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| Reflections on the Netherlands' New Euthanasia Law |
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Why Physicians? Reflections on the Netherlands' New Euthanasia Law. by Jos V.M. Welie
Finally, euthanasia is legal in The Netherlands. The bill that was passed by the Lower House of Parliament on 28 November 2000, and confirmed by the Upper House on 10 April 2001, becomes a matter of law in February 2002. (1) Advocates and opponents of legalized euthanasia will debate the merits and dangers of the new law. I am an opponent, and am increasingly anxious about the developments in my native country. Nevertheless, I am somewhat relieved that there is finally clarity. What had been denied for years by Dutch advocates of euthanasia as well as by the government and the courts, all the way to the Dutch Supreme Court, now is beyond denial: Euthanasia by a physician is lawful. During the past two decades, the legal situation had been rather murky indeed. Even though euthanasia and assisted suicide were illegal, cases against euthanizing physicians were dismissed by prosecutors and judges alike because of article 40 of the Dutch penal code. Article 40 waives the liability to punishment for anyone who commits a crime while compelled to do so by force majeure, that is, by a psychological or moral force so strong that the perpetrator could not resist it. Physicians typically argued that they were compelled to commit euthanasia on moral grounds. They were caught in a conflict of duties: a duty not to violate the criminal law versus a professional-medical duty to do "everything possible" to relieve the patient's unbearable suffering (District Court of 's Hertogenbosch, 31 July 1997). (2) The big question has always been whether a physician can argue that the latter duty exists. Is the physician morally obligated to relieve patients' suffering, even if it means ending their lives? Why is it that only physicians, and no one else, no other health care providers, not even spouses or siblings, can claim such a duty? Does the duty really apply to the physician qua physician? (3) Can physicians claim that when a patient's suffering has become unbearable, they are morally obligated to end the patient's life by virtue of being a physician, and that they therefore should be immune from prosecution? Under Dutch law, physicians can invoke the so-called "medical exception" for many of the things they do as physicians. Only physicians can prescribe narcotic drugs. Only physicians can cut someone with a knife and not be prosecuted. These interventions are part and parcel of the domain of medical practice, and in fact, the physician not only is allowed to do them; the physician is obligated to do them. An anesthesiologist cannot refuse to administer narcotics; a surgeon cannot refuse to remove an inflamed appendix. But can a physician likewise claim that committing euthanasia or even murder was motivated by a professional-medical duty? (4) One can easily see why the courts have always been troubled by the appeal to the medical exception in euthanasia cases. As early as 1986, the Dutch Supreme court rejected medical exception as grounds for waiving punishment for euthanasia. (5) Medical exception can only be invoked when the interventions are medically indicated. Such interventions are not only permissible; they are obligatory. But few advocates of euthanasia are willing to argue that euthanasia is normal medical practice, such that physicians can be obligated to perform it. Indeed, the "Explanatory Note" to the new law emphasizes that euthanasia is not normal medical practice. (6) While there may be a medically sound method of ending a patient's life it's not much different from execution by lethal injection, and it, too, can be done in a medically proper manner or be botched up--neither execution nor euthanasia are ever medically indicated, such that the physician qua physician is obligated to perform them. But if medical exception cannot justify an appeal to article 40, what can? How else can physicians argue that they are compelled to commit euthanasia in their role as physician? A careful assessment of the major Dutch court decisions reveals that there is, indeed, no clear answer to this question. Instead, the courts have based their decisions on vague referrals to the standards of medical ethics and haggled over various conditions of due care. Provided a physician had consulted with another physician, kept a log, discussed alternatives, and so on, she was assumed to be in a conflict of duties. But that is a dubious argument. Maybe a physician who is sloppy while committing euthanasia thereby reveals that she was not concerned about the gravity of the situation and did not experience an earnest duty toward the patient. But the reverse does not hold: Being cautious and competent while committing euthanasia does not prove that the physician was morally obligated to commit euthanasia. If the World Medical Association were to blame physicians performing executions by lethal injection for violating international standards of medical ethics, the physicians cannot defend their actions by arguing that they acted carefully and competently. The debate over the legality of physicians' appeal to article 40 was never settled convincingly. Instead, a procedural approach was adopted. Regulations were put in place that required physicians to adhere to certain conditions of due care, report rather than hide their acts of euthanasia, and submit to review by special euthanasia committees. Since each committee had to handle hundreds of cases annually, bureaucracy became the answer to the fundamental yet unanswered question, How can physicians explain why they, and only they, may terminate people's lives? That murky situation now has been resolved. The new law brings clarity. The physicians no longer have to invoke the dubious argument that their medical-ethical obligation to relieve patients' suffering is so grave and encompassing that it supersedes the legal obligation never to terminate their patients' lives. The latter obligation will simply cease to exist. How will Dutch physicians legally justify committing euthanasia under the new law? They needn't; there is no longer a need for legal justification. Provided the patient requests death and the physician executes the request competently, both of which conditions hold true for any medical intervention, euthanasia is perfectly legal. This is probably the most striking aspect of the developments in the past decades that culminated in passage of the euthanasia bill by an overwhelming majority of Dutch parliamentarians: Only physicians are granted the right to end other people's lives. Clearly, this aspect of the law is by no means peculiar to The Netherlands. A proposal similar to the Dutch one is being discussed in the Belgian parliament. And the same prerogative is thought to be reserved for physicians in the English-speaking world, hence the term "physician-assisted suicide." Why physicians? Why is it that after decades of ardent struggle on both sides of the Atlantic against medical power and physician paternalism, society has granted solely to physicians the legal right to end the lives of other people? The Dutch government has insisted repeatedly that euthanasia is not a normal medical intervention, but a medical intervention nevertheless. (7) The distinction is significant; a physician is obligated to perform many interventions that can be characterized as normal medical practice, but if euthanasia is not normal medical practice, a physician is not obligated to perform it. (8) What justifies the unique description of euthanasia as a "medical, though not normal medical" practice? (9) The mere fact that the physician is competent to perform it does not yet make it medical, (10) as the earlier example of executions by lethal injection makes clear. Moreover, physicians certainly are not the only ones competent to perform euthanasia. Even if we were to grant that medical expertise is required to assess the "need" for euthanasia, the act itself does not require much medical expertise. (11) Most nurses would be competent as well. Likewise pharmacists. Remarkably, the answer to this question remains forthcoming. An examination of the more than one thousand pages of transcripts from parliamentary debates pertaining to the new law provides no convincing explanation. In fact, the issue is not discussed at all. It is simply assumed that euthanasia is a medical intervention, the prerogative of physicians. Without much ado, physicians have been lifted above the law that governs all other Dutch citizens, laypeople and health care providers alike. Ending another person's life, even at that person's own request, remains a crime, punishable by up to twelve years imprisonment--unless one is a physician; then it's a good deed, not merely excusable, but just and right. (12) Conditions of Due Care According to the 2001 law, in order to be immune from punishment for performing euthanasia, a physician must: 1) be convinced that the patient's request was voluntary, well considered, and lasting; 2) be convinced that the patient's suffering was prospectless and unbearable; 3) have informed the patient about his situation as well as about his prognosis; 4) be convinced, together with the patient, that there was no reasonable alternative solution for his situation; 5) have consulted at least one other independent physician who has seen the patient and has formed an opinion in writing about the requirements of due care described in (1) through (4); 6) have terminated the patient's life with due medical care. However, the first condition is not a condition proper for euthanasia bat part of the legal definition of euthanasia. If a patient's life is terminated without the patient's request, the act is murder, not euthanasia. The second and fourth conditions collapse into the first, since in the end, it is the patient who determines whether the suffering is beyond prospect and unbearable, and the patient can refuse what she deems unreasonable, thus creating a situation in which there are no alternatives. The remaining three conditions can all be subsumed under a generic criterion for all medical treatment, namely, that treatment must be performed competently. (1.) The new law is posted on the web site of the Dutch Ministry of Justice: http://www.minjust.nl:8080/c_actual/persber/ pb0715.htm. (2.) For a summary of the verdict, see Tijdschrift voor Gezondheidsrecht 1997/57. (3.) The District Court of Rotterdam found against a physician because she committed euthanasia in her role as the patient's friend rather than as the patient's physician. Verdict from July 12, 1992; see Tijdschrift voor Gezondheidsrecht 1993/24). (4.) Dutch courts have repeatedly accepted physicians' appeals to article 40 in the case of euthanasia; they have also accepted in on several occasions when the physician's intervention amounted to murder because the patient had not requested that his life be taken. (5.) For a more detailed discussion of the medical exception, see J. Welie, "The Medical Exception: Physicians, Euthanasia and the Dutch Criminal Law," Journal of Medicine and Philosophy 17 (1992): 419-37. (6.) Handelingen II, 1998-1999, 26691, nr. 3, p. 11. The national commission that studied euthanasia in 1990-1991 claimed that euthanasia is indeed normal medical practice; Commissie Onderzoek Medische Praktijk inzake Euthanasie, Medische Beslissingen rond her Levenseinde (The Hague: Sdu, 1991), 32. (7.) Handelingen II, 1999-2000, 26691, nr. 5, p. 6 & nr. 6, p. 5. (8.) See Handelingen II, 1999-2000, 26991, nr. 6, p. 2, 17. However, physicians opposed to euthanasia must inform patients of their opposition and refer them to a physician who is not opposed. A refusal to refer would amount to patient abandonment (26691, nr.6, p. 37 & nr. 9, p. 12). (9.) When asked for other examples by members of the Upper House of Parliament, the government evaded the question (Handelingen I, 2000-2001, 26691, nr. 137a, p. 24 & nr. 137b, p. 55). (10.) Notwithstanding claims to the contrary by the Dutch government (Handelingen II 1999-2000, 26691, nr. 6, p. 8). In fact, this is the only argument provided for calling euthanasia a medical intervention: "It is generally assumed that the execution [of euthanasia] requires medical expertise" (26691, nr. 6, p. 91. See also the government's reply to members of the Upper House (Handelingen I, 2000-2001, 26691, nr. 137b, p. 18). (11.) Several Dutch courts have confirmed this hypothesis. In 1981, the Court of Appeals of The Hague found against a husband who had euthanized his wife, in part because he had failed to involve (medical) experts; reported in L. Enthoven, Het recht of leven en dood (Deventer: Kluwer, 1988). See also judgments from the District Courts of Rotterdam (NJ 1982, 63) and Utrecht (NJ 1983, 264). The Rotterdam Court later stated that "assistance in suicide must be performed by a physician in his role as physician, or by a person who operated in close cooperation with a physician" (Tijdschrift voor Gezondheidsrecht, 1993/24, 159). (12.) Handelingen II, 1999-2000, 26691, nr. 6, p. 43. Jos V.M. Welie, "Why Physicians? Reflections on The Netherlands' New Euthanasia Law," Hastings Center Report 32, no. 1 (2002): 42-44. Jos V. M. Welie is associate professor in the Center for Health Policy and Ethics and the Department of Community and Preventive Dentistry at Creighton University in Omaha, Nebraska. He is secretary of the International Dental Ethics and Law Society. |
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