Letter from the Royal Dutch Medical Association
It is the policy of the Royal Dutch Medical
Association not to interfere in discussions in other countries
regarding the question whether euthanasia should be allowed (and/or
legalized) or not. But of course we are quite willing to inform
foreign persons and organizations about developments in the Netherlands
(about 10 years ago we also spoke with the previous UK Committee,
during a meeting at the British Embassy in The Hague).
Attached I send you the most recent and comprehensive
text available in English. It is an article I have written December
2003. It has been published in the Journal of Law and Medicine
2004; 11: 312-323.
Royal Dutch Medical Association
5 August 2004
THE DUTCH EUTHANASIA ACT AND RELATED ISSUES
JOHAN LEGEMAATE
In 2002 the Dutch Euthanasia Act came into force.
This Act is the result of a lengthy developmental process. It
codifies the requirements that have evolved in case law and medical
ethics since 1973. Empirical data indicate that the Dutch euthanasia
practice is stabilising. Euthanasia and assisted suicide occur
in 2.7% of all deaths. Now that the Act has been passed, the focus
is on improving the quality of medical decision-making. From an
international perspective, the Dutch legislation is exceptional.
However, it appears that other countries and international organisations
are considering euthanasia legislation as well. It remains to
be seen how influential the Dutch model will prove to be.
INTRODUCTION
In April 2002 the Dutch Euthanasia Act came
into force. This Act, officially named the Termination of Life
on Request and Assisted Suicide (Review Procedures) Act,1 is the
result of a development that started in 1973, when the first court
case in The Netherlands regarding euthanasia was decided.2 In
that case the court concluded that the average Dutch physician
no longer considered it as her or his duty to prolong a patient's
life under all circumstances. This led to a fierce debate at all
levels of Dutch society. The 2002 Act can be seen as the final
stage of a longlasting development, but at the same time it raises
new questions and discussions. This article analyses recent developments
in The Netherlands, focusing on legislation and case law. Furthermore,
it attempts to place the Dutch situation into perspective, by
comparing it to viewpoints and activities at the international
level.
HISTORY
In the 1973 court decision it was recognised
that a physician could be allowed to prevent serious and irreversible
suffering, even if this meant shortening the patient's life. At
that time euthanasia and assisted suicide were punishable under
all circumstances. In this particular case the physician was found
guilty of breaking the law but the court gave her only a more
or less symbolic punishment (a suspended sentence of one week's
imprisonment). The decision prompted the establishment of the
Dutch Voluntary Euthanasia Society and provoked a broad debate
regarding the acceptability of physician-assisted death. Later,
other court decisions confirmed that, under certain circumstances,
euthanasia and assisted suicide, although forbidden by law, could
be justifiable. However, the legal reasoning remained unclear
until 1984, when the first euthanasia case3 reached the Dutch
Supreme Court. The Supreme Court reasoned as follows:
(i) As a general rule euthanasia and assisted
suicide are punishable. The Penal Code defines both activities
as a crime.
(ii) However, when a physician is confronted
with a conflict of duties he or she may invoke the so-called "defence
of necessity". A conflict of duties arises when honouring
a patient's request to die with dignity is the only way available
to end unbearable and hopeless suffering.
(iii) The criteria for accepting the defence
of necessity are to be derived from professional and medical-ethical
opinions formulated by the medical profession.
This legal line of reasoning served as the foundation
of the practice of euthanasia until the 2002 Act came into force.
As shown below,4 the Act introduces a new legal framework but
at the same time retains certain elements of the previous situation.
In 1984 another important event took place. In August of that
year the Royal Dutch Medical Association (RDMA) published a viewpoint
on euthanasia and assisted suicide. This viewpoint dealt extensively
with the requirements a physician had to take into account before
being allowed to perform euthanasia or assist with suicide.5 These
requirements were based on earlier court decisions and insights
from the medical profession. The publication of the RDMA viewpoint
resulted in a very interesting interplay between the existing
legal framework and the rules and opinions of the medical profession.
In court cases that followed, judges often referred to the RDMA
viewpoint. However, later additions to the viewpoint were inspired
by case law. The RDMA viewpoint has been regularly updated, most
recently in September 2003, and still provides guidance to physicians
who are confronted with a request for euthanasia or assisted suicide.
Also in 1984, the first initiatives to change
the law were launched. Proponents of permissive legislation argued
that in a democratic society the rules regarding important and
fundamental issues like physician-assisted death should be set
by the Parliament. Pointing at polls that indicated broad support
for euthanasia in all layers of society, they advocated that the
gap between the Penal Code (euthanasia forbidden) and actual practice
(euthanasia allowed under certain circumstances) should be bridged
by new legislation. However, at that time there was no political
majority to change the law. Between 1984 and 1991 several proposals
were introduced and rejected. In 1994 a minor change of the law
came about with formal legal status being given to the notification
procedure. This procedure was introduced on a voluntary basis
in 1991. Its aim was to encourage physicians to report cases of
euthanasia and assisted suicide to the medical examiner and the
district attorney. The 1994 Act did not address other issues.
It was limited to changing the voluntary status of the notification
procedure into an obligation for the physician to report cases.
In 1998 another change took place. The notification procedure
was amended to include a multidisciplinary evaluation committee,
made up of a lawyer, a physician and an ethicist. It was the committee's
task to advise the district attorney about reported cases. The
rationale for this change was the wish to replace a strictly legal
way of assessing reported cases with a broader perspective. The
government hoped that such a change would increase the willingness
of physicians to report cases. The notification induced changes
in the prosecution policy of the government. Already at the beginning
of the 1990s the government indicated that, in spite of the punishability
of euthanasia and assisted suicide under all circumstances, only
those cases in which the physician had neglected the existing
requirements (as formulated in case law and in the RDMA viewpoint)
would be prosecuted. Since then the number of prosecuted cases
has remained low: an average of three to five cases per year.
Real legislative progress was made possible
by a rather dramatic change in the political arena. Following
the 1994 parliamentary elections, a government without the Christian
Democratic Party was formed, for the first time in 75 years. The
new government was made up of parties (Social Democrats and Liberals)
which had supported permissive legislation earlier on but, due
to the influence of the Christian Democrats, had never been able
to realise a political majority in Parliament. In its second term
(1998-2002), this left wing-liberal government decided to change
the Penal Code and to decriminalise euthanasia and assisted suicide.
This resulted in the 2002 Act.
It should be noted that in the Act, as well
as in the case law that preceded it, euthanasia and assisted suicide
are and have always been treated alike. In both cases the same
requirements and procedures apply. Unlike other countries and
jurisdictions, in which a sometimes rather sharp moral distinction
is made between euthanasia (the physician administering the medication)
and assisted suicide (the patient taking the medication supplied
by the physician),6 Dutch physicians, judges and policy-makers
have never made a fundamental distinction between the two. Whether
a physician and a patient opt for euthanasia or assisted suicide
is left up to them, depending on the circumstances of the case,
the characteristics of the patient and her or his medical condition.
In cases in which a choice can be made, the Royal Dutch Medical
Assocation advises physicians for psychological reasons to favour
assisted suicide, but this is not a binding rule.
THE 2002 ACT
The coming into force of the 2002 Act is a landmark
moment in the Dutch euthanasia debate. Being the result of a lengthy
development rather than the beginning of a new period, the Act
has not led to big changes in daily practice. The Act incorporates
into the law developments and opinions which already were accepted
in practice many years ago and is therefore more of a symbolic
nature. The Act introduces only a limited number of new issues.
It is often stated that the Act legalises euthanasia but this
is not entirely true. Euthanasia and assisted suicide remain criminal
offences. What the Act does is to create an exception to the punishability
of euthanasia and assisted suicide for those physicians who have
complied with the requirements of due care mentioned in the Act.
Only if these requirements are met and the case is reported will
the physician be exempted from criminal prosecution.
The requirements of due care in the case of
euthanasia and assisted suicide are laid down in Art 2 of the
Act. Essentially these are the same requirements that are mentioned
in the RDMA viewpoint of 1984:
the patient has made a voluntary
and well-considered request;
the patient's suffering is unbearable;
there is no other reasonable
solution to the situation;
the patient has been informed
about her or his condition and prospects;
the patient has been seen by
at least one other (and independent) physician, who provides a
written statement about the applicability of the requirements
of due care; and
the physician, when performing
euthanasia or assisting with suicide, has to do so in a medically
justified way (using the right medication etc).
After he or she has ended the patient's life,
the physician has to report the case to the medical examiner,
using the form that is prescribed by law (in the Burial and Cremation
Act1991 (as amended in 2002)). The form contains a number of questions
to which the physician has to respond. These questions relate
to the requirements of due care and related issues. The medical
examiner hands over the reported case to the regional evaluation
committee. Within six weeks the committee decides whether or not
the physician has acted in conformity with the legal requirements.
The committee normally makes its judgment on the basis of the
written report of the physician. If the information provided is
unclear or incomplete, the committee can ask the physician to
provide additional data in writing or in person. Before the Act
came into force, the opinion of the committee had the status of
an advice to the district attorney. This has been changed. If
the committee holds the opinion that the physician acted correctly,
the case is closed and other authorities (such as the district
attorney and the Medical Inspectorate) will not be informed. Only
if the physician has neglected one or more of the requirements
will the committee send its judgment to the district attorney
and the Medical Inspectorate. Depending on the severity of the
violation, they may decide to take action against the physician,
by starting a criminal prosecution (district attorney) and/or
a procedure before the Medical Disciplinary Board (Medical Inspectorate).
The Act addresses several other issues as well,
such as the legal position of a minor who requests euthanasia
or assisted suicide and the validity of advance directives.
CASE LAW
Case law has played in important role in developing
the legal framework for euthanasia and assisted suicide. The 1984
decision of the Dutch Supreme Court, in which the legal opening
for euthanasia and assisted suicide was created (the defence of
necessity), was mentioned above. Ten years later, in June 1994,
the Supreme Court published its ruling in the famous Chabot
case.7 In this case the Supreme Court confirmed that physical
as well as mental suffering can justify euthanasia or assisted
suicide.8 Only a few months after the 2002 Act came into force,
the Supreme Court had to decide another controversial issue. This
case involved a general practitioner who assisted with the suicide
of an 86-old former senator, Edward Brongersma. Brongersma had
no serious physical or mental illness. He suffered from physical
decline and struggled with his "pointless and empty existence".
Brongersma, in other words, was "tired of life". After
assisting with suicide, the general practitioner reported the
case. The district attorney decided to prosecute him, stating
that the law did not allow the "tired-of-life" criterion.
The regional court acquitted the doctor, deciding that he had
acted within the limits of the law. This verdict was overturned
by the Appeals Court of Amsterdam in December 2001. The doctor
appealed against this decision to the Supreme Court.
On 24 December 2002 the Supreme Court rejected
his appeal.9 The Supreme Court held that neither the previous
rules (before 2002) nor the present Act covered "tired-of-life"
situations. Physicians, the court found, must limit themselves
to requests for euthanasia and assisted suicide from patients
suffering from a medically classifiable physical or psychiatric
sickness or disorder.
Mr Brongersma's suffering was existential rather
than medical. According to the Supreme Court, physicians do not
have the experience to judge non-medical suffering. The Supreme
Court decision in the Brongersma case prompted mixed reactions.
Supporters of the decision were glad that the Supreme Court has
drawn a line, making clear that a physician should not overstep
her or his area of expertise. Critics pointed out that there is
no black and white distinction between medical and non-medical
suffering. In practice, they say, these are very complex situations
in which physicians have to operate in a grey area. No doubt this
debate will continue in the years to come. It is likely that,
under the influence of "tired-of-life" cases, the emphasis
of the debate will shift from physician-assisted death (or, as
critics say, physician-dominated death) to possibilities and options
which limit or even rule out the role and influence of physicians.
EMPIRICAL DATA
For a long time empirical data regarding euthanasia,
assisted suicide and other medical decisions concerning the end
of life were lacking. This changed in 1991, when the first of
a series of independent research projects was carried out. The
aim of this research was to gain insight into the quantity and
quality of medical decisions concerning the end of life. The research
was done in 1991, 1996 and 2003. The most recent results can be
summarised as follows:10
The Netherlands has 16 million
inhabitants. Each year 140,000 people die.
At current rates, approximately
9,700 patients request euthanasia and assisted suicide each year.
In about 3,800 of these cases a physician-assisted death takes
place (euthanasia 3,500; assisted suicide 300). In the remaining
cases the physician refuses to go along with the patient's request,
the patient changes her or his mind or the patient dies of natural
causes before the request can be considered or honoured.
Euthanasia and assisted suicide
occur in 2.7 per cent of all deaths. This percentage remained
more or less stable between 1991 and 2003.
The number of reported cases
of euthanasia and assisted suicide increased from 41 per cent
in 1996 to 54 per cent in 2003.
Other medical decisions concerning
the end of life take place much more frequently: decisions to
forgo or stop treatment (21 per cent of all deaths); treatment
aimed at alleviating pain or symptoms (20 per cent of all deaths).
In a small percentage of cases
(0.7 per cent of all deaths) physicians end a patient's life without
an explicit request. This happens mostly with patients suffering
from cancer in the last days or hours of their life.11
It is common knowledge that medical decisions
concerning the end of life, including physician-assisted death,
occur in other countries as well. A recent comparative study revealed
the incidence and main background characteristics of end-of-life
decision-making practices in six European countries: Belgium,
Denmark, (parts of) Italy, The Netherlands, Sweden and Switzerland.12
The percentage of deaths that were preceded by a medical end-of-life
decision varied between 23 per cent (Italy) and 51 per cent (Switzerland).
Administration of drugs with the explicit intention to hasten
death (euthanasia, assisted suicide and ending a patient's life
without request) occurred in all countries, but the rates varied:
1 per cent of all deaths in Denmark, Italy, Sweden and Switzerland;
1.82 per cent in Belgium; and 3.4 per cent in The Netherlands.
The ending of life without a patient's explicit request happened
more frequently than euthanasia in all countries except The Netherlands.
The incidence of this was somewhat higher in Switzerland, The
Netherlands and Denmark and highest in Belgium.
INTERNATIONAL REACTIONS
AND DEVELOPMENTS
Over the years many persons and organisations
have criticised developments in The Netherlands. Most critical
commentators stated that ending a patient's life is not compatible
with the duties and responsibilities of a physician. Others feared
that allowing euthanasia and assisted suicide would result in
a slippery slope. In 2001 the Human Rights Committee of the United
Nations voiced concerns regarding the implementation of the new
Dutch Euthanasia Act. The committee did not question the Act as
such nor its legal requirements, but focused on the (im)possibilities
of safeguarding individual rights in actual practice. Would it
be possible, the committee asked the Dutch Government, to guarantee
the proper implementation of the Act? The committee appeared to
be afraid that in practice the patient may be put under pressure
to ask for euthanasia and assisted suicide. In its response, the
Dutch Government emphasised the cumulative procedural safeguards
and requirements mentioned in the 2002 Act: not only the physician's
duty to report the case after the patient had died (screening
ex post facto) but also the requirement to obtain the opinion
of an independent physician before making a final decision about
the patient's request (screening ex ante). The 2002 Act obliges
the independent physician to see the patient and to send a written
report to the physician who is considering the patient's request.
The independent physician is fully responsible for the facts and
considerations in her or his report. As will be shown below,13
initiatives have been taken to professionalise and strengthen
the ex ante screening.
Major opposition to the Dutch developments comes
from the World Medical Association (WMA). At its 2002 annual meeting
in Washington the WMA repeated its earlier statements against
euthanasia and assisted suicide. In this resolution the WMA "reaffirms
its strong belief that euthanasia is in conflict with basic ethical
principles of medical practice". The WMA "strongly encourages
all national medical associations and physicians to refrain from
participating in euthanasia, even if national law allows or decriminalises
it under certain conditions".14
European developments seem to be moving in another
direction. In 2002, not only in The Netherlands but also in Belgium,
a Euthanasia Act came into force. The Belgian law is comparable
with the Dutch one, using the same starting points and basic rules
and only making different choices at some minor points. The one
more fundamental difference is that the law in Belgium is limited
to euthanasia and does not include the possibility of physician-assisted
suicide, but this issue already has been resolved in practice.
In 2003 the Belgian Order of Physicians recommended dealing with
assisted suicide in the same way as with euthanasia, thereby implying
an expansion of the requirements and procedures of the law to
assisted suicide as well.
Quite different from the debate within the WMA
are the developments in the Council of Europe. In 1999 the Parliamentary
Assembly of the Council of Europe adopted a "Recommendation
on the protection of the human rights and dignity of the terminally
ill and the dying".15 This recommendation advocated the use
of palliative care and proposed to uphold the prohibition of euthanasia
and assisted suicide. The text stated that a terminally ill or
dying person's wish to die cannot, of itself, constitute a legal
justification to carry out actions intended to bring about death.
However, under the influence of developments in a number of European
countries, including the increasing existence of empirical data,
the Council of Europe appears to be moving in another direction.
In September 2003 the Parliamentary Assembly's Social, Health
and Family Affairs Committee approved a report on euthanasia by
its member Dick Marty from Switzerland.16 In this report it is
proposed that the Parliamentary Assembly of the Council of Europe
call on the governments of member states:
to collect and analyse empirical
evidence about euthanasia and other end-of-life-decisions;
to promote public discussion
of such evidence;
to take into account, in particular,
the results of the Belgian and Netherlands legislation, notably
their effects on the practice of euthanasia; and
to consider whether legislation
should be envisaged to exempt from prosecution doctors who agree
to help terminally ill patients undergoing unbearable and hopeless
pain and suffering to end their lifes at their request, subject
to prescribed rigorous and transparent conditions and procedures.
Unlike the 1999 recommendation, the new text
has a much more pragmatic basis, recognising that end-of-life-decisions,
including euthanasia, are a widely known fact of medical life.
These practices, the text mentions, are forbidden in most Council
of Europe member states: "There is thus a striking divergence
between the law and what happens in practice. This gap must be
reconciled if respect for the rule of law is to be maintained."
At a more fundamentel level the text stipulates that "nobody
has the right to impose on the terminally-ill and the dying the
obligation to live out their life in unbearable suffering and
anguish where they themselves have persistently expressed the
wish to end it". This starting point differs substantially
from the one formulated in the 1999 recommendation. The Parliamentary
Assembly of the Council of Europe is to debate the new recommendation
in January 2004. It remains to be seen whether the Assembly is
willing to adopt the surprisingly favourable text of its Social,
Health and Family Affairs Committee.
EUTHANASIA AND
INTERNATIONAL LAW
Some critics of euthanasia and assisted suicide
have stipulated that physician-assisted death under all circumstances
contravenes the "right to life" as protected by Art
2 of the European Convention of Human Rights. Article 2 provides:
Everyone's right to life shall be protected by
law. No one shall be deprived of his life intentionally save in
the execution of a sentence of a court following his conviction
of a crime for which this penalty is provided by law.
During the parliamentary debate regarding the
Euthanasia Act the Dutch Government took the position that physician-assisted
death at the persistent and well-considered request of the patient
is not prohibited by Art 2 of the Convention. The government stated
that the safeguards mentioned in the Act satisfy the requirements
of Art 2 concerning the protection of life. Article 2 of the Convention
played an important part in the "right-to-die" case
decided by the European Court of Human Rights in April 2002. Pretty
v United Kingdom (ECHR, 29 April 2002, Application No 2346/02)
involved a right-to-die-claim from a severely ill English patient.17
Mrs Pretty wanted to die with the help of her husband (who was
not a physician). As was expected, the European Court rejected
the notion of a right to an assisted death. However, the court's
judgment does not contain elements which lead to the conclusion
that Euthanasia Acts as such are incompatible with the European
Convention. The court explicitly declared that in Pretty it was
not judging legislation as accepted in some European countries
and underlined that it is a responsibility of national legislators
to decide whether permissive legislation regarding physician-assisted
death should be introduced. These considerations of the court
do not exclude the possibility that euthanasia legislation, if
carefully drafted and surrounded with appropriate safeguards,
will pass the test of the European Convention. We will only know
that definitely after the European Court has decided a case that
is directly related to the Dutch or the Belgian legislation.
QUALITY IMPROVEMENT:
THE SCEN-PROJECT
Now that the Euthanasia Act has come into force,
developments in The Netherlands are shifting in another direction.
The focus is now on the improvement of the quality of medical
decision-making in cases of euthanasia and assisted suicide. The
most important element is to professionalise the ex ante
screening. Until recently the physician who was considering acceding
to a request for euthanasia or assisted suicide could ask any
independent colleague to act as the consultant required by law.
With the financial support of the Ministry of Health, the Royal
Dutch Medical Association started the so-called SCEN-project (Support
and Consultation regarding Euthanasia in The Netherlands). The
SCEN-project is aimed at creating regional groups of trained and
specialised physicians. These physicians are available to advise
doctors who are confronted with a request for physician-assisted
death and have questions about any related issue. Furthermore,
these trained physicians act as the independent consultant required
by law.18 The advantage of this is that the independent consultation
is not carried out by any available physician, as was the case
in previous years, but by a doctor with special knowledge and
experience. In the area of general practioners, SCEN-groups have
been formed in almost all regions of the country. It is intended
that the SCEN-initiative will be introduced in other areas as
well (such as medical specialists in hospitals and nursing home
physicians). Evaluations of SCEN have shown a positive impact
on the willingness of physicians to take the consultation requirement
seriously and to report cases. The regional evaluation committees
mentioned in the Euthanasia Act have repeatedly stated that, in
cases in which the physician had consulted a SCEN-doctor, the
quality and usefulness of the written report were much better
than in other cases. This means that SCEN does not only have a
positive influence on the ex ante screening, but on the
ex post screening as well. Unfortunately, the future of the succesful
SCEN-project is unclear. At the time this article was finalised
(December 2003) the Dutch Government was heavily cutting health
care expenditure. As of January 2004, the government will no longer
finance the SCEN-project directly. It is unclear whether an alternative
can be found that guarantees both the financing and the independence
of the SCEN-doctor.
CONCLUSIONS
The Dutch Euthanasia Act 2002 is the result
of a lengthy development that started in the early 1970s. In The
Netherlands physician-assisted death is broadly accepted, not
only by physicians and policy-makers but by the general population
as well. The Dutch are well aware of the risks attached to allowing
physician-assisted death but feel that they have created a context
in which the risks of abuse and arbitrariness are limited to an
acceptable level. Of course, these risks cannot be completely
eliminated. Every now and then a case occurs in which the physician
has neglected one or more of the requirements mentioned in the
law, but evidence for abuse on a larger scale is lacking. In almost
every case so many persons are involved (the patient, close relatives,
the acting physician, the independent consultant, other health
care workers etc) that it is not easy to neglect the core requirements
and get away with it. The fact, however, that this cannot be completely
excluded has never been a reason in Dutch practice or politics
to continue to forbid physician-assisted death under all circumstances.
Such a policy would probably not result in the elimination of
physician-assisted death. Otlowski had stated that the real choice
is whether we seek to regulate and control the practice of physician-assisted
death or whether it is left unregulated and unchecked. Furthermore,
she favours the replacement of the prevailing policy of criminal
prohibiton with a more open and honest approach: "Importantly,
such an approach would reduce the risk of unacceptable practices
and thereby afford greater protection to patients. It would also
enhance the quality of medical decision-making in this area, encouraging
professional discussion and guidance."19 At a more fundamental
level the Dutch population positively values the opportunity for
patients who are severely and hopelessly suffering to ask for
physician-assisted death and to die with dignity. As long as this
opportunity is not turned into a right, a large majority of Dutch
physicians are willing to consider requests for physician-assisted
death.
Given the fact that euthanasia is based to a
large extent on the universal feeling that a sick person should
have a say about the amount of medical interference at the end
of her or his life, it is understandable that the discussion on
whether physician-assisted death should be allowed is emerging
in other countries as well. Although typical Dutch circumstances
(such as the emphasis on personal freedom, the social solidarity,
the comprehensive health-care system, the quality of public discussion)
may explain why the developments in The Netherlands occurred as
they did, it is clearly an issue that also has relevance in other
countries and jurisdictions. However, as the Dutch euthanasia
practice is embedded in a specific and elaborate network of relations,
standards and values, it is difficult to simply export this to
other countries.20 The most distinctive characteristic of the
Dutch situation is probably the broad support from the medical
profession.21 Other countries do not necessarily have to go the
same way, but they surely can learn from the Dutch experience.
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