Is there a right to a good death?
Some judges support the recognition of a right to assisted suicide, but no appellate court has agreed
Advanced medical technology has led to the ability to sometimes stretch our last days, with some referring to this as a form of death denial or viewing death as a medical failure
dPeople, particularly the elderly, sometimes speak about hoping for the “gift of a good death”. Studies carried out by the Irish Hospice Foundation show that for most of us this means that we hope to die at home peacefully and without pain, surrounded by family and friends and in keeping with our own values. Despite this, for various reasons only 26 per cent of us achieve this ambition. Through important initiatives such as the Think Ahead public awareness project developed by the Forum on End of Life in Ireland, people are encouraged to reflect on and talk about their values and beliefs about end of life so that their preferences are known in the event of serious illness when they may well be unable to speak for themselves.
So is there a right to a good death? The notion that dying is a right seems nonsensical to argue as death is given to us all equally without needing anyone’s sanction. The right to die well on the other hand is a different matter. Over the last couple of decades, the advent of modern intensive care units and advanced medical technology has led to the ability to sometimes stretch the quantity of our last days to weeks or even months. This has raised concerns about the social isolation of dying patients in overcrowded hospitals, of dehumanised dying, and in some cases, the failure of medical technology to coexist appropriately with dignified dying. Ivan Illich referred to this in the 1970s as the medicalisation of death, and in more modern times others refer to it as a form of death denial or the viewing of death as a failure of medical practice. Although palliative care has encouraged a gentler acceptance of death across the health system, the challenge is not only to ensure consistent access to palliative care services for all but also to reconcile high expectations of technical expertise across a range of medical specialities with a humanistic and ethical orientation.
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 may bring peace with it. But due to their disability 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 them taking their own life. Assisted suicide, which is criminalised in Ireland by Section 2 of the Criminal Law (Suicide) Act 1993, is where someone provides the means to enable the other to take his own life such as drugs, but does not administer the fatal dose.
Right to assisted suicide
There have been attempts in Ireland as well as in other jurisdictions and in the European Court of Human Rights to establish a right to assisted suicide on the basis of autonomy, equality, and freedom from inhuman and degrading treatment. However, despite many individual judges worldwide expressing support for the recognition of such a right, no appellate court has yet taken this step.
In the case of Fleming v Ireland earlier this year 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. The judges were at pains to point out that they were not indifferent to acute human suffering but felt that “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…”
However, it may be argued that this position is inconsistent since the law already tolerates other ways in which a person’s life may be shortened. For instance, competent patients are entitled to refuse interventions such as surgery, chemotherapy and blood transfusions even if the inevitable consequences are that they will die. The Irish courts have sanctioned withdrawal or withholding of life-sustaining treatment for patients in persistent vegetative state and children with severe disabilities where treatment would involve undue pain and suffering and would merely prolong life with no prospect of improvement. Doctors may place a “do not attempt resuscitation” order on a patient’s chart when they consider that resuscitation would be futile given the nature of the patient’s condition. It is not unlawful for a doctor to prescribe medical treatment which may hasten death where the primary purpose of the medication is to relieve pain and suffering. It seems then that only one group is denied respect for their autonomous choice to die – those who are competent but have no life-sustaining treatment to refuse. The result is that they may endure a drawn out, even undignified, dying process.
‘Odious form of tyranny’
If competent people want to take control of their deaths as well as their lives, then why should we not respect that? If it is possible to reach such a decision competently, and we have no reason to believe that such decisions are inherently different from refusals of life-sustaining treatment which we currently respect, then the law may have an obligation to similarly respect such choices without imposing additional constraints. 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, but our own technological advances will eventually force us to embrace it.
We all have a human right to a good death and as a society we have to find the courage and compassion to deal with this issue in a consistent and fair way that strikes a balance between protection of the vulnerable and respect for self-determination. As Judge Nelson said in Baxter v Montana: “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.”
Dr Deirdre Madden is senior lecturer in law at University College Cork