Dutch Laws on Euthanasia and
Physician Assisted Suicide:
A Model for Canada?
Robert Scott Stewart, Ph.D.
Professor of Philosophy
Cape Breton University
[email protected]
History of Euthanasia and PAS in the
Netherlands
• Postma Case – 1971
• Dr. Gertruda Postma euthanized her 78 year
old deaf, partially paralyzed mother who
repeatedly requested euthanasia.
• Postma reported the incident
• Other MD’s confessed to the same action
• Postma found guilty of mercy killing but was
sentenced only to one week imprisonment
and a year’s probation.
Alkmaar Case -- 1984
• Dr. Schoonheim euthanized Caroline B., an 85
year old woman who suffered from a host of
problems and who had repeatedly requested
euthanasia. Notified authorities and it went to
court.
• Background: Dutch tend to keep family physician
for a long time. Only 40% of deaths occur in a
hospital (Canada – 70%). Doctors still make house
calls. 57% of all Dutch MD’s and 71% of general
practitioners have been personally involved in a
life terminating act.
Alkmaar Case -- 1984
• “Force Majeure” – necessity where a conflict of duties arises.
• Hearings not adversarial. Schoonheim not attacked personally
• Genuine interest in resolving the issue equitably and fairly – Cf. to Schaivo
case
• “As a general rule euthanasia is punishable… however, when physicians
are confronted with a conflict of duties they may involve the defense of
necessity. A conflict of duties arises when the doctor’s professional ethical
obligations to honor a patient’s request to die with dignity force the
physician to act inconsistently with the formal provisions of the Penal
Code… the decision that the defense of necessity is available to a
physician should be based on an investigation whether the physician made
a responsible medical judgment, tested against criteria derived from
medical ethics” (Leenen and Ciesielski-Carlucci, 1993; Cited in Thomasma
et al.,1998,13-14.)
• Establishment of ‘rules of careful conduct’
Pattern
• Individual physicians, faced with novel and
difficult cases, prepared to commit euthanasia
and then have the courts decide whether it
was legitimate. Hence, law continues to get
stretched, but under lots of scrutiny.
Chabot case
• She was a fifty-year-old social worker… She was
divorced. She had been physically abused by her
former husband for many years. She had two sons. One
son, Peter, died by suicide in 1986, at the age of
twenty. She then underwent psychiatric treatment for
her marriage crisis following his suicide. At that time,
she strongly wished to commit suicide, but decided
that her second son, Robbie, age fifteen, needed her as
a mother. .. Robbie died of cancer in 1991, at the age of
twenty. Before his death, she decided she did not want
to continue living after he died. She attempted suicide,
but did not succeed (In Thomasma et al., 1998, 375).
Chabot case
• This competent woman confronted me 1) with a well-considered request,
that was durable (not an impulse, it existed for five years), without any
pressure from those around her. On the contrary, they had tried all they
could to make her change her mind. Equally important, 2) she convinced
me that her suffering, although it came from psychic trauma, was for her
unbearable and unacceptable. Lastly, 3) a prospect of relief was out of
reach given her well considered refusal of anti-depressants and mourning
therapy – both of which, in her situation, offered only a small chance of
success. Nevertheless, all this wasn’t enough for me to give deadly pills in
such an unusual case of massive grief. What tipped the balance to assist,
for the first time in my life, someone to commit suicide, had something to
do with her extraordinary personality… She was a strong and sensitive
person … [with a] firm and consistent … deeply felt longing to fuse with
her beloved sons. Her one and only value in life was her children, the
cornerstone on which everything else was built. Once that stone was
gone, the very idea of a future for her collapsed, became repulsive… And
that understanding made me cross the border into unknown territory – to
assist her in finding a dignified death (in Thomasma, 1998, 381).
Chabot case
• Convicted but not punished
• Vast majority of cases far more ‘typical’
although cases like Chabot are the ones that
receive international attention.
Current law in the Netherlands -Background
• Change in parties: Christian Democrats to
Social Democrats
• Same procedures as past practice
• Euthanasia defined narrowly: “intentionally
taking the life of another person upon his or
her explicit request”
• Euthanasia is not equal to: Withholding and
withdrawing of life support systems, palliative
sedation, LAWER
Current Dutch Law -- 2002
• Article 293
•
• A person who terminates the life of another person at that person’s
express and earnest request is liable to a term of imprisonment of
not more than twelve years or a fine of the fifth category.
• The offence referred to in the first paragraph shall not be
punishable if it has been committed by a physician who has met the
requirements of due care as referred to in Article 2 of the
Termination of Life on Request and assisted Suicide (Review
Procedures) Act and who informs the municipal autopsist of this in
accordance with Article 7 second paragraph of the Burial and
Cremation Act.
• 294 has the same language but deals with PAS
“Due Care” provisions in current law
• Article 2
•
• The requirements of due care, referred to in Article 293 second paragraph
Penal Code mean that the physician:
•
– holds the conviction that the request by the patient was voluntary and wellconsidered,
– holds the conviction that the patient’s suffering was lasting and unbearable
– has informed the patient about the situation he was in and about his
prospects,
– and the patient hold the conviction that there was no other reasonable
solution for the situation he was in,
– has consulted at least one other, independent physician who has seen the
patient and has given his written opinion on the requirements of due care,
referred to in a-d, and
– has terminated a life or assisted in a suicide with due care.
Reporting
• Paragraph 2 of The Burial and Cremation Act
stipulates that in the case of euthanasia or PAS,
the physician shall not issue a death certificate, as
would be the case in all natural deaths, but shall
instead “promptly notify the municipal autopsist
or one of the municipal autopsists of the cause of
death by completing a form. The physician shall
supplement this form with a reasoned report
with respect to the due observance of the
requirements of due care referred to in Article 2
of the Termination of Life on Request and assisted
Suicide (Review Procedures) act.”
Power of Physicians
• “25,000 patients every year seek assurance
from their physicians that they will receive
assistance if their suffering becomes
unbearable.
• Only about 9,000 actually request euthanasia.
• Of these requests, 2,300 patients received
euthanasia, 1.8% of all deaths… 400 cases of
assisted suicide occur annually”
Comparison to current situation in US
and Canada (excluding Oregon and Washington)
• Passive euthanasia only
• USA: ??- Nancy Cruzan (1990)
• The Supreme Court of the US declared while a
state had the right to require “clear and
convincing” evidence of a patient’s desires vis-àvis withholding or withholding life sustaining
treatment, when such “clear and convincing”
evidence was put forward, it was the patient’s
right to refuse any and all treatment (US Supreme
Court, 1990; also see Munson, 2003, Ch. 12).
Canada
• Justice Sopinka in majority decision re Rodriquez:
• “That there is a right to choose how one’s body
will be dealt with, even in the context of a
beneficial medical treatment, has long been
recognized by the common law. To impose
medical treatment on one who refuses
constitutes battery, and our common law has
recognized the right to demand that medical
treatment which would extend life be withheld or
withdrawn.”
Canada
• Canadian courts have recognized a common law
right of patients to refuse consent to medical
treatment, or to demand that treatment, once
commenced, be withdrawn or discontinued
(Ciarlariello v. Schacter, [1993] 2 S.C.R.. 119). This
right has been specifically recognized to exist
even if the withdrawal from or refusal of
treatment may result in death (Nancy B. v. HotelDieu de Quebec (19902), 86 D.L.R. (4th) 385 (Que.
S.C.); Malette v. Shulman (1990) 72 O.R. (2d) 417
(C.A.) ((Rodriquez v. British Columbia (Attorney
General) (1993); also see, Downie, 2004, 20.
Remmelink Report
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End of life decisions in the Netherlands, 1990-2000 [Current population: 16,499,084]
1990
2001
Deaths in the Netherlands
128,824
Requests for euthanasia
later in the disease
explicit
9,700
25,100
135,675
1994
140,377
34,500
8,900
34,700
9,700
Assisted suicide
400
400
300
Life termination without
explicit request
1,000
900
900
22,500
27,300
28,360
11,594
17,637
18,249
Withholding or withdrawing
treatment
with explicit intention
to shorten life
Termination because of
intensification of pain and
symptom management
also with the
intention to shorten
life
2,800
22,500
20,000
28,215
5,150
4,070
(van der Wal & van der Maas, 1996; van der Maas et al., 1996; van der Wal et al., 2003; Cited in ten Have, 2005, 153)
Remmelink Report
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End of life decisions in the Netherlands, 1990-2000 [Current population:
16,499,084]
1990
2001
Deaths in the Netherlands
1994
128,824 135,675 140,377
Requests for euthanasia
later in the disease
explicit
9,700
25,100
Assisted suicide
400
34,500
8,900
34,700
9,700
400
300
Remmelink Report
1990
1994
2001
1,000
900
900
22,500
27,300
28,360
11,594
17,637
18,249
22,500
20,000
28,215
5,150
4,070
2,800
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Life termination without
explicit request
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(van der Wal & van der Maas, 1996; van der Maas et al., 1996; van der Wal et al., 2003; Cited in ten Have, 2005, 153)
Withholding or withdrawing
treatment
with explicit intention
to shorten life
Termination because of
intensification of pain and
symptom management
also with the
intention to shorten
life
Discussion
• Euthanasia and PAS still against the law in the
Netherlands (Article 293 1)
• Article 293 2 offers a way of doing an
(otherwise) illegal act so that it will not be
prosecuted
• The law is retrospective rather than
prospective
• This has led to reporting problems
Reporting problems
• During 1970’s and 1980’s only approximately 20%
of euthanasia and PAS reported as such
• After 1990 Remmelink report and a push by
RDMA, rates to approximately 50%
• A recent change from prosecutors office to
regional committees comprised of at least three
person panel: a lawyer, as Chair, an ethicist or
moral theologian, and a physician. They report
only problematic cases to prospector's office
• Reporting now approximately 60%.
Re. (1a) patient’s request is voluntary
and well considered
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900-1000 cases of LAWER/year from 1990-2001
Slippery slope? (Justice Sopinka)
Decrease in LAWER from 1000 to 900
Vast majority of LAWER cases: patients at very
end of life in a great deal of pain, most of whom
had expressed a desire for euthanasia, though
not ‘formalized’ via ‘due care’. (Number of cases
of LAWER in other countries?)
Autonomy vs Beneficience
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Are they incompatible?
Not necessarily
Serially ordered
Make certain to avoid involuntary (as opposed
to non-voluntary) euthanasia
• No evidence that involuntary euthanasia is
occurring.
Re. 1(b): “lasting and unbearable”
suffering
• Pain is subjective and variable over patients
• Pain has to include psychological suffering as
well as physical suffering. (Most patients opt
for euthanasia or PAS for reasons other than
pain: e.g., loss of dignity, loss of autonomy)
• More work needs to be done
Re 1(c): informed about diagnosis and
prognosis
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Truth telling
Sufficient vs full information
Uncertainty about future
Doing nothing not reasonable response to
uncertain future
• Medical miracles?
• Wrong diagnoses and/or prognoses?
Re 1 (d): no other reasonable solutions
• Belgium and a ‘Palliative filter’
• Recognize that palliative care isn’t necessarily
in conflict with euthanasia and PAS
• Recognize the limits of palliative care
• Improve palliative care
• Don’t use the existence of euthanasia and PAS
option to detract from palliative care
Re 1 (e): Independent consult
• Room for improvement
• SCEN doctors
• Cases where MD’s have been prosecuted for
inadequate consultation
Model for Canada?
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Dutch Laws on Euthanasia and Physician Assisted …