The Limitations of the Dutch Concept of Euthanasia

- Margaret Sleeboom, Ph.D.

IAS, Leiden University, Noonnensteeg 1-3-2311, VG, Leiden, The Netherlands

E-mail: m.sleeboom@wanadoo.nl
Eubios Journal of Asian and International Bioethics 13 (2003), 20-25.
Abstract

Why has the law on euthanasia in the Netherlands caused such an upheaval both at home and abroad? In this paper I some explore bioethical issues in the decriminalisation of euthanasia in the Netherlands. The regulatory role of legal and state institutions in the process of decision-making by patients, physicians and other people concerned plays a central role in these discussions.

I argue, first, that the limited scope of the Dutch legislation on euthanasia cannot be a solution to end-of-life issues in general, and, second, that it is inadequate as a model for dealing with problems related to 'death-on-request' abroad. Moreover, the confusion around the meaning of the term euthanasia would make its adaptation in other institutional environments capricious.

Legal change in the Netherlands was accompanied by cultural changes, expressed in the use of terms such as individual autonomy and personal choice. In the last section of this article I argue that the social and political environment may be crucial in defining the meaning of free choice. The contending views on the decriminalisation of euthanasia seem to develop as a reaction to change in medical technology in a particular socio-political environment rather than from a unique cultural ethic.

1. Euthanasia and its decriminalisation in the Netherlands

The Hippocratic oath, ascribed to the Hippocratic School of the Fifth or Fourth Century BC, includes prohibitions against active euthanasia, and deals with the duties of the physician, such as confidentiality, resistance to injustice, and moral respect for each patient. Though medical professionals today are expected to have taken the Hippocratic Oath, in the Stoic tradition, active assistance with suicide of the physically or mentally impaired was allowed. The term 'euthanasia' here designated the ideal of 'a quick, gentle and honourable death'.[1]

Though the practice of euthanasia I assume is much older, the Dutch euthanasia law has a history of legal development and contention since the 19th century. In 1973 the Voluntary Euthanasia Society was formed, while in 1981 a Rotterdam court stated conditions under which aiding suicide and administering voluntary euthanasia [VE) do not lead to prosecution. Shortly after, in 1984, the Supreme Court of the Netherlands declared that VE is acceptable if subject to a number of clearly defined conditions.[2] On April 10th, 2001, the Upper House of the Dutch Parliament approved a bill for the 'review of cases of termination of life-on-request and assistance with suicide'. After thirty years of public debate on euthanasia,[3] in November 2000, the Lower House passed the bill by a vote of 140-40. The bill came into effect on the first of April 2002.[4] According to the authoritative study of Professor P.J. van der Maas, conducted in 1991 (otherwise known as the Remmelink report),[5] there is a clear definition of euthanasia in the Netherlands: 'deliberately terminating the life of another person at his or her request'.[6]  It differs from other categories used in Dutch health care institutions:

1.              assisted suicide, as it does not support just any purpose in the act of self-destruction, though it permits assisted suicide in certain cases;[7]

2.              'intentional life-termination without explicit request' as it is not based on a well-considered, persistent and explicit request from the patient;

3.              ''active euthanasia' without an explicit request from the patient' as it is not based on a well-considered, persistent and explicit request from the patient;

4.              death resulting from the administration of opiates and other painkillers in large doses, which is known as indirect euthanasia; and,

10       death resulting from the withholding or withdrawal of potentially life pro-longing treatment, which is otherwise known as 'passive euthanasia' or abstention.[8]

In the official definition, the termination of life at the request of the patient is clearly central to the decision to terminate life in the case of voluntary euthanasia.

The decriminalisation of euthanasia made the Netherlands the first country in the world to formally sanction mercy killing.[9] Although the authorities have turned a blind eye to the practice for two decades, physicians still risked prosecution from relatives. Also, under the new law euthanasia is administered only to patients who are in a state of continuous, unbearable and incurable suffering. And there are other requirements: A second opinion; the patient must be judged to be of sound mind; and, a request to die must be made voluntarily, independently and persistently. It is not a condition that the patient is terminally ill or that the suffering is physical. However, the physicians are not supposed to suggest it as an option.[10] Both an oral and a written request legitimises the physician to accede to the request.[11] However, the physician is not obliged to do so. And he or she may only accede to the request while taking into account the due care-requirements mentioned in the bill. In each case the doctor must be convinced that the patient is facing interminable and unendurable suffering. If he or she believes that this is not so, he may not accede to the request for euthanasia, no matter what the declaration of will states.

It is important to note that euthanasia and assisted suicide continue to be criminal offences, but are decriminalised in certain circumstances. The Dutch Penal Code (Article 293, paragraph two, and Article 294, paragraph two, sentence two) now includes a provision.  It stipulates that the termination of life on request and assistance with suicide are not treated as criminal offences when carried out by a physician and if criteria of due care are observed. Therefore the view that euthanasia and assisted suicide are no longer punishable does not reflect the substance of the bill correctly. The physician must practice due care as set forth in a separate law, the 'Termination of Life on Request and Assisted Suicide'. Physicians are obliged to report their actions to the municipal coroner in accordance with the relevant provisions of the Burial and Cremation Act.[12] One of the five regional review committees examines the physician's actions and conveys its view to the Public Prosecution Service. Only then it is decided whether or not to institute criminal proceedings. If the Public Coroner suspects that a criminal act may have been committed, he will launch his own investigation.[13]

According to estimations, in the examined year of 1994/95 there were 3,200 cases of euthanasia in the Netherlands, approximately a third of the total explicit and persistent requests for euthanasia and assisted suicide.[14] Despite the fact that a large part of the Dutch population supports the euthanasia bill, it has faced opposition from anti-euthanasia groups both in the Netherlands and elsewhere. Both Christian and secular groups have argued that it is immoral while the UN Human Rights Committee of independent experts has said it has serious concerns about the new legislation. It has warned that mercy killing in the Netherlands risks becoming routine and insensitive, and has questioned the rationale behind letting children as young as twelve opt for euthanasia with parental backing.[15] It has also objected to the fact that checks on whether the legal requirements were met will be carried out only after a patient's death.[16]

European official reactions to the new legislation are manifold. On the one hand, Germany's former justice minister, Hertha Daeubler-Gmelin, has questioned the idea of mercy killings, saying it involves 'the decision of a third person on the death of a human being'.[17] On the other hand, legalisation of euthanasia in the Netherlands has prompted Belgium to draw up its own law on mercy killing, which is awaiting approval from the country's chamber of deputies. The French health minister, Bernard Kouchner, who himself is a physician, wants to use the Dutch experience to press for change in France. Outside Europe, in Australia the debate on euthanasia sparked up again recently, when a terminally ill woman chronicled her final days on the Internet before killing herself in front of a gathering of friends and family.[18] In China, as will be discussed below, the bill has stimulated debate on euthanasia, both in favour and against its legalisation.

2. Euthanasia and its legal development in the Netherlands

The euthanasia law must be seen in its socio-historical background of attempts at protecting physicians that act in the spirit of the law and in the interest of the patient. Since, in 1990, the Royal Dutch Medical Association and the Ministry of Justice agreed upon the notification procedure, prosecution became unlikely if a physician complies with the guidelines set out in the non-prosecution agreement between the two parties.[19] These guidelines are based on the criteria set out in court decisions relating to when a doctor can successfully invoke the defence of necessity. This form of defence is valid when a conflict of responsibilities occurs between preserving the patient's life on the one hand and alleviating suffering on the other. The conflict must be resolved on the basis of the doctor's responsible medical opinion measured by the prevailing standards of medical ethics.

The euthanasia law is intended to respect the wish of the patient, thereby recognising the need for defining Patients' Right. In 1994, 'Amendments under the Burial Act' incorporated the definition of patient's rights, making the Netherlands the first country in Europe to pass a law defining the responsibilities of doctors to their patients. Physicians must provide clear information, written down if requested, before they obtain consent for any operation.[20]

These developments are reflected in the court decisions made with regards to euthanasia since the 19th century.[21] According to the Supreme Court in 1891, respect for human life has to be balanced against the loss of personal dignity, unbearable suffering and the impossibility to die in a dignified manner. The appeal to force majeure
in a euthanasia case, therefore, was and still is recognised when a physician was confronted with a conflict of duties and acted in accordance with the medical-ethical demands of careful practice. This general exception is laid down virtually unchanged in the new law in a special justification for physicians.[22]

The following discussion of court cases illustrates the centrality of the meaning of the 'defence of necessity' in the developments that led to the decriminalisation of euthanasia in certain cases. In 1971, Dr Geertruida Postma injected her mother with morphine and curare, resulting in the patient's death. On a number of occasions the patient had asked her daughter to end her life. She had suffered a brain haemorrhage after which she could hardly speak, hear, and sit up. Dr Postma was charged under Article 293 of the Dutch Penal Code. In 1973, the Leeuwarden criminal court found Dr Postma guilty but only ordered a one-week suspended sentence and one year's probation. The court indicated that the physician could administer pain-relieving drugs leading to the death of the patient in certain circumstances, provided the goal of treatment was the relief of physical or psychological pain arising from an incurable terminal illness. In this case, however, Dr Postma's primary goal was to cause the death of the patient. In the same year, the Royal Dutch Medical Association (KNMG) issued a statement supporting the retention of Article 293 but arguing that the administration of pain relieving drugs and the withholding or withdrawal or futile treatment could be justified even if death resulted.[23]

The next watershed decision was the 1984 Alkmaar ruling by the Dutch Supreme Court.[24] Mrs Schoonheim, a 95-year old, bedridden patient, had been unable to eat or drink and had temporarily lost consciousness shortly before her death. The patient requested euthanasia from her doctor, who consulted with another physician who concurred that the patient was unlikely to regain her health. The point here is that the patient was suffering a chronic and not a terminal illness. The doctor was convicted by a lower court and the Court of Appeals of an offence under Article 293 of the Dutch Penal Code, although no punishment was imposed. On appeal, the Supreme Court overturned the conviction, holding that the doctor was entitled to succeed in the defence of necessity under Article 40. The Court decided that the doctor had properly resolved the conflict of interests involved.[25]

The criteria relating to the defence of necessity can be obtained only by examining a number of Dutch court decisions, making it difficult to specify precisely what they are. The defence of necessity only becomes a relevant issue in the event of the prosecution of a doctor. One of them, the so-called Chabot case, led to a breakthrough in relation to the defence of necessity. The suffering of the fifty-year old patient, Mrs Netty Boomsma, was mainly psychological. She had a long history of depression, a violent marriage and her two sons had died, one by suicide and one of cancer. Upon the death of the second son she decided to commit suicide and approached the Dutch Federation for VE that referred her to Dr Boudewijn Chabot. Dr Chabot diagnosed her as suffering from severe and intractable mental suffering. He consulted a number of his colleagues, though none of them examined Mrs Boomsma. In September 1991, Dr Chabot assisted Mrs Boomsma to commit suicide by prescribing a lethal dose of drugs. He reported her death to the public coroner.[26]          

Dr Chabot was prosecuted under Article 294 of the Dutch Penal Code. He sought to invoke the defence of necessity. Importantly, the Supreme Court held that there was no reason in principle why the defence of necessity could not apply where the cause of a patient's suffering is psychological. However, the court held that for the defence to apply the patient must be examined by an independent medical expert. Dr Chabot had sought medical opinions from seven colleagues but none had actually seen Mrs Boomsma. Accordingly, the defence of necessity failed. In June 1994, Dr Chabot was found guilty of an offence under Article 294. The Supreme Court declined to impose a penalty, although in February 1995 Dr Chabot received a reprimand from a Medical Disciplinary Tribunal.[27]

3. Socio-political arguments against the decriminalisation of euthanasia[28]

The Chabot-case calls into question the primary condition for lawful euthanasia and assistance with suicide in the Netherlands, that is, that the patient asks for euthanasia and that the request is voluntary and well considered. Henri Wijsbek, in his dissertation, called Taking Lives Seriously,[29] in this context disputes whether a death wish can ever be voluntary and well considered in the relevant sense. Even if it could, under ideal circumstances, it is doubtful that it could under circumstances of unbearable and hopeless suffering. All requests made under such circumstances are compelled and hence involuntary.

A wide range of critical views has been and still is expressed against the decriminalisation of euthanasia and assisted suicide. I will mention only a few of the socio-political ones. One view regards as problematic the presentation of euthanasia as if it is a private matter: Laws against euthanasia and assisted suicide have never been intended to make people suffer, but are in place to prevent abuse and to protect people from unscrupulous doctors and others. Furthermore, there is no need for a law that decriminalises suicide: Around the world, according to the WHO, approximately 800,000 people commit suicide annually.[30] Suicide is not regarded as a crime,[31] but as a common tragic, individual act directly related to the state of health of a society.[32] Similarly, euthanasia and assisted suicide are not private acts, but involve one person facilitating the death of another, and a human environment that shapes its conditions.[33] In this view, euthanasia is a matter of public concern since it can lead to abuse, exploitation and erosion of care for the most vulnerable people in society.

More strongly put, euthanasia and assisted suicide are not about giving rights to the person who dies but about changing public policy so that doctors or others can directly and intentionally end or participate in ending another person's life. Opponents of euthanasia fear that legalisation is the same as regarding euthanasia and assisted suicide as 'good medical treatment'. Once accepted, the slippery-slope argument claims, it would become inappropriate and even discriminatory to deny the treatment to a person solely because that person is too young or mentally incapacitated to request it. Of course, at first glance, the increase in cases of Dutch voluntary euthanasia between 1990 and 1995 could be interpreted in this vein. Incomplete statistics and the complex conceptual framework render any careful interpretation difficult. The total number of physician related deaths increased from 39,4 per cent in 1990 to 42.6 per cent in 1995. Active voluntary euthanasia and assisted suicide constitute 1,9 per cent in 1990 to 2,6 per cent in 1995 of the total. The increase of active voluntary euthanasia and physician-assisted suicide therefore constitutes 0,7 per cent of the total increase of physician related death of 3 per cent.[34] This increase is only partly a consequence of the ageing of the population. It is also due to a combination of related factors, such as an increase in the proportion of deaths from cancer; a consequence of a decrease in deaths from certain forms of heart disease, and the increasing availability of life-prolonging techniques.

The notion that the decriminalisation of euthanasia effects an increase of other, to euthanasia bordering, acts of life termination must be dealt with seriously. Examples of such practices include the administration of lethal drugs to shorten the life of persons unable to request it,[35] and the assistance with suicide in the cases of psychiatric patients and elderly persons who currently are not suffering at all but who do not wish to continue living.[36] This so-called slippery-slope effect is feared to lower the threshold at which human life is valued, and to make it easier for physicians and society at large to give up the life of the patient.[37] This fear alone, it could be argued, even if not grounded on facts, may cause grave harm to the mental well being of the Dutch elderly and society as a whole. Nevertheless, the opposite argument, that an increased openness and awareness about euthanasia and practices of life-termination could give an enhanced sense of control-over-live to the fearful, would imply an increase in the sense of well-being of society as a whole. Further empirical research will have to indicate whether and to what extent the slippery-slope effect and 'enhance-control' effect are relevant. It seems clear, however, that both effects are related to the measure of trust patients have in the integrity of their physician and the human care and rights they enjoy as individuals in society. Any public debate on voluntary euthanasia will have to take these factors into account.

One concrete step in the direction of dealing with the slippery-slope argument is the clarification of the complex conceptual apparatus adopted in official legal and health care institutions. According to the critics, a worrying entrance in the statistics would be the category of 'intentional life-terminating acts without explicit request'.[38] This entrance is regarded as a separate category and constituted approximately 0,7 per cent of all death (135,675) in the Netherlands in 1995.[39] These cases concern mostly patients who no longer can express their will, and suffer the last phase of a terminal disease such as cancer and neurological diseases. In the majority of cases morphine is administered, not only to relieve the patient from pain, but also with the purpose of hastening death.[40] Though there is a relatively clear definition of euthanasia, there is a lack of a clear legal framework for these other occurring cases in which the patient does not have a clear say.

Opponents of euthanasia argue that virtually all pain can be eliminated. In the rare cases in which it can't be totally eliminated, it can be reduced significantly if proper treatment is provided. These opponents do not realise that in the Netherlands pain reduction alone does not satisfy the legal criteria for performing euthanasia, which in the Dutch case is defined as a separate category and is inherently linked to the request of the patient. This does not alter the fact that it is unethical that many people in the world do not get adequate pain control. Especially as in less wealthy countries 'euthanasia' presents itself as a solution to financial problems underlying inadequate health care, the most obvious solution, of course, is to mandate better education of health care professionals, to expand access to health care, and to inform patients about their rights as consumers. Furthermore, certified specialists in pain management could both help alleviate physical pain and help deal with the emotional suffering and depression that often accompany it. In this view the debate over euthanasia and assisted suicide is about public policy and legislation.

Another argument pertains to the mental state of the patient. It recommends that instead of killing the patient, the patient should be made to feel better. Requests for euthanasia may be a result of depression and confusion, out of a feeling of worthlessness, or due to persuasion of interested parties with ulterior motives. Prompted by the Chabot case, a group of Dutch authors (among which F. Koerselman) wrote a pamphlet named Scared to Death by Life, in which they argued that human freedom is regulated also by emotions and unconscious motives. The authors doubt that the physician-patient relationship is always characterised by free and rational decision-making in end-of-life matters.  One must take into account the patient's feelings of guilt, anger and inadequacy, and the possible motives of the physician, such as hunger for power, delusions of grandeur and rescue fantasies. Moreover, social determinants such as prevailing regulations, the public debate and the availability of (palliative) care in hospitals and homes for the elderly, also put to question the meaning of 'voluntary' in end-of-life decision-making. In section four, below, it will become clear that the social and political environment may be crucial in defining the meaning of free choice.

Respect for the person of the patient and concern for the family requires the optimal personal and public use of resources in end-of-life decisions that promote the value of humane life. On a personal level, a dying patient needs care. A patient is not merely a biological unit but a cultural being with a conscience, a social existence and family ties. On a public level, legal measures are taken to protect the rights of patients and physicians, and financial budgets are put together to provide the public with 'good treatment'. Criticism of the euthanasia law expresses uncertainty about the ways in which this 'good treatment' takes shape in society, especially in the long run.

4. Euthanasia in Dutch society

The Dutch socio-economic context of euthanasia

In the last fifty years, several countries have grappled with the dilemmas associated with advancing medical technology, greater life expectancy and the difficulties associated with unbearable suffering. Though some cite the Netherlands as a role model, many researchers in the Netherlands and abroad, have drawn attention to the specific characteristics of Dutch society and suggested that using the Dutch case as a role model may be inappropriate. Several factors need to be taken into consideration when thinking about euthanasia in the Netherlands and its possible application elsewhere.

First, the Netherlands has a high standard of medical care. A majority of its people are covered by a compulsory public health insurance scheme, while approximately 35 per cent of the people, who fall into a higher income scale, are covered by private medical insurance,[41] guaranteeing virtually everyone a large core of basic healthcare, including long-term care. Furthermore, the Dutch healthcare system provides care for all citizens at a highly advanced level.[42] Second, palliative care is advanced. Pain and palliation centres are attached to most hospitals. Third, most patients know their GP over a considerable period; and, most people in the Netherlands die at home, being cared for by their general practitioner.[43] According to van der Wal and Dillman, euthanasia occurs at home in approximately one out of twenty-five deaths, in hospitals in one out of seventy-five, and in nursing homes in one out of eight hundred.[44] Finally, there are relatively few financial incentives for hospitals, physicians, or family members to stop the care of particular patients. Moreover, the legal right of patients to health care on the basis of their insurance will override budget and other financial agreements. Almost all patients (99.4 per cent) have health care insurance, and a hundred per cent of the population is insured for the cost of protracted illness.[45]

The Dutch example of dealing with end-of-life problems unsuitable for simulation

The ambiguity of the concept of euthanasia and its multiple meanings in different contexts hamper debate on the bioethical issues involved in its practice. For instance, the idea that euthanasia or assisted suicide is needed so patients are not forced to remain alive by being 'hooked up' to machines does not always apply. For instance, in Japan patients or their representatives decide to withhold or withdraw unwanted medical treatment, even if it increases the likelihood of death. In the 1992 nation-wide poll, conducted by the widely read Japanese daily Yomiuri Shimbun, 86 per cent of the 3,000 respondents accepted the idea of death with dignity. Moreover, when considering treatment choices for incurable terminal cancer, 81 per cent said that they would prefer pain control and a comfortable dying process even if it shortened their lives.[46] In other countries similar attitudes can be found, also in the Netherlands. In other words, the acceptance of 'indirect euthanasia' pre-empts the need to hook up patients to machines against their will. Dutch euthanasia, however, is about the deliberate termination of life at the request of the patient, applicable also to patients suffering from chronic diseases (not terminal) and psychological suffering.

But what if the patient cannot express his or her wish? According to Dutch definitions, in such cases we cannot speak of euthanasia, and Dutch legal institutions are not equipped to deal with them. Any reference to the Dutch euthanasia law in support of handling such cases therefore is inappropriate. It is quite common, especially in Chinese and Japanese cases of indirect euthanasia (e.g., death caused by overmedication) and withdrawal of treatment (in cases when the patient is taken of life sustaining machines without the patient's request) to consult the patient's family. In this case, the patient him or herself has no choice in deciding about the prolongation of treatment. It is here that the Dutch euthanasia law does not even apply. Furthermore, Dutch law regards the notion of 'passive euthanasia' to be self-contradictory: Within the law, the difference between acting and refraining from acting has no particular relevance, and this consideration takes precedence over the psychological experience of the difference. The concept of passive euthanasia in Dutch legal thought leads to the omission of a treatment (abstention) to which the patient has not consented.[47] It is therefore of great importance to persons likely to encounter a situation of undesired life prolongation, to express their wish explicitly on paper, when still in possession of a lucid mind. It is in these cases that the criminal offence of euthanasia is decriminalised.

Considering that the occurrence of situations in which life is undesirably and artificially prolonged is likely to increase with the advance of modern medical technology,[48] some proponents regard the decriminalisation of euthanasia in the Netherlands a timely one. Criticising this as an emotional overreaction to the trend, Mark Siegler argues that 'the cry for assisted suicide and euthanasia that is increasingly heard may in part be a response by the public to a poorly understood and therefore frightening new technological possibility'.[49] Either way, the Dutch decriminalisation of euthanasia is radically limited in its scope. Any action undertaken or omitted by the physician hastening the death of a patient is related to the legislation for euthanasia only if it has been well considered, and explicitly requested repeatedly over a considerable period of time.

The most difficult cases are not those that pertain to the end-of-life requests defined as euthanasia, but those that involve the end-of-life treatment of patients incapable of expressing their wishes and needs.[50] Not surprisingly, most health-care institutions have not formulated policies for life-termination without persistent and explicit request and, if they have, do not tolerate (report) its practice except for in a few cases in which a patient has expressed a wish previously and in which there is a situation of force majeure.[51] Moreover, Dutch nursing homes have developed relatively few policies with regard to withholding or withdrawing treatment, particularly, from severely demented patients. As summarised by Haverkate, the societal discussion about euthanasia and assisted suicide, the jurisprudential requirements and the exceptional character of euthanasia and assisted suicide all contribute to the development of policies and guidelines... 'No such context exists with regard to decisions about withholding and withdrawing treatment from either competent or severely demented patients.'[52] But how can there not be such context to decision-making about withholding and withdrawing treatment, otherwise known as 'passive euthanasia'.

The Dutch refusal to recognise this concept is based on its equation with the action of 'no treatment', subsequently incorporated into the notion of voluntary euthanasia. Nevertheless, a large category of people were withheld life sustaining treatment (20,2 per cent of the total number of death in 1995) and given pain alleviation resulting in death (19.1 per cent of the total number of death in 1995). Among these, over half have not been consulted before the treatment was withdrawn, mainly as they were diagnosed as mentally not (fully) competent, unconscious or demented. When interviewed, physicians thought that their action was 'clearly in the interest of the patient', and that 'consultation would do the patient more harm than good'.[53] These cases are not covered under the Dutch euthanasia law, adding to the conceptual confusion around the practice of 'euthanasia'.


In Conclusion: The relativity and importance of patient autonomy

The history of legal development of euthanasia in the Netherlands shows how the spectrum of nun-punished cases increased. In this development, legislation for protecting both patient rights and physicians, legal procedures have been developed to lift active euthanasia under certain conditions out of the criminal code.

        Central to the Dutch discussions of euthanasia has been the autonomy of the patient, i.e. the patient's well-considered, persistent and explicitly expressed wish to die, because she or he is in a state of continuous, unbearable and incurable suffering. The moral principle of autonomy has been defended widely in medical ethics.[54] As a legal principle, the Dutch Health Council (Gezondheidsraad) has frequently invoked it as a keystone to a modern legal system. According to the Health Council, the state is not entitled to protect legal rights when the individual concerned does not want such protection.[55] Thus, the individual patient has the right to refuse treatment.[56] However, strong arguments exist against the view that voluntary euthanasia can proceed from the autonomy of the individual.

Frank Leavitt from Ben Gurion University's rather scholastic argument maybe more at home in religious discourse, but it does have a point if aimed at criticizing the blind trust in the rationality of end-of-life decision-making. According to Leavitt, voluntary euthanasia has nothing to do with autonomy because there can be no informed decision to die. Not knowing what it is like to be dead, no consent to die can be 'informed consent'.[57] But surely, the argument against the merits of the notion of patient autonomy is even stronger in cases in which the rights of patients are not firmly established, and where eugenic arguments are used in public policies that omit to take into account the view of the individual. Is it not better to have a law that takes account of the wish of the individual, uninformed as it may be, rather than one that does not?[58]

In societies in which the systematic discrimination of certain social or ethnic groups is endemic, passive euthanasia may be perceived as a threat to its members. Though the practice of 'passive euthanasia' is not even covered by the Dutch euthanasia law, the so-called legalisation of euthanasia in the Netherlands is often quoted in support of it as an advanced method of dealing with the old and sick. But even the carefully defined narrow practice of active euthanasia in the Netherlands may put social pressure on its so-called autonomous citizens: the sick and elderly when not loved may be caught by the notion that they are a burden to society.[59] Alternatively, eu[1]thanasia may be used as a weapon against relatives by the patients themselves.[60] In societies in which the elderly mainly rely on their close kin for their livelihood, these notions may even have a stronger and more direct impact. It is however necessary to point out that euthanasia may have a fundamentally different meaning politically, in societies where the conditions of its legislation differ radically. Euthanasia decriminalisation that insists on the right of the individual to make an autonomous decision, while taking into account the social abuse of such regulation, is very different from legalisation that permits the termination of life with an eye on its social and financial benefits. The problem, again, is that the decision-making of the individual cannot be separated from the health-care facilities, socio-cultural norms and values of society.


 



[1] Felici vel honesta mort mori (Engelhard, Dietrich von 'The Ethics of Paediatrics and the Ill Child in History' in Burgio, G. Roberto & Lanton, John D. (eds.) (1994) Primum Non Nocere Today. A Symposium on Paediatric Bioethics, International Congress Series 1071, Amsterdam: Elsevier. Pp: 13-23.

[2] The Dutch Ministry of Justice, see http://www.minbuza.nl/english/homepage.asp

[3][3] According to the Social and Cultural Planning Bureau, a majority of the Dutch population has consistently been in favour of euthanasia since the middle of the 1970s. The percentage of unqualified opponents has declined from approximately 25 per cent in 1970 to approximately 10 per cent in 1991. Since then, the degree of acceptance has remained stable (Griffith, John & Alex Bood & Heleen Weyers, Euthanasia & Law in the Netherlands, Amsterdam: Amsterdam University Press. P: 199).

[4] 'Netherlands prepares to legalise euthanasia', The Guardian, 10 April 2001.

[5] Professor P J van der Maas has conducted an official study of the practice of euthanasia and other medical decisions relating to the end of life in Holland. This study was conducted in 1991 based on a sample of deaths in 1990 and details of some deaths in early 1991. It is often referred to as the Remmelink report, named after the former Procurator-General of the Supreme Court in the Netherlands, who initiated the study. The follow-up study, was published in 1996 based on a sample of deaths in 1995 and using a similar methodology. For an account in English, see P.J. Van der Maas et al. 'Euthanasia, physician-assisted suicide, and other medical practices involving the end of life in the Netherlands, 1990-1995', NEJM 1996 (335): 1699-1705.

[6] Cf P.J. Van der Maas, J.J.M. van Delden, L. Pijnenborg, C.W.N. Looman 'Euthanasia and other medical decisions concerning the end of life', Lancet 1991 (338): 669-674.

[7] This definition was first formally used by the Dutch State Commission for Euthanasia in 1985. (Staatscommissie Euthanasie 1985 Rapport van de Staatscommissie Euthanasie, 's Gravenhage: Staatsuiteverij) The Dutch State Commission for Euthanasia defines assisted suicide as 'deliberately assisting a person in a life-terminating act at his or her explicit request'; a life-terminating act without an explicit request is defined as 'deliberately terminating the life of a person without his or her explicit request' (Cf 'Final report of the Dutch State Commission: an English summary', Bioethics 1987; 1: 163-174; Van der Kloot Meijburg H.H., 'How health care institutions in the Netherlands approach physician-assisted death' Omega-Journal of Death and Dying 1955-96; 32(3): 170-196).

[8] The use of the concept of 'passive euthanasia' is no longer customary in official legal and political documents in the Netherlands. For a more elaborate discussion of the distinction between abstaining from treatment in order to 'let die' (dood laten gaan) and (active) euthanasia, and the reasons for ignoring it (see Griffith, Bood & Weyers 1998: 158-61). The authors argue that it is doubtful that the distinction has any moral relevance, especially in a medical context. For the doctor is morally accountable fore everything that happens to the patient for whose care he is responsible. This includes the decision to abstain from treatment. Even the 'mere omission' of treatment cannot be an excuse for abandoning a patient to his fate. Therefore, be it killing or letting die, in both cases the physician is equally accountable.

[9] Oregon and the Netherlands are the only two jurisdictions in the world where laws specifically permit euthanasia or assisted suicide. Oregon permits assisted suicide. The Netherlands permits both euthanasia and assisted suicide. In 1995 Australia's Northern Territory approved a euthanasia bill. It went into effect in 1996 but was overturned by the Australian Parliament in 1997. Also, in 1997, Colombia's Supreme Court ruled that penalties for mercy killing should be removed. However, the ruling does not go into effect until guidelines are approved by the Colombian Congress (See documents by Rita L. Marker and Kathi Hamlon, Euthanasia and Assisted Suicide: Frequently Asked Questions, International Task Force on Euthanasia and Assisted Suicide, Box 760 - Steubenville, Ohio 43952).

[10] For details, see the web site of the Dutch Ministry of Foreign Affairs on euthanasia http://www.minbuza.nl/english/homepage.asp.

[11] A written declaration of will has the same status as a concrete request for euthanasia.

[12] It is necessary to note here that this system of regulation is problematic. The problematic cases are not reported, that is, none of the cases of life termination without an explicit request.

[13] Fewer than five cases per year are prosecuted (Griffith, Bood & Weyers 1998: 268).

[14] The total number of requests for euthanasia, assisted suicide, pain relief with possible fatal outcome and abstention of treatment in the year 1994/95 was approximately 34,500 (Van der Wal & Van der Maas 1996: 90).

[15] Regarding the various age groups, the new legislation links up with the existing legislation concerning medical conduct towards minors. Children of 16 and 17 may, in principle, make their own decision. Their parents must, however, be involved in the decision-making process regarding the ending of their life. For children aged 12 to 16, the approval of parents or guardian is required.

[16] Other critics have claimed that the Dutch initiative will trigger a wave of 'euthanasia tourism'. However, a clause insisting on a well-established relationship between doctor and patient is designed to quash this.

[17] Netherlands prepares to legalise euthanasia, The Guardian, 10 April 2001.

[18] China Daily, 25 May 2002,'Euthanasia debate renewed'.

[19] Ibid.

[20] 'This information must include the nature, goals, and risks of the treatment. This can be overruled, but only if a doctor can argue that it would put the patient at a serious disadvantage; then the information must be given to a third party. The patient's wish not to be given information must be respected unless this would present dangers to the patient or to others. Doctors are legally obliged to honour living wills' ('Dutch Law Defines Patients' Rights', British Medical Journal (News) 1994 (308): 616).

[21] For other important court cases in the history of Dutch euthanasia in English, Griffith, Bood & Weyers 1998: 43-88.

[22] Henry Wijsbek (2001) Taking Lives Seriously. Philosophical Issues in the Dutch Euthanasia Debate, Amsterdam: Dissertation Vrije Universiteit: Chapter 4.

[23] Excerpts from the Australian Senate's Euthanasia Laws Bill 1996, section on the Netherlands.

[24] Ibid.

[25] Nederlands Jurisprudentie (Dutch Jurisprudence)1983, No. 407; 1984, No. 43 quoted in Griffith, Bood & Weyers 1998: 62.

[26] For Chabot's account, see Chabot, B.E. (1993) Zelf Beschikt (Self-Determined), Amsterdam: Balans.

[27] Cf Wijsbek 2001; Griffith, Bood & Weyers 1998.

[28] For web sites that oppose the legalisation and decriminalisation of euthanasia and assisted suicide, see http://www.epc.bc.ca/ (The web site of the Euthanasia Prevention Coalition) and http://www.prolifeinfo.org/euthanasia.html, a radical opponent of euthanasia.

[29] Wijsbek 2001.

[30] WHO report quoted in De Volkskrant, 4 October 2002.

[31] In the United States alone, there are 1.5 times as many suicides as there are homicides. And suicide is one of the ten most common causes of death in Great Britain (See Marker & Hamlon).

[32] An early, strong version of this thesis was put forward by Emile Durkheim, who regarded the increase in the number of suicides as a consequence of an anomalous collective order in society. (Cf Emile Durkheim (1897) Le Suicide)

[33] Based on this view, Edwin S. Shneidman provides clues to potential suicide so that physicians, nurses, relatives and others can recognise the symptoms and try to prevent the suicide taking place and help the person in question (Shneidman 'Preventing Suicide, John Donelly (1990) Suicide. Right or Wrong? Buffelo, New York: Promotheus Books).

[34] Van der Wal & Van der Maas 1996: 90.

[35] Such as persons in the final stages of dying, persons no longer competent who at some earlier time indicated a general wish for euthanasia.

[36] Cf Hendin, H., C. Ruthenfrans, and Z. Zylics 1997 'Physician-assisted suicide and euthanasia in the Netherlands' Journal of the American Medical Association 277: 1720-22.

[37] Cf Keown 1995, 'Euthanasia in the Netherlands: sliding down the slippery slope?' in Keown (ed.) Euthanasia Examined. Ethical, Clinical and Legal Perspectives. Cambridge: Cambridge University Press.

[38] Cf Van der Wal & Van der Maas 1996: 64-75, 90.

[39] Cf Van der Wal & Van der Maas 1996: 90.

[40] The categories of intensification of pain relief and withholding or withdrawing life-sustaining treatment are mentioned separately under different entrances, constituting 19,1 per cent and 20,2 per cent of the total number of death in the Netherlands respectively. The number of euthanasia cases in 1995 constituted 2,4 per cent of the total  (Ibid. 90).

[41] Griffith, Bood & Weyers 1998: 32.

[42] Kimsma & Leeuwen 1993: 23.

[43] Ibid.

[44] Van derWal, G & Dillman R. 'Euthanasia in the Netherlands'. British Medical Journal 1994: 1346-7. For an overview of the Dutch health care system, see Griffith, Bood & Weyers 1998: 31-41.

[45] Wal & Dillman 1994 (308):1346-1349.

[46] Death with dignity was defined as foregoing life-support in case a patient is hopelessly ill and death is imminent. Akabayashi (2002) 'Euthanasia, assisted suicide, and cessation of life support: Japan's policy, law, and an analysis of whistle blowing in two recent mercy killing cases,' Social Science & Medicine 55 (2002) 518.

[47] Kimsma G, Leeuwen E. Dutch Euthanasia: Background, Practice, and Present Justifications. Cambridge Quarterly of Healthcare Ethic 1993: 24.

[48] Modern medicine has lengthened the human life-span in most societies. A century ago, high blood pressure, pneumonia, appendicitis, and diabetes were likely to lead to death. Modern medical technology made possible the use of artificial life support systems like artificial feeding, dialysis, controlled respiration, and pump circulation. In some cases it can be so dehumanising, painful, hazardous or costly that euthanasia is thought to outweigh the aim to conserve life.

[49] Mark Siegler, Ethical Consequences of Genetic Prediction. In Burgio & Lanton 1994: 123.

[50] In the Netherlands, in 1990 the number of cases of life-termination without an explicit request was 1000; in 1995 this number had slight decreased to 900 (Haverkate 1999: 123).

[51] Haverkate 1999: 124.

[52] Ibid: 70-1.

[53] Van der Wal & van der Maas 1996: 86.

[54] For the most frequently quoted elaboration of this principle, see Tom Beauchamp and James Childress, 1979, Principles of Biomedical Ethics. Oxford: Oxford University Press.

[55] Griffith, Bood & Weyers 1998: 169.

[56] Cf Article 293quarter a, which defines the principle of abstention of treatment after explicit and serious request of the patient, also defended with reference to article 11 of the Dutch constitution, which recognises the inviolability of the individual (Staatscommissie Euthanasie1985: 43, 73-5).

[57] Eubios Journal of Asian and International Bioethics (EJAIB) 6 (1996), 62.

[58] Of course the issue of informed consent by the individual is different from the question of whether is should be regulated by law.

[59] Hans Lam, a practising physician, pointed out the dangers of a rigid and radical culture or ideology of individual autonomy (autonomy-obsession), which does not take into account relations of interdependency that tie family, friends, health-care professionals and society together. For instance, a very ill woman opposed to euthanasia for religious reasons decided to opt for euthanasia when her suffering and that of her beloved ones became increasingly unbearable (Cf Hans Lam (1997) Helpen bij sterven, Boom: Amsterdam, Overveen. Pp: 219-20; 29).

[60] For instance, a woman who had requested euthanasia used her hastened death as a weapon in her failed marriage against her husband, who tried to make up for the past (Lam 1997: 9-11).




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