Euthanasia In the Netherlands: A Warning to other Countries
The first part of this article (published in the Summer 2000 issue of National Observer) discussed generally the history and incidence of euthanasia in the Netherlands, as well as the unsatisfactoriness of the official guidelines governing the practice. It is appropriate next to consider the large number of cases in which euthanasia is performed without the consent of those killed.
Although the Dutch guidelines require an explicit request by the patient, the Surveys disclose that thousands of Dutch patients have been terminated without having made an explicit request. The first Survey, for example, revealed that over 1,000 patients had made no explicit request. On the writers interpretation of the first Surveys figures the total was even higher: there was no explicit request in 5,450 (52 per cent) of the 10,558 cases. Even on the Surveys own interpretation of its figures 27 per cent of patients actively killed were killed without an explicit request (that is 1,000 out of 3,700 patients the 3,700 comprising the 2300 cases of euthanasia + the 400 cases of assisted suicide + the 1000 cases without explicit request).
That non-voluntary euthanasia continued to be widely practised in 1995 was confirmed by the second Survey. 900 patients had their lives actively terminated without explicit request in 1995, only a slight decrease on the 1,000 so terminated in 1990. Moreover, the 14,200 cases in which the doctors primary purpose was to terminate life by omission involved no explicit request by the patient.
How many cases of euthanasia and assisted suicide were reported to the authorities? The first Survey revealed that in over 70 per cent of cases doctors failed to report. Instead, they filled in the death certificate as death by natural causes. They therefore not only breached an important guideline but also committed the offence of falsifying a death certificate. How ironic that, not long before, one leading defender of Dutch euthanasia had claimed that if the situation in Holland was unique, it was perhaps in the wish of physicians to subject their actions to public scrutiny. 14
There has been a gradual increase in the number of cases reported, but its significance should not be overstated. For one thing, the second Survey revealed that the majority of cases (59 per cent) were still not reported. For another, even in the cases which are reported, it must be doubted, in view of our earlier discussion of the lax system of investigation, 15 whether the authorities can realistically hope to detect the doctor who has ignored the guidelines.
Other Evidence of the Slide
The empirical evidence shows that cardinal guidelines have been breached in practice. Other evidence indicates that they are being relaxed in theory.
In 1994 the Supreme Court held that a doctor could lawfully assist a patient to commit suicide even though the patient was not somatically, let alone terminally, ill. The case involved the prosecution of a psychiatrist, Dr. Chabot, for assisting in suicide a 50 year-old woman. The woman told him she wanted to die because she had lost two sons, one to suicide, the other to cancer. 16
After consulting a number of colleagues, none of whom examined her, Dr. Chabot assisted her to commit suicide. He was convicted, but successfully appealed. The Appeal Court found that the woman had been suffering from a depression in a narrower context without psychotic characteristics, in the context of a complicated grieving process and held that he could avail himself of the defence of necessity. On a further appeal by the prosecution, the Supreme Court restored Dr Chabots conviction, though without sentencing him to any punishment. While agreeing with the Appeal Court that the necessity defence could apply even in the absence of somatic illness, the Supreme Court held that in the absence of such an illness, the doctors opinion had to be supported by an independent colleague who had examined the patient and who had considered the seriousness of the patients suffering and other possibilities for its alleviation. In the absence of such a finding in this case, ruled the Supreme Court, the Appeal Court had not been in a position to find that a situation of necessity had existed.
The case is significant for three reasons. First, it clearly holds that assisted suicide (and euthanasia) may be lawful even in the absence of somatic, let alone terminal, illness. Secondly, it confirms that, in the case of somatic illness, consultation is not a requirement (though why it should not be, when the life of the patient hangs just as much in the balance as in cases of mental illness, is unclear). Thirdly, it illustrates how, even in the rare cases in which doctors are prosecuted (barely a handful, if any, each year) they may, even so, escape punishment. The case raised serious questions about the meaning of a free and voluntary request and intolerable suffering with no prospect of improvement.
The case discomfited the House of Lords Select Committee on Medical Ethics, which was set up by the British Government to examine the euthanasia question amongst other issues, and which reported in 1994. 17 In the subsequent debate on the Report in the House of Lords, the Chairman of the Committee, Lord Walton of Detchant, commented that the members of the Committee who had visited the Netherlands to study its experience of euthanasia had returned feeling uncomfortable, especially in the light of evidence indicating that non-voluntary euthanasia . . . was commonly performed. 18 His Lordship added that they were particularly uncomfortable about this very case.
The Chabot case raised serious questions about the Dutch interpretation of free and voluntary request and unbearable suffering. But even more disturbingly, there is good evidence of official Dutch condonation of non-voluntary euthanasia. It will be recalled that the first Survey disclosed that over 1,000 patients had been killed without explicit request. The reaction of the Remmelink Commission to this statistic was scarcely less startling than the statistic itself. While criticising the killing of those patients among the 1,000 who were competent, the Commission condoned the killing of the vast majority of those who were not.
The Commissions attempted justification is not only factually flawed, it is ethically wanting. The bottom line is, first, that doctors admitted performing non-voluntary euthanasia in a strikingly high proportion of cases, ignoring the cardinal guideline requiring a free and explicit request and, secondly, that, by condoning this practice, the Commission further undermined that guideline.
The Commission recommended that the law be amended to allow doctors to report such cases just as they are supposed to report cases involving an explicit request by the patient. The Dutch Parliament accordingly passed legislation, as an amendment to the Burial Act 1955, setting out the form of the report the doctor should file with the local medical examiner, a form which explicitly provides for the reporting of non-voluntary euthanasia. The amendment (which came into force in June 1994) did not go so far as to legalise explicitly euthanasia or killing without request but placed the reporting procedure on a statutory footing and made it clear that it applied to killing without request.
Condonation of Non-Voluntary Euthanasia
Unambiguous official condonation of non-voluntary euthanasia came in the form of two decisions of Dutch courts in 1996. In those cases, Dutch Courts of Appeal upheld the acquittals of doctors who had killed disabled newborn babies. The Courts held that the necessity defence can justify even non-voluntary euthanasia. 19 Obviously, this drives a coach and horses through the guideline requiring a free and voluntary request by the patient.
It is doubtful, even if such cases were to reach the Supreme Court, that they would be reversed. For it will be recalled that in its landmark decision in 1984, the Supreme Court ruled that a doctor enjoyed the necessity defence if he acted in accordance with responsible medical opinion measured by prevailing standards of medical ethics. As non-voluntary euthanasia is commonly performed, and as there is a substantial and growing body of Dutch official opinion, medical and legal, that non-voluntary euthanasia can be ethical, it is difficult to see how the Supreme Court could, consistently with its earlier judgment, deny the necessity defence to those acting in accordance with such opinion.
This eventual condonation of non-voluntary euthanasia was predicted by those who appreciate the validity of the logical slippery slope argument. Indeed, its validity was acknowledged by the authors of the van der Maas survey when they wrote in 1993 : 20
[Is] it not true that once one accepts euthanasia and assisted suicide, the principle of universalizability forces one to accept termination of life without explicit request, at least in some circumstances, as well? In our view the answer to this question must be affirmative.
In short, not only is non-voluntary euthanasia widely practised: it is now, at least in certain circumstances, officially condoned.
This article has argued that the Dutch experience of euthanasia bears out the validity of the slippery slope argument in both its forms, empirical and logical. Within no more than a decade, the so-called strict safeguards against the slide have proved largely ineffective, and non-voluntary euthanasia is now widely practised and increasingly condoned in Holland. The exclusive emphasis on the need for a free and explicit request by the patient, which characterised the campaign to secure acceptance of voluntary euthanasia in the 1980s (even to the extent of shaping the Dutch definition of euthanasia) has, since the early 1990s, given way to an extension of euthanasia to the incompetent on the basis that they are better off dead.
Developments in Holland supply little evidence of a desire to slow the descent, let alone throw it into reverse. In September 1995 it was reported that the Dutch medical association had published revised guidelines which restate the narrow definition of euthanasia; express a preference for assisted suicide over euthanasia; confirm that mental suffering is as acceptable a reason for euthanasia as physical suffering; reiterate the importance of consultation with an independent doctor who examines the patient; and confirm that a doctor may raise the issue of euthanasia if he senses that the patient is unwilling to do so. 21 These revisions amount to little more than tinkering with the Dutch euthanasia engine as it careers down the slope. And in August 1999 it was reported that the Dutch Government is to introduce a Bill which would effectively legalise euthanasia by affording statutory protection to doctors who comply with the guidelines. 22 The Bill is expected to be enacted.
The Dutch understandably resent comparisons with the Nazis, and any simplistic comparison would be quite unfair. But it is fair to point out that the attempted Nazi extermination of Jews, gypsies and homosexuals had its roots in the acceptance by the German medical profession, long before Hitler came to power, of the concept of the life not worthy to be lived (lebensunwertes Leben). 23 The Dutch have embraced the same concept, that certain people are better off dead. As long as they do, there is nowhere on the slope but down.
14 Quoted in Keown, The Law and Practice of Euthanasia in the Netherlands, (1992) 108 Law Quarterly 51 at page 67.
15 See text at footnote 8, National Observer, Summer 2000, page 53.
16 See John Keown, Physician-Assisted Suicide and the Dutch Supreme Court (1995) 111 Law Quarterly Review 394.
17 Report of the House of Lord Select Committee on Medical Ethics (H.M.S.O.: Paper 21-1 of 1993-1994).
18 (1993-1994) 554 Parliamentary Debate H.L. (5th Ser.) 1345 at page 1346.
20 Johannes J.M. van Delden and others, The Remmelink Study: Two Years Later, (1993) 23 Hastings Center Report 24 at page 26 (footnote omitted).
21 (1995) 346 Lancet 833.
22 The Times, 11 August 1999.23 See Robert Jay Lifton, The Nazi Doctors (Basic Books, 1986) and Michael Burleigh, Death and Deliverance: Euthanasia in Germany 1900-1945 (C.U.P., 1994).
National Observer No. 44 - Autumn 2000