Dutch Laws on Euthanasia and Physician Assisted Suicide:A Model for Canada?Robert Scott Stewart, Ph.D.Professor of PhilosophyCape Breton UniversityScott_stewart@cbu.ca

History of Euthanasia and PAS in the NetherlandsPostma Case 1971Dr. Gertruda Postma euthanized her 78 year old deaf, partially paralyzed mother who repeatedly requested euthanasia.Postma reported the incidentOther MDs confessed to the same actionPostma found guilty of mercy killing but was sentenced only to one week imprisonment and a years probation.

Alkmaar Case -- 1984Dr. 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 MDs and 71% of general practitioners have been personally involved in a life terminating act.

Alkmaar Case -- 1984Force Majeure necessity where a conflict of duties arises.Hearings not adversarial. Schoonheim not attacked personallyGenuine interest in resolving the issue equitably and fairly Cf. to Schaivo caseAs 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 doctors professional ethical obligations to honor a patients 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 (Leenen and Ciesielski-Carlucci, 1993; Cited in Thomasma et al.,1998,13-14.)Establishment of rules of careful conduct

PatternIndividual 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.

Chabot caseShe 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).

Chabot caseThis 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 wasnt 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).

Chabot caseConvicted but not punishedVast majority of cases far more typical although cases like Chabot are the ones that receive international attention.

Current law in the Netherlands -- BackgroundChange in parties: Christian Democrats to Social Democrats Same procedures as past practiceEuthanasia defined narrowly: intentionally taking the life of another person upon his or her explicit requestEuthanasia is not equal to: Withholding and withdrawing of life support systems, palliative sedation, LAWER

Current Dutch Law -- 2002Article 293A person who terminates the life of another person at that persons 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 coroner of this in accordance with Article 7 second paragraph of the Burial and Cremation Act. 294 has the same language but deals with PAS

Due Care provisions in current lawArticle 2The 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 patients suffering was lasting and unbearablehas 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, andhas terminated a life or assisted in a suicide with due care.

ReportingParagraph 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.

Power of Physicians25,000 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

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

CanadaJustice Sopinka in majority decision re Rodriquez:That there is a right to choose how ones 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.

CanadaCanadian 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.

Remmelink ReportEnd of life decisions in the Netherlands, 1990-2000 [Current population: 16,499,084]199019942001Deaths in the Netherlands128,824135,675140,377Requests for euthanasialater in the disease25,10034,50034,700explicit8,9009,7009,700Assisted suicide400400300Life termination without explicit request1,000900900Withholding or withdrawingtreatment 22,50027,30028,360with explicit intentionto shorten life11,59417,63718,249Termination because ofintensification of pain andsymptom management22,50020,00028,215also with the intention to shortenlife5,1504,0702,800(van der Wal & van der Maas, 1996; van der Maas et al., 1996; van der Wal et al., 2003; Cited in ten Have, 2005, 153)

Remmelink ReportEnd of life decisions in the Netherlands, 1990-2000 [Current population: 16,499,084]199019942001Deaths in the Netherlands128,824135,675140,377Requests for euthanasialater in the disease25,10034,50034,700explicit8,9009,7009,700Assisted suicide400400300

Remmelink Report

DiscussionEuthanasia 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 prosecutedThe law is retrospective rather than prospectiveThis has led to reporting problems

Reporting problemsDuring 1970s and 1980s only approximately 20% of euthanasia and PAS reported as suchAfter 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 officeReporting now approximately 60%.

Re. (1a) patients request is voluntary and well considered900-1000 cases of LAWER/year from 1990-2001Slippery slope? (Justice Sopinka)Decrease in LAWER from 1000 to 900Vast 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?)

Autonomy vs BeneficienceAre they incompatible?Not necessarilySerially orderedMake certain to avoid involuntary (as opposed to non-voluntary) euthanasiaNo evidence that involuntary euthanasia is occurring.

Re. 1(b): lasting and unbearable sufferingPain is subjective and variable over patientsPain 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

Re 1(c): informed about diagnosis and prognosisTruth tellingSufficient vs full informationUncertainty about futureDoing nothing not reasonable response to uncertain futureMedical miracles?Wrong diagnoses and/or prognoses?

Re 1 (d): no other reasonable solutionsBelgium and a Palliative filterRecognize that palliative care isnt necessarily in conflict with euthanasia and PASRecognize the limits of palliative careImprove palliative careDont use the existence of euthanasia and PAS option to detract from palliative care

Re 1 (e): Independent consultRoom for improvementSCEN doctorsCases where MDs have been prosecuted for inadequate consultation

Model for Canada?