This article presents the first results of the Dutch nationwide study on
euthanasia and other medical decisions concerning the end of life (MDEL). The
study was done at the request of the Dutch government in preparation for a
discussion about legislation on euthanasia. Three studies were undertaken:
detailed interviews with 405 physicians, the mailing of questionnaires to the
physicians of a sample of 7000 deceased persons, and the collecting of
information about 2250 deaths by a prospective survey among the respondents to
the interviews. The alleviation of pain and symptoms with such high dosages of
opioids that the patient's life might be shortened was the most important MDEL
in 17.5% of all deaths. In another 17.5% a non-treatment decision was the most
important MDEL. Euthanasia by administering lethal drugs at the patient's
request seems to have been done in 1.8% of all deaths. Since MDEL were taken in
38% of all deaths (and in 54% of all non-acute deaths) we conclude that these
decisions are common medical practice and should get more attention in research,
teaching, and public debate.
PMID: 1715962 [PubMed - indexed for MEDLINE]
The Remmelink Report
The Netherlands The Dutch approach to regulating euthanasia
The Netherlands has a unique approach to the regulation of physician-assisted suicide and active voluntary euthanasia. Both are an openly practiced and widely accepted part of medical practice in the Netherlands.(128) The Dutch approach to this issue therefore has attracted considerable international interest:
The Netherlands is the only country in which [active voluntary] euthanasia is openly practised in accordance with formal regulation. Evaluation of experience there is therefore useful to any assessment of the likely effects of the practice of euthanasia, allowing of course for social and cultural differences, and for differences in the health-care environment.(129)
Due to these social and cultural differences, however, aspects of the Dutch approach to the regulation of this kind of euthanasia are often misunderstood. It therefore is important to note that the Dutch approach to this issue has been characterised and/or influenced by the following:(130)
The issue of euthanasia has been debated 'vigorously and publicly' in the Netherlands since the early 1970s. Since the mid-1980s, public debate in the Netherlands on this issue has focussed on whether active voluntary euthanasia and physician-assisted suicide should be legalised altogether, or should instead remain criminal acts in principle but with clear rules about not to prosecute.(131)
It is often reported that active voluntary euthanasia has been decriminalised in the Netherlands. This is not an accurate description of the Dutch legal situation.
The Penal Code of the Netherlands contains a variety of provisions prohibiting the intentional taking of human life. Two of these provisions specifically relate to physician-assisted suicide and active voluntary euthanasia:
These statutory provisions remain in force and there is no indication that the Dutch legislature intends to repeal Article 293 or Article 294 in the foreseeable future. Despite this, physician-assisted suicide and active voluntary euthanasia are permitted in certain defined circumstances. A combination of prosecutorial policy and case law permits doctors in the Netherlands to intervene actively to shorten a patient's life, without fear of legal sanction, if specific conditions are satisfied. These conditions are described below.
By virtue of an agreement between the Dutch Ministry of Justice and the Royal Dutch Medical Association, since November 1990 a doctor has been guaranteed immunity from prosecution under Articles 293 and 294 if the doctor has complied with a number of 'rules of careful practice'. These rules comprise a number of substantive and procedural requirements.(134)
The substantive requirements are based on guidelines developed in 1984 by the Royal Dutch Medical Association. To comply with these requirements, the doctor must ensure that:
The procedural requirements are as follows:
Where a death is reported as a case of euthanasia or physician-assisted suicide, the doctor must complete a form containing a list of questions relating to the death. The questions assess whether the doctor has complied with the 'rules of careful practice'.
This notification procedure was given formal legal status by a recent amendment to the Law on the Disposal of Corpses. The Dutch Parliament passed this amendment in late 1993 and it came into effect on 1 June 1994.
Very few reported cases of physician-assisted suicide or active voluntary euthanasia in the Netherlands result in a criminal prosecution. Moreover, if a prosecution is initiated under Article 293 or 294 of the Penal Code, the accused doctor will not be convicted if the court concludes that the defence of 'necessity' should be invoked.
Article 40 of the Penal Code provides for a defence to criminal charges that incorporates the notion of noodtoestand or '(situation of) necessity'(137):
Noodtoestand refers to the situation of the patient's dire distress, wherein an ethical dilemma and conflict of interests arise, resulting in a decision by the physician to break the law in the interest of what is considered a higher good.(138)
The Dutch courts have determined that the defence of necessity will apply, to protect a doctor from criminal liability in this context, if a number of criteria are satisfied. There are substantial similarities between these criteria and the 'rules of careful practice' that enable doctors who adhere to them to avoid prosecution in the first place.
The criteria that enable the defence of necessity to apply are:(139)
In 1990 the Dutch Government set up the Remmelink Commission to investigate 'the practice of action and inaction by a doctor that may lead to the end of a patient's life at the patient's explicit and serious request or otherwise'. The Remmelink Commission therefore collected information about the practice both of euthanasia - strictly defined to refer to the deliberate termination of another's life at his or her request - and of other medical decisions at the end of life. As part of its inquiries, the Remmelink Commission ordered the first empirical study of all medical decisions at the end of life. The study was led by Dr P. Van der Maas of the Erasmus University in Rotterdam. The study found that in 1990 in the Netherlands:
In 6 per cent of these cases life-termination was the primary goal and in the remainder it was the secondary goal.
In about 40 per cent of these cases the decision to increase drug dosages and the possibility that this might hasten death had been discussed with the patient. In 73 per cent of the cases where these matters had not been discussed with the patient, the patient was incompetent.(145)
In 30 per cent of these cases the non-treatment decision had been discussed with the patient. In 62 per cent of these cases it had not. In 88 per cent of all cases where the non-treatment decision had not been discussed with the patient, the patient was incompetent.(146)
The data relating to these deaths indicated the following:
In more than half of these cases the decision had been discussed with the patient or the patient had in a previous phase of his or her illness expressed a wish for euthanasia should suffering become unbearable. In other cases, possibly with a few exceptions, the patients were near to death and clearly suffering grievously, yet verbal contact had become impossible The decision to hasten death was then nearly always taken after consultation with the family, nurses, or one or more colleagues. In most cases the amount of time by which, according to the physician, life had been shortened was a few hours or days only.(147)
The same study also found that:
34 per cent said they had never practised active voluntary euthanasia or assisted suicide but could conceive of situations in which they would be prepared to do so.(149)
The Remmelink Commission also obtained data from an independent study conducted by Dr G. Van der Wal of the Medical Inspectorate of Health for North Holland. The results of this study confirmed many of the findings of Van der Maas and his colleagues.(151)
The Remmelink Commission published its report in September 1991.(152) The recommendations in this report led to the legislative reform that came into effect in 1994.
The empirical data obtained by the Remmelink Commission has been cited in support of very different conclusions. Some commentators have argued that the data, particularly the finding that 1 000 deaths took place without the patient's explicit and persistent request, supports the 'slippery slope' argument and shows that tolerance for physician-assisted suicide and active voluntary euthanasia inevitably results in the practice of involuntary euthanasia.(153) Other commentators have argued that, to the contrary, the Dutch findings show that physician-assisted suicide and active voluntary euthanasia can be safely regulated. Some commentators have cautioned against misinterpreting the findings of the Remmelink research:
The Dutch data on medical practices which shortens life, in the cases of non-competent or of competent but not-consulted patients, are indeed a matter of concern... [but there] really is not a shred of evidence that the frequency of this sort of behaviour is higher in the Netherlands than, for example, in the United States; the only thing that is clear is that more is known about it in the Netherlands. In short, there is no reason to assume ... a causal relationship between limited legalisation of euthanasia and 'lack of control' over other sorts of medical behaviour.(154)
In June 1994 the Supreme Court of the Netherlands delivered its judgment in the Chabot case.(155) The case involved the prosecution of a psychiatrist who had assisted the suicide of one of his patients. The patient, Ms B, was not suffering from any physical illness. She was a 50 year old woman who had a 20 year history of depression. Her very unhappy personal life, including a violent marriage and the death of one of her sons by suicide and of the other from cancer, had resulted in her abandoning any wish to go on living. Psychiatric treatment had not helped her and she had made at least one attempt at committing suicide. For several years she had made it known to other people - including her sister, friends and her family doctor - that she wished to die, 'but in a humane way which would not confront others involuntarily with her suicide'.(156) In 1991 Ms B approached the Dutch Federation for Voluntary Euthanasia who referred her to the defendant, Dr Chabot. He concluded that she was not suffering from a psychiatric illness or a major depressive episode, but rather that she had an adjustment disorder 'consisting of a depressed mood, without psychotic signs' arising from bereavement. Her condition was in principle treatable but the chance of success was small. Dr Chabot tried to persuade Ms B to accept some form of therapy but she refused. She asked him instead to assist her suicide.
Dr Chabot was of the opinion that Ms B was experiencing intense, long-term psychic suffering with no prospect of improvement. He was also of the opinion that her explicit and clearly expressed request for assistance with suicide was well-considered, and based on understanding of her situation and the consequences of her decision. He further believed that her rejection of therapy was well-considered. He consulted seven independent experts(157) who all agreed with his assessment of Ms B's situation. None of the doctors consulted by Dr Chabot examined Ms B.
In September 1991, Dr Chabot helped Ms B commit suicide by prescribing a lethal dose of drugs. She took these drugs in the presence of Dr Chabot, a general practitioner and a friend. Dr Chabot reported her death to the local coroner as death by physician-assisted suicide. He was prosecuted under Article 294 of the Penal Code. In April 1993 the District Court in Assen applied the defence of necessity and found him not guilty of this offence. The Court of Appeals in Leeuwarden upheld the trial court's decision in September 1993. The Dutch Supreme Court, however, overturned the rulings of the lower courts. It concluded that the defence of necessity should have been rejected in this case and accordingly found Dr Chabot guilty as charged.
In the course of its judgment the Supreme Court stated the following:
Dr Chabot was convicted under Article 294, therefore, not because the defence of necessity could not apply in a situation where a patient's suffering was of the kind experienced by Ms B. Rather it was because he had not ensured that Ms B was actually examined by another doctor before he assisted her suicide.
Despite finding Dr Chabot guilty, in view of 'the person of the defendant and the circumstances in which the offence was committed', the Supreme Court declined to impose any punishment. In February 1995, however, Dr Chabot was reprimanded by a Medical Disciplinary Tribunal which concluded that his behaviour had 'undermined confidence in the medical profession'.(160)
In September 1994 the Dutch government revised its prosecutorial guidelines to reflect the holdings of the Supreme Court. If a patient has a psychiatric disorder, the guidelines now require the doctor who receives the request for physician-assisted suicide or active voluntary euthanasia to have the patient examined by at least two other doctors, one of whom must be a psychiatrist. The government also responded to the Supreme Court's ruling by dropping 11 of 15 pending prosecutions in relation to cases where the patient was not in the 'terminal phase' of a somatic illness.(161)
Like many other developments in the Netherlands relating to the regulation of the practice of euthanasia, the Chabot case has been used to found arguments that lead to opposing conclusions. Some commentators view the case as evidence that once the law begins to allow doctors to perform physician-assisted suicide and active voluntary euthanasia, even in strictly and narrowly defined circumstances, the categories of patients who may be legally euthanased will inevitably expand. Thus, it is claimed, the Chabot case is 'another step down the slippery slope' towards a situation where euthanasia is tolerated and practised in an (even more) unacceptably wide range of circumstances, including situations where the patient has not requested death.
Other commentators acknowledge that the Chabot case raises the real possibility that Dutch courts may in the future 'hold assistance with suicide justifiable in several categories of cases in which the person concerned is not "sick" at all (eg the case of very elderly persons who are incapacitated in various ways and simply "tired of life")' and that '[f]rom there it is only a small additional step to the case in which the person concerned is not suffering at all at the time the request is made but, in anticipation of coming deterioration, wants to be in a position to choose the time of death in advance of becoming incapacitated and dependent'.(162) They reject the claim, however, that such developments necessarily will result in an increase in the incidence of involuntary euthanasia. Some commentators also describe the Chabot case as a development that tightens the restrictions on the practice of euthanasia in the Netherlands. They argue that the Supreme Court's ruling clarifies the circumstances in which it is not acceptable (as well as the circumstances in which it is acceptable) for a doctor to help a psychiatric patient commit suicide.
Since the Supreme Court ruling in the Chabot case, the Dutch courts have inspired further controversy in two cases in which doctors ended the lives of severely disabled infants, who were in severe pain and were expected to die within months. In April 1995 the District Court in Alkmaar found Doctor Henk Prins formally guilty of the murder in 1993 of a baby girl who had been born with a partly formed brain and spina bifida, by giving her a lethal injection after consultation with her parents and other doctors. The court refused, however, to punish the doctor. In November 1995 the Amsterdam Appeals Court affirmed the lower court's decision.(163) It did so on the basis that the doctor had adhered closely to the guidelines that regulate active voluntary euthanasia, had acted at the explicit request of the child's parents, and generally had behaved 'according to scientifically and medically responsible judgments, and in line with ethical norms'. A week later, the District Court in Groningen reached an almost identical conclusion in another case where a doctor had been charged with murder for administering a lethal injection to a severely disabled baby.(164) Both cases were reported as 'the latest in a series of legal precedents that are slowly eroding the Netherlands' strict limitations on euthanasia'. Both cases are on appeal to the Supreme Court of the Netherlands as test cases.
In August 1995, the Royal Dutch Medical Association (Koninklijke Nederlandsche Maatschappij tot bevordering der Geneeskunst, KNMG) adopted new guidelines for doctors who choose to accede to a patient's request for the hastening of death. Under the new guidelines patients must self-administer drugs whenever possible. The new guidelines also clarify a doctor's obligation to consult a second doctor before proceeding with euthanasia, emphasising the need for this consultation to take place with an experienced doctor who has no professional family relationship with either the patient or the first doctor. The new guidelines also affirm that a doctor is under no obligation to perform euthanasia, but state that a doctor who is opposed on principle to euthanasia should make his or her views known as soon as possible to a patient who raises the subject, and should help the patient find another doctor who is willing to assist.(165)
These new guidelines have not yet been incorporated by the Dutch Parliament into the official reporting procedure, that confirms a doctor's compliance with the 'rules of careful practice' and underpins the prosecutorial policy discussed above. The Dutch Parliament may consider doing so later this year, however, when it considers the results of more Remmelink-type research that is currently being undertaken to assess the operation of this reporting procedure. The researchers - Van der Wal and Van der Maas - are expected to release their report in October or November 1996.
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