The Netherlands is currently the only country in which active euthanasia is practiced openly, even though technically it was illegal until April 10, 2001. Prior to that date, active euthanasia was a criminal offense under Article 293 of the Dutch Penal Code, which read, "He who takes the life of another person on this person's explicit and serious request will be punished with imprisonment of up to 12 years or a fine of the fifth category." At the same time, however, Section 40 of the same penal code stated that an individual was not punishable if he or she was driven by "an irresistible force" (legally known as force majeure) to put another person's welfare above the law. This might include a circumstance in which a physician is confronted with the conflict between the legal duty of not taking a life and the humane duty to end a patient's intolerable suffering.
Origin of Open Practice
In 1971 Dr. Geertruida Postma granted an elderly nursing home patient's request to die by injecting the patient with morphine and ending her life. The patient was her seventy-eight-year-old mother, who was partially paralyzed and was tied to a chair to keep her from falling. Dr. Postma was found guilty of murder, but her penalty consisted of a one-week suspended jail sentence and a
one-year probation. This light sentence encouraged other physicians to come forward, admitting they had also assisted in patients' suicides.
Two years later the Royal Dutch Medical Association announced that, should a physician assist in the death of a terminally ill patient, it was up to the court to decide if the physician's action could be justified by "a conflict of duties." In Alkmaar, Netherlands, Dr. Schoonheim helped Marie Barendregt to die in 1982, using a lethal injection. The ninety-five-year-old, severely disabled Barendregt had initially signed an advance directive refusing artificial (life-prolonging) treatment. Dr. Schoonheim assisted in Barendregt's death with the knowledge of the patient's son and after consultation with two independent physicians. In 1984 the Dutch Supreme Court, ruling on this well-known Alkmaar case (the court case is referred to by the name of the city where the trial took place), found Dr. Schoonheim not guilty of murder.
Since then, each euthanasia case brought under prosecution has been judged on its individual circumstances. The force majeure defense has ensured acquittal, while compliance with the following guidelines for performing euthanasia laid down by the Royal Dutch Medical Association and the Dutch courts in 1984 has protected physicians from prosecution:
- The patient's wish to die must be expressed clearly and repeatedly.
- The patient's decision must be well informed and voluntary.
- The patient must be suffering intolerably, with no hope of relief; however, the patient does not have to be terminally ill.
- The physician must consult with at least one other physician.
- The physician must notify the local coroner that death resulting from unnatural causes has occurred.
However, several events led the Royal Dutch Medical Association to refine the 1984 guidelines. In 1994 a film showing a doctor putting a patient to death produced negative reactions worldwide. The practice of the so-called angels of death, traveling physicians who performed euthanasia where family doctors refused to assist in suicide, also generated unwelcome publicity. Finally, a startling announcement by the chief inspector of public health that doctors who refused to refer patients to another doctor would be found guilty of malpractice and disciplined led to the following changes in the guidelines:
- Physician-assisted euthanasia is preferable to active euthanasia. Physicians should let a patient self-administer lethal medication instead of giving the patient a lethal injection.
- The consulting physician must not have a personal or professional relationship to either the primary physician or patient.
- No doctor is required to perform euthanasia, but must refer the patient to one who will do it.
- Physicians must report all euthanasia performed.
On April 10, 2001, the Dutch Parliament voted 46 to 28 to legalize physician-assisted suicide by passing the Termination of Life on Request and Assisted Suicide (Review Procedures) Act. Arguments in favor of the bill included public approval ratings of 90 percent. In May 2001 the results of a Dutch public opinion poll revealed that nearly half of respondents favored making lethal drugs available to older adults who no longer wanted to live.
The Remmelink Commission and the 1990
In 1990 the Dutch government commissioned a landmark study to investigate the medical practice of euthanasia and physician-assisted suicide. The Commission of Inquiry into the Medical Practice Concerning Euthanasia is commonly known as the Remmelink Commission, named after the committee chairman Jan Remmelink, who was then the Attorney General of the Dutch Supreme Court.
According to the Remmelink Report (Paul J. van der Maas, MD, et al., "Euthanasia and Other Medical Decisions Concerning the End of Life," The Lancet, 1991; English version), 54 percent of the surveyed physicians had performed euthanasia or assisted suicide. Another 34 percent indicated that they might perform euthanasia or assisted suicide, although some might do it only in extreme situations. While 12 percent reported that they would never participate in euthanasia or assisted suicide, two-thirds of these physicians (8 percent of the total) would refer patients to another physician. Four percent would never have anything to do with such requests. Of the nearly 129,000 deaths in the Netherlands in 1990, 2,300 (1.8 percent) were the result of euthanasia, and 400 (0.3 percent) were assisted suicides.
The Remmelink Commission uncovered 1,040 deaths (0.8 percent of all deaths) from involuntary euthanasia. The Dutch do not refer to this practice as euthanasia, but call it "termination of life without patient's explicit request." Fourteen percent of these patients were fully competent, and 72 percent had not given any indication that they wanted to be euthanized. In 59 percent of the deaths, the physicians claimed that they had had discussions with the patients, who had expressed an interest in euthanasia before they became incompetent or unconscious. Nonetheless, these patients had never made an explicit request. (In the Netherlands it is accepted practice for physicians to offer euthanasia as an option to patients.) Another 8,100 patients died from a deliberate overdose of pain medication given
by doctors, not to control pain but to hasten death. Sixty-one percent had not consented to the overdose.
The 1995 Remmelink Report
In 1995 another nationwide investigation was conducted in the Netherlands as a follow-up study of physician-assisted suicide and euthanasia. In "Euthanasia, Physician-Assisted Suicide, and Other Medical Practices Involving the End of Life in the Netherlands" (New England Journal of Medicine, vol. 335, no. 22, November 28, 1996), van der Maas and his colleagues reported on an update of the Remmelink Report.
The study consisted of two parts—interviews with 405 physicians and a study of death certificates through questionnaires returned by about 5,000 physicians. The results of the two-part 1995 study, as compared with the 1990 results, showed that the incidence of euthanasia among total deaths in the Netherlands increased from about 1.9 percent in 1990 to about 2.3 percent in 1995, and assisted suicides increased somewhat during the same period. (See Table 6.7.) The increases were attributed to an aging population, increased numbers of deaths from cancer as a result of decreased deaths from heart disease, rising availability of life-prolonging techniques, and changes in patients' attitudes toward euthanasia and physician-assisted suicide.
The 1995 update of the Remmelink Report also showed that the frequency with which patients' lives were terminated without their explicit requests (what Americans call involuntary euthanasia) decreased somewhat—from 0.8 percent in 1990 to 0.7 percent in 1995 (shown in the results of the death-certificate studies rather than interview studies). (See Table 6.7.)
The 2001 Remmelink Report
In 2001 a third study gathered data to compare with data from the 1991 and 1995 studies. The goal of these comparisons was to determine whether end-of-life practices had altered over this time span.
Research results from "Euthanasia and Other End-of-Life Decisions in the Netherlands in 1990, 1995, and 2001" (Bregie D. Onwuteaka-Philipsen, et al., Lancet, vol. 362, no. 9381, August 2, 2003), which includes results from the 1990 and 1995 reports, are shown in Table 6.7. All three studies involved the same interview and death-certificate studies so that data could be compared. In all three studies the difference between euthanasia and physician-assisted suicide rested with who administered the lethal dose of medication. With euthanasia, the physician administered the drugs to the patient. With physician-assisted suicide, the patient administered the drugs to him-or herself, but the physician prescribed the drugs.
The results for 2001, when compared with those of 1995, showed that the demand for physician-assisted death did not rise during that time span. The demand for euthanasia rose only slightly. The death-certificate studies showed the rate of euthanasia increased slightly from 2.4 percent of all deaths in 1995 to 2.6 percent in 2001. In interview studies no increase was found in 2001. The frequency with which patients' lives were terminated without their explicit requests remained stable from 1995 to 2001. As the author of the 2001 report confirmed:
The rate of euthanasia and explicit requests by patients for physicians' assistance in dying in the Netherlands seems to have stabilized, and physicians seem to have become somewhat more restrictive in their use. The continuing debate on whether and when physician-assistance in dying may be acceptable and on procedures to ensure transparency and quality assurance seems to have contributed to this stabilization.
Journal of Medical Ethics Report
The Journal of Medical Ethics, a British publication, released a report in February 1999 based on its own research in the Netherlands. According to this report, studies conducted in 1996 revealed that the safeguards established by the Royal Dutch Medical Association were not being followed. Almost two-thirds of euthanasia and physician-assisted suicide cases went unreported. In 20 percent of euthanasia cases, the patient did not make a request; for 17 percent of these patients, there were other available treatment options.
Despite the law's "unbearable suffering" requirement, more than half of doctors listed the patient's primary concern as "loss of dignity." Taking into account all situations with explicit intention to end life, the number of deaths increased from 3,200 to 24,500 ("Euthanasia Does Not Seem to Be under Effective Control in the Netherlands," Journal of Medical Ethics, February 16, 1999).
Mental Suffering Acceptable as a Reason for Performing Assisted Suicide and Euthanasia
In 1994 the Dutch Supreme Court ruled that euthanasia may be performed in cases of mental suffering. In the landmark Assen case, which used the defense of force majeure, the court exonerated a Dutch psychiatrist who had helped a patient commit suicide. The patient, Hilly Bosscher, although severely mentally distressed, was physically healthy. After a disastrous marriage that ended in divorce, and the deaths of her sons (one to suicide and the second to cancer), Bosscher wanted to die. She refused treatment for her depression, claiming that her mental suffering was such that nothing would help. Dr. Boudewijn Chabot was acquitted of assisted suicide because the patient was rational and had not been diagnosed with any psychiatric illness. Thereafter, the Dutch guidelines included information advocating that physicians be allowed to assist depressed people to commit suicide.
Belgium to Follow the Netherlands
In October 2001 Belgium became the second country to legalize euthanasia. The legislation passed by 44 to 23 votes in the Belgian senate, with two abstentions and two senators failing to vote. The law will apply to competent adults who have an incurable illness causing unbearable, constant suffering and patients in a persistent vegetative state who made their wishes known within the prior five years in front of two witnesses.
Switzerland and Euthanasia
Euthanasia is not legal in Switzerland, but the country allows suicide assisted by physicians or people with no medical training. Since 1937 suicide has been legal in Switzerland. The Swiss criminal code additionally states that suicide may be assisted for altruistic reasons, but that assisted suicide is a crime if motivated for financial gain or for what it deems "negative" reasons.