Euthanasia in the Netherlands: a model for the United States?

• Author: Bostrom, Barry A.

Euthanasia in the Netherlands: A Model for the United States?

The euthanasia debate has escalated dramatically in the United States over the past five years. What is commonly referred to as passive euthanasia has been sanctioned by many courts. Passive euthanasia is commonly understood to be the deliberate killing of the patient by acts of omission, such as the withholding or withdrawal of life sustaining medical treatment. In contrast, active euthanasia is commonly understood to refer to deliberate killing of the patient by acts of commission, such as lethal injection. Those who oppose euthanasia do not deny the moral and legal right of competent persons to refuse useless or excessively burdensome treatments.(1) The key issue is whether the purpose of the act of omission or commission is to terminate the life of the patient. For this reason, much opposition arises from the inclusion of nutrition and hydration in the category of medical treatment which can be refused.(2) With the exception of persons who have an imminent death expectation, or for whom nutrition and hydration are otherwise useless, the withdrawal of nutrition and hydration is an act of killing by omission.

An important case in the trend toward the sanctioning of voluntary passive euthanasia is Bouvia v. Superior Court.(3) In that case a California court of appeals held that a competent person has the right to refuse treatment even when such treatment is "furnishing nutrition and hydration."(4) The court also held that "quality of life" is a significant consideration in balancing the state interests in preserving life and the patient's right to refuse treatment.(5) At the time, Elizabeth Bouvia was twenty-eight years old, and hospitalized with severe cerebral palsy. She was not terminally ill.(6) Thus, the concept of medical treatment was broadened to include nutrition and hydration as subject to a patient's right to refuse treatment.

Although the Bouvia decision constituted a radically new precedent in the law, the concurring opinion of Judge Compton was an even more radical expansion of the euthanasia debate. For the first time, an appellate court judge suggested that active euthanasia (e.g., the administration of a lethal injection) should be sanctioned as preferable to death by starvation and dehydration. Judge Compton wrote:

Elizabeth apparently had made a conscious and informed choice

that she prefers death to continued existence in her helpless

and, to her, intolerable condition. I believe she has an absolute

right to effectuate this decision. This state and the medical

profession instead of frustrating her desire, should be

attempting to relieve her suffering by permitting and in fact assisting

her to die with ease and dignity. The fact that she is forced to

suffer the ordeal of self-starvation to achieve her objective is in

itself inhumane.(7)

At this point in the debate, passive euthanasia and active euthanasia have been distinguished in order to make passive euthanasia more acceptable to reluctant ethicists, physicians, lawyers, and judges.(8) However, once passive euthanasia is generally accepted, as in the Netherlands, the argument is reversed to state that there is no ethical difference between passive and active euthanasia since both actions are intended to result in the death of the patient.(9) Thus, active euthanasia is promoted as more humane, and the ethical equivalent of passive euthanasia.

A recent case illustrating this point is In re Rodas.(10) A thirty-four year old patient, who was a paraplegic with "locked-in" syndrome secondary to a stroke, was found to be competent to refuse nutrition and hydration.(11) Eight days after this decision was handed down, attorneys for the American Civil Liberties Union of Colorado filed a complaint on Rodas' behalf requesting the court to enter a declaratory judgment stating that "under the facts and circumstances of this case, Hector O. Rodas has the right to receive medicine or medicinal agents that would result in his comfortable and dignified death."(12) The suit was later dismissed by request of Rodas' attorneys because of confusion over what Rodas' wishes actually were.(13)

Although passive euthanasia for competent patients has been widely sanctioned in the United States, much debate has arisen concerning passive euthanasia for patients who are not competent to make medical treatment decisions.(14) Two rationals are commonly used to justify passive euthanasia for persons who are incompetent: the best interest standard(15) and the substituted judgment standard.(16) These standards permit guardians or family members to make decisions constituting passive euthanasia for persons found to be incompetent to make decisions for themselves.

Thus, the debate concerning active euthanasia has important implications both for competent and incompetent patients. Within the last year the debate has intensified. The Journal of the American Medical Association (JAMA) caused a storm of controversy by publishing an anonymous account of a gynecology resident who killed a patient by lethal injection. It was entitled "It's Over, Debbie."(17) Euthanasia is freely discussed in ethical, medical, and legal journals throughout the country.(18) The articles appearing in these journals illustrate the controversiality and complexity of the medical-legal-ethical issues inherent in the subject, and which attorneys and courts are called upon to struggle with.

This article focuses on the Netherlands because it is the first nation to sanction active euthanasia. This fact means that the Netherlands offers a unique opportunity to assess the effects of sanctioned euthanasia upon law, medicine, and the health care of persons who are medically dependent and disabled. In essence, the practice of active euthanasia there constitutes a unique social experiment which can be analyzed by scholars native and foreign to that community of people. It offers proponents of euthanasia a living model to illustrate the advantages and disadvantages of sanctioned active euthanasia. In fact, the Dutch experiment is being cited by proponents as a model of human compassion for those whose suffering is unbearable--those who long for a humane and dignified death.(19)

Because of the tendency to cite the Dutch experiment as a model illustrating the benefits of sanctioned euthanasia, the editors of Issues in Law & Medicine dedicated an entire issue to reporting the facts on the practice of euthanasia in the Netherlands.(20) The purpose of that issue was to give a full accounting of the history and present practice of euthanasia in the Netherlands. This was done by utilizing first hand accounts by Dutch scholars translated directly from the Dutch language. This was the first attempt to do so in the English language.

Based in part on the Dutch euthanasia issue and other translated materials in the author's possession, the author has analyzed the significant aspects of the Dutch euthanasia experiment as they relate to the practice of law and medicine. The purpose of this article is to synthesize the results of that analysis and present the evidence that illustrates the effect of sanctioned active euthanasia in the Netherlands. The article has two major divisions. The first division discusses the present official status of the law on the practice of euthanasia. The second division discusses the reality of the practice of euthanasia and its effects on the practice of law and medicine.

What is the Law?

The present legal status of the law on euthanasia in the Netherlands is complex. An exception to the Penal Code has been created by several court decisions. These decisions have set out certain guidelines which define the conditions under which acts of euthanasia will be excepted from the penalties of the Penal Code. Acts of euthanasia which do not conform to these guidelines are subject to prosecution and punishment.

Euthanasia and assisted suicide are defined in the Dutch Penal Code Articles 293 and 294 as follows:

Art. 293: He who robs another of life at his express and serious

wish, is punished with a prison sentence of at most twelve years

or a fine of the fifth category [approximately 50,000 U.S.

dollars].(21)

Art. 294: He who deliberately incites another to suicide, assists

him therein or provides him with the means, is punished, if the

suicide follows, with a sentence of at most three years or a fine

of the fourth category [approximately 12,500 U.S. dollars].(22) The Royal Netherlands Association for the Promotion of Medicine (the Dutch abbreviation is KNMG) is the Dutch medical association. Together with the nurses union, the KNMG in its Guidelines for Euthanasia(23) defines euthanasia as "an action which aims at taking the life of another at the latter's express request. It concerns an action of which death is the purpose and result."(24) It is clear from these definitions that voluntary euthanasia as currently practiced by physicians in the Netherlands is a violation of the Dutch Penal Code.

The legislature has been unable to agree on a change to the Penal Code legalizing euthanasia, but the courts have created an exception to Articles 293 and 294 by refusing to uphold the convictions of doctors who have followed certain guidelines in performing euthanasia.(25) These judicial guidelines have been expanded and refined by the KNMG in order to help doctors avoid investigation and prosecution.(26)

The guidelines published by the KNMG and nurses union require the following: (1) a voluntary request for euthanasia from a competent patient; (2) the patient must be fully informed of his medical condition and the alternative treatments, there must be no alternative treatment which will alleviate the patient's suffering; (3) the request must be persistent over a period of time (written documentation of the number and dates of the requests is helpful); (4) the patient's suffering must be persistent, unbearable, and hopeless; and (5) the...