Article Sep 4, 2014

How the “right to die” came to Europe (Part I)

“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—is becoming increasingly common in Europe and is beginning to be viewed as more acceptable in North America.

The story of how euthanasia, once condemned by all doctors, 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 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 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 will likely begin to accept euthanasia in the near future. 

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 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 physicians. The 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.

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 patients’ “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. 

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. The most disturbing statistic, however, is that 913 (0.7 percent) were terminations of life without the express request of the patient. For every three lives ended at the request of the patient, one person was killed without consent. 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. Because the numbers are based on self-reporting by physicians, no accurate data exists to determine exactly how many Dutch citizens have been killed against their will.

Another comprehensive survey by Dr. Paul J. van der Maas in 1996 showed that the situation had indeed worsened since 1990. The total number of cases of euthanasia and assisted suicide had risen by a third from 2,700 to 3,600, with an estimated 60 percent not being officially reported. The number of cases of euthanasia without request by the patient also remained high, with 900 cases being reported.

Although the government passively accepted the practice, doctors were 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.” 

A survey of 405 Dutch doctors published in the Journal of Medical Ethics in 1999 revealed that safeguards established by the Royal Dutch Medical Association to control how and when euthanasia is performed were often ignored. Dr. Henk Jochemsen of the Lindeboom Institute for Medical Ethics and Dr. John Keown of the University of Cambridge found that almost two-thirds of cases of euthanasia and assisted suicide in 1995 were not reported. According to the findings, in 20 percent of cases the patients did not explicitly request to die and in 17 percent of cases other treatments were available. The doctors surveyed claimed that 56 percent of patients wanted to “prevent loss of dignity” while 47 percent wanted to “prevent further suffering.” “The reality is that a clear majority of cases of euthanasia, both with and without request, go unreported and unchecked,” said Drs. Jochemsen and Keown. “Dutch claims of effective regulation ring hollow.”

In 2003, the regional testing committee reported that the total number of euthanasia cases had slowly fallen from 2,123 in 2000 to 1,882 in 2002. What was not clear was whether the change was due to a reduction in euthanasia requests or because fewer doctors were reporting when they terminated a patient’s life. While only 18 percent of euthanasia cases were being reported in 1990, the decriminalization in 2001 only increased the reporting frequency to 54 percent. Since prosecutions only occur if the regional review committee is aware of the case and finds that the due care procedures were not adequately followed, doctors have little incentive to report when they assist in killing a patient. Unless the family of the deceased has an objection, the incident will never receive public scrutiny. While prosecutions may be rare, doctors are leery of taking the unnecessary risk of reporting their actions.

The Royal Dutch Medical Association has since called for increased reporting to bolster public trust in euthanasia laws. But enthusiasm for following these procedures and standards remains muted, since doctors 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, no legal action is likely to be taken.  

Click here to read Part II.