Dutch Laws on Euthanasia and Physician Assisted Suicide: A Model for Canada?

1. Dutch Laws on Euthanasia and Physician Assisted Suicide:A Model for Canada? Robert Scott Stewart, Ph.D. Professor of Philosophy Cape Breton University Scott_stewart@cbu.ca

2. History of Euthanasia and PAS in the Netherlands • Postma Case – 1971 • Dr. GertrudaPostma euthanized her 78 year old deaf, partially paralyzed mother who repeatedly requested euthanasia. • Postma reported the incident • Other MD’s confessed to the same action • Postma found guilty of mercy killing but was sentenced only to one week imprisonment and a year’s probation.

3. Alkmaar Case -- 1984 • Dr. Schoonheim euthanized Caroline B., an 85 year old woman who suffered from a host of problems and who had repeatedly requested euthanasia. Notified authorities and it went to court. • Background: Dutch tend to keep family physician for a long time. Only 40% of deaths occur in a hospital (Canada – 70%). Doctors still make house calls. 57% of all Dutch MD’s and 71% of general practitioners have been personally involved in a life terminating act.

4. Alkmaar Case -- 1984 • “Force Majeure” – necessity where a conflict of duties arises. • Hearings not adversarial. Schoonheim not attacked personally • Genuine interest in resolving the issue equitably and fairly – Cf. to Schaivo case • “As a general rule euthanasia is punishable… however, when physicians are confronted with a conflict of duties they may involve the defense of necessity. A conflict of duties arises when the doctor’s professional ethical obligations to honor a patient’s request to die with dignity force the physician to act inconsistently with the formal provisions of the Penal Code… the decision that the defense of necessity is available to a physician should be based on an investigation whether the physician made a responsible medical judgment, tested against criteria derived from medical ethics” (Leenenand Ciesielski-Carlucci, 1993; Cited in Thomasma et al.,1998,13-14.) • Establishment of ‘rules of careful conduct’

5. Pattern • Individual physicians, faced with novel and difficult cases, prepared to commit euthanasia and then have the courts decide whether it was legitimate. Hence, law continues to get stretched, but under lots of scrutiny.

6. Chabot case • She was a fifty-year-old social worker… She was divorced. She had been physically abused by her former husband for many years. She had two sons. One son, Peter, died by suicide in 1986, at the age of twenty. She then underwent psychiatric treatment for her marriage crisis following his suicide. At that time, she strongly wished to commit suicide, but decided that her second son, Robbie, age fifteen, needed her as a mother. .. Robbie died of cancer in 1991, at the age of twenty. Before his death, she decided she did not want to continue living after he died. She attempted suicide, but did not succeed (In Thomasma et al., 1998, 375).

7. Chabot case • This competent woman confronted me 1) with a well-considered request, that was durable (not an impulse, it existed for five years), without any pressure from those around her. On the contrary, they had tried all they could to make her change her mind. Equally important, 2) she convinced me that her suffering, although it came from psychic trauma, was for her unbearable and unacceptable. Lastly, 3) a prospect of relief was out of reach given her well considered refusal of anti-depressants and mourning therapy – both of which, in her situation, offered only a small chance of success. Nevertheless, all this wasn’t enough for me to give deadly pills in such an unusual case of massive grief. What tipped the balance to assist, for the first time in my life, someone to commit suicide, had something to do with her extraordinary personality… She was a strong and sensitive person … [with a] firm and consistent … deeply felt longing to fuse with her beloved sons. Her one and only value in life was her children, the cornerstone on which everything else was built. Once that stone was gone, the very idea of a future for her collapsed, became repulsive… And that understanding made me cross the border into unknown territory – to assist her in finding a dignified death (in Thomasma, 1998, 381).

8. Chabot case • Convicted but not punished • Vast majority of cases far more ‘typical’ although cases like Chabot are the ones that receive international attention.

9. Current law in the Netherlands -- Background • Change in parties: Christian Democrats to Social Democrats • Same procedures as past practice • Euthanasia defined narrowly: “intentionally taking the life of another person upon his or her explicit request” • Euthanasia is not equal to: Withholding and withdrawing of life support systems, palliative sedation, LAWER

10. Current Dutch Law -- 2002 • Article 293 • A person who terminates the life of another person at that person’s express and earnest request is liable to a term of imprisonment of not more than twelve years or a fine of the fifth category. • The offence referred to in the first paragraph shall not be punishable if it has been committed by a physician who has met the requirements of due care as referred to in Article 2 of the Termination of Life on Request and assisted Suicide (Review Procedures) Act and who informs the municipal autopsist of this in accordance with Article 7 second paragraph of the Burial and Cremation Act. • 294 has the same language but deals with PAS

11. “Due Care” provisions in current law • Article 2 • The requirements of due care, referred to in Article 293 second paragraph Penal Code mean that the physician: • holds the conviction that the request by the patient was voluntary and well-considered, • holds the conviction that the patient’s suffering was lasting and unbearable • has informed the patient about the situation he was in and about his prospects, • and the patient hold the conviction that there was no other reasonable solution for the situation he was in, • has consulted at least one other, independent physician who has seen the patient and has given his written opinion on the requirements of due care, referred to in a-d, and • has terminated a life or assisted in a suicide with due care.

12. Reporting • Paragraph 2 of The Burial and Cremation Act stipulates that in the case of euthanasia or PAS, the physician shall not issue a death certificate, as would be the case in all natural deaths, but shall instead “promptly notify the municipal autopsist or one of the municipal autopsists of the cause of death by completing a form. The physician shall supplement this form with a reasoned report with respect to the due observance of the requirements of due care referred to in Article 2 of the Termination of Life on Request and assisted Suicide (Review Procedures) act.”

13. Power of Physicians • “25,000 patients every year seek assurance from their physicians that they will receive assistance if their suffering becomes unbearable. • Only about 9,000 actually request euthanasia. • Of these requests, 2,300 patients received euthanasia, 1.8% of all deaths… 400 cases of assisted suicide occur annually”

14. Comparison to current situation in US and Canada (excluding Oregon and Washington) • Passive euthanasia only • USA: ??- Nancy Cruzan (1990) • The Supreme Court of the US declared while a state had the right to require “clear and convincing” evidence of a patient’s desires vis-à-vis withholding or withholding life sustaining treatment, when such “clear and convincing” evidence was put forward, it was the patient’s right to refuse any and all treatment (US Supreme Court, 1990; also see Munson, 2003, Ch. 12).

15. Canada • Justice Sopinka in majority decision re Rodriquez: • “That there is a right to choose how one’s body will be dealt with, even in the context of a beneficial medical treatment, has long been recognized by the common law. To impose medical treatment on one who refuses constitutes battery, and our common law has recognized the right to demand that medical treatment which would extend life be withheld or withdrawn.”

16. Canada • Canadian courts have recognized a common law right of patients to refuse consent to medical treatment, or to demand that treatment, once commenced, be withdrawn or discontinued (Ciarlariello v. Schacter, [1993] 2 S.C.R.. 119). This right has been specifically recognized to exist even if the withdrawal from or refusal of treatment may result in death (Nancy B. v. Hotel-Dieu de Quebec (19902), 86 D.L.R. (4th) 385 (Que. S.C.); Malette v. Shulman (1990) 72 O.R. (2d) 417 (C.A.) ((Rodriquez v. British Columbia (Attorney General) (1993); also see, Downie, 2004, 20.

17. Remmelink Report • End of life decisions in the Netherlands, 1990-2000 [Current population: 16,499,084] • 1990 1994 2001 • Deaths in the Netherlands 128,824 135,675 140,377 • Requests for euthanasia • later in the disease 25,100 34,500 34,700 • explicit 8,900 9,700 9,700 • Assisted suicide 400 400 300 • Life termination without • explicit request 1,000 900 900 • Withholding or withdrawing • treatment 22,500 27,300 28,360 • with explicit intention • to shorten life 11,594 17,637 18,249 • Termination because of • intensification of pain and • symptom management 22,500 20,000 28,215 • also with the • intention to shorten • life 5,150 4,070 2,800 • (van derWal & van der Maas, 1996; van der Maas et al., 1996; van derWal et al., 2003; Cited in ten Have, 2005, 153)

18. Remmelink Report • End of life decisions in the Netherlands, 1990-2000 [Current population: 16,499,084] • 1990 1994 2001 • Deaths in the Netherlands 128,824 135,675 140,377 • Requests for euthanasia • later in the disease 25,100 34,500 34,700 • explicit 8,900 9,700 9,700 • Assisted suicide 400 400 300

19. Remmelink Report 1990 1994 2001 • Life termination without • explicit request 1,000 900 900 • Withholding or withdrawing • treatment 22,500 27,300 28,360 • with explicit intention • to shorten life 11,594 17,637 18,249 • Termination because of • intensification of pain and • symptom management 22,500 20,000 28,215 • also with the • intention to shorten • life 5,150 4,070 2,800 • (van derWal & van der Maas, 1996; van der Maas et al., 1996; van derWal et al., 2003; Cited in ten Have, 2005, 153)

20. Discussion • Euthanasia and PAS still against the law in the Netherlands (Article 293 1) • Article 293 2 offers a way of doing an (otherwise) illegal act so that it will not be prosecuted • The law is retrospective rather than prospective • This has led to reporting problems

21. Reporting problems • During 1970’s and 1980’s only approximately 20% of euthanasia and PAS reported as such • After 1990 Remmelink report and a push by RDMA, rates to approximately 50% • A recent change from prosecutors office to regional committees comprised of at least three person panel: a lawyer, as Chair, an ethicist or moral theologian, and a physician. They report only problematic cases to prospector's office • Reporting now approximately 60%.

22. Re. (1a) patient’s request is voluntary and well considered • 900-1000 cases of LAWER/year from 1990-2001 • Slippery slope? (Justice Sopinka) • Decrease in LAWER from 1000 to 900 • Vast majority of LAWER cases: patients at very end of life in a great deal of pain, most of whom had expressed a desire for euthanasia, though not ‘formalized’ via ‘due care’. (Number of cases of LAWER in other countries?)

23. Autonomy vs Beneficience • Are they incompatible? • Not necessarily • Serially ordered • Make certain to avoid involuntary (as opposed to non-voluntary) euthanasia • No evidence that involuntary euthanasia is occurring.

24. Re. 1(b): “lasting and unbearable” suffering • Pain is subjective and variable over patients • Pain has to include psychological suffering as well as physical suffering. (Most patients opt for euthanasia or PAS for reasons other than pain: e.g., loss of dignity, loss of autonomy) • More work needs to be done

25. Re 1(c): informed about diagnosis and prognosis • Truth telling • Sufficient vs full information • Uncertainty about future • Doing nothing not reasonable response to uncertain future • Medical miracles? • Wrong diagnoses and/or prognoses?

26. Re 1 (d): no other reasonable solutions • Belgium and a ‘Palliative filter’ • Recognize that palliative care isn’t necessarily in conflict with euthanasia and PAS • Recognize the limits of palliative care • Improve palliative care • Don’t use the existence of euthanasia and PAS option to detract from palliative care

27. Re 1 (e): Independent consult • Room for improvement • SCEN doctors • Cases where MD’s have been prosecuted for inadequate consultation

28. Model for Canada?