Article Dec 29, 2016

How euthanasia came to Europe

“I will give no deadly medicine to any one if asked, nor suggest any such counsel.”

For centuries, the Hippocratic Oath, which included this admonition against assisted suicide and euthanasia formed the core of Western medical ethics. Over the past few decades, though, the Hippocratic ideal has been eroding. Euthanasia—both voluntary and involuntary—and physician-assisted suicide have become increasingly common in Europe.

North America has been following the lead of European nations. Canada recently legalized physician-assisted suicide, as have five states in the U.S.—California, Oregon, New Mexico, Washington, and Vermont. Currently, one in six Americans lives in a state where a doctor can prescribe a lethal dose of drugs to a patient. That may soon increase, though, since nine other states have pending PAS legislation: Kansas, Massachusetts, Michigan, Minnesota, New York, New Jersey, North Carolina, Oklahoma, and Pennsylvania.

The fact that the death ways of Europe soon become accepted here in the states has some medical professionals concerned. The American Psychiatric Association, in concert with the American Medical Association, recently issued an official position statement that a “psychiatrist should not prescribe or administer any intervention to a non-terminally ill person for the purpose of causing death.”

What seems to have U.S. psychiatrists concerned is the first documented case of a doctor in the Netherlands performing euthanasia on a patient who suffered from chronic alcoholism.

While this case is unique, it’s the logical extension of the Dutch policy of allowing euthanasia for “treatment” of mental illnesses, including severe depression.

How Euthanasia Came to the Netherlands

The story of how euthanasia, once condemned by all physicians, began to be acceptable begins in the Netherlands. Since the end of World War II the most direct challenges to life and human dignity came from the Netherlands and the nation’s cultural and legal acceptance of the “right to die.” The medical community and broader citizenry have so embraced the right to choose death that even parents of gravely ill children can now have doctors speed up their death.

In almost any other country on earth such a policy might be considered radical and shocking. But in the Netherlands—the country that first legalized euthanasia—the legalized killing of alcoholics and sick children merely decriminalized a practice that has been occurring for decades. An examination of how this formerly conservative, tradition-bound culture could adopt what the modern Hippocratic Oath refers to as “therapeutic nihilism” is useful for understanding how other nations—including the United States—will likely begin to accept euthanasia in the near future.

The Liberalization of Sex, Drugs, and Death

As occurred in many Western countries during the 1960s, the people of the Netherlands began to reject traditional authority structures in favor of increased individual freedom. While the change led most visibly to a liberalization of attitudes toward sex and drugs, it also carried over into the role of doctors and patients, particularly in the expansion of patient’s rights and patient autonomy.

In 1969 the influential physician J. H. Van den Berg published Medische macht en medische ethiek (“Medical power and medical ethics”), which argued that medical technology was making doctors more powerful. According to Van den Berg, doctors, when bound by Hippocratic ethics, are morally required to keep patients alive as long as possible (a dubious interpretation of the oath and its meaning). But in the age of advanced medical technology, he argued, the ancient creed posed new ethical problems. On the basis of this revised ethical code, Berg argued not only for voluntary euthanasia but also for the involuntary killing of individuals who suffer from reduced quality of life, such as elderly patients suffering from dementia.  

After the release of Van den Berg’s book, end-of-life issues began to be included in the debates on patient’s rights. But while public sentiment was evolving rapidly—becoming much more tolerant of assisted suicide and euthanasia—the law was slower to conform. Despite legal prohibitions against euthanasia and assisted suicide, which had been part of Dutch law since the Dutch Penal Code replaced the French Code Penal in 1886, euthanasia become increasingly common.

A Doctor Kills His Mother

A turning point occurred in 1973 when Dr. Geertruida Postma was convicted of killing her elderly mother, but on such grounds and with such limited punishment that the conviction had the practical effect of giving public protection to physicians engaging in certain forms of euthanasia. In this landmark case, the criminal court ruled that it was possible to administer pain-relieving drugs leading to the death of the patient provided the purpose of treatment was the relief of physical or psychological pain arising from an incurable terminal illness. Because Postma’s primary goal was to cause the death of her patient, she was found guilty and received a one week suspended sentence and one year’s probation.

The ruling marked a notable shift in the law, allowing the formulation of conditions under which life could be deliberately shortened by doctors. The minimal punishment and light sentence also sent a clear signal that cases of euthanasia would be treated mildly by the judicial system. The result was that the publicly popular practice, while not yet decriminalized, began to be carried out more regularly and routinely, but without a studied understanding of its prevalence or the circumstances under which it was administered.

Euthanasia and ‘Matters of Murder’

In 1990, the Dutch government set up a Commission, chaired by Attorney General Jan Remmelink, to investigate and quantify what was happening in the shadows of the law. Using the narrow definition of euthanasia as “active termination of life upon the patient’s request,” the Remmelink report concluded that 2,300 instances of euthanasia were carried out during 1990. And while the Royal Dutch Medical Association (KNMG) had established in its Guidelines for Euthanasia that terminating a life without a patient’s request is “juridically a matter of murder or killing and not of euthanasia,” the Remmelink Commission found, through interviews with randomly selected physicians and mailed questionnaires, that over 20,000 life-ending actions had been taken in 1990 without the patient’s express consent.

These “matters of murder” do not include, as the report notes, the unknown numbers of disabled newborns, children with life-threatening conditions, or psychiatric patients who may have been killed involuntarily but were not included in the survey.

Rather than being disturbed by the findings, the Commission glossed over these instances of involuntary killing by claiming that “active intervention” was usually “inevitable” because of the patient's “death agony.” In 1993, the Dutch Parliament responded not by tightening controls on doctors but by implementing the Commission’s recommendation to establish in statutory form the report physicians who practice euthanasia should file with the local medical examiner. Euthanasia shifted from being a punishable criminal offense to being a matter of bureaucratic form-filing.

Voluntary Euthanasia Increases while Involuntary Euthanasia Stays in the Shadows

According to the Dutch Ministry of Justice, of the 135,675 deaths recorded in 1995, 3,600 (2.4 percent) were the result of a doctor-assisted termination of life while another 238 (0.3 percent) were cases of assisted suicide. In 2014, that number had increased to 5,306 assisted deaths, including 41 assisted deaths for psychiatric reasons and 81 assisted deaths for dementia.

As Dutch ethicist Theo Boer wrote earlier this year, “For no apparent reason, beginning in 2007, the numbers of assisted dying cases started going up by 15 percent each year. In 2014 the number of cases stood at 5,306, nearly three times the 2002 figure.” Boer also notes the increase in non-voluntary killing:

On top of these voluntary deaths there are about 300 nonvoluntary deaths (where the patient is not judged competent) annually. These are cases of illegal killing, extracted from anonymous surveys among physicians, and therefore almost impossible to prosecute. There are also a number of palliative sedation cases—the estimate is 17,000 cases yearly, or 12 percent of all deaths—some of which may involve shortening the life of a patient considerably.  

While it is assumed that these cases consisted of terminally ill patients with no chance of survival, no one in the Netherlands knows for certain. Although the government passively accepted the practice for decades, doctors are still legally susceptible to prosecution if a disgruntled family member disagreed with the killing of their relative. Legislation to decriminalize euthanasia, which had been repeatedly proposed since 1984, was finally passed on April 10, 2001. A criminal liability exclusion was added for doctors who willingly reported their actions and demonstrated that they have satisfied the criteria of “due care.”

However, doctors in the Netherlands know that no penalties will be incurred by simply ignoring the law. Prosecutions for guideline violations are exceedingly rare and no doctor has ever been imprisoned or substantially penalized for noncompliance. Even when the government is made aware of cases of non-voluntary euthanasia, legal action is rarely if ever taken and convictions for such crimes are all but nonexistent.

(Note: This is the first of a two part series. Part two can be found here.)