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Medico-Legal Journal of Ireland 2013, 19(2), 60-67

Medico-Legal Journal of Ireland

2013

*60 Is There a Right to a “Good Death”?

Dr Deirdre Madden
Senior lecturer in law, University College Cork*
Subject: Health. Other related subjects: Criminal law. Human rights. Jurisprudence.

Keywords: Assisted suicide; Death; Ireland; Morals and law; Right to respect for private and family
life;

Introduction
The Report of the Forum on End-of-Life in 2009 noted that:

“Life and death are one. Though life comes before death, and though death is the threshold
of a new life for some, the progression from life to death is unique to each of us; it can
happen at any age, at any time, in any place. It is not as amenable to control as we might
wish … .”1

Almost 30,000 people die in Ireland each year. While a majority would like to die at home, deaths
at home constitute only one-quarter of the total deaths, with almost half of all deaths occurring in
acute hospitals,2 4 per cent in hospices and 20 per cent in long-stay facilities. 3 The majority of
people are aged over 65 years when they die; they have multiple medical problems, greater
adverse drug reactions, and may suffer greater economic hardship and social isolation. For
adults below that age, they may be affected by life-limiting conditions such as multiple sclerosis,
Huntington's disease, motor neurone disease and other difficult conditions. However, death has
many patterns— it does not always wait for old age, nor is it always preceded by illness. Many
deaths are sudden, unexpected and tragic, such as deaths as a result of accidents, violence or
suicide.

There are many important issues that arise in end-of-life care such as inequity in hospice care
provision,4 appropriate design of facilities, 5 resourcing of palliative care, 6 etc. However, the
ethical and legal debates in end-of-life care tend to focus on choice and decision-making by the
person who is terminally ill or living with a life-limiting condition. In this context, we talk about
difficult issues such as people wanting to consent to or requesting their own death when the pain
and suffering of their life becomes unbearable for them and the importance of having control over
our own bodies. We may argue about voluntary and involuntary euthanasia, assisted suicide, the
difference between killing and letting die, mercy killing and so on, but at the heart of the ethical
and legal arguments on these issues are the different ideas that people have about the meaning
and value of human existence, and whether human beings have the right to decide issues of life
and death for themselves.

When we discuss the right to die, assisted suicide and other sensitive issues, we usually do so in
the context of people with terminal illness, often with unrelenting pain and other horrendous
symptoms which can cause them unnecessary suffering and with which they no longer want to
live. However, we should not forget that each day, approximately 100,000 people die from
age-related causes—that's 30 million people per year worldwide. It is important to acknowledge
that ageing can sometimes bring with it symptoms and effects that cause discomfort, distress and
a sense of just being “tired of life” which we should not simply ignore in these debates. Of course,
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we do not consider ageing to be a disease because of the way we define disease as an abnormal
condition affecting an organism.

“People are not said to die of old age - at least, old age cannot be listed as the cause of
death on death certificates. But 80 and 90 year olds don't usually die of one thing. Little by
little, the wheels fall off the bicycle. The first few times, you patch everything up. But it's
never quite the same. Each setback is a little worse than the last. Bad stuff happens more
often. Eventually, as with all machines, the human body simply wears out.”7

The cause of death will probably be heart disease, cancer, stroke, respiratory disease,
Alzheimer's disease, diabetes, influenza, kidney disease, accidents or infection.

In his book, How We Die,8 Dr Sherwin Nuland finds it ridiculous and dishonest that “government
statisticians and scientific clinicians insist that proper names must be applied to sluggish
circulation and an antique heart”. He says that “[t]o call a natural process by the name of a
disease is the first step in an attempt to cure it and thereby thwart it”. Plus, the “biomedical world
view” distorts what actually happens. Veins and arteries stiffen and narrow. Less blood flows to
the brain. Neurons die. Bones get brittle. Tiny strokes leave big deficits. Infections have their way
once the immune system is shot. Sometimes all of the above happen, usually at least three.
When a person dies, calling the cause heart disease or pneumonia or osteoporosis or vascular
dementia is both arbitrary and beside the point. In fact, everything stops working because the
time is up. “The thing that peters out”, Dr Nuland writes, “is nothing other than the life force”.
*61
Gross asks what would it mean to medical science if death certificates did not describe us all as
having died of something that could have been treated, and perhaps was, but instead described
something inevitable and universally shared? Can we really pursue new treatments for heart
disease or diabetes without also directly addressing their most frequent cause: age itself? And
what would it mean for public policy if the leading cause of death among the very old was “the
wheels falling off the bicycle”? Would long-term care, its costs and indignities, finally find a place
on the national agenda?9 Perhaps this is something worth talking about.

Despite the knowledge that we have little control over its time and cause, people, particularly the
elderly, often speak about hoping for the gift of a “good death”. By this they mean that they feel
they can let go of the world in peace, knowing they have done everything they can, their affairs
are in order and they have worked through their fears and anxieties and have accepted what lies
ahead. We all hope that when it is our turn, we will not be in pain or suffering, we will not be a
burden on our families, or be completely dependent on others. Most of us hope to die at home
surrounded by family and friends and to die, as we lived, on our own terms and in keeping with
our own values. This paper examines the notion of a right to a “good death” and what this might
entail.

Impact of Advances in Medicine

In centuries past, a good death was celebrated in art and literature as ars moriendi, the art of
dying. Death marked salvation of the soul, neither an ending nor a beginning but, like birth, part
of the cycle of life. “True philosophers”, Plato wrote,10 “are always occupied in the practice of
dying”. Buddhism is filled with stories of Zen masters who write poems in the moments before
death, embracing it as the only time in life when absolute freedom may be realised. In the Middle
Ages, Christian monks greeted one another with the salutation Memento mori—“remember that
you must die”. Yet somewhere along the way, the practice of medicine has made huge efforts to
find treatments and technologies to keep people alive for longer, somehow viewing death as a
failure.

In the mid-1970s, Ivan Illich launched a powerful attack on the “medicalisation” of dying11 which
he said was characterised by: a loss of the capacity to accept death and suffering as meaningful
aspects of life; a sense of being in a state of “total war” against death at all stages of the life
cycle; a crippling of personal and family care; a devaluing of traditional rituals surrounding dying
and death; and a form of social control in which a rejection of “patienthood” by dying or bereaved
people is labelled as a form of deviance. Since then, the term “medicalisation” has become a
byword for all things negative about the influence of medicine on life and society. Illich refers to it
as the raising of unreal expectations inspired by useless medical rituals and routines, and how
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this makes the task of family and friends more difficult in “rousing the dying person's willingness
to accept the inevitable, to find strength in the beauty of memories, and to take leave of this
world”. 12

Illich's critique of the technological management of death is also shared by other commentators
such as John Tercier who claims that death, as portrayed on screen, has caused a form of
collective “death denial” which he blames on popular television programs such as ER, which
have exaggerated the survival rates of treatments such as resuscitation.13 ER was a medical
drama which ran from 1994–2009 and which, in its prime, on a bad week reached 20 million, and
on a good week, 35 million viewers. It was set inside “a frantic emergency room where viewers
were confronted almost nightly with a technological whirlwind of death”. 14 The highly regarded
status of resuscitation in the form of CPR in such television shows is argued by Tercier and
others to be a myth more suitable to dramatic television than an effective emergency department,
as the long-term survival results for the recipients of cardio-pulmonary resuscitation are in fact
quite low, yet it raised popular expectations in the public eye that CPR must be performed in all
cases, and that if performed, would miraculously result in the recovery of the loved one who
would go on to live a long and happy life. Tercier claims that “death with dignity - the darkened
room, the family gathered around the bedside, a few murmured farewells, and then an exit gentle
into that good night”, 15 has been removed from our lives and replaced with the hospital drama
and its death-defying resuscitation scene, with “siren wailing, and the chest-pumping maelstrom
of an ambulance hurtling towards the ER”. 16 Perhaps Illich and Tercier are right—perhaps we
have lost our way as far as understanding the process of dying. In recent years, palliative care
has encouraged medicine to be gentler in its acceptance of death, yet some medical services
continue to regard death as something to be resisted, postponed or avoided. 17

Asked their idea of a good death, most people would probably say “quick”. Keeling over in the
garden is one ideal, going to bed and not waking up another. This may be seen as an instinctive
*62 reaction against medical technology; although we acknowledge and appreciate the important
medical advances that have increased physicians' ability to manage our pain and other
symptoms, if we want anything from death, it is to remain in control, to avoid making our exit
tethered to a machine. We fear a painful, lonely and protracted high-tech death. What we want is
a tranquil, suffering-free last few weeks where we have the opportunity to be with loved ones in
our own homes if possible.

So is there a right to a good death? Alex Lickerman, a physician at the University of Chicago,
says:

“[T]he notion that dying is a right seems nonsensical to argue: death is given to all of us
equally without the need of anyone's sanction. The right to die well, on the other hand - that's
another matter entirely. A good death is, in some cases, something our fellow human beings
have power to grant or deny. The notion that we'd even need to fight for the right to die well
has only come to make sense relatively recently, within the last forty years or so. Prior to
that, our ability to prolong dying, meaning to keep extremely ill people going in hopes that
they might overcome whatever health problem threatens them, was actually fairly limited. But
with the advent of modern intensive care units and all the amazing technology that's
emerged in the last four decades, we can now stretch the quantity of our last days often to
weeks or even months.”18

This raises concerns about “the social isolation of dying patients in hospital, of dehumanized
dying, and of the failure of medical technology to coexist appropriately with dignified dying”.19
Health providers don't wield this technology to prolong suffering intentionally. It's quite difficult to
predict the timing of death, even in the terminally ill. In one sense, then, the lengthy dying
process that many patients experience at the hands of modern medicine reflects profound
optimism bias. As Lickerman puts it: “Even when in our hearts we know it's time to stop, we often
don't.” 20

Assistance in Dying
Nature is not kind to some people. Some people are afflicted with devastating illnesses that
cause pain, disability, discomfort and dependence for years before death. For them, life may
become unbearable and death brings with it the promise of release and peace. Some people in
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this position want nothing more than to have a peaceful death in the arms of their family. But
sometimes such a death is impossible without the assistance of a third party—a life partner, a
family member, or a medical practitioner.

Although there is considerable support for the right of competent adults to make autonomous
healthcare decisions even where their refusal of treatment may lead to death, concern is
commonly expressed when the person expresses a wish or intent to die and seeks assistance in
order to do so, usually due to a physical impairment which prevents him or her from taking his or
her own life. Assisted suicide is where someone provides the means, such as drugs, to enable
the other to take his or her own life, but does not administer the fatal dose. Section 2 of the
Criminal Law (Suicide) Act 1993 provides that a person who aids, abets, counsels or procures
the suicide of another is guilty of a criminal offence punishable by up to 14 years' imprisonment.
There have been attempts in Ireland as well as in other jurisdictions and in the European Court of
Human Rights (ECtHR) to establish a right to assisted suicide on the basis of autonomy, equality,
and freedom from inhuman and degrading treatment, but these have not been successful. In
Ireland, such arguments were unsuccessful in the case of Fleming v Ireland21 earlier this year, in
which the Supreme Court held that although suicide is no longer a crime in Ireland, this does not
mean that there is “a constitutional right to commit suicide or to determine the time of one's
death”. 22

Assisted suicide is legal in a small number of jurisdictions such as the Netherlands, Belgium, and
Oregon, Montana and Washington in the United States. The legislative provisions in these
jurisdictions set out clear criteria that must be satisfied relating to the voluntary and consistent
nature of the request, the suffering of the patient, no possibility of improvement and so on. For
example, under Washington's Death with Dignity Act, adults who have six months or less to live
may request lethal doses of medication from physicians. Although statistics in this area can be
difficult to ascertain with accuracy and objectivity, the most recent statistics from Washington
show that in the year 2012, 121 people were dispensed medication under the Death with Dignity
Act, of whom 104 died, 83 after taking the medication and 18 without taking the medication. 73
per cent of the 104 people had cancer, 10 per cent had neurodegenerative disease, and 17 per
cent had other illnesses.23 Of those who died after taking the medication, 89 per cent died at
home and 92 per cent were enrolled in hospice care when they took the medication. The data
collected in relation to those who died show that 94 per cent of them *63 reported losing
autonomy as a concern, 90 per cent were less able to engage in enjoyable activities, 84 per cent
were concerned about loss of dignity, while 33 per cent were worried about pain management
and 5 per cent were concerned about the financial implications of treatment.

High-profile English cases include the case of Diane Pretty who was terminally ill and wanted her
husband to be granted immunity if he assisted her suicide. This was refused both in England and
by the ECtHR.24 Similarly with Debbie Purdy, whose case 25 led to the publication of guidelines in
England about the circumstances in which the Director of Public Prosecutions (DPP) may or may
not prosecute for the provision of assistance. These examine the motivation for the assistance,
the extent of assistance given, the wishes of the deceased, the consistency of the request and so
on. Such an approach was rejected by the High Court here in the Fleming case, although,
somewhat unusually, the court said that it felt that the Director, “in this of all cases, would
exercise her discretion in a humane and sensitive fashion”, while still retaining the full ambit of
her discretion to decide whether to prosecute or not. 26 This will be discussed further below.

The most recent case in England has yet again confirmed the prohibition on assisted suicide. R.
(Nicklinson) and Lamb v Ministry of Justice, DPP and Attorney General27 concerned individuals
who, in the words of L.J. Elias, “suffer from permanent and catastrophic physical disabilities.
They are of sound mind and acutely conscious of their predicament. They do not want to suffer a
painful and undignified process of dying … However, they are not physically capable of ending
their own lives unaided”. They contended that as a matter of common law and human rights,
those who assisted them in bringing about their deaths should not be subject to criminal
consequences. However, Lord Judge said:

“[T]he law relating to assisting suicide cannot be changed by judicial decision. The repeated
mantra that, if the law is to be changed it must be changed by Parliament, does not
demonstrate judicial abnegation of our responsibilities, but rather highlights fundamental
constitutional principles … Parliament represents the conscience of the nation. Judges,
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however eminent, do not: our responsibility is to discover the relevant legal principles, and
apply the law as we find it. We cannot suspend or dispense with primary legislation.”28

One of the applicants sought to require the DPP to set out—in greater detail than he has
already— how his discretion may be exercised. The case was successful in this regard as the
court held that it was not sufficient for the policy merely to list the factors that the DPP will take
into account when deciding whether to consent to prosecution. The policy should give some
indication of the weight the DPP accords to the fact that the helper was acting in his or her
capacity as a healthcare professional.29

Article 8 of the European Convention on Human Rights

It has been accepted in cases such as Pretty, Purdy, and Nicklinson and Lamb, as well as the
Irish case of Fleming v Ireland, that the right to private life conferred by art.8 of the European
Convention on Human Rights (ECHR) is engaged by the prohibition on assisted suicide.
However, art.8 is a qualified right and can be the subject of interference where deemed
necessary by the State under art.8(2). The ECtHR has taken the view that a ban on assisted
suicide is justifiable by reference to art.8(2), inasmuch as Contracting States are entitled to
consider that such a ban is necessary to prevent abuse and exploitation of the vulnerable.30
Although a number of individual judges have given dissenting judgments in some of these cases,
no appellate court has upheld the claims of a litigant in such a case. As Kearns P. said in the
Fleming case—this is not because judges are indifferent to acute human suffering, but because
“it is impossible to craft a solution specific to the needs of a plaintiff such as Ms Fleming without
jeopardising an essential fabric of the legal system – namely respect for human life – and
compromising these protections for others”. 31 The applicants in these cases acknowledge that
the laws prohibiting assisted suicide are rationally aimed at a legitimate objective of protecting the
vulnerable, but argue that the provisions are disproportionate because they extend too far and
that it is not necessary for the law to protect those who are not vulnerable and are not under
improper pressure to hasten their death. 32 The ECtHR was of the view, in the case of Diane
Pretty, 33 that the blanket ban on assisted suicide was not disproportionate because flexibility is
provided in individual cases by the fact that consent is needed from the DPP to bring a
prosecution, and by the fact that a maximum sentence is provided, allowing lesser penalties to be
imposed as appropriate. In the later Purdy case, there are indications by Lady Hale and Lord
Brown *64 that there may even be some circumstances in which the DPP might be under an
obligation not to prosecute in order to respect article 8 rights, 34 although this has been disputed
in the most recent case of Nicklinson and Lamb. 35

The House of Lords held in the Purdy case that the generic prosecution code which identifies
factors which may bear upon the discretion to prosecute in a wide range of cases did not satisfy
the article 8(2) requirements of accessibility and foreseeability for a person seeking to identify the
factors that were likely to be taken into account by the DPP in exercising his discretion. As a
result, the DPP was obliged to “clarify what his position is as to the factors that he regards as
relevant for and against prosecution in this very special and carefully defined class of case”.36
The DPP published the required guidelines in February 2010, treading a careful line between
meeting the requirement of clarity and foreseeability in art.8(2) and maintaining constitutional
propriety by not decriminalising assisted suicide or providing an assurance that a person might
be immune from prosecution. They “amount to the DPP saying that he will not prosecute in cases
where the assistance is provided compassionately to a person who is capable of making a
considered and autonomous decision”. 37 However, in the Nicklinson and Lamb case, the court
took the view, as mentioned above, consistent with the Gross v Switzerland case decided by the
ECtHR in May 2013, 38 that the policy was not sufficiently clear in relation to healthcare
professionals who may provide assistance. 39

In the High Court's decision in Fleming v Ireland,40 the court held that there is no express power
conferred on the DPP in this jurisdiction to do what was ordered in the Purdy case in the UK.
Kearns P. said that “on the contrary, it would amount to forcing her into adopting a role which
would in effect override statutory measures laid down by the Oireachtas”, and he pointed to a
difference in wording between the European Convention on Human Rights Act 2003 (which is
confined to organs of the State acting in the performance of their functions) and the UK Human
Rights Act 1998 (which provides a broader duty on public bodies) in concluding that the Purdy
case could not be seen as a persuasive authority here. He said that no power had been vested in
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the DPP to make legislation, even of the limited subordinate nature envisaged by the introduction
of guidelines similar to those in the UK. 41 However, the court was of the view that the UK
guidelines would inform any exercise of discretion by the DPP in this jurisdiction, and that if the
partner of a deceased person who had provided assistance to that person in dying, in
circumstances such as those in Ms Fleming's case, submitted documentation outlining factors
which had been observed in keeping with the prosecutor's guidelines in the UK, then this would
“undoubtedly greatly narrow down the risk of any ex post facto prosecution”. 42 Conor O'Mahony
describes this as the court trying to have it both ways:

“On the one hand, it held that the DPP is precluded from issuing guidelines, since to do so
would amount to an alteration of the existing law by indicating in advance who is and is not
likely to be prosecuted for the offence. On the other hand, the Court stressed that the DPP is
free to exercise discretion after the event not to prosecute, and held that the English
guidelines, and communication between the individuals concerned and the DPP, could
inform this process. It is difficult to see the real difference between these two approaches.
The decision suggests that the DPP cannot legally do what is done in England – but also that
in truth, we expect her to deal with cases in exactly the same way, based on the very
guidelines that she is not entitled to issue. If the outcome is to be so similar, would it not be
better to base the process on a transparent application of Irish guidelines rather than a
surreptitious application of English ones?43

Some comfort may be drawn from the Fleming case for those who are faced with such appalling
circumstances from the indication given by the High Court that those who provide assistance in
circumstances that fall within the guidelines issued in the UK may benefit from the DPP's
discretion not to prosecute. However, as noted above, the ECtHR has acknowledged that a
blanket ban on assisted suicide, such as exists in Ireland, interferes with article 8 rights and that
such interference must not only be necessary and proportionate but must also provide clarity and
foreseeability to those in such circumstances. The Falconer Commission on Assisted Dying in the
UK was of the view that despite the publication of guidelines by the DPP in that jurisdiction, there
remains considerable uncertainty about what conduct will attract criminal prosecution, as the
guidelines are only indicative and the discretion remains with the DPP whether to prosecute. It is
arguable that a system with upfront safeguards and prospective approval of individual cases
would, therefore, be preferable as it would remove the uncertainty in the system.44 If the High
Court's decision not to oblige the DPP to issue guidelines *65 was based on the court's doubts
over whether there was a clear legal basis on which to order the DPP to issue guidelines, the
matter could be rectified by legislating to grant the DPP this power in the same way as her
counterpart in England and Wales. 45

Where to from here?

Proponents of the right to die argue that the frequency with which these cases arise is likely to
increase and that society needs to identify a mechanism by which to enable recognition of such a
right. Opponents say that recognition of this right is not necessary due to advances in palliative
care, it is unethical and not in the public interest, it would be open to abuse of vulnerable people
and could not be safely controlled. So where do we go from here?

There are already ways of bringing about physician-assisted death earlier than it would otherwise
occur which are tolerated by the law: it is not unlawful for a doctor to prescribe medical treatment
which will necessarily hasten death where the purpose is to relieve pain and suffering— this is
called the “double effect principle”.46 Doctors may place a “do not attempt resuscitation” order on
a patient's chart when it is felt that resuscitation would be futile. It is not unlawful to withdraw
medical assistance from a patient even though the inevitable result is to bring about the person's
death. 47 Patients are entitled to refuse even life-sustaining treatment and doctors are obliged to
respect that refusal even when it breaches their own personal position.

“However, the prohibition on assisted dying leaves people who positively wish their lives to
be ended as the group most likely to endure a drawn out, even undignified, dying process.
Those who can reject assisted nutrition and hydration or mechanical ventilation can
competently refuse to be so treated. Those unable to speak for themselves may find their
apparent plight alleviated by using such devices as the principle of double effect or the
alleged distinction between acts and omissions.”48
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In the Bland case,49 some of the judges expressed unease that the law should distinguish
between acts and omissions in this way when, ethically, there was, in their view, difficulty in
identifying any rational point of distinction between the two courses of conduct. But they
recognised that whatever the merits of the distinction, “the law is there and we must take it as it
stands”. 50 Lord Goff acknowledged that the distinction could attract a charge of hypocrisy but
justified it on the basis of fear of the slippery slope. 51 One of the questions that remains open to
debate between proponents and opponents of assisted dying is whether this distinction is
satisfactory and whether it should continue to reflect the common law.

Perhaps paradoxically, only one group is denied assistance in their dying; those who are
competent but have no life-sustaining treatment to refuse.52 Professor Julian Savulescu, a
well-known bioethicist, argues that a solution to the legal prohibition on assisted suicide is what
he calls voluntary palliated starvation. 53 Tony Nicklinson suffered a stroke in 2005 aged 51 years
and was left in locked-in syndrome, where he was fully conscious but unable to move. His court
application to provide immunity to his doctor if he provided assistance in his suicide was
unsuccessful. 54 Shortly afterwards, Tony died a relatively quick but unpleasant death by refusing
to eat or drink. It is unclear whether he was provided with any palliative measure to ease the
discomfort that starvation and dehydration or infection may have caused him but Savulescu
argues that such patients are entitled to relief of their suffering as a part of medical treatment as
they die, either through analgesia or sedation. As Sopinka J. said in Rodriguez v British Columbia
55
:

“Under our common law, the physician has no choice but to accept the patient's instructions
to discontinue treatment … The doctor is therefore not required to make a choice which will
result in the patient's death as he would be if he chose to assist a suicide or to perform active
euthanasia.”

Doctors may thus deliver palliative care to terminally ill patients without fear of sanction as the
intention is to ease pain rather than to cause death.

Some may object that doctors should not provide relief to those whose suffering is self-inflicted in
this way, but such a principle would, in other areas, arguably preclude much current medical care
to those who suffer from alcohol or drug addiction, smokers, those with obesity or sexually
transmitted diseases or those who self-harm in other ways. Doctors have always had an ethical
obligation to relieve suffering whether or not it was self-inflicted, so why would it be any different
for those who are competent to decide that they wish to die but cannot take their own lives
unaided? In reality, the right to refuse food *66 and fluids, together with the right to medical care
which provides relief of distress in those circumstances, is tantamount to a right to assisted dying.
The key, legally and ethically, in this context is the competence of the individual and respect for
his or her autonomy.

Assisted dying is a complex, emotionally charged issue. Many people are against its legalisation
because of their religious, cultural or ethical beliefs or due to concern that it may be open to
abuse of vulnerable people in society. The spectre of coercion, or even murder, in the guise of
assisted dying is always hotly debated. But as Dworkin puts it, is it fair that even a small number
of patients suffer greatly because we cannot design a system that will not at the same time cause
others to be exposed to pressure of various kinds, or that others will abuse?56 Although the State
does have an obligation to protect life, the issue is whether the prohibition of assisted suicide
strikes the right balance between the interests of the individual and the public interest in
protecting the weak and vulnerable in our society.

In Carter v Canada,57 two women who suffered from intractable and progressive diseases
challenged the constitutionality of the Canadian Criminal Code provisions against assisted
suicide. The trial judge, Lynn Smith J., departed from previous case law on two grounds. First, on
grounds of proportionality, and secondly, on the basis of new evidence from jurisdictions in which
assisted suicide was permitted by law. She took the view that it was impossible to draw a bright
line between the withdrawal of medical treatment and physician-assisted suicide and that the
prohibition of such assistance did not constitute minimal impairment of the constitutional rights of
the person seeking assistance. She said:

“Less drastic means of achieving the legislative purpose would be to keep an almost
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absolute prohibition in place with a stringently limited, carefully monitored system of

exceptions allowing persons in Ms Taylor's situation – grievously and irremediably ill adult
persons who are competent, fully informed, non-ambivalent and free from coercion or duress
– to access physician assisted death.”

As a result, the relevant section of the criminal code was declared unconstitutional and struck
down, although a stay of one year was granted to allow Parliament to amend the legislation. The
case was appealed to the British Columbia Court of Appeal which overturned the judgment of
Lynn Smith J. in October 2013.58 The court took the view that it was bound by Rodriguez v British
Columbia 59 which had held that the prohibition on assisted dying accorded with the principles of
fundamental justice. In the event that the Supreme Court of Canada does review Rodriguez,
however, the majority went on to suggest that consideration should be given to the remedy of a
“constitutional exemption” in favour of persons on whom an otherwise sound law has an
extraordinary and even cruel effect. The remedy of a constitutional exemption had been favoured
by a minority of the Supreme Court of Canada in Rodriguez in the context of a conclusion that the
law infringed the Charter rights of Ms Rodriguez, and by the dissenting judge in the Court of
Appeal in the present case in finding the operation of the law infringed her Charter rights.
Accepting that the statutory prohibition on assisted suicide is directed to the interests of the
vulnerable, a constitutional exemption for those who are clear-minded, supported in their life
expectancy by medical opinion, rational and without outside influence, might not undermine the
intention of the legislation.

The majority also suggested that if the constitutional exemption were approved, at the least, court
approval of some kind should be sought in addition to the suggested requirement of two medical
opinions and a request from the patient. The court was of the view that “an application to a court
of law, unencumbered by previous judicial direction, which is accustomed to assessing issues of
consent and influence, and with a perspective outside the (often overstressed) health care
regime”, should be required to assess individual cases.60

Conclusion
Many palliative care experts argue that there is no need for assisted suicide, as with modern day
medications and care, most terminal patients can be made comfortable until they die naturally.
The aim of palliative care is to support people who are dying so that the process is as peaceful
and dignified as possible. Although we should do what we can to improve things so as to make
the choice of death less desirable for people, there are, unfortunately, some situations where a
person's disability is such that palliative care is not the answer. Sadly, some illnesses are so
disabling and distressing that the only way the patient can be helped is by dulling his senses so
much that he is no longer himself. What if the person is suffering terribly from a condition that is
not reversible and possibly will get worse? Such a person, with good nursing care, may not die
for many years. Some *67 of the saddest stories that come into the public arena because of legal
battles to be allowed the right to die are those of people with locked-in syndrome. This is a
neurological condition that results in a complete paralysis of nearly all voluntary muscles except
the eyes. The patient is unable to move or respond verbally although he or she can still hear, see
and understand what is going on around him or her. Usually he or she is able to make minimal
responses using eye blinks: one blink for yes, two blinks for no. Around 85 per cent of patients
with locked-in syndrome are still alive after 10 years. It is hard to die in circumstances such as
these.

If autonomy is the dominant value in bioethics, then this means it is the benchmark against which
we must judge what is and is not permissible. Mclean says:

“If autonomous people, no matter how many or how few, want to take control of their deaths
as well as their lives, then we should respect that. If it is possible to reach such a decision
competently, and we have no reason to believe that it is not, then third parties – including the
state and the law – have no justification for interfering; indeed, they may have an obligation
to respect such choices, without imposing additional constraints, just as happens when
someone refuses life-sustaining treatment.”61

It may be argued, therefore, that competent people should be entitled to freely choose the
method and time of their own death when they find themselves in circumstances where such a
 Page9

choice has become the only option to relieve their pointless suffering. The distinguished legal
philosopher, Ronald Dworkin, put it well when he said that “making someone die in a way that
others approve but he believes a horrifying contradiction of his life is a devastating, odious form
of tyranny”. Some people remain profoundly uncomfortable with this position, but our own
technological advances will eventually force us to embrace it. An important question then is:

“[C]an an advanced society steeped in the medical doctrine of death as defeat, end
prolonged suffering without compromising its ethical underpinnings? And can suffering
people be given the help they crave without bestowing on physicians a power that is
intimidating, both in its magnitude and in its potential for abuse?”62

Both Lord Browne-Wilkinson and Lord Mustill in the Bland case were of the view that this issue
would be more appropriately dealt with by the legislature rather than the courts, as judges are
obliged to apply the law as they find it and might be influenced by their own moral perspectives
whereas the legislature has the obligation to reflect the conscience of society. The judicial
process is confined to a focus on the particular facts and circumstances before the court and is
not necessarily best suited to dealing with the range of conflicting considerations and procedural
requirements which a proper regulation of this area may require.63 It is worth noting that Denham
C.J. said in the Fleming case that there was nothing in the judgment to imply that it would not be
open to the legislature to deal with such cases, bearing in mind legitimate concerns and
appropriate safeguards, any competing interests and the practicability of any measures
introduced.

We all have an interest in dying in the best possible way and we have to find the courage and
compassion to deal with this issue in a way that strikes a balance between protection of the
vulnerable and respect for self-determination by ensuring appropriate supervision and control of
assisted dying. As Judge Nelson said in Baxter v Montana64:

“Dignity defines what it means to be human. It defines the depth of individual autonomy
through life and, most certainly, at death. Usurping a mentally competent, incurably ill
individual's ability to make end-of-life decisions and forcing that person against his will to
suffer a prolonged and excruciating deterioration is, at its core, a blatant and untenable
violation of the person's fundamental right of human dignity.”

This journal may be cited as e.g. (2005) 11, 2 M.L.J.I. 1 [(year) (Volume number) (Issue number)
M.L.J.I. (page number)]

Medico-Legal Journal of Ireland 2013, 19(2), 60-67

*. This article was delivered as a shorter paper at the joint conference of the Irish Human Rights Commission and the Law Society on
October 12, 2013.

1. See http://hospicefoundation.ie/wp-content/uploads/2012/04/Perpectives_EndOfLife.pdf [last accessed November 5, 2013].

2. Most deaths in acute hospitals take place in wards (68 per cent), with the remainder occurring in intensive care (20 per cent) and
Accident & Emergency (12 per cent): see
http://kieranmckeown.ie/wp-content/uploads/2013/03/54.-Report-1-Resources-and-Facilities-for-End-of-Life-Care-in-Hospitals-in-Ireland.pdf
[last accessed November 5, 2013].

3.
http://kieranmckeown.ie/wp-content/uploads/2013/03/54.-Report-1-Resources-and-Facilities-for-End-of-Life-Care-in-Hospitals-in-Ireland.pdf
[last accessed November 5, 2013].
 Page10

4. “Inequity crisis in hospice care”, Irish Medical News, July 8, 2013.

5. In 2007, the Hospice Friendly Hospital Programme of the Irish Hospice Foundation commissioned an independent review of the
physical environment of 15 acute and five community hospitals. The report found as follows: “The lack of single rooms and use of multiple
bed bays means that patients and relatives are not afforded the dignity that they deserve. Although generally the wards allowed for a
degree of gender separation, this was not always the case with several examples of mixed gender wards and bed bays. It is recognised
best practice to separate male and female patients into different wards, or areas. This is clearly to provide each with dignity, privacy and
respect. Where this is not possible, it completely breaches privacy and dignity issues, which may become heightened where a person is
nearing the end of life and may require more levels of personal support and intervention. The ward layouts did not tend to allow for any
significant level of privacy for patients or visitors from an acoustic or visual perspective given that the main bed complement of the wards
is based on multiple bed bays. This was particularly apparent in the older estate facilities where there were poor ward layouts and not
enough space between each bed on the ward … Noise levels were often high in many of the wards visited … In general, there was a lack
of quiet spaces, interview or relatives' rooms across all sites, preventing opportunities for confidential discussion and/or quiet reflection.”
See http://hospicefoundation.ie/wp-content/uploads/2013/04/Design-and-Dignity-Baseline-Review-Nov-07.pdf [last accessed November 5,
2013].

6. See http://hospicefoundation.ie/wp-content/uploads/2012/05/Palliative-Care-For-All.pdf [last accessed November 5, 2013].

7. Jane Gross, “The immediate cause of death”, New York Times, Oct 23, 2008: see
http://newoldage.blogs.nytimes.com/2008/10/23/the-immediate-cause-of-death/?_r=0 [last accessed November 5, 2013].

8. Sherwin Nuland, How We Die: Reflections on Life's Final Chapter (London: Chatto & Windus, 1994).

9. Jane Gross, fn.7 above.

10. Plato, Phaedo. Plato in Twelve Volumes, Vol. 1 (Cambridge, MA: Harvard University Press; London: William Heinemann Ltd, 1966).

11. Ivan Illich, Limits to Medicine: Medical Nemesis—The Expropriation of Health (London: Marion Boyars, 1975).

12. Ivan Illich, “Death undefeated: From medicine to medicalisation to systematisation” (1995) 311 B.M.J. 1652.

13. John Tercier, The Contemporary Deathbed (Basingstoke, New York: Palgrave Macmillan, 2005).

14. John Tercier, fn.13 above, p.2.

15. John Tercier, fn.13 above, p.210.

16. John Tercier, fn.13 above, p.2.

17. David Clark, “Between hope and acceptance: the medicalisation of dying” (2002) 324 B.M.J. 905.

18. See http://www.happinessinthisworld.com/2011/10/16/the-right-to-die/#more-7615 [last accessed November 5, 2013].

19. Jane E. Seymour, Critical Moments—Death and Dying in Intensive Care (Buckingham: Open University Press, 2001).

20. See http://www.happinessinthisworld.com/2011/10/16/the-right-to-die/#more-7615 [last accessed November 5, 2013].

21. [2013] IESC 19.

22. [2013] IESC 19 at para.99 per Denham C.J.

23. Washington State Department of Health 2012 Death with Dignity Act Report, available at:
http://www.doh.wa.gov/portals/1/Documents/Pubs/422-109-DeathWithDignityAct2012.pdf [last accessed November 5, 2012].

24. Pretty v UK (Application no. 2346/02).

25. [2009] 4 All E.R. 1147.

26. [2013] IEHC 2 at para.175.

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27. [2013] EWCA Civ 961.

28. [2013] EWCA Civ 961 at paras 154–155.

29. [2013] EWCA Civ 961 at para.140.

30. Haas v Switzerland

(2011) 53 E.H.R.R. 33.

31. [2013] IESC 19 at para.120.

32. R. (Nicklinson) and Lamb v Ministry of Justice, DPP and Attorney General
[2013] EWCA Civ 961 at para.36.

33. Pretty v UK (Application no. 2346/02), para.76.

34. R. (Purdy) v DPP

[2009] UKHL 45 per Lady Hale at paras 63–64; Lord Brown at paras 70 and 74.

35. R. (Nicklinson) and Lamb v Ministry of Justice, DPP and Attorney General
[2013] EWCA Civ 961 at para.99.

36. [2009] UKHL 45 per Lord Hope at para.55.

37. Report of the Commission on Assisted Dying (2012) (the “Falconer Report”), p.285, available at:
http://www.commissiononassisteddying.co.uk/ [last accessed November 13, 2013].

38. Application no. 67810/10.

39. R. (Nicklinson) and Lamb v Ministry of Justice, DPP and Attorney General
[2013] EWCA Civ 961 at para.140.

40. [2013] IEHC 2.

41. [2013] IEHC 2 at para.154 per Kearns P.

42. [2013] IEHC 2 at para.157 per Kearns P.

43. Dr Conor O'Mahony, “DPP needs clear protocols after assisted suicide ruling“, Irish Times, January 15, 2013.

44. Report of the Commission on Assisted Dying (2012) p.286, available at: http://www.commissiononassisteddying.co.uk/ [last accessed
November 13, 2013].

45. Dr Conor O'Mahony, fn.43 above.

46. See R. (Nicklinson) and Lamb v Ministry of Justice, DPP and Attorney General
[2013] EWCA Civ 961 at para.26.

47. Re a Ward of Court

[1996] 2 I.R. 73; Airedale NHS Trust v Bland
[1993] A.C. 789. See also a recent case before the High Court in July 2013, in which the court made orders allowing doctors to, if
necessary, withdraw medical treatment and not resuscitate a three-week-old baby whose condition was described as “hopeless” and
painful, and whose life prospects were described as “bleak and remote“. In granting the orders sought, McDermott J. was of the opinion
that further treatment would not be in the child's best interests and that doctors could withdraw medical treatment which would lead to his
death within an hour. See the report in the Irish Times, July 11, 2013.
 Page12

48. Sheila McLean, Assisted Dying: Reflections on the Need for Law Reform (London: Routledge Cavendish, 2007), p.17.

49. Airedale NHS Trust v Bland

[1993] A.C. 789.

50. Airedale NHS Trust v Bland

[1993] A.C. 789 per Lord Browne-Wilkinson at 885 and Lord Mustill at 887). Cited in R. (Nicklinson) and Lamb v Ministry of Justice, DPP
and Attorney General
[2013] EWCA Civ 961 at para.27.

51. Airedale NHS Trust v Bland

[1993] A.C. 789 at 865.

52. Sheila McLean, fn.48 above, 2007), p.17.

53. Julian Savulescu, “A simple solution to the puzzles of end of life? Voluntary palliated starvation” (2013) J.M.E.
10.1136/medethics-2013-101379.

54. Nicklinson v Ministry for Justice

[2012] EWHC 304 (QB).

55. [1993] 3 S.C.R. 519 at 606.

56. Gerald Dworkin, “Public Policy and Physician-Assisted Suicide” in Gerald Dworkin, R.G. Frey and Sissela Bok (eds), Euthanasia and
Physician-Assisted Suicide (For and Against) (Cambridge: Cambridge University Press, 1998), p.77.

57. [2012] BCSC 886.

58. Carter v Canada (Attorney General)

[2013] BCCA 435.

59. [1993] 3 S.C.R. 519 at 606.

60. [2013] BCCA 435 at para.335

61. Sheila McLean, fn.48 above, p.188.

62. Sue Woodman, Last Rights: The Struggle Over the Right to Die (New York and London: Plenum Trace, 1998), p.25.

63. R. (Nicklinson) and Lamb v Ministry of Justice, DPP and Attorney General
[2013] EWCA Civ 961 at para.60.

64. P3d 2009 WL 5155363, Mont. 2009.

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