuted, however it also contains a safeguard that requires the motives of the person assisting the suicide to be examined. A largely significant case in Ireland was that of UCD lecturer Marie Flemming. The 58 year old woman from Wicklow was in the terminal stages suffering from Multiple Sclerosis. She and her husband Tom challenged the state about her legal right to die and the repercussions that might face her husband for assisting her. At the time of the case, Mrs Flemming’s illness had progressed to a stage where she no longer had the use of her limbs and therefor would not be in a position to end her own life unassisted. She wanted her husband to help her carry out her wish to die. Mrs Flemming however was concerned about the legal consequences that her husband would face for assisting her, under Irish law he could face up to 14 years imprisonment. The court which was led by Chief Justice Susan Denham stated that the constitutional right to life imported no right to die, or to arrange for the termination of life at a time of one’s own choosing and also there was no express right to commit suicide. She also states that “while suicide ceased to be a crime, the fact that it has so ceased does not establish a constitutional right. “[5] Tom Flemming, Marie’s husband was not happy with the ruling and stated that he could not understand that suicide was legally available to able bodied persons and this was not discriminated against but it was denied to his wife. Euthanasia and Assisted Suicide around the world: In 2015, Euthanasia is legal in the Netherland, Germany, Switzerland, Belgium and Luxembourg while Assisted Suicide is available in Germany, Switzerland, Albania, Japan and the American states of Washington, Oregon, Vermont, New Mexico and Montana. The practice of Euthanasia has been criminalised in Mexico, Thailand and the Northern Territory of Australia where it was once legal and governed by the Terminally Ill Act 1995 but then outlawed by the Euthanasia Laws Act 1997. Canada: Canada had the same laws as Ireland in relation to Euthanasia and Assisted Suicide however in February of this year the Supreme Court rules that in cases where adults who were mentally sound and suffering intolerably from a permanent illness may seek help from a doctor to end their life. The court has however suspended its ruling for a year to draft new legislation and policy for the procedure. Turkey: In Turkey, the act of Euthanasia is strictly forbidden. The law states that a person who carries out this act will be judges and punished for life imprisonment just like a simple murder. The Netherlands: In 2002, the Termination of Life on Request and Assisted Suicide Act came into effect in the Netherlands and Euthanasia was then legalised but only ‘active euthanasia’ has legal standing, this means that assisted suicide is not covered in this legislation but it was never considered a crime in the Netherlands before the creation of the Act. No distinction is made between the two practices, they are both seen as Euthanasia. The Netherlands was the first country in the world since Nazi Germany to legalise Euthanasia. However with this came a strict set of conditions, the person seeking the procedure must be:

• Suffering intolerable pain
• Their illness must be incurable
• The patient must be fully conscious to make the request, it must be made voluntarily and had been well considered
• The patient must have been previously informed that there is no other reasonable solution for their condition
• The doctor must consult at least one other independent physician who had seen the patient and provided a written report of their opinion.

“In 2010, 3,136 people were given a lethal cocktail under medical supervision”[6]. According to the Royal Dutch Medical Association, a procedure called ‘Palliative Sedation’ has been a common practice in hospitals in the Netherland claiming over 15,000 cases a year since 2005. Palliative Sedation is seen as a last resort for patients suffering incurable illness, “it is the use of medications to induce decreased or absent awareness in order to relieve otherwise intractable suffering at the end of life”[7]. This treatment is available for people that have a life expectancy of less than two weeks. In Ireland, Italy, Romania, Greece, Bosnia, Serbia, Croatia and Poland euthanasia is forbidden and may be considered homicide resulting in up to 14 years imprisonment in Ireland and 15 years in Italy. Germany and Switzerland: Germans are hesitant to use the term ‘Euthanasia’ because of its association with the Nazis, instead they use the term ‘active assisted suicide’ to describe Euthanasia. In both Germany and Switzerland, active assisted suicide is illegal, i.e. a doctor prescribing and handing over a lethal drug to a patient, however both countries do allow assisted suicide in certain situations. In Germany, as long as the patient takes the lethal does without any assistance assisted suicide is legal. The law in Switzerland differs slightly, as long as there is no ‘self-seeking motives’ assisted suicide is allowed. “Whoever, fromselfish motives, induces another to commit suicide or assists him therein shall be punished, if the suicide was successful or attempted, by confinement in a penitentiary for not more than five years or by imprisonment.”[8]– Article 115 of the Penal Code of Switzerland. “While active assisted suicide remains illegal, in a recent survey, two-thirds of Germans said they would support a law that enabled active assisted suicide too”[9] European Courts of Human Rights: There has been a number of cases through the European Court of Human Rights regarding Euthanasia and Assisted Suicide. Pretty v the United Kingdom 2002 In this case, a woman was suffering from motor neurone disease to which there is no cure. Due to her illness, she was unable to end her own life and wished to have her husband assist her in ending her life, however in the UK as we have already seen it is a crime to assist in a suicide. Because her husband would not be free from prosecution if he helped her, she took her case to the European Courts of Human Rights. The court held that there had been no violation of Article 2 (the right to life) stating that in no way could one import a right to die from this. The court also found no violation of Article 3 (prohibition of unhuman or degrading treatment) giving that the state would still be required to punish actions intended to terminate life which is an obligation stemming from Article 3. There was neither a violation of Article 8 (right to respect private life) or Article 9 (freedom of conscience) of the Convention. Koch v Germany 2012 In 2004, the applicant’s wife made an unsuccessful application to the Federal Institute for Pharmaceutical and Medical Products to get a deadly dose of a drug which would allow her to commit suicide in her own home in Germany, the application was denied. In February of the following year the man and his wife travelled to Switzerland where his wife committed suicide with the help of an association. In the same year the applicant failed in an action that the Federal Institutes decision to provide his wife with the drug was unlawful. The appeals court then refused to examine the merits of the case which lead to the case being brought to the European Courts of Human Rights. The applicant said that this refusal had infringed his right to respect for private and family life. The court held that in this case, “the exceptionally close relationship between the applicant and his wife, and to his immediate involvement in the fulfilment of her wish to end her days, the Court considered that he could claim to have been directly affected by the refusal to grant her authorisation to acquire a lethal dose of the medication”[10] The German court’s refusal to examine the merits of the case resulted in a violation of the applicants procedural rights under Article 8. Proposals for Reform: As we have already seen, the law in Ireland is clear on the practices of both Euthanasia and Assisted Suicide, it is strictly forbidden. However there are certain where a person can refuse treatment which would prolong their life by allowing a natural death from a fatal illness. This may be known as ‘Passive Euthanasia’ which results in no criminal sanctions in Irish law. The Irish Medical Council issue the following guidelines to doctors; “There is no obligation on you to start or continue a treatment, or artificial nutrition and hydration that is futile or disproportionately burdensome, even if such treatment may prolong life.”[11] The countries around the world that do permit Euthanasia and Assisted Suicide have very strict rules safeguarding the practice. I do believe that Ireland needs to reform its laws on both Euthanasia and Assisted Suicide, however in doing this very strict regulations and safeguards must be put in place to regulate the practice and protect the vulnerable members of our society. In order for safeguards to be properly effective, investigations would need to be made into certain aspects of the patient’s life such as their mental competence, family dynamics of the patient, and the financial implications of their death, furthermore it needs to be a requirement that the patient is receiving proper palliative care before they make a request for euthanasia. This request needs to be a last resort with all other avenues having been explored. After exploring the Euthanasia laws from around the world I believe the following conditions would need to be satisfied before a request for Euthanasia would be granted:

• The applicant must be above the age of 18 and be an Irish resident
• The applicant must be fully mentally competent and be examined by a Psychiatrist and a second opinion must be sought from a physician
• Both physicians must confirm that the patient is capable of making this decision
• The applicant must be suffering from an incurable illness, be in intolerable pain and have a life expectancy of less than 6 months
• Two requests must be made by the applicant, and there must be 14 days between the first and last request made
• The applicant must be able to take the lethal medication themselves.

In the US state of Oregon, a survey showed that 45% of patients who were given good palliative care changed their mind about euthanasia[12]. In cases where the applicant is physically unable to administer the lethal drug to end their own life but is mentally competent and has satisfied all the other criteria, a doctor or a family member may assist them in ending their life with no legal repercussions, the authorities would need to be informed of this and consent given to this affect. It is essential for regulation of this procedure and any practices of Euthanasia by persons which do not comply with the above guidelines will then face criminal sanctions. Doctors may also have the discretion to refuse the procedure for any applicant when they see fit for any reason. A survey which was carried out on final year medical students in UCC found that over 60% of students surveyed believed that the law should be reformed to allow assisted suicide and euthanasia in Ireland. Another poll carried out by the Irish Times shows that 54% of people surveyed would be willing to help a relative die. When taking the public opinion into account and even the reaction to the Gail O’Rorke court case, I believe that the law in this area definitely needs to be reformed. Bibliography: European Courts of Human Rights – Fact Sheet, Euthanasia and Assisted Suicide - January 2015 https://www.echr.coe.int/Documents/FS_Euthanasia_ENG.pdf Accessed: 01/05/2015 The Guardian.com - Euthanasia and Assisted Suicide laws around the world – Guardian Staff – 17th July 2014 https://www.theguardian.com/society/2014/jul/17/euthanasia-assisted-suicide-laws-world Accessed: 27/04/2015 The Journal.ie – Facts about Assisted Suicide in Ireland – April 2015 https://www.thejournal.ie/explainer-assisted-suicide-2045083-Apr2015/ Accessed: 27/04/2015 US National Library of Medicine Website - An Article by the Mayo Clinic – Palliative Sedation – Molly L. Olsen MD, Keith M. Swetz MD and Paul S. Mueller MD MPH – Oct. 2010 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2947968/ Accessed: 02/05/2015 Irish Council for Bioethics – Euthanasia: Your Body, Your Death, Your Choice? https://www.rte.ie/science/euthanasia_leaflet.pdf Accessed: 24/04/2014 The Journal.ie – Irelands euthanasia laws are some of the most strict in Europe – January 2015 – Nicky Ryan https://www.thejournal.ie/euthanasia-laws-right-to-die-1837170-Jan2015/ Accessed: 28/04/2015 IrishCentral.ie – Survey finds majority of Irish medical students back euthanasia – Cathal Dervan – December 2011. https://www.irishcentral.com/news/survey-finds-majority-of-irish-medical-students-back-euthanasia-134818193-237742401.html Accessed: 01/05/2015 1

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[1] https://www.rte.ie/science/euthanasia_leaflet.pdf [2] https://www.life.org.nz/euthanasia/abouteuthanasia/history-euthanasia1/ [3] https://www.euthanasia.com/oathtext.html [4] https://www.thejournal.ie/marie-fleming-supreme-court-right-to-die-888920-Apr2013/ [5] https://www.thejournal.ie/marie-fleming-supreme-court-right-to-die-888920-Apr2013/ [6] https://www.theguardian.com/society/2014/jul/17/euthanasia-assisted-suicide-laws-world [7] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2947968/ [8] https://www.patientsrightscouncil.org/site/switzerland/ [9] https://www.theguardian.com/society/2014/jul/17/euthanasia-assisted-suicide-laws-world [10] https://www.echr.coe.int/Documents/FS_Euthanasia_ENG.pdf [11] https://www.medicalprotection.org/ireland/booklets/avoiding-problems-managing-the-risks-in-hospital-practice/advance-directives [12] https://www.bbc.co.uk/ethics/euthanasia/overview/regulation_1.shtml

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