Supplementary memorandum by the Centre
of Medical Law and Ethics, King's College, London
CRITERIA BASED ON TYPE OF SUFFERING—AN
OVERVIEW
THE REQUEST
Competence
Belgium: the patient must be "legally competent"
(s3 para 1).
Netherlands: the request must be "carefully
considered" (s2(1)(a)). Commentators note that "the
problem of competence of patients suffering from a somatic disorder
has received relatively little attention."8
Oregon: the patient must be capable, which is
defined as having "the ability to make and communicate health
care decisions to health care providers, including communication
through persons familiar with the patient's manner of communicating
if those persons are available." (para 1.01(3))
Bill: competent is defined as "having the
capacity to make an informed decision" (Cl 1(2)) and will
presumably rely on the new definition of capacity in the Mental
Capacity Bill, June 2004, Cl 3. Concerns have been raised regarding
the assessment of capacity in terminally ill patients.9 See below,
discussion of longstanding or pre-existing physician-patient relationship
as one factor in improving competence assessments.
Voluntariness
Belgium: the Belgian law states that the request
must be both "completely voluntary" (s3 para 2(1)) and
"not the result of any external pressure" (s3 para 1).
Netherlands: the Dutch law only requires that
the request be voluntary (s2(1)(a)) but this has been interpreted
by caselaw and the requirements of careful practice as meaning
"not the result of undue external influence."10
Oregon: the witnesses must attest that the patient
is acting voluntarily and is not being coerced to sign the request
(para 2.02). Concerns have been raised about the quality of voluntariness
assessments in Oregon.11
Bill: while the Bill requires that a request
be made voluntarily (Cl. 2(2)(f)), there is no mention of pressure/influence—perhaps
this would be superfluous? The mandatory palliative care consultation
in the Bill (Cl. 3) may assist in ensuring that the patient is
aware of all of his options. See also below, discussion of longstanding
or pre-existing physician-patient relationship as one factor in
improving voluntariness assessments.
Suffering
Netherlands: the "attending physician .
. . must have been satisfied that the patient's suffering was
unbearable, and that there was no prospect of improvement"
(s2(1)(b)). The attending physician must "have come to the
conclusion, together with the patient, that there is no reasonable
alternative in light of the patient's situation" (s2(1)(d)).
Belgium: the patient must be "in a medically
futile condition of constant and unbearable physical or mental
suffering that cannot be alleviated, resulting from a serious
and incurable disorder caused by illness or accident" (s3
para 1).
Oregon: there is no additional "suffering"
requirement beyond the requirement that the patient be suffering
from a terminal illness.
Bill: Cl. 2 (c), (d) patient must have a terminal
illness and be "suffering unbearably as a result of that
terminal illness". The Dutch jurisprudence has clearly established
that in cases of somatic illness, the patient may reject alternative
treatments and still be eligible for euthanasia, provided he is
aware of the alternatives available. The Bill seems to envisage
a similar situation (Cl. 2(3)(e), Cl. 3) but perhaps this could
be made clearer? For example, terminal sedation might be offered
to a patient who might reject it.
SAFEGUARDS
Longstanding or pre-existing physician-patient
relationship
Netherlands: The Dutch caselaw and requirements
of careful practice require a close doctor-patient relationship
(where the doctor has treated the patient for some time) as the
doctor must know the patient well enough to be able to assess
whether his request is both voluntary and well-considered, and
whether his suffering is unbearable and without prospect of improvement.12
Belgium: Adams and Nys suggest that the requirement
of a longstanding or pre-existing physician-patient relationship
could possibly be derived from s3 para 2(2) of the Belgian Act
which requires that the physician has "several conversations
with the patient spread out over a reasonable period of time"
in order to be certain that the patient's suffering is constant
and that his request is a durable one. The Dutch argument (that
in order to assess whether the requirements of the statute are
met, the doctor must have some familiarity with the patient) might
also be used. However, Adams and Nys note that the legislative
history makes clear that the patient should be able to completely
exclude his attending physician if so desired—from which
one might infer that there is no requirement for a pre-existing
physician-patient relationship.13
Oregon: the attending physician is defined as
"the physician who has primary responsibility for the care
of the patient and treatment of the patient's terminal disease"
(para 1.01(2)). The evidence suggests that many patients who sought
PAS had to ask more than one physician before finding one who
was willing to provide a prescription. Unfortunately the Oregon
Dept of Human Services appears to have stopped collecting data
on this point, as such data is only found in the first three (of
six) annual reports. Over the first three years, only 41 per cent
of patients received their prescription from the first physician
asked.14 This suggests that in many cases there will have been
no longstanding or pre-existing physician-patient relationship.15
The median duration of the physician-patient relationship in Oregon
over the six years of operation is 13 weeks. The range is between
0 and 851 weeks.16 Commentators opposed to the Oregon law have
raised the possibility that a patient refused PAS by one physician
on the grounds of failing to meet one of the statutory criteria
may simply seek the prescription from another physician.17
Bill: the attending physician is defined as
"the physician who has primary responsibility for the care
of the patient and treatment of the patient's illness". Both
the Oregon and Bill definitions (which are almost identical) would
seem to allow for the possibility that there is no longstanding
or pre-existing relationship between the physician and patient.
Requiring such a relationship might improve the quality of the
competence18 and voluntariness19 assessments, which are notoriously
difficult to make.
Psychiatric Referral
Netherlands: Dutch guidelines (Dutch Association
for Psychiatry) require psychiatric consultation if the attending
physician suspects the patient is incompetent "or suffering
from psychiatric (co)morbidity."20 The Dutch also use psychiatric
consultation to check regarding transference and counter-transference
issues,21 and to check voluntariness and whether there has been
undue pressure from others.22 However, one Dutch researcher has
concluded that the "benefits of [mandatory psychiatric] consultation
should be balanced against the disadvantages of pushing the psychiatrist
to the fore as the final gatekeeper."23
Belgium: if the patient's illness is not terminal,
then a second consulting physician's opinion must be obtained.
This second consulting physician can be either a psychiatrist
or a relevant specialist (s3 para 3).
Oregon: a counselling referral must be made
if the attending or consulting physician suspect that the patient
may be suffering from a psychiatric or psychological disorder
or depression causing impaired judgment. PAS is not available
unless the counsellor determines that the patient is not suffering
from a psychiatric or psychological disorder or depression causing
impaired judgment (para 3.03). The Guidebook recommends that all
requesting patients be referred for counselling.24
Bill: only requires a psychiatric referral if
the patient "may not be competent" (Clause 8(1)). A
psychiatrist must determine that the patient "is not suffering
from a psychiatric or psychological disorder causing impaired
judgement, and that the patient is competent" (Clause 8(2)).
Perhaps psychiatric referral should be triggered by suspicion
either that patient "may not be competent" or that the
patient is "suffering from a psychiatric or psychological
disorder causing impaired judgement". Voluntariness, undue
pressure and transference/counter-transference could also be considered
during a psychiatric referral, and suspicions about these could
trigger such a referral.
Discussion with nursing team
Belgium: s3 para 2(4) requires discussion of
the patient's request with nursing team that has regular contact
with the patient (if one exists).
Netherlands: Dutch requirements of careful practice
impose a similar requirement.25
Bill: contains no such requirement—would
such a requirement simply be in line with good medical practice?
Role of next of kin
Oregon: para 3.05 requires the attending physician
to recommend to the patient that he notify his next of kin of
his request. "A patient who declines or is unable to notify
next of kin shall not have his or her request denied for that
reason."
Belgium: s3 para 2(5) requires that the doctor
discuss the request with relatives designated by the patient (if
the patient so wishes).
Netherlands: Dutch requirements of careful practice
impose a similar requirement "unless the patient does not
want this or there are other good reasons for not doing so".26
Bill: Cl. 9 requires the attending physician
to recommend to the patient that he notify his next of kin of
his request (following the Oregon model). Should the doctor be
required to discuss the request with relatives if the patient
wishes? Should there be an explicit statement in the Bill that
declining to notify next of kin will not affect the request?
Waiting period
Netherlands: there is no waiting period.
Belgium: there is a waiting period of one month
only in cases when the patient is "clearly not expected to
die in the near future" (s3 para 3(2)).
Oregon: oral and written requests must be made,
the oral request must be reiterated no less than 15 days after
the initial oral request (para 3.06).
Bill: 14 days (Cl. 1(2)). There is a difficult
balance to be struck between allowing sufficient time to undertake
competence and voluntariness assessments (which are preferably
done over a period of time)27 and possibly a psychiatric referral,
and ensuring that the option of assisted death is a meaningful
one (that is, that the waiting period does not in effect disentitle
patients who are near the end of their lives). If the waiting
period is longer, there may be an incentive for patients to request
assisted death earlier in their illness, for fear of "running
out of time."
14 September 2004
REFERENCES
1 Netherlands, Termination of Life on Request
and Assisted Suicide (Review Procedures) Act (2001) 8 Eur J Health
L 183. Note that s2(4) contains a typographical error and should
read ". . . if the parent or parents . . . is/are able
to agree to the termination of life . . ." See Nys, "A
Presentation of the Belgian Act on Euthanasia Against the Background
of Dutch Euthanasia Law" (2003) 10 Eur J Health L 239 at
n11. There is a correct, alternative translation (with less elegant
English) by the Dutch Right to Die Association (NVVE) at http://www.nvve.nl/english/info/euthlawenglish.pdf
2 Belgium, Act on Euthanasia of May 28 2002 (2003)
10 Eur J Health L 329.
3 Oregon, Death with Dignity Act, Oregon Rev
Stat para 127.800- para 127.995. For data on Oregon, see Hedberg
et al, "Five Years of Legalized Physician-Assisted Suicide
in Oregon" (2003) 348:10 NEJM 961; Hedberg et al, "Legalized
Physician-Assisted Suicide in Oregon, 2001" (2002) 346:6
NEJM 450; Sullivan et al, "Legalized Physician-Assisted Suicide
in Oregon 1998-2000 (2001) 344:8 NEJM 605; Sullivan et al, "Legalized
Physician-Assisted Suicide in Oregon—The Second Year"
(2000) 342:8 NEJM 598; Chin et al, "Legalized Physician-Assisted
Suicide in Oregon—The First Year's Experience" (1999)
340:7 NEJM 577. The Annual Reports are available at http://www.ohd.hr.state.or.us/chs/pas/pas.cfm
4 Chabot, Supreme Court of the Netherlands,
Criminal Chamber, 21 June 1994, no.96.972 (translation in Griffiths
et al, Euthanasia and Law in the Netherlands (1998) at
329). See also Griffiths, "Assisted suicide in the Netherlands:
the Chabot case" (1995) 58 Mod L Rev 232; Gevers and
Legemaate, "Physician assisted suicide in psychiatry: an
analysis of case law and professional options" in Thomasma
et al, eds., Asking to die: Inside the Dutch Debate about Euthanasia
(1997) 71 at 77 and 85.
5 Summary of the disciplinary decision in Chabot
in Griffiths, "Assisted suicide in the Netherlands: postscript
to Chabot" (1995) 58 Mod. L. Rev. 895. See also Netherlands
Ministry of Foreign Affairs, A Guide to the Dutch Termination
of Life on Request and Assisted Suicide (Review Procedures)
Act (2001) para 12.
6 Nys, "A Presentation of the Belgian Act
on Euthanasia Against the Background of Dutch Euthanasia Law"
(2003) 10 Eur J Health L 239 at 248.
7 Sutorius, Dutch Supreme Court, 24 December
2002. See Sheldon, "Being `tired of life' is not grounds
for euthanasia" (2003) 326 BMJ 71.
8 Griffiths et al, Euthanasia and Law in the
Netherlands (1998) 101 n31.
9 Ganzini et al, "Evaluation of Competence
to Consent to Assisted Suicide: Views of Forensic Psychiatrists"
(2000) 157:4 Am J Psychiatry 595; Martyn et al, "Physicians'
decisions about patient capacity: The Trojan horse of physician-assisted
suicide" (2000) 6:2 Psychology, Public Policy, and Law 388.
10 Griffiths et al, Euthanasia and Law in
the Netherlands (1998) 100 and n30.
11 Martyn et al, "Now is the Moment to Reflect:
Two Years of Experience with Oregon's Physician-Assisted Suicide
Law" (2000) 8 Elder L J 1 at 23-30.
12 Griffiths et al, Euthanasia and Law in
the Netherlands (1998) 103 and n41; Netherlands Ministry of
Foreign Affairs, A Guide to the Dutch Termination of Life on
Request and Assisted Suicide (Review Procedures) Act (2001)
para 15.
13 Adams and Nys, "Comparative Reflections
on the Belgian Euthanasia Act 2002" (2003) 11 Med L Rev 353
at 359.
14 Oregon Dept. of Human Services, Oregon's
Death with Dignity Act: Three Years of Legalized Physician-Assisted
Suicide, 2001, Table 3.
15 See Ganzini et al, "Physicians'
Experiences with the Oregon Death with Dignity Act" (2000)
342:8 NEJM 557 at 559-561 (27 per cent of respondent physicians
had known the patient for less than one month at the time of the
request).
16 Oregon Dept. of Human Services, Sixth Annual
Report on Oregon's Death with Dignity Act, 2004, Table 4.
17 Martyn et al, "Now is the Moment to Reflect:
Two Years of Experience with Oregon's Physician-Assisted Suicide
Law" (2000) 8 Elder LJ 1 at 13.
18 See Ganzini et al, "Evaluation of Competence
to Consent to Assisted Suicide: Views of Forensic Psychiatrists"
(2000) 157:4 Am J Psychiatry 595; Martyn et al, "Physicians'
decisions about patient capacity: The Trojan horse of physician-assisted
suicide" (2000) 6:2 Psychology, Public Policy, and Law 388.
19 Martyn et al, "Now is the Moment to Reflect:
Two Years of Experience with Oregon's Physician-Assisted Suicide
Law" (2000) 8 Elder L J 1 at 23-30.
20 Groenewoud et al, "Psychiatric consultation
with regard to requests for euthanasia or physician-assisted suicide"
(2004) 26 Gen'l Hosp Psychiatry 323 at 324, citing Dutch Association
for Pshychiatry, Assisted suicide by patients with a mental
disorder: guidelines for the psychiatrist (1998) (Dutch).
21 Groenewoud et al, "Psychiatric consultation
with regard to requests for euthanasia or physician-assisted suicide"
(2004) 26 Gen'l Hosp Psychiatry 323 at 326.
22 Bannink et al, "Psychiatric consultation
and quality of decision making in euthanasia" (2000) 356
The Lancet 2067.
23 Bannink et al, "Psychiatric consultation
and quality of decision making in euthanasia" (2000) 356
The Lancet 2067 at 2068.
24 Task Force to Improve the Care of Terminally
Ill Oregonians, The Oregon Death with Dignity Act: A Guidebook
for Health Care Providers (1998, revised on a continuous basis).
http://www.ohsu.edu/ethics/guidebooktoc.htm, Ch 9, Guideline 9.1.
25 Griffiths et al, Euthanasia and Law in
the Netherlands (1998) 106.
26 Griffiths et al, Euthanasia and Law in
the Netherlands (1998) 106.
27 Ganzini et al, "Evaluation of Competence
to Consent to Assisted Suicide: Views of Forensic Psychiatrists"
(2000) 157:4 Am J Psychiatry 595; Task Force to Improve the Care
of Terminally Ill Oregonians, The Oregon Death with Dignity
Act: A Guidebook for Health Care Providers (1998, revised
on a continuous basis) http://www.ohsu.edu/ethics/guidebooktoc.htm,
Ch 9.
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