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The Position of Nurses in the New Dutch Euthanasia Bill: A Report of Legal and Political Developments
Marianne Daverschot, LLB and Hugo van der Wal, MA
Editor's Note: On April 10, 2001, The Netherlands became the first democratic nation to legalize euthanasia. According to press reports, the 75-seat Senate voted 46-28 in favor of the new law permitting active, voluntary euthanasia. Even though the following article was written prior to the passage of the law, it's content and argument remains intensely relevant.
Introduction In the autumn of 2000, opposing views on euthanasia and physician-assisted suicide clearly came to light when members of the Second Chamber of the Dutch Parliament discussed the new euthanasia Bill, titled 'Review Procedures For The Termination Of Life On Request And Assisted Suicide'. Meanwhile, this Bill has been approved by the Second Chamber but must still be approved by the First Chamber before it becomes an Act. The debate in the First Chamber is expected to proceed April 10, 2001. Of course, these opposing views also exist among physicians and nurses. They often give rise to polemics and sometimes even to conflicts on the work floor as well. For Christian nurses, these debates revolve around genuine dilemmas, such as: what do I do with my beliefs when confronted with a request for euthanasia?; what are my rights and duties when I refuse to grant a request?; how far can I be forced to cooperate?; and the like. To a certain extent, of course, they share these dilemmas with non-Christians. In the Netherlands, individuals and nursing associations of Protestant stripe have a large stake in these issues. Among them are Febe (Reformed Union of Health Care Workers), Hospital Christian Fellowship The Netherlands, the Reformed Social Association (GMV) and the Reformed Social Union (RMU). To be sure, the secular nursing union NU '91 (the largest Dutch nurses' association), studies these issues as well, particularly with regard to the legal position of nurses in euthanasia. That is why a collaborative Febe and HCF-N task force, 'Ethics and Law in Nursing and Care' (WERVV), has contacted this union before the public and political debates to make policymakers and politicians aware of the importance of adequate legal protection of nurses confronted with euthanasia situations. This will be discussed later in this article. By explaining some terminology, focusing on the position of nurses in the new bill, addressing the initiative of the aforementioned nurses' associations, and discussing the governmentıs response to this initiative, we hope to provide some insight into what the Dutch practice of health care will be when the new euthanasia bill comes into force.
Euthanasia and the Law Dutch juridical literature defines euthanasia as follows: Euthanasia is the intentional termination of a patientıs life by someone else on request of that patientı (definition by the State Committee on Euthanasia, 1985). Note that euthanasia is always defined in the Netherlands as voluntary active euthanasia, contrary to international use of the word. Simply put, ending someone's life is a crime in The Netherlands. According to the penal code, section 293, 'He who takes the life of a person on his/her explicit and serious desire is punished by imprisonment of at most 12 years or a fine of the fifth category (= hfl. 100.000,--).' However, according to a ruling by the highest court of law in The Netherlands, the Supreme Court, a physician who has performed euthanasia will not be punished if he can successfully claim to have been subject of circumstances beyond his control. More precisely, the situation must be one of a conflict of duties, namely the duty to alleviate suffering and the duty to preserve life. This force majeure, or emergency situation, must be apparent from the circumstances, which are formulated for legal review as 'requirements of careful practice'. In the present situation, the physician must be able to successfully appeal to force majeure to attain impunity. In the new 'Review Procedures' Bill, these requirements of careful practice are laid down legally, purposing that the physician who complies with the requirements no longer needs to appeal to force majeure, but can claim impunity directly: not because he was in a case of emergency, but because he acted according to the requirements in the law. In effect, carefully practiced euthanasia and physician-assisted suicide are legalized in this Bill. These requirements of careful practice entail that the physician: a. must be convinced there was a voluntary and well-considered request from the patient; b. must be convinced that the patient's suffering was without prospect and unbearable; c. must have informed the patient of the situation he was in and on his prospects; d. must have come to the conclusion together with the patient that there was no other reasonable solution for the patient's situation; e. must have consulted at least one other independent physician, who has seen the patient and formed an opinion on the requirements in items a-d; and f. must have carried out the euthanasia in a medically careful way. The physician must then follow a certain reporting procedure, including a report of his actions. The reporting procedure is to prove that the physician has complied with the requirements of careful practice. The performance of euthanasia is restricted to physicians. That is why anyone who carries out euthanasia while not being a physician will be prosecuted in every case, even if he/she has met the requirements of careful practice. This, for instance, happened to a nurse in 1995, when she carried out euthanasia of her own accord on a befriended AIDS patient who requested her to do so. Although a physician was present and had even supplied the means, this did not prevent the nurse from being sentenced. The regional Leeuwarden Court found the nurse guilty, albeit without imposing punishment. The physician had to answer before the medical disciplinary court. Euthanasia, furthermore, is defined by the intention or goal to end a patient's life. To be distinguished from euthanasia and hence not punishable, then, are situations where intention and aim of medical decisions are not to end someoneıs life even if the final result is the same, meaning that the patient dies sooner than would have been the case if the decision had not been made. If the intention of the medical decision was to avoid the pointless prolonging of the dying process, or to respect the right of inviolability of the person and his body, or to alleviate suffering with proportional medication, then there is no intent of killing and no legal liability. Therefore, euthanasia is to be distinguished from - Withholding or not starting a treatment that is futile from a medical point of view (with a shortening of life as a side effect). - Withholding or not starting treatment when the patient refuses it (with a shortening of life as a side effect). - Raising doses of pain medication (with a shortening of life as a side effect). In short, if any of these measures are taken without the intent to end the patient's life, then it is not considered euthanasia. When the intention is to end the patient's life (which is sometimes hard to distinguish), either by commission or omission, it is in effect euthanasia. If the patient has not requested it, it is intentionally ending life without an explicit request from the patient (involuntary euthanasia), which remains a violation of the penal code.
Reporting Procedures In this latter case, too, the physician must follow the reporting procedure. When the physician does not follow the required reporting procedure and, contrary to the facts, issues a natural death certificate, he is guilty of the crime of 'issuing a false medical certificate' (Art. 228 of the Penal Code). The Dutch Cabinet has decided, then, to lay down two new reporting procedures, one for reporting euthanasia and physician-assisted suicide, and one for reporting the termination of a patient's life without a request. The reporting procedure for euthanasia implies that physicians must report their actions in ending a life to the municipal coroner by means of a questionnaire, after which a regional review committee - consisting of a physician, an ethicist and a lawyer judge whether the physician has complied with the care requirements. Only if the review committee reaches a negative judgment will this be reported to the Public Prosecutor (according to the Bill), so that he can take legal action against the physician. If the committee's verdict is positive, this procedure is closed. However, the Public Prosecutor is still entitled to start an independent investigation if a penal act is suspect. Lastly, the Bill also deals with written euthanasia requests or 'living wills'. The physician may comply with these written wills, containing a request for euthanasia, unless he has valid reasons not to do so. It may be, for example, that medical science has produced an acceptable alternative for the patient's condition after the will was made. It may also be that the statement is not clear enough for the physician as a guideline. The physician is never obliged to meet the request. When he does meet it, he must comply with the requirements of careful practice. Whenever possible, the physician and the patient need to discuss the euthanasia request, so that both know where they stand.
The Legal Position of the Nurse As we saw, the Dutch Supreme Court has described euthanasia as an act strictly limited to the physician, on the condition that he complies with the requirements for careful practice. That is why euthanasia is an act which cannot be handed down to someone who is not a physician. This implies, as stated earlier, that nurses or other non-physicians will be legally prosecuted if they should perform euthanasia. The question that follows is: may nurses or others ever assist a physician in the performance of euthanasia? Bearing in mind that euthanasia is still a crime, the answer is negative: complicity to penal acts is also a crime. When the physician performs euthanasia, someone who cooperates can be punishable (a) as principal perpetrator in the second degree (if he/she has as large a part in the euthanasia as the physician, Penal Code, art. 47), or (b) as an accomplice (when he/she has only a limited part in the euthanasia, for example when he/she only filled the syringe with a lethal medication). In any case, nurses can always take recourse to a claim of conscientious objections if they refuse to cooperate in a case of euthanasia. In the Collective Labour Agreements for Hospitals 1999-2000, it says that serious conscientious objections to whatever task or order are sufficient for a health care worker to rightfully refuse cooperation in those. When a nurse does cooperate in a case of euthanasia, she will go free only if the physician goes free. This can be the case when the physician who carried out the euthanasia has complied with the requirements for careful practice. 'Cooperation by nurses' might mean any of the following: - Cooperation in planning and preparing euthanasia, - Cooperation in filling a hypodermic syringe, preparing or changing a perfusor or the infusion system with a lethal drug - Carrying out euthanasia autonomously after being ordered to do so by the physician. Nurses who give a lethal injection or operate the infusion system are liable to be punished because they are responsible for accepting the task of carrying out the act themselves. That is why the nurse can be held responsible by the judge, just as the physician for his part. In practice, the legal investigation focuses mainly on the physician's doings. But in principle, it does not rule out that the nurse must be able to account for her part in such cases. We may conclude that nurses - even without claiming conscientious objections - are fully justified in refusing to assist in the performance of euthanasia. After all, it is still acting against the law - whereto nobody can be obliged. In practice, however, it seems that the expectations and legal position of nurses are not as clear as they should be. Unfortunately, nurses themselves are partly responsible for this, because they simply do cooperate in euthanasia. But surely their superiors, the physicians involved, and last but not least the lack of clarity from the Cabinet, who to a certain extent accept cooperation on euthanasia by nurses, are responsible as well.
Associations and Interest Groups for Nurses Nursing organizations fundamentally rejecting euthanasia and rendering assistance to self-inflicted death as well as those not taking that position, at the very least agree on the following points. (a) Nurses should be involved in the documentation of a request for euthanasia and the resulting decision making process, and (b) nurses' legal position deserves a better regulation and protection. Naturally, the underlying motives differ for these organizations. Partly, these organizations also differ in the way they flesh out and put forward their points of view. To prevent any unwelcome involvement of nurses in termination of life by health professionals, those nurses' organizations which fundamentally reject euthanasia (i.e. Febe, HCF-NL, GMV and RMU), have pleaded with political parties for inclusion in the Bill of at least the following section: 'No person can be obliged to give a treatment aimed at terminating a patient's life, or to cooperate in any such treatment.' A similar section pertaining to abortion was at the time included in the Abortion Act (Art. 20). The Febe and HCF-NL task force, WERVV, has also proposed to the political parties to include an article in the Bill requiring the physician to consult nurses, on the basis of their expertise, concerning the patient's request and the possible alternatives. They have also proposed to adopt a section in the Bill forbidding the physician to deputize non-physicians to terminate a patient's life. As far as the reporting procedure is concerned, this task force finally proposed that the physician should hand the nurse's report to the Coroner beside his own. For the WERVV task force, it was gratifying that the Reformed parliamentary parties SGP, GPV and RPF were prepared to include those proposals in some form in amendments to the Bill. As far as the large, secular nurses' union NU '91 is concerned, WERVV found a sympathetic ear for the first of the proposed additions to the Bill with regard to nurses (Nobody is obliged . . .' etc.). They are also willing to press for inclusion of such a section in the Bill. Regrettably, this organization takes the stand that nurses must be able to cooperate on euthanasia under certain conditions, provided that they are well informed and their legal position is well protected. Equally regrettable is their stand that, when a patient specifically requests this, nurses must be able to carry out euthanasia, but only when a physician is present. These stands are based on the idea, now prevalent in the Netherlands, that euthanasia could be the last part of good terminal care.
The Responsible Ministersı Response The Ministers involved, Mrs Borst (Health, Welfare and Sports) and Mr Korthals (Justice), gave a most disappointing and debatable response to the nurses' organizations' work, however. Mrs Borst has always been of the opinion that nurses must not be involved in the performance of euthanasia, because for them there are no impunity grounds. By 'performance' she meant acts concerning the patient directly, like inserting or turning on an infusion, or injecting a lethal drug. These are medical acts a nurse really should refuse, even if the physician insists. In that case the nurse should complain to his/her superiors. While this seems a rather sympathetic stand to pro-life nurses at first glance, several problems arise. Take the tasks nurses perform in preparation to a medical intervention, like filling a syringe. These may be carried out by nurses, according to the Minister. But why? Because nurses usually are much more skilled in these things than physicians and hence nurses may do them just for safety reasons! Then why should they also refrain from administering the injection, if that is safer? The Minister did not give any juridical basis for her stand on preparing acts. She referred to the Minister of Justice on this point. But Mr Korthals never provided any basis for a decent regulation either. Minister Borst ignored the issue that nurses could refuse to cooperate in euthanasia because it is a violation of the law. She merely pointed to their right to refuse to complete certain tasks when they give rise to conscientious objections. The Minister did support the idea of nurses writing an independent report of the proceedings surrounding a case of euthanasia for the regional review committee. But she found it unnecessary to include a regulation for this in the Bill. According to the Minister the review committee could also ask the nurse to file a report on his or her own initiative. Really hard to accept for the nurses' associations just mentioned was the fact that Mrs. Borst repeatedly suspended her position on nurses and euthanasia by simply referring to a survey of nursesı actual involvement in the practice of euthanasia, to be initiated by the Department of Health in 2001. In doing so, the Minister gave the impression that she wanted to let clarity on the legal position of nurses depend on this surveyıs results. For the nursesı associations, this was particularly wry, as they had been asking for such a survey for years without this being granted. For this reason, the nurses union, NU '91, urged the Minister on behalf of the general assembly of all Dutch nurses' organizations, AVVV (which is also the official conversation partner of Mrs Borst when nursing is concerned), to keep her from suspending a decent regulation for nurses. The claim was that the time is right for the Minister to regulate the legal position of nurses. In addition, NU '91 and AVVV also frankly declared themselves in favor of a legal duty for physicians to consult nurses in case of a request for euthanasia. Lastly, they pleaded for the inclusion of the section 'No person is obliged to provide a treatment to a patient which is aimed at ending his/her life, or to cooperate on such a treatment.' To date, there has been no answer. In spite of our worries about future legislation of euthanasia, to conclude, we are very grateful for the increased awareness and support of non-Christian political parties and nursing organizations in The Netherlands regarding this issue. We hope and pray that this may still have a positive effect on the new legislation coming into force later this year and, moreover, on the survey initiated by the Department of Health into the involvement of nurses in euthanasia.- E&M
Marianne Daverschot LLB, is Associate of Health Law Consultancy J.A.G. and secretary of external affairs for WERVV task force, Zwolle, THE NETHERLANDS. Hugo van der Wal MA, is assistant to the MP's of the Reformed Political Party S.G.P., The Hague, THE NETHERLANDS.
This article appeared in Volume 17:2 of Ethics & Medicine.