Suicide and the terminally ill - the legal and moral dividing lines between allowing "nature to take its course" and doctor-assisted death are complex, writes Deirdre Madden.
Suicide was decriminalised in Irish law in the Criminal Law (Suicide) Act, 1993. This does not make suicide lawful, nor does it create a right to suicide.
Section 2(2) provides that a person who aids, abets, counsels or procures the suicide of another is guilty of an offence punishable by up to 14 years' imprisonment. It does not make a difference that the person would have tried to commit suicide anyway, nor does it matter that the information on how to commit suicide is already in the public domain. The application of this section to the facts of a particular case would be a matter for the jury in a criminal prosecution.
In Britain a similarly-worded provision has been the subject of prosecution in a handful of cases. In 1993 a person was prosecuted for providing the deceased person with paracetamol tablets at her request, which she used to commit suicide. The judge directed the jury to find the defendant not guilty on the basis that providing the deceased with an option of taking her own life was not sufficient to warrant a conviction.
In 2001 a 42-year-old English woman called Diane Pretty sought an assurance from the Director of Public Prosecutions that her husband would not be prosecuted if he provided assistance in her suicide. Pretty suffered from motor neurone disease - a progressive degenerative illness for which there is no cure or hope of recovery.
She faced the prospect of a humiliating and distressing death, in effect by suffocation. As one judge put it - "no one of ordinary sensitivity could be unmoved by the frightening ordeal which faces her".
Were it not for her physical condition, Pretty would have been able to commit suicide, but the disease rendered her unable to do so. The court took the view that the DPP did not have the power to give such an undertaking in advance of the commission of a crime and without knowledge of the means by which Pretty's life would be ended.
There was clearly a conflict here between the right to life and the right to autonomy, or the right to decide what is to be done with one's own body. The court concluded that deliberate killing, even with consent and in "the most pitiable of circumstances", is murder.
The case was appealed to the European Court of Human Rights where Pretty argued that her right to life under Article 2 of the Convention implied a negative right to end that life.
The court took the view that Article 2 could not, without a distortion of language, be interpreted as conferring the diametrically opposite right, namely a right to die; nor could it create a right to self-determination in the sense of conferring on an individual the entitlement to choose death rather than life.
Pretty also argued that by preventing her receipt of assistance in dying and thus failing to protect her from the inevitable suffering she would endure at the end of her life, the state was inflicting inhuman or degrading treatment upon her, contrary to Article 3 of the Convention. Again, the court disagreed as it found that the state had not inflicted any ill-treatment on her. While expressing sympathy for her plight, the court also dismissed arguments under Articles 8, 9 and 14 of the Convention.
Similar cases brought in Canada and the United States to establish a right to assisted suicide have been unsuccessful. However, the Netherlands, Belgium and Switzerland are among a handful of jurisdictions that have legislated in recent years for the facilitation of assisted suicide in tightly-controlled circumstances.
The topic of assisted suicide is often discussed in the context of euthanasia or "mercy killing". In Pretty's case the line between assisted suicide and euthanasia was not clearly drawn as no details were given to the court regarding the proposed means of her death.
In reality, the more disabled the patient, the greater the need for assistance. But at what point does assisted suicide become euthanasia? The crucial distinction is the extent to which the final act is that of the patient, as opposed to that of the person providing assistance.
However, if the patient is physically unable to carry out the final act herself and requires assistance in this, is there a moral difference in the act carried out by the accomplice?
In recent days, the case of Terri Schiavo in the US has facilitated discussion of the terrible ethical dilemma facing families and carers of loved ones whose medical prognosis is hopeless. An analogous case arose in Ireland in 1996 in Re a Ward of Court.
In that case the Irish Supreme Court considered the situation of a 45-year-old woman who had suffered irreversible brain damage as a result of a cardiac arrest during a minor gynaecological operation in 1972. Since then she had been in an almost persistent vegetative state (PVS).
The ward's family requested that the feeding tube be withdrawn and that she be allowed to die. By a majority decision, the court decided that withdrawal of the feeding tube was justified in the best interests of the woman and in pursuance of her constitutional rights to life, privacy, self-determination and bodily integrity.
The then chief justice, the late Mr Justice Liam Hamilton, stated that the right to life under the Constitution is not absolute and necessarily implies the right to die a natural death. However, this does not give a right to terminate one's own life or to have death accelerated. The facts of this case concerned the withdrawal of treatment to allow nature to take its course, and the majority of the judges were of the view that respect for life includes the principle that life need not be preserved at all costs.
Withdrawal of treatment is therefore not regarded in the same way as the active taking of steps to accelerate or cause death. Thus, we feel secure in allowing competent patients to refuse medical treatment even though the consequence for them will be death.
However, we do not facilitate those who are not in receipt of medical treatment to make, in effect, the same decision to die if the means by which to effectuate that decision requires assistance. If someone is in a permanent vegetative state and incompetent to communicate their wishes, the court may make a decision to withdraw nutrition and hydration in order that "nature would take its course".
In making a policy decision to refuse someone like Diane Pretty's request for assistance, are we treating those who are intellectually competent and not in receipt of life-sustaining treatment worse than those who lack competence? Are we treating those who are terminally ill worse than those who have many years of pain-free life ahead of them?
Dr Deirdre Madden is lecturer in medical law, University College Cork