Previously, because euthanasia was prohibited in the Penal Code, the physician had to prove that he/she had fulfilled the requirements. Under the new arrangements, the Public Prosecutor has to prove that the physician has not fulfilled the requirements, in order to start prosecution. This is a significant shift.
Euthanasia has been known to be regularly practised in the Netherlands since 1973, even though Article 293 of the Penal Code provided that a person who takes the life of another person at that person's 'express and serious' request was punishable by imprisonment for a maximum of 12 years or by fine. To justify what is admittedly an offence, courts in the Netherlands may decide that it is acceptable for a doctor, faced with the alternatives of leaving a patient in pain or of giving relief by taking life, to take the 'compassionate' option known as 'force majeure' or necessity, by taking life, provided the required euthanasia guidelines have been observed. That is what has been regularly done.
The official guidelines require that the patient's decision is voluntary, well considered and persistent, in the presence of unbearable pain without hope of improvement. The decision should be made by more than one doctor, and the doctor and patient should agree that euthanasia is the only reasonable option. Over the years, much evidence has accumulated to show that these guidelines are commonly disregarded in part or in whole, and that some of them cannot underpin a consistent legal interpretation. Yet others have been watered down by courts to the point where no physical suffering, indeed no physical illness at all, was required. A case was reported in 2000 where a doctor assisted in the suicide of an 86 year old man, simply because his life had become meaningless. He was later charged with murder, but given a token penalty. Additionally, underreporting and life-taking without patient request have dogged Dutch euthanasia for many years.
The rate of reporting euthanasia by doctors has been known since 1990 to be low and even after special regulations were introduced to improve this, it is still reported on less than half the actual occasions. Doctors commonly falsify death certificates after euthanasia to make it appear that death was due to natural causes, though such falsification is itself a criminal offence. Some doctors have declared they would never report euthanasia, no matter what the government decided.
Medical life-taking without patient consent is also common. Since the Dutch define euthanasia only as 'life-taking by a doctor on the patient's request', the entity of non-voluntary euthanasia (NVE) is not officially recognised. Instead, an innocuous-sounding acronym is used — LAWER, for 'life-terminating acts without explicit request'. This practice was first discovered by an official survey in 1990, yet when this survey was repeated five years later all that could be concluded was that 'life-taking without the patient's explicit request seems to have decreased slightly'. In two test cases in different courts in 1995, doctors were exonerated after taking the lives of deformed new-borns, though such victims were of course incapable of consent.
About two years before the practice of NVE had been revealed, the Royal Dutch Medical Association had stated in 1987, in the preamble to its Guidelines for Euthanasia: 'If there is no request from the patient, then proceeding with the termination of his life is juridically a matter of murder or killing, and not of euthanasia'. When it was found that precisely this practice was already occurring, no condemnation issued from the authorities, nor did they ever take direct action to outlaw it. Official references to it retreated from the candour of 1987, to imply now that NVE was just a variant of VE in particular circumstances, with no special moral or legal differentiation.
What has happened since 1996?
The Dutch government thought that the low level of euthanasia reporting was probably associated with the fear of some doctors that their actions would bring the law down on them, though in fact they had little to fear if they had complied with the guidelines. So, the reporting regulations were again altered in 1998, but a year later, little had changed in the rate of reporting. A further change at that time was to have voluntary euthanasia (VE) reported separately from NVE, whereas previously they were reported on the same form. This did not mean that NVE was no longer acceptable, but that its justification would be more closely assessed. Such a regulation will, of course, have no influence on doctors who do not presently report euthanasia, for their own reasons. Thus, it can hardly be expected that this new regulation will influence either the real incidence of NVE or improve the government's knowledge about it.
The new law
After about 18 months of public discussion of its new draft bill, in late 2000 the Dutch government introduced its proposal to legalise euthanasia into the Second Chamber of the parliament, where it passed easily. It was introduced into the First Chamber in early 2001, where it also easily passed, and was then proclaimed. Its provisions include:
- Euthanasia must be performed in accordance with 'careful medical practice', that is, the previously listed official guidelines are to continue to be observed. (These have not been altered, despite their often miserable public record in practice).
- All cases will be evaluated by a legally constituted regional review committee, composed of a lawyer, a doctor, an ethicist and others.
- Euthanasia and assisted suicide will not be punishable if carried out by a doctor who has complied with the guidelines, and reported it to a local medical examiner.
- After satisfying himself that the required procedures had been carried out, the examiner is to send his report to the regional committee and to the prosecutor.
- Children between 12 and 16 must normally have their parents' consent before they may request euthanasia. However, in 'exceptional' cases — those involving serious and incurable disease or intolerable and unrelenting suffering — a doctor may agree to such a child's request even without parental request. Requests by children aged 16 -17 do not require parental consent, though parents should be involved in decision making.
- Competent patients may request euthanasia, by way of an advance directive, to be later consulted in the event that they have become incompetent.
Regarding provision 3 above, it should be noted that, as is the case at present, euthanasia will also not be punishable if carried out by a doctor who has complied with only some, or perhaps none, of the guidelines, and who has then falsified the death certificate after euthanasia to make it appear that death was due to natural causes.
What are the likely effects of the changed law?
The present law contains some radical changes but also retains many of the shortcomings of the previous law. The new proposal is ominous because its appearance of safety obscures certain underlying difficulties. It will not adequately safeguard the public, in light of the common practice of NVE, since the authorities have not done what would have been necessary to stop it. If there were genuine concern for good practice and the safety of all the seriously ill, they would have obliged all doctors to expose all their euthanasia practices to legal scrutiny, especially as it is reasonable to presume that doctors avoid scrutiny most often where the guidelines have not been followed.
Article 293 of the penal code has been radically restructured to permit doctors, for the first time anywhere in the world, to take innocent human life intentionally, for reasons that depend on personal and subjective claims, which cannot be verified by objective evidence. Despite the fact that some Dutch lawyers have for many years noted the impossibility of such descriptors of suffering as 'persistent, unbearable and hopeless' being able to sustain any consistent legal interpretation, the expression is still in common use in regard to the guidelines.
The removal of legal penalties for the intentional killing of their patients by doctors constitutes, in itself, a serious violation of a government's responsibility to protect the lives of all its innocent citizens, without exception. This law is in violation of the United Nations' Universal Declaration of Human Rights, where the most fundamental human right is declared to be the right of every innocent person to the integrity of his/her life, a right that should be protected by law. That right is declared to be equal, inherent, inviolable and inalienable — its integrity is not to be made dependent on its quality at a particular time, and the right should neither be taken away nor given away.
The following are some of the possible or probable effects of the law:
- Legalisation will lead to a broader acceptance and increased incidence of euthanasia, so changing the nature of the patient/physician relationship, and further empowering doctors who have already gained wide degrees of control over patients' lives by their actions outside the law. Previously it was the courts that found a way to excuse the common practices of doctors, in defiance of the criminal statutes.
Now, the government itself has taken the final step, not of requiring doctors to observe the same criminal laws as are in force the world over, but of conforming the criminal law to the previously illicit medical practices.
- It will undermine the efforts and creativity of those committed to providing and further developing palliative care. This seems inevitable in a health care system characterised by increasing costs and the need to make decisions about resource allocation, as is now the case in most countries. For a population of 16 million people in Holland, there are 84 palliative care beds in the country. Dutch medical students are taught about euthanasia, but not about pain management or symptom control. The message of palliative care is that whatever the disease, however advanced it is, whatever treatments have already been given, there is always something which can be done to improve the quality of the life remaining to the patient
- Legalised euthanasia is incompatible with the fundamental role of the physician as healer. Since the role and extent of a physician's competence is regulated by law, such a fundamental change in competence ought not to be considered as a private matter to be decided by physician and patient alone.
- It is likely to increase the pressure on a doctor to terminate a patient's life when he/she has become demented, especially when the family insists on it. The distinction between voluntary and non-voluntary euthanasia may then be further blurred.
- Once euthanasia becomes a legal option, a patient with terminal illness or poorly relieved suffering may have to justify not asking for euthanasia.
- 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.
- Legalising an advance euthanasia declaration, designed to permit a competent patient to receive euthanasia should he/she later become incompetent, is likely to foster a broadening of the requirement of 'unbearable suffering' to 'loss of dignity'. Advance declarations are notorious for the doubts they raise about medical actions when the precise new circumstances of illness, as they subsequently develop in a particular patient, could not have been envisaged when the declaration was originally signed.
- The case of the man whose assisted suicide was legally permitted, because he felt his life had become meaningless, demonstrates the elasticity of the requirement of unbearable suffering, carrying the risk that a substantial number of people could become vulnerable to similar pressures.
- Dutch doctors opposed to euthanasia will find themselves in a difficult position, and will possibly find it difficult to obtain jobs in certain areas of health care. Dr Krijn Haasnood, spokesman for the Dutch Physicians Association, has said: "There is much pressure on doctors to practise euthanasia. Up to now a doctor who did not want to carry out euthanasia could say that it was against the law, but now it will be the right of the patient to request it. It will be part of the job of the doctor. We are going into a new area and we don't know where it will end. It is a total change in the role of the doctor if killing patients becomes part of the job."
- Whenever the review committee rules favourably on a case by deeming an act of killing to be legal, the Public Prosecutor's ability to monitor the physician's conduct will be compromised because the Prosecutor will not then even see the doctor's report.
- Cases in which the guidelines have not been followed will continue to go unreported.
Previously, because euthanasia was prohibited in the Penal Code though it was commonly practised, the physician had to show, if required, that he/she had fulfilled the requirements, in order to claim the defence of necessity. Under the new proposal, the Public Prosecutor has to prove that the physician has not fulfilled the requirements, in order to start prosecution. This is a significant shift. It may now be harder for prosecutors to proceed in doubtful cases, and effective control of euthanasia and the successful prosecution of unacceptable practices will become even more difficult and so, likely to be more uncommon.
Currently, about 10,000 people in the Netherlands carry anti-euthanasia cards, in case they are in need of urgent admission to hospital. The 'declaration of life' cards read: 'I request that no medical treatment will be withheld on the grounds that the future quality of my life will be diminished....I request that under no circumstances a life-ending treatment be administered because I am of the opinion that people do not have the right to end life'. These people, and others of like mind, will now be less certain that their wishes will always be respected.
Even if some of the adverse outcomes of the new Dutch law outlined above do not eventuate, there can be no doubt that some, perhaps most, will. It will be a responsible task therefore to closely monitor the euthanasia scene as it develops in the Netherlands as a result of this law, to assess its efficacy and above all, its safety. Fortunately, the Dutch are likely to be helpful in providing data, as they have been in recent years, since they realise they are being scrutinised on all sides. In the meantime, a prudent observer who had at heart the well-being of all the sick, not just some of them, would refrain from advocating blind acceptance.
A video made in Holland about the new Dutch law was screened on TV in Sydney, Australia, on 2 February 2002. One of the participants was Dr Gerrit Van der Wal, a doctor in the Department of Public Health at Erasmus University, who has been a prominent advocate of Dutch euthanasia practices for many years. He expressed his view that the new law was a step into the unknown and therefore was taking a risk. He was fearful, because euthanasia was now supported by the authorities, that the elderly would be forced into decisions they did not really want.
I wish to acknowledge my indebtedness, for much of the information and the insights in this paper, to Dr Henk Jochemsen, director of the Lindeboom Institute for Medical Ethics and holder of the Lindeboom Chair for medical ethics in Amsterdam, who has given permission for their use.
Pollard, Dr. Brian. "Current euthanasia law in the Netherlands." NSW Website (2003).
Published by permission of Dr. Brian Pollard.
Dr. Brian Pollard is a former anaesthetist (anesthesiologist) who founded and directed, from 1982, one of Australia's first palliative care services. Dr. Pollard is the author of The Challenge of Euthanasia and is involved in active opposition to legalised euthanasia in Australia.Copyright © 2003 NSW Right to Life Association
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