Physician-assisted suicide and euthanasia in the Netherlands: a report to the House Judiciary Subcommittee on the Constitution.

Executive Summary

This report examines legal developments and policy arguments in the Netherlands which, in the past 23 years, have led from toleration of the practice of physician-assisted suicide for physically-suffering, terminally-ill, competent patients to the judicial and medical sanctioning of the nonconsensual termination of patients' lives.

Since 1886, the Dutch Penal Code has prohibited assisted suicide and euthanasia. However, in the 1970s the Dutch courts began to tolerate physician-assisted suicide and euthanasia for terminally-ill, competent patients. By the early 1980s, the medical profession and courts in the Netherlands had established guidelines for physicians to perform assisted suicide and euthanasia. In 1984, the Supreme Court of the Netherlands accepted physician-assisted suicide and euthanasia, not only for terminally-ill patients, but also for chronically-ill or elderly patients whose deaths were not otherwise imminent.

In 1986, the Dutch medical association in collaboration with the nurses association established official "Guidelines for Euthanasia." These official Guidelines form the basis for the current practice of physician-assisted suicide and euthanasia in the Netherlands. The Guidelines list five criteria for physicians to meet before engaging in assisted suicide or euthanasia. First, a voluntary request from the patient is required. Second, the request must have been well considered by the patient. Third, the patient must have a "persistent desire for death." Fourth, the suffering of the patient must be unacceptable. And fifth, the physician must consult with another colleague. Although the criteria are explained in the Guidelines and in a report on which the Guidelines were based, the criteria remain vague and ambiguous and leave a great deal of discretion to physicians.

Although the Guidelines specifically require that a patient voluntarily request physician-assisted suicide or euthanasia, the Remmelink Report, a study of the practice of physician-assisted suicide and euthanasia, confirmed that non-voluntary euthanasia was being widely performed in the Netherlands. The Report cited that in 1990 there were 2,300 cases of euthanasia at the patient's request, 400 cases of physician-assisted suicide, and more than 1,000 cases in which physicians terminated patients' lives without their consent. Fourteen percent of the patients who were killed without consent were fully competent, and eleven percent were partially competent. These were patients who could have made their own decisions about whether to live or die but were never given the opportunity to decide for themselves.

Based on the findings of the Remmelink Report and the 1986 "Guidelines on Euthanasia," the Dutch Government established, and both Houses of Parliament approved, a new reporting procedure which was codified and became effective on June 1, 1994. The new procedure requires physicians to fill out questionnaires and report to a coroner all cases in which they assist in suicide, perform euthanasia on request, or terminate a patient's life without the patient's consent. The failure of a physician to report one of these cases is not a crime in itself.

In 1984, the Dutch Supreme Court decided that mental suffering, as well as physical suffering, can justify a physician assisting a patient in suicide. Dr. Boudewijn Chabot, a psychiatrist, assisted a fifty-year-old healthy woman in suicide because she refused treatment for her depression and wished to die. The Court held that there are physically healthy patients whose unbearable mental suffering cannot be alleviated; and therefore, physician-assisted suicide can be an alternative for a patient who is suffering mentally.

The new reporting procedure also acknowledges the practice of physician-assisted suicide for patients who are suffering mentally. The questionnaire to be submitted to the coroner includes a specific section for such cases.

The acceptance in the Netherlands of a right to physician-assisted suicide for terminally-ill, competent patients has led the Dutch to embrace physician-assisted suicide for the chronically-ill, the elderly and those who are suffering mentally. Even more alarming, the Dutch acceptance of physician-assisted suicide has led to voluntary and non-voluntary euthanasia.

Recent legal developments in the United States have driven this country to a crossroads--similar to that faced in the Netherlands in the 1970's and early 1980's--regarding whether physician-assisted suicide will be an accepted practice. The lessons to be learned from the Dutch experience are instructive, sobering, and should serve as the vital predicate to an informed discussion about public policy or legislation which may be needed to address this important issue.

Introduction

This report examines legal developments and policy arguments in the Netherlands which, in the past 23 years, have led from toleration of the practice of physician-assisted suicide for physically-suffering, terminally-ill, competent patients to the judicial and medical sanctioning of the nonconsensual termination of patients' lives. Recent legal developments in the United States have driven this country to a crossroads--similar to that faced in the Netherlands in the 1970s and early 1980s--regarding whether physicians assisting patients in suicide will be accepted practice. The lessons to be learned from the Dutch experience are instructive, sobering, and should serve as the vital predicate to an informed discussion about public policy or legislation which may be needed to address this important issue.

Recent United States Circuit Court Opinions

In the United States, thirty-five states currently have statutes prohibiting assisted suicide. An additional eight states recognize assisted suicide as a common law crime. However, these prohibitions are being challenged. Two federal circuit courts of appeals have recently held that assisted suicide is a right that cannot be denied competent, terminally-ill persons.

On March 6, 1996, in Compassion in Dying v. State of Washington, the United States Court of Appeals for the Ninth Circuit found a "liberty interest in determining the time and manner of one's own death."(1) A Washington statute prohibited promoting or aiding the suicide of another. The Ninth Circuit struck down the "or aids" portion of the statute as it applies to competent, terminally-ill persons. The court held "that insofar as the Washington statute prohibits physicians from prescribing life-ending medication for use by terminally ill, competent adults who wish to hasten their own deaths, it violates the Due Process Clause of the Fourteenth Amendment."(2)

Although the holding of the Ninth Circuit in Compassion is confined to competent, terminally-ill persons, the court suggests that the "right" to physician-assisted suicide should be expanded to other individuals. The court claims that "seriously impaired" persons who are not terminally-ill will benefit from a "right" to physician-assisted suicide because "if they are not afforded the option to control their own fate, they like many others will be compelled, against their will, to endure unusual and protracted suffering."(3) Furthermore, the Ninth Circuit specifically endorses allowing surrogates to consent to physician-assisted suicide on behalf of the patient.(4) The court does not explain how a patient who is not competent to decide whether to commit suicide would have the ability to actually commit suicide, even with a physician's assistance.

On April 2, 1996, in Quill v. Vacco, the Second Circuit Court of Appeals struck down the New York statutes criminalizing assisted suicide as violative of the Equal Protection Clause of the Fourteenth Amendment.(5) Unlike the Ninth Circuit, the majority in the Second Circuit specifically refused to call assisted suicide a fundamental right.(6) But the court found that the New York law did not treat "similarly situated" persons alike. The court stated, "those in the final stages of terminal illness who are on life-support systems are allowed to hasten their deaths by directing the removal of such systems; but those who are similarly situated, except for the previous attachment of life-sustaining equipment, are not allowed to hasten death by self-administering prescribed drugs.(7)

Not only did the Second Circuit decide that the New York statutes were not rationally related to any legitimate state interest, but the court determined that the state had no interest in prolonging a life that was soon to end. The court asked the question, "But what interest can the state possibly have in requiring the prolongation of a life that is all but ended?" The court then answered its own question, "None."(8)

At a hearing before the Constitution Subcommittee of the United States House Judiciary Committee, held to examine the Second and Ninth Circuit cases, the subject of physician-assisted suicide and euthanasia in the Netherlands was raised repeatedly. Witnesses argued that the Dutch experience demonstrates the inevitable slide down the slippery slope that begins when a society sanctions physician-assisted suicide.(9) The witnesses explained that the legalization of physician-assisted suicide leads to euthanasia; that the same justifications for taking the lives of the terminally-ill justify taking the lives of the chronically-ill; that once a country legitimizes killing those who suffer physically at their request, the country will allow killing those who suffer mentally; and that when a society allows euthanasia for those who request it, involuntary euthanasia for any life the society deems not worth living is not far behind.

The United States Supreme Court will most likely hear the Second and Ninth Circuit cases on physician-assisted suicide during its 1996-1997 term. The Netherlands is the only country in the world that allows its physicians to intentionally take human life, and the Dutch situation...