Examination of Witnesses (Questions 1540
- 1559)
FRIDAY 17 DECEMBER 2004
MR JACOB
KOHNSTAMM and DR
ROB JONQUIERE
Q1540 Chairman: Would you like to
introduce yourself, Mr Kohnstamm, and also your colleague for
the record?
Mr Kohnstamm: My name is Jacob
Kohnstamm, Chairman of the NVVE and President of the World Federation
of the Right-to-Die Societies. We are very pleased to have you
here and hope that we might be of some help to you, in finding
your way through this difficult subject. I would like to introduce
Rob Jonquiere, who is the Director of the NVVE. I was told that
you would like us to introduce ourselves briefly, and then start
any discussion.
Q1541 Chairman: That is right. We
would like you to introduce yourselves and perhaps say a word
or two about the situation, as you see it, in relation to the
matters into which we are enquiring. The help you give us will
be noted by the shorthand writer. The transcript will be available
for you to look at when it is finished, in order that you may
ensure that the transcript is in accordance with what you think
you have said. In due course, it will be appended to our report
and become public property when our report is put in to the House
of Lords. Perhaps you would like to say a little about your position
in relation to the subject matter, and then my colleagues may
possibly have some questions of you.
Dr Jonquiere: I have sent you a written submission
in which I introduced myself in four ways. I worked as a family
physician and, after that, I worked in university training for
family physicians, in public health, mental healthcare for the
elderly, and now in this capacity as Chief Executive of this organisation.
In all four, I have been involved in all kinds of end-of-life
decisions, and have been happy to be able to be involved in the
legalisation process of euthanasia. After the experience in my
former three capacities, I have discovered how difficult it is
to follow the whole process of legalisation and the nuances that
there are in the decisions that have to be made. On the other
hand, I have also seen that, at least in The Netherlands and because
of the culture of our country, the developments have meant that
we have grown. Discussing difficult ethical and moral issues is
part of our culture. It means that the regulation of euthanasia
has followed a process, and this regulation process has been translated
into a law. I think that has been the great advantage of the Dutch
situation. After the legalisation was completed, the practice
did not change greatly in The Netherlands. In principle there
was a big change because, since April 2002, euthanasia has been
a legalised option for doctors and patients, but in terms of the
process it did not change greatly. Compared with the UK situation—because
the legalisation process is one which has grown over a period
of 30 years—we have seen the criteria developed by case
law, developed by the Royal Dutch Medical Association, which together
produced what we have now. In all four of my previous capacities
I have seen how important it is that patients and doctors have
the possibility of a choice at the end of life. I have seen that
there is no need to be afraid that, when you give the option,
an enormous number of people will choose that option. It is more
important to have the option and, once you have it, you see that
people are more at ease and are able to take a path to the end
of their life, without any wish to finish it by euthanasia. I
simply make that as a first statement.
Q1542 Chairman: Could I ask you for
a little clarification? You speak about the legalisation process
but, if I understand it correctly, the matter first came to the
ordinary courts and the ordinary courts reached the conclusion
that, subject to conditions, there was a possibility of this choice
being allowed and physicians being able to give effect to it.
Is that correct?
Dr Jonquiere: That is correct, yes.
Q1543 Chairman: That was a development,
if you like, a case law development, of what was the actual law
that had been a law in The Netherlands for quite a long time,
but it had been seen to develop through the case law. Is that
right?
Mr Kohnstamm: Perhaps I may introduce myself
and then try to answer your question. I have been in parliament
for nearly 25 years. Her Majesty the Queen appointed me as a data
protection commissioner in August, and that is why I felt that
I had to say to my party and to the Senate that I would not wish
to combine these two functions. I was therefore a senator until
last September. I have been involved in this discussion since
1979, as a very young member—
Q1544 Chairman: You must have been
extremely young in 1979!
Mr Kohnstamm: Thank you very much! I was involved
in this subject as a fairly young member of our Second Chamber,
Tweede Kamer, and defended an initiative to legalise, under
strict circumstances, euthanasia. Turning to your question, it
is right that if you look at the way doctors, or even society,
looked at the situation of Mrs Postma—the case which started
the discussion—it is as something which was legalised by
case law. In the meantime—
Q1545 Chairman: When you say "legalised",
I think you mean that the court recognised that the law allowed
this particular option?
Mr Kohnstamm: No.
Q1546 Chairman: Is that not right?
Mr Kohnstamm: A very definite answer: no. First
of all, it was a criminal offence. It was in our criminal code—and,
by the way, still is under certain circumstances—that it
is not allowed to do so. There was, at that time, a full stop
at the end of that sentence. It was not allowed. In the meantime,
however, in our code—which was proposed by Napoleon, not
by a crazy Dutchman or anything of that sort—
Q1547 Chairman: A Frenchman!
Mr Kohnstamm: These continentals! Putting it
simply, it is the choice, in a certain situation, to drive much
faster than is allowed, or to have your mother in the car die
before you arrive at the clinic; and that you have the right,
in that set of circumstances, to drive faster than is allowed
by law. This was the situation of Postma. The court said, "It
is not allowed. It is a criminal act and you should not do it.
But in the situation where you have an ethical or moral dilemma
between, on the one hand, someone's request which you feel is
an honest and honourable request and, on the other, something
which is prohibited by law, then, because of the Napoleon part
of the code, in certain circumstances you are acquitted. It is
not that it is not criminal, it remains a criminal act, but you
will not go to prison for it. The courts always said, "You
are not allowed to do so. It is a criminal act but, in this circumstance,
we will not send you to jail".
Q1548 Chairman: If you are not going
to jail, what else happens?
Mr Kohnstamm: If you do it a second time, you
have even bigger problems. Finally, as to our business in parliament,
the situation eventually arises where you say that if a certain
development in society is no longer coped with by the law, there
are two possible choices: one is to keep strictly to the law;
the other is to change the law in order that movements in society
should be made possible. That is why, as Rob Jonquiere said, we
got used to the idea in The Netherlands that, under certain circumstances,
euthanasia should be allowed. However, it was not allowed in the
law and so it was dependent very much on the individual policeman,
on the individual public prosecutor, on the individual minister
of justice whether or not someone would be taken to court. That
is why the law was changed. A doctor can no longer say to the
patient who says, "Doctor, I want to die": "There's
the door. Please leave my room, because you are asking for something
which is a criminal act". In that sense, there is a difference
between the situation before the law and after the law.
Q1549 Chairman: When you speak of
"the law" in that phraseology, you mean the statute
that was introduced in 2001, do you?
Mr Kohnstamm: Yes. Case law is what we call
jurisprudence, which can be changed overnight if there is another
court decision. The law is there to stay, until parliament decides
to change it. A law is something more definite than case law can
ever be.
Q1550 Chairman: I can see that. The
statute law comes along in 2001. I think that there were some
earlier statute variations, but the main development, as I have
understood it anyway—and you will correct me if I am not
right—was that the courts gradually recognised, in particular,
the defence of necessity as justifying a doctor in giving effect
to a request by a patient, in very defined circumstances. The
circumstances were very closely defined, but the court ultimately
accepted that as an entitlement, because of the existence of the
defence. Is that right?
Mr Kohnstamm: That is correct. There is quite
a difference between the British system and the Dutch system,
which also goes back to Napoleon, that it is easier and faster
for us to enter the lawmaking procedure. In Britain, case law
is much more the usual way of finding your way than in Holland.
In Holland, the judges only judge upon the law and they cannot
interpret things that are not in the law, so to speak.
Q1551 Chairman: No, but the defence
of necessity was in the law and recognised as applicable to these
circumstances by the case law that preceded the activities of
parliament?
Mr Kohnstamm: But there is a big difference
between the decision of a court and the decision of a democratically
chosen body which says, "It is now a law". Although,
looking at the history, cases as such perhaps did not change that
much, I think the fact that a democratic decision has been taken
that, under certain circumstances, this is allowed makes quite
a difference. For example, the police do not go with flashing
lights to the doctor when that doctor reports that it was euthanasia
and not a natural death. There is also the commission which you
have been informed about. I think that yesterday you spoke to
the people involved in the second opinion process.
Q1552 Chairman: SCEN?
Mr Kohnstamm: Yes, SCEN.
Dr Jonquiere: I am not a lawyer or a member
of the judiciary but—
Q1553 Chairman: That is an advantage
you have over some of us!
Dr Jonquiere: On the other hand, I am a doctor—and
that can also be a disadvantage! As I understand it, the defence
of necessity has been a possibility in our law, but only in exceptional
cases. What we have seen since 1990, with the surveys and research
carried out by van der Wal, is that euthanasia, or acts of life
termination by doctors, have happened about 3,000 or 3,500 times
a year. You could no longer speak of "exceptions". I
understand also that one of the reasons for legalisation of the
process was to make it a law instead of, every time, having it
depend on the defence of necessity. I think that is why everything
came together. The big advantage has been that, at the moment
the law came into effect, there already existed a practice of
euthanasia which was well regulated, well monitored, and well
known. Compared to what happens elsewhere in the world, one of
the things that the Dutch have been successful in is in making
clear and transparent what actually happens in this field—including,
let us say, the bad decisions, where doctor has terminated life
without request. We have made ourselves vulnerable in that regard:
that everyone attacks us on the Remmelink figure of 1,000. You
have undoubtedly heard about that. It is a sort of side-effect
of our wish to be open about what is happening. At the same time,
however, we know what is happening and, when it was legalised,
we knew exactly what we were legalising.
Q1554 Lord Carlile of Berriew: How
far beyond necessity have you now gone, or are you only allowing
euthanasia where there is necessity?
Mr Kohnstamm: I am not sure what "necessity"—
Q1555 Lord Carlile of Berriew: You
cited the doctrine of necessity as an appropriate defence to a
charge of homicide. As I understand it, you are saying that euthanasia
was introduced as a lawful procedure, so that there would be a
clearer and legislative understanding for what doctors could do.
What I am trying to discover—and, to be fair to you, I should
refer to your euthanasia statement, which I have been reading
for the last 10 minutes—is in relation to the question of
how far you have gone beyond necessity.
Mr Kohnstamm: I am not sure whether I understand
the question.
Q1556 Lord Carlile of Berriew: Let
me take you a little further. This is very important, because
we need to understand what you are doing. Can we look at your
euthanasia statement, which is what you recommend to your members?
It is on the sixth page of the document you have given to us.
If I read paragraph 1 and then paragraph 9 of your model euthanasia
statement, I would respectfully suggest to you that you could
not have a better example of the slippery slope argument than
this. It includes, for example—forgive the caricature—being
able to make a euthanasia statement because you are virtually
blind and therefore cannot watch television or do handicrafts,
which is a combination of 1 and 9(c); or if there has been, in
(d), severe impairment of your mental faculties, as a result of
which, for example, you must be "confined because you would
otherwise go wandering". That is not necessity by my standards,
I am afraid; that is elective euthanasia and far from necessity
-which I would be deeply opposed to. How do you justify that?
Mr Kohnstamm: I have two comments. One is that,
in our law, there are always two persons who have to judge whether
or not it is allowed, in conformity with the law. So first there
is a person who, for whatever reasons, starts the discussion with—in
85 per cent of the cases—the family doctor. As to a slippery
slope, if I may say so, the question of your own death is the
reverse side of the slope. As far as we can see, from our members
and from the practice in Holland, before someone decides that
he wants his life to be ended and asks the doctor to end his life,
there is, in Dutch, a remweg. If you see the struggle of
the person who finally decides that, taking into consideration
everything that he knows, sees and feels, he wants to die, it
is not a slippery slope. It is always something that people do
not want to do. They hate being close to that situation. My second
comment is that, again in 85 per cent of the cases, there is the
family physician who, because of the law, has to judge whether
or not this is a situation in which the law allows them to do
what is asked. As to the statement, we firmly advise our members
and those who go along with the statement to form their personal
reasoning why they think there is this necessity for them, and
only for them—not for you, not for me, not for anyone else—to
decide that, at this point, he or she really wants to end their
life. Even in the way you are talking about it—I think it
might seem as not being able to watch TV any more—but, in
the Dutch situation . . . .
Q1557 Lord Carlile of Berriew: No,
I understand, because I have read this. Perhaps I can ask one
other question?
Mr Kohnstamm: May I ask Rob to answer this?
Dr Jonquiere: You refer to necessity and our
statement. I would rather refer to the law, which stipulates that
the reason for a legalised euthanasia process is that there is
unbearable and hopeless suffering. We try to help our members
formulate what in their view is unbearable. The identification
of what is unbearable is for the patient. They are the person
who says, "This suffering, for me, is unbearable". This
helps them to formulate what is unbearable. But "unbearable"
alone is not sufficient to come to the conclusion that euthanasia
is the solution. There you need the medical expertise in terms
of the hopelessness of the suffering. As Jacob has said, it is
those two people—the doctor and the patient—who come
together, to compare and discuss, deal and wheel—whatever
you may call it—about the unbearability and hopelessness.
When they, together, come to the conclusion that there is no real
alternative and no outlook for a better situation, then they may,
because of the law, decide on it. If you speak about necessity,
that was before the law and one of the bases of it—which
pointed only to doctors who referred to necessity. In terms of
the patient who fills this in, it has nothing to do with necessity.
He is the only one who tells the doctor, "This is what I
consider to be unbearable and not compatible with my life".
Q1558 Lord Carlile of Berriew: Perhaps
I can follow that up with one question. Let us take a more serious
example. The examples I have taken are from what you have written,
not from what I have made up myself. If you take (a), "a
life with serious, permanent paralysis", I may find facing
paralysis, as an able-bodied person, completely unbearable as
a prospect and may sign a document like this, be rendered unconscious
in a trauma and paralysed; but I know personally of numerous paralysed
people who live extremely fulfilled and successful lives—for
example, the chief prosecutor of Madrid. Having been paralysed,
they have discovered something in their lives which they had never
discovered before. If that person had made a euthanasia statement
in The Netherlands, he might well be dead?
Mr Kohnstamm: No, sir.
Dr Jonquiere: No, the only thing is that, when
he is found unconscious—having made this statement—the
doctor sees a patient who has concluded that a life with a serious
paralysis is unbearable. The doctor then has to comply with all
the other legal criteria. When a patient is unconscious, it is
something which in practice is presently considered not to be
compatible with suffering, and so not a reason for euthanasia.
It is not automatic. One of my members' complaints is that when
they fill this in they do not have the right to euthanasia. I
tell them, "You do not have the right to euthanasia. You
now have the right to ask for it. You have to ask somebody else
and he has to comply with other rules before it can be done".
Q1559 Chairman: The rules have to
be complied with at the time the euthanasia is being administered?
Dr Jonquiere: Yes.
Mr Kohnstamm: Correct.
|
