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Update: The Legalization of Euthanasia in the Netherlands
Henk Jochemsen
On 28 November 2000, the Second Chamber of the Dutch parliament accepted the proposal for law regarding legalization of voluntary euthanasia and assisted suicide.1 The proposal will now go to the First Chamber which will probably discuss it early 2001. It will only become effective after the First Chamber has also accepted it. This law proposal implies a significant step further on the way of accepting euthanasia as part of medical practice. A fundamental step in the beginning of this process was the decision of the Supreme Court (in 1984) that a physician who has committed euthanasia can, in cases of an objectively established 'conflict of duties', appeal to a defense of 'necessity' (Penal Code art. 40). This conflict concerns on the one hand the duty to obey the law that forbids euthanasia and assisted suicide (Penal Code art. 293, 294), and on the other hand to alleviate suffering. The government approved the Supreme Court's decision, thereby accepting euthanasia under certain circumstances.2 The conditions establishing a 'conflict of duties' were essentially: a free, well-considered request, unacceptable suffering with no other reasonable possibilities to alleviate the suffering, and consultation of the physician by a colleague.3 In 1991 the government proposed a new legal regulation on the basis of the courts' decisions. The prohibition of euthanasia and assisted suicide was maintained in the Penal Code. At the same time the procedure by which physicians report death in cases of euthanasia, assisted suicide and life-terminating actions without an explicit request, was given a statutory basis by amending the law on the Disposal of the Dead.4 According to this procedure, a physician who has terminated a patient's life informs the local medical examiner, who inspects the body externally and takes from the attending physician a statement which contains the relevant data (the patient's history, request, possible alternatives, consultation with a second physician, intervention). This report, together with an evaluation by the local medical examiner, is checked by the Public Prosecutor who considers if the termination of the patientıs life was contrary to the Penal Code as interpreted by the courts. So, to the conditions mentioned above was added the requirement of reporting each case of euthanasia, assisted suicide and life terminating action without an explicit request.
Surveys In 1990, and again in 1995, extensive surveys were carried out by P. J. van der Maas et al and G. van der Wal and P. J. van der Maas respectively, to get an insight into end-of-life decision-making by Dutch doctors. The results were published in 19915 and 19966. The second survey sought particularly to ascertain the incidence of intentional life-shortening by doctors; the extent to which they complied with their duty to report such cases and the quality of their reporting. Some of the main results (of the 1995 survey) are: 1) Euthanasia or assisted suicide was performed in 3600 cases (of 9700 requests for euthanasia). The main reason why physicians did not comply with a request for euthanasia is that in their opinion the suffering was not yet unbearable. On the other hand, in 900 cases physicians terminated the life of a patient without an explicit request because in their opinion the condition of the patient was unbearable. 2) In 2000 cases the physician increases the pain medication with the explicit intention to shorten the life of the patient; in about 25% of these cases there was no explicit request of the patient to do so. In at least 14000 cases a treatment was withdrawn with the explicit intention to shorten the patient's life. 3) In 17% of the cases of euthanasia and of life termination without explicit request the physician still saw other medical possibilities to alleviate the suffering, but nevertheless intentionally ended the patientıs life. 4) In a considerable part of the cases physicians do not adequately consult a colleague. Furthermore, physicians reported only 44% of the cases of euthanasia (18% in 1990) and virtually no cases of life termination without an explicit request. The legal authorities were not informed at all about the non-reported cases. From these data I draw the following conclusions: a) In practice it really is the physicians who decide whether in a certain situation the patient's life is ended and not so much the patient, although the physician is more inclined to do so when the patient persistently asks for it. b) Life terminating actions are not merely used as last resort. c) Adequate control of life terminating actions of physicians appears to be impossible, because contrary to the legal requirements the physicians do not report most of the cases of such actions. So, the legal regulation of 1994 has provided a kind of legitimation to physicians to end patients' lives, while the procedure to control this practice does not function well.
A New Procedure In 1998, the Parliament accepted a new regulation of euthanasia reporting that became effective on November 1, 1998.7,8 This did not imply a change of the Penal Code prohibition of euthanasia, but a change of the procedure by which euthanasia should be reported. According to the new procedure, the report of every euthanasia case as well as the filled out form of the medical examiner, should no longer be sent directly to the public prosecutor, but should be sent to one of five regional euthanasia review committees. This committee, consisting of a physician, a lawyer, and an ethicist, should evaluate the case in the light of the courts' decisions on life-terminating actions thus far. The committeeıs opinion on the case is sent to the public prosecutor, together with the reports of the attending physician and of the medical examiner. The prosecutor has the freedom and duty to form his own opinion on the case, but the opinion of the committee will be of major importance in the decision of the prosecutor to prosecute or not. Since in this procedure the legal authorities find themselves at larger distance from the euthanising physician, the government hopes that a higher percentage of cases will be reported. However, the first year report of these review committees indicate that so far this new procedure has not resulted in a substantial increase of the number of reported cases.9 Furthermore, this report indicates that in the reported cases the information of the attending physician on the existence of alternatives and on the quality of the consultation was not always sufficient. In some cases additional information was requested from the physician. Ultimately in all cases the euthanasia or assisted suicide was approved by the committee concerned.
The New Proposal for Law The proposal accepted by the Second Chamber essentially contains the following provisions: 1) In order to be deemed legal, acts of euthanasia must be performed according to 'careful medical practice.' Requests for euthanasia must be voluntary, well-considered, and persistent, and be made by patients who are experiencing unbearable suffering without hope of improvement. More than one physician must be involved in the decision, and both patient and physician must agree that euthanasia is the only reasonable option. 2) All cases of euthanasia must be reported to and evaluated by one of the regional committees, composed of a lawyer, physician, and ethicist/philosopher (for each one there is a deputy member). 3) Acts of euthanasia and assisted suicide will not be punishable if performed by a physician who has complied with the conditions in (1) and has reported the action to the coroner. 4) The coroner attending to a euthanasia case must send his or her report to the Public Prosecutor, as well as to the corresponding regional euthanasia committee. The report must demonstrate that all the requirements for legal euthanasia have been observed. In the event of severe infraction, the Prosecutor will not give consent for burial or cremation until further investigations have been conducted. 5) Also minors between the age of 12 and 16 can have euthanasia or assisted suicide provided their parents consent to it. (In response to critical questions by members of parliament the Cabinet dropped the provision that euthanasia requests of minors between 12 and 16 years in exceptional cases could be granted without the parentsı consent.) 6) The proposal also establishes a legal basis for advance euthanasia declarations via a type of 'living will' in which an incompetent patient would request euthanasia in the event he or she became mentally incompetent. Though such a statement does not imply that a physician has a duty to perform euthanasia at any moment, it provides the legal opening to intentionally end the life of an incompetent patient who had signed such a document.
Improvement? Would the Bill, if enacted, be likely to ensure effective control of voluntary euthanasia? The acceptance of this Bill would not imply a major change in the requirements and circumstances under which euthanasia will be approved. But it can be interpreted as a further acceptance and institutionalization of euthanasia in society. The relaxation of the reporting procedure by the introduction of interdisciplinary committees as a buffer between the doctor and prosecutor, as well as the enactment of the Bill, which would remove any remaining doubts about the legal permissibility of voluntary euthanasia, may lessen the fear of prosecution and encourage reporting. Yet it is doubtful whether this regulation would lead to a far higher reporting rate of euthanasia and assisted suicide. Also under the new legislation euthanasia will be allowed only under certain conditions and circumstances. When the physician has not fulfilled the requirements, the case has to be investigated and possibly brought before court. Hence, in the light of the data of the surveys it is to be expected that precisely those cases in which the requirements have not been fulfilled, will still not be reported. Furthermore, the legal approach will be different. So far euthanasia is prohibited in the Penal Code and in individual cases the physician must be able to prove that he fulfilled the requirements in order to successfully appeal to the defense of necessity. But under the proposed regulation of euthanasia in the Penal Code the public prosecutor must be able to prove that the physician has not fulfilled requirements in order to start prosecution. So the burden of proof will be shifted from the physician to the prosecutor. This may be a reason for public prosecutors to forego prosecution in doubtful cases in which they foresee difficulty in proving noncompliance with the requirements. Therefore, effective control and prosecution of unacceptable euthanasia will probably become even more difficult.
Objections A number of objections can be raised against this ominous proposal for legalizing euthanasia. First, summarizing the former section, the proposal does not adequately safeguard the public. The depenalization of intentional killing by physicians constitutes, in itself, a serious violation of the legal protection of the life of all citizens. Moreover, whenever the committee rules favorably on a case by deeming an act of killing legal, the Public Prosecutorıs ability to monitor physician conduct will be compromised because the Prosecutor will not even see the report of the physician involved in the case. Furthermore, it is likely that cases in which the legal requirements have not been fulfilled will go unreported, as is the case now. Data on reported cases are provided by the physician who performed the euthanasia; therefore, determinations of whether the legal requirements have been met, may very often be biased as well. Adequate control will continue to be impossible. Second, once euthanasia becomes a legal option, a patient afflicted with terminal illness or unbearable suffering may have to justify not asking to be euthanized. The recent case of Mr Brongersma demonstrates the elasticity of the requirement of unbearable suffering, implying that a substantial group of people could become vulnerable to such pressure.10 At the same time, legalization will tend to undermine the efforts and creativity of those committed to providing palliative care to a terminal patient. Such unintended outcomes seem inevitable in a health care system characterized by increasing costs and the need to make choices regarding resource allocation. Third, this legalization of euthanasia will lead to a broader acceptance and increased practice of euthanasia, which will change the nature of the patient-physician relationship as well as the character of terminal palliative care. The acceptance of euthanasia as a treatment option is incompatible with the fundamental role of the physician as healer who is unconditionally devoted to respect for the life of his patients. Since the physician's role and the extent of his or her competence is regulated by law, such a fundamental change in the physicianıs competence concerns society as a whole and cannot be considered as a private matter for patients and physicians. Fourth, accepting the euthanasia of minors 12 years of age and older seriously overestimates the capacity of such persons to evaluate the meaning and consequences of a request to be killed. It places an unacceptable burden on these young people and may well disturb society's confidence in the relationship between physicians, parents and children. Unless we are prepared to give minors the right to do everything else in life that an adult can do, giving them the right to end life itself seems out of place. Fifth, legalizing the euthanasia declaration designed to permit a competent patient to request euthanasia in advance, should he or she later become incompetent, is likely to foster a broadening of the requirement of 'unbearable suffering' to 'loss of dignity'. Furthermore it is likely to increase the pressure on the physician to terminate a patient's life when a patient has become severely demented, especially when the patientıs family insists on doing that. Such a practice may likely lead to a blurring of the distinction between voluntary and non-voluntary euthanasia. It is no wonder that the Dutch Association of Nursing Care Physicians has voiced their unhappiness with this part of the proposal. Finally, although the responsible ministers have admitted during the debate in parliament that a physician who does not want to perform euthanasia to a patient insisting on having it, is not obliged to formally refer to a colleague who may be willing to do so, in practice physicians will feel pressured to either perform euthanasia themselves or refer to a colleague. If they refuse both they may run into trouble unless they have indicated in an early stage of the terminal phase of the disease that they object to performing euthanasia. Furthermore, health care professionals who reject euthanasia will likely find it difficult to obtain jobs in certain areas of the health care field. - E&M
End Notes 1 In The Netherlands euthanasia is by definition voluntary euthanasia; non voluntary euthanasia is called termination of life without a requestı; no fundamental legal and ethical difference is made between euthanasia and physician-assisted suicide. 2 Standpunt van het Kabinet inzake medische beslissingen rond het levenseinde [Position of the Cabinet with respect to Euthanasia and other medical decisions concerning the end of lifeı] (Tweede Kamer 1991-1992, no. 14, d.d. 8 november 1991). In this position paper in which the Cabinet announces a proposal to change the law, it refers both to the Supreme Courtıs decision of 1984 and to the report of the Remmelink committee that is based on the results of the first survey of the practice of euthanasia (see further). 3 WR Kastelein. Standpunt hoofdbestuur KNMG inzake euthanasie, [Position General Committee KNMG on Euthanasia]. Utrecht, august 1995. 4 The new legal regulation (bill no. 22 572) amends the law on the Disposal of the Dead (article 10) which provides the legal basis for a form used by physicians to certify natural death. The law as amended provides that both the form to certify natural death and the form to notify all cases of euthanasia, assisted suicide and a life-terminating action without request will be set out in an enactment [Algemene Maatregel van Bestuurı, AMvB]. This AMvB has been published in the Staatsblad [official publication of the government] of 28 Dec 1993, as: Besluit van 17 Dec 1993, Stb 688. This law became formally effective on June 1, 1994. 5 Van der Maas PJ, et al. Medische beslissingen rond het levenseinde. Den Haag: SDU Uitgeverij 1991. (Published in translation as Euthanasia and Other Medical Decisions Concerning the End of Life. Amsterdam: Elsevier 1992. 6 Van der Wal G, Van der Maas PJ et al. Euthanasie en andere medische beslissingen rond het levenseinde. De praktijk en de meldingsprocedure. [Euthanasia and other medical decisions concerning the end of life. Practice and reporting procedure.] Den Haag: SDU uitgevers 1996. For summaries of the research in English see: Paul J van der Maas. Euthanasia, physician-assisted suicide, and other medical practices involving the end of life in the Netherlands 1990-1995. New England Journal of Medicine 335 (1996), p.1699; Gerrit van der Wal. Evaluation of the notification procedure for physician-assisted death in the Netherlands. Ibid, p.1706. 7 These changes are announced and described in: Kabinetsstandpunt naar aanleiding van de evaluatie van de meldingsprocedure euthanasie. Brief van Minister van Justitie en van de Minister van Volksgezondheid, Welzijn en Sport aan de Tweede Kamer, d.d. 21 januari 1997 (kenmerk 603400/97/6). [Position of Cabinet with respect to evaluation of reporting procedure of euthanasia. Letter of Ministers of Justice and of Health, Welfare and Sports, d.d. January 21, 1997]. 8 Staatscourant 1998, 101 and 103. 9 Regionale toetsingscommissies euthanasie. Jaarverslag 1999. [Regional euthanasia review commitees. Year report 1999]. Den Haag 1999, p. 8ff. This report indicates that in 1999, 2216 cases of euthanasia or assisted suicide were reported, whereas in 1998 2241 cases were reported. (Jaarverslag Openbaar Ministerie 1998 inzake euthanasie en hulp bij zelfdoding. ProVita Humana 7, no 1 (2000), p. 34. 10 Brongersma was an 86 year old person who wanted and received help in committing suicide because he felt his life had become meaningless and too heavy a burden. The physician was quitted by the court; see BMJ 2000; 321: p. 1174.
Henk Jochemsen, PhD is director of the Lindeboom Instituut for Medical Ethics and holder of the Lindeboom chair for Medical Ethics at the Free University of Amsterdam, The Netherlands.
This article appeared in Volume 17:1 of Ethics & Medicine.