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Dutch Laws on Euthanasia

and Physician Assisted


Suicide:
A Model for Canada?
Robert Scott Stewart, Ph.D.
Professor of Philosophy
Cape Breton University
Scott_stewart@cbu.ca

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 MDs confessed to the same action
Postma found guilty of mercy killing but
was sentenced only to one week
imprisonment and a years 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 MDs 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 doctors professional ethical obligations to honor a
patients 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.,1998,1314.)
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 wasnt 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 persons 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 coroner 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 well-considered,
holds the conviction that the patients 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 patients
desires vis--vis withholding or withholding
life sustaining treatment, when such clear
and convincing evidence was put forward,
it was the patients 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 ones
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. Hotel-Dieu 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

End of life decisions in the Netherlands, 1990-2000 [Current population: 16,499,084]

1990
1994
2001

Deaths in the Netherlands


128,824
135,675
140,377

Requests for euthanasia


later in the disease
25,100
34,500
explicit
8,900
9,700
9,700

Assisted suicide
400
400

Life termination without


explicit request
1,000
900

Withholding or withdrawing
treatment
22,500
27,300
with explicit intention
to shorten life
11,594
17,637

Termination because of
intensification of pain and
symptom management
22,500
20,000
28,215
also with the
intention to shorten
life
5,150
4,070
2,800

(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)

34,700

300

900

28,360
18,249

Remmelink Report

End of life decisions in the Netherlands, 1990-2000


population: 16,499,084]

1990
2001

Deaths in the Netherlands


128,824
140,377

Requests for euthanasia


later in the disease
25,100
34,700
explicit
8,900
9,700

Assisted suicide
400
300

[Current
1994
135,675

34,500
9,700
400

Remmelink Report

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 1970s and 1980s 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) patients request is


voluntary and well considered
900-1000 cases of LAWER/year from 19902001
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

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

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 isnt
necessarily in conflict with euthanasia
and PAS
Recognize the limits of palliative care
Improve palliative care
Dont 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 MDs have been
prosecuted for inadequate
consultation

Model for Canada?