Euthanasia is completely outlawed by the Penal Code of the Netherlands; so, too, is inciting or assisting in a suicide. Voluntary euthanasia is specifically for bidden by Article 293 of the Code which states:
“He who robs another of life at his express and serious wish, is punished with a prison sentence of at most 12 years, or a fine of the fifth category.” [“A fine of the fifth category is maximally 100,000 guilders or approximately $50,000.”]
Despite this complete prohibition, the practice of euthanasia is widespread in Holland, and estimate of the number of people killed annually vary from 6,000 to 20,000, or from five to seventeen per cent of all deaths. How many of these deaths took place at the request of the patient is not know, but one physician, Dr. Van der Sluis has written: “It is a rare occurrence that a sick person himself requests his own death in a manner that is credibly and on weighty grounds; no more often, I estimate, than three or four deaths in a thousand.” On a basis of 20,000 death from euthanasia, that means that maybe 80 persons requested to be killed.
Even Mrs. Terborgh-Dupuis, ex-chairman of the Netherlands Association for Voluntary Euthanasia, and a professor of medical ethics at the University of Leiden, said in an interview with De Gelderlander on January 15, 1986: “It is a rare individual who requests euthanasia.” Dr. H. Hillhorst, a sociologist who has made one of the few in-depth studies about euthanasia in the Netherlands says that “doctors and nurses seldom or never get to hear requests for euthanasia from the patient himself.” One nurse in Hillhorst’s study said that the “request for euthanasia often arises because of shortcomings in the ongoing, concerned care of the patient.” We are told that attempted suicide is really a cry for help – a request for euthanasia is also a cry for help, for loving concern as well as medical needs.
If a few of the six, twelve or twenty thousand cases of euthanasia each year result from a request from the patient himself, it follows that at least 90 per cent of all patients are killed by non-voluntary euthanasia. The patients have not asked to die, may not want to die, but are killed because others have decided to terminate their lives. All these deaths are against the law and we, in fact, murder.
For over a decade there has been a strong and concerted movement in the Netherlands to legalize euthanasia, or in the words of one of the leaders of the movement, Josephus Jitta, “to close the gap between the present law and the [current] practice of euthanasia.” The arguments is one that was used for abortion in Canada, viz. ‘people break the law, so let us get rid of the law.’ People also commit murder, theft, arson, and treason. Carried to its logical conclusion Jitta’s argument would be for the scrapping of the whole Penal Code, and a state of anarchy.
The impetus to change the law, particularly Article 293, has come from four main groups: the medical profession, the courts – where some judges are tailoring the law to fit “the times,” some very liberal legislators, and Euthanasia Societies.
Physicians and Euthanasia
There is some comfort in knowing that the Netherlands Medical Association is out of step with the rest of the world, at least for the time being.
The European Community Medical Association is a union of medical councils from all the countries in the European Common Market, with an affiliation of over 900,000 physicians and surgeons. One of the sub-committees of the Standing Committee is one of Ethics.
In September 1986 the Netherlands Medical Association went to a meeting of the Ethics Committee with a proposal in favour of legalized euthanasia. In their belief the doctors said that euthanasia was widely accepted and practiced in Holland, that cases were ignored by Law Courts, and that most patients are killed at home by their family doctors. They put in a plea for the doctors who have killed their patients but who are “upset” because they have to lie in filling out death certificates. The Association wanted to regularize the situation and had, in fact, already offered a proposal to the Netherlands Government.
Reaction of the European doctors
Twelve days later, October 4, 1986, the Vice President of the Standing Committee was in Holland to take part in a symposium on genetic engineering. He took the opportunity to discuss the Dutch proposal.
“The reaction of the Sub-Committee was unanimous and strong: we don’t want euthanasia in the European Committee. The step taken by our Dutch colleagues is a wrong one. Our codes condemn euthanasia, not only in the ethical Hippocratean and Christian tradition, but also [as being opposed] to the very essence of medicine.
“We told our Dutch colleagues that we shall not follow them, and we insisted on telling them that euthanasia is not a medical solution…I hope that our strong reaction will induce our Dutch colleagues to reflect on the seriousness of their heretical move and return to the happy old communion of utmost respect for human life and concern for the medical treatment of terminal diseases.”
Meanwhile, the Standing Committee had asked the Royal Netherlands Society for the Promotion of Medicine (KNMG) for a full explanation of their stand on euthanasia. In reply, the KNMG sent a copy of the report which had been approved by their general assembly in 1984. The Standing Committee studied this report and rejected it out-right.
Perplexity, rejection and unbelief
The President of the Standing Committee, Dr. Joseph Farber, who was also President of the World Medical Association, found it necessary to comment on the KNMG report in the summer of 1987. He stated:
“To be accurate, we must add that these declaration [of the KNMG] provoked reactions of perplexity, rejection and unbelief among all other medical delegations of the Standing Committee. The position of the KNMG, which allows the active involvement of physicians in life-terminating actions, is shared by not one of the other medical associations, and definitely not in its most brutal form…A number of colleagues, moreover, thinks that when society at large wants to give a legitimate character to euthanasia, and that on a juridical base, then one must take “executioners” who are not medical doctors. (our emphasis)
Earlier in the year, May 27, 1987, Dr. A. Wijnen, the Secretary General of the World Medical Association, had condemned the killing of AIDS patients in Holland, reports of which had been made public in April. In an interview with the German press in Munich, Dr. Wijnen described the killing of AIDS patients as “a first step in the direction of Auschwitz.” (Actually, it is the second step, abortion being the first.)
In justice to the Dutch medical profession it should be stressed that the KNMG does not represent the views of all doctors. Those belonging to the group Artsenverbond (Society of Doctors) are vehemently opposed to euthanasia. However, it is the KNMG which appears to have the clout with the government, and it was the KNMG together with Het Beterschap, a Society for Nurses and Nursing Aids, which published in March 1987 the “Guidelines for Euthanasia.”
Guidelines for Euthanasia
- I. Preamble
The preamble stated that the Guidelines were not concerned with ethics, but only with the practical aspects of euthanasia. They were intended for doctors who alone were responsible for the decision and execution of euthanasia. However, if the method chosen required the cooperation of nurses, then the nurses must share in decision-making.
Euthanasia was described as an action or omission of an action, which has death as a purpose and result, and which aims at taking the life of another at the latter’s request. If there is no request from the patient, then such action is legally murder and not euthanasia.
Cessation of treatment which makes no sense medically, assistance to alleviate pain if the primary purpose is treatment – even though it might hasten death, and refusal of a patient to accept medically indicated treatment are not considered euthanasia.
- III. Standards
– The request must come from the patient.
– The decision should be well considered, and alternative solutions should be discussed.
– The desire for death must be persistent.
– Suffering must be unacceptable.
– A doctor must consult with at least one colleague.
- Euthanasia in Practice
The request for death must be given to the doctor by the patient. Only the doctor may decide to kill the patient. Euthanasia cannot be delegated. If nurses must be involved, their responsibility must be fixed in writing.
V. Conscientious Objectors
No person may be forced to act in euthanasia, but a conscientious objector may not be part of a decision-making team.
VI. Possible Juridical Consequences
Euthanasia is illegal and punishable by law. If the “procedures for appropriate medical care” have been followed the Public Prosecutor does not, as a rule, initiate a prosecution. However, this holds true only for doctors. A nurse who independently engages in euthanasia, even if ‘appropriate procedures for medical are’ have been followed, will certainly be prosecuted.
(1) Doctors and nurses can appeal to the court for professional secrecy.
(2) Nurses and doctors, “unlike other citizens, are not obligated to report a crime against life.”
(3) Written records “will limit the investigation of the department of justice.”
Comment on the Guidelines
It is clear that one could drive a bus through the loopholes in the Guidelines for Euthanasia. They appear to be an exercise to show doctors how to break the law and get away with it. In the absence of proof that the standards set by KNMG have not been met (even if these were legal), there is no reasonable chance of a successful prosecution. It was in connection with the difficulty of proof that Attorney General Remmelink wrote: “The man in this case will claim that the patient (sometimes already cremated) urgently requested his aid…he will employ such precious and weighty terms as with extreme care, medically well considered, salutary and the like, and appeal to the expressions of gratitude or proofs of agreement by third parties who have been misled or who share in the guilt. I call all this self-evident, and I can imagine, that elsewhere in the world there is little sympathy demonstrable for Dutch pioneering in this terrain.”
Influence of the Courts
There are certain court cases which have become landmarks in legal history, especially in abortion, e.g., Bourne in Britain and Roe v. Wade in the United States. Not only have they become foundations on which to rest later cases, but they have, in effect, altered the law. Such a case in the Netherlands is Leeuwarden, 1973.
On October 19, 1971, a woman doctor deliberately took the life of her ailing 79-year-old mother by giving a lethal injection of morphine. She claimed that her mother wanted to die and there were witnesses to support this claim.
The court accepted the opinions of two expert witnesses who testified that the average Dutch physician no longer considered it necessary to work to extend the life of a patient who is regarded as being (a) incurable, (b) in unbearable pain, (c) already in the dying process and (d) has indicated in writing that he or she wants to die.
Many experts believe that, in fact, this judgment did not go beyond accepting attempts to alleviate pain by increasing doses of medication even though such treatment would shorten life. Indeed, the court said “the administering physician then is fully aware and accepts that the goal in tended, namely the alleviation of suffering, brings with it the shortening of the patient’s life.” Most Canadian doctors take the position that when a patient is incurably ill, in great pain and already dying, then it is up to them to keep the sick person comfortable and alleviate the pain as far as possible. If the secondary effect of the medication is to shorten a life, so be it; but the primary goal of the treatment is to bring comfort and relief to the last days of a dying patient.
The Court at Leeuwarden pointed out that the doctor involved had not increased the dosage as required to overcome pain; she had, in fact, administered a single, massive, lethal dose with the sole aim of killing the patient.
Though obviously sorry for the doctor, the court declared her punishable. Her sentence, however, amounted to a slap on the wrist: one week in prison which need not be served unless she broke the terms of her year’s probation.
Courts change the law
Later court decisions have increased access to euthanasia, despite the fact that it is forbidden by the Panel Code.
Leeuwarden ruled that the patient is suffering unbearable pain, the illness incurable, and he or she be in the “dying phase.”
Rotterdam: the patient be suffering unbearable pain and the pain be continuous. (No mention of incurable or dying.)
Alkmaar: continuous suffering (no mention of unbearable suffering).
The Alkmaar case eventually went by way of the Leeuwarden Court of Appeal to the High Court of The Hague. This case concerned a 73-year-old woman, in the advanced stages of multiple sclerosis, who was killed by her physician-friend by means of a lethal injection of morphine.
On October 21, 1986, the High Court dismissed two of the defendant’s pleas: that she had acted “in accordance with the demands of appropriate professional practice,” and that she had “acted in conformity to the demands made in several judicial pronouncement regarding [guidelines for] permissible euthanasia.
On the other hand, the court held that the pleas of the dire distress of the patient may justify euthanasia to a non-terminal patient. They broke new ground by ruling that mental duress of a physician may be an acceptable defense to prosecution for euthanasia. Thus, for the first time, the distress of the physician was considered by a Court of Law, a possible justification for killing a patient.
Attorney General Remmelink
Naturally the High Court decision has led to much comment and criticism. Attorney General Remmelink considered that the appeal to duress of doctors “open the way to ‘euthanatic actions’ by other experts, in particular nursing personnel.” He added that the law must be refined to guard against the hazards inherent in the judgment. Remmelink comments on the vagueness of terms such as “dire distress” and “mental duress.” These phrases will be interpreted by medical personnel according to their own ideologies. In effect, the doctor can decide who shall live and who shall die, without the need to answer for his actions.
According to Remmelink: “The legitimization of the killing of people who are not yet dying is an extremely risky matter, because it offers the possibility – it is an exaggeration to put it this way – that weaklings, frivolous people and criminals in the medical profession and the nursing profession (and such elements are undeniably present in these professional groups in numbers that one cannot ignore) can kill people without there being a reasonable chance that judicial action can be taken against them in the absence of proof.”
One of the leading proponents for removing euthanasia from the Penal Code, the jurist H.R.G. Feber wrote in an article published in 1987: “In short, jurisprudence is considerably more progressive than the lawgiver…want to be.”
Steps towards to legalizing euthanasia
It is approximately 20 years since the Dutch Government took its first tentative steps towards legalizing euthanasia. Today, in 1988, that goal has almost been reached.
1970 – 1973
At the request of the State Secretary of Social Affairs and Health a Commission was instituted in 1970 to look into “the medical-ethical problems regarding living and drying.” The Commission Report was issued in 1973. It stated that questions should be asked about ‘active or passive’ euthanasia rather than voluntary or non-voluntary. Active euthanasia was, and should always remain, strictly forbidden, but the Commission felt that, in some circumstances, passive euthanasia might be allowed.
The Council of State allowed euthanasia of some malformed newly-bore infants.
1982 – 1985
On October 18, 1982, by Royal Resolution, a State Commission on Euthanasia was instituted to give advice concerning the future policy of the government in the matter of euthanasia and of rendering assistance in self-killing, in particular with respect to legislation and the application of the law.” The State Commission on Euthanasia presented its advice to the Queen of the Netherlands on July 9, 1985. The majority of the report said that a doctor who took the life of a patient, at the patient’s request, should no longer be punishable, if certain conditions were met:
– Patient’s condition must be hopeless with no chance of recovery.
– Request must be voluntary.
– Termination of life must take place within “a frame of careful medical practice.”
Four members of the Commission wanted to add a further condition, that the death of the patient should be imminent and inevitable.
Two members of the Commission would not agree to regulations allowing active euthanasia in the law. They presented a minority report.
The Commission also made proposals concerning terminating the lives of comatose patients who obviously cannot give their consent. These proposals created a stir and even pro-euthanasia advocates were not comfortable with the recommendation (e.g., Feber commented “it takes several big steps down the ‘slippery slope’”).
1984 – 1987
On April 12, 1984, Mrs. Wessel-Tuinstra introduced a bill to change Articles 293 and 294 of the Penal Code and thus legalize euthanasia and assisted suicide on request. She felt that too much time was being wasted in waiting for the Commission Report. The bill was judged negatively by the Council of State.
In December 1985, she introduced a second bill, tailored to follow the ‘advice’ of the State Commission. This was followed in January by a counter proposal from the government, the Trial Proposal. At first the government argued that the time was not yet ripe for legalizing euthanasia, but when pressured it produced a bill. Both bills were sent to the Council of State, and this time it was the Council that said “now is not the time to amend Article 293 of the Penal Code.” The Council added, “it would be preferable to await further jurisprudence before the Lawgiver makes definitive decisions.” The legislature is, in effect, asking the courts to write legislation.
In 1987, the Netherlands government asked the Health Council for advice on euthanasia, and on March 26, 1987, the Council sent its recommendations to the Ministers of Health and Justice. The “Proposal of Advice Concerning Carefulness Requirements in the Performance of Euthanasia” takes it for granted that euthanasia (still strictly illegal) is allowed. It is interesting to note that there is no mention of suffering, of an incurable illness, or of being in the dying phase. The ‘requirements’ are largely for bookkeeping: Doctors must inform the patients of their illness, be convinced the patient wants to die, consult with a colleague, make a careful report of all matters and keep the records for five years.
The sixth requirement has enraged many Dutch people. “If the patient is less than sixteen years old, termination may not take place before the doctor has asked the patient whether he/she has a valid objection to informing his/her parents on this matter. The latter are to be included in the decision process unless there is such an objection.”
The potential for damage in a children’s ward is mind-boggling. Unscrupulous doctors (and there are such), could manipulate the minds of sick little five, or ten, year olds who could be coerced into agreeing to be ‘put to sleep,’ and we won’t tell mommy or daddy.” The parents are not to know.
There is an Explanatory Memorandum for the Netherlands Penal Code, and it makes clear that taking a life violates two laws: it is a crime against the particular person, and it is a violation of the respect which is due to all human life in general. As a number of leading jurists in Holland have pointed out, allowing euthanasia to be non punishable is not adapting an obsolete law to modern ideas, it is instead “the concretization of a fundamental change of attitude in regard to the inviolability of the individual and of respect for human life.”
The pro-life point of view has been expressed by Cicely Saunders, the pioneer of the hospice movement in Great Britain. Hospices are homes for patients who are terminally ill and their families, caring for the dying while allowing the family to share the care, and be together.
Cicely Saunders said: “I do not believe in taking a deliberate step to end a patient’s life – but then, I do not get asked. If you believe a patient’s pain and if you make him feel like a wanted person, which he is, then you are not going to be asked about euthanasia…I think euthanasia is an admission of defeat, and a totally negative approach. One should be working to see that it is not needed.”