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INTERNATIONAL LIBRARY OF ETHICS, LAW. AND THE NEW MEDICINE 






Euthanasia in 
the Netherlands 

The Policy and Practice of 



Raphael Cohen-Almagor 



Kluwer Academic Publishers 




EUTHANASIA IN THE NETHEREANDS 




INTERNATIONAL LIBRARY OF ETHICS, LAW, 
AND THE NEW MEDICINE 



Founding Editors 
DAVID C. THOMASMAt 

DAVID N. WEISSTUB, Universite de Montreal, Canada 
THOMASINE KIMBROUGH KUSHNER, University of California, Berkeley, USA. 

Editor 

DAVID N. WEISSTUB, Universite de Montreal, Canada 
Editorial Board 

TERRY CARNEY, University of Sydney, Australia 
MARCUS DljWELL, Utrecht University, Utrecht, the Netherlands 
S0REN HOLM, Univers 
ity of Cardiff, Wales, United Kingdom 
GERRIT K. KIMSMA, Vrije Universiteit, Amsterdam, the Netherlands 
DAVID NOVAK, University of Toronto, Canada 
EDMUND D. PELLEGRINO, Georgetown University, Washington D.C., U.S.A. 
DOM RENZO PEGORARO, Fondazione Lanza and University of Padua, Italy 
DANIEL P. SULMASY, Saint Vincent Catholic Medical Centers, New York, U.S.A. 
LAWRENCE TANCREDI, New York University, New York, U.S.A. 



VOLUME 20 



The titles published in this series are listed at the end of this volume. 




EUTHANASIA 
IN THE NETHERLANDS 

The Policy and Practice of Mercy Killing 



by 

Raphael Cohen- Almagor 

University of Haifa, 

Haifa, Israel 



KLUWER ACADEMIC PUBLISHERS 

NEW YORK, BOSTON, DORDRECHT, EONDON, MOSCOW 



eBook ISBN: 1-4020-2251-4 

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In Memory of my thoughtful and learned mentor 

Geoffrey Marshall 

April 22, 1929 - June 24, 2003 

Cherishing his unfailing support 

And his infinite wisdom 




TABLE OF CONTENTS 



Acknowledgments ix 

Introduction xi 

Preliminaries: Comparative Law 1 

PART A: BACKGROUND 21 

Chapter 1 : The Three Research Reports of 1990, 1995 and 2001, 

and Their Interpretations 23 

Chapter 2: The Practice of Euthanasia and the Legal Framework 35 

PART B : FIELDWORK 5 1 

Chapter 3: The Methodology 53 

PHASE I: THE INTERVIEWS 57 

Chapter 4: Why the Netherlands? 57 

Chapter 5: Views on the Practice of Euthanasia 65 

Chapter 6: Worrisome Data 75 

Chapter 7: The Remmelink Contention and the British Criticism 85 

Chapters: Should Physicians Suggest Euthanasia to Their Patients? 91 

Chapter 9: Breaches of the Guidelines 103 

Chapter 10: On Palliative Care and the Dutch Culture 123 

Chapter 1 1 : On Legislation and the Chabot Case 133 

PHASE II: INTERVIEWEES’ GENERAL COMMENTS 145 

a. Preliminaries 145 

b. General Comments 145 

PHASE IIP UPDATES 153 

a. Preliminaries 153 

b. On the New Act 153 

c. On the Work of the Regional Committees 161 

d. Further Concerns 1 64 

PART C : CONCLUSION 1 73 

a. Preliminaries 175 

b. Suggestions for Improvement 179 

Appendix I: Interviews in the Netherlands (Summer 1999) 189 

Appendix II: Interviews and Telephone Conversations 

in the Netherlands (Summer 2001) 191 

Appendix III: Interviews in the Netherlands (April 2002) 193 

Index - General 195 

Index - Court Cases 205 

vii 




ACKNOWLEDGMENTS 



This study could not have been carried out without the cooperation of many people to whom 
I express deep gratitude: Evert van Leeuwen, Arie van der Arend, Arko Oderwald, Ruud ter 
Meulen, Henk Jochemsen, Henk Leenen, Sjef Gevers, Ron Berghmans, James Kennedy, Bert 
Thijs, John Griffiths, Jaap Visser, Heleen Dupuis, Gerrit Kimsma, Frank Koerselman, Rob 
Houtepen, A. van Dantzig, Paul van der Maas, George Beausmans, Egbert Schroten, 
Johannes van Delden, Chris Rutenfrans, Govert den Hartogh, Henri Wijsbek, Gerrit van der 
Wal, Bert Keizer and the de B. family. My gratitude is extended also to Bill Winslade, Joyce 
Appleby, Jo Heth, Diane LeCover and Sharon Woodrow for their instructive comments. I 
have also benefited from the advice of David Weisstub, and of the anonymous referees of 
Kluwer, and I thank Zehavit Cohen-Almagor for her help in preparing the Index. The 
research was greatly enriched by material kindly sent to me by Ejan Mackaay, Randy 
Wilcox, Derek Humphry, Sylvia Gerhard, Barney Sneiderman, C. van der Meer, Dick 
Pranger, Henk ten Have and Boudewijn Chabot. 

I am also indebted to my research assistants, Dareen and Grace Yaacob, as well as to 
Martine Bouman, Nurit Litver, the librarians of the Hastings Center, UCLA School of Law, 
the University of Haifa and Johns Hopkins University for their caring assistance, and to the 
Fulbright Foundation, the University of Haifa Research Authority, the Israel Academy of 
Sciences, and the Royal Netherlands Academy of Arts and Sciences for their generous 
support. 

The Institute for Policy Studies at Johns Hopkins provided me with the tranquil 
conditions which were much needed for the completion of this demanding research project. I 
am most appreciative of the kind assistance. 

Last but not least, I am most thankful to my Dutch friends and colleagues for facilitating 
this fascinating and thought-provoking research. Their friendship and hospitality made my 
time in the Netherlands memorable. 

Early version of the Preliminaries was published in New York Int. L. Rev., Vol. 16, No. 1 
(Winter 2003), pp. 1^2. Part of chapter 2 was published in Michigan State University- 
Detroit College of Law Journal of International Law, Vol. 10 (2001), pp. 319-342. Earlier 
versions of chapter 4 and chapter 5 were published in Journal of Law, Medicine & Ethics, 
Vol. 30, No. 1 (2002), pp. 95-104, and in Ethical Perspectives, Vol. 9, No. 1 (2002), pp. 3- 
20. Earlier version of chapter 6 was published in Croatian Journal of Philosophy, Vol. II, 
No. 5 (2002); reprinted in Issues in Law and Medicine, Vol. 18, No. 3 (Spring 2003), pp. 
239-251 . Parts of chapter 7 were published in Formosan Journal of Medical Humanities, 
Vol. 3, No. 1-2 (2002), pp. 22-37 and in Medicine and Law, Vol. 20, No. 4 (2001), pp. 613- 
625. Chapter 8 was published in Theoretical Medicine and Bioethics, Vol. 23, Nos. 4-5 
(2002), pp. 287-303. An earlier version of chapter 9 and parts of chapter 10 were published 
in Issues in Law and Medicine, Vol. 17, No. 1 (summer 2001), pp. 35-68; Vol. 17, No. 2 
(Fall 2001), pp. 167-179, and Vol. 18, No. 1 (July 2002), pp. 111-126. Parts of chapter 11 
were published in Medical Law International, Vol. 5 (2001), pp. 141-159 and in Synthesis 
Philosophica, No. 33, Vol. 17 (2002), pp. 135-155. 



IX 




X 



The book is dedicated to Geoffrey Marshall, the greatest constitutional theorist I have 
ever known, and one of the wittiest and sharp personalities I have ever met. Geoffrey was a 
dear and most wonderful teacher, wise colleague, and kind friend. He enriched my life in 
many different ways. I miss him greatly and carry his memory at heart. 




INTRODUCTION 



The Dutch experience has influenced the debate on euthanasia and death with dignity around 
the globe, espeeially with regard to whether physician-assisted suicide and euthanasia should 
be legitimized or legalized. A review of the literature reveals complex and often 
contradictory views about the Dutch experience. Some claim that the Netherlands offers a 
model for the world to follow; others believe that the Netherlands represents danger, rather 
than promise, and that the Dutch experience is the definitive answer regarding why we 
should not make active euthanasia and physician-assisted suicide part of our lives. 

Given these contradictory views, it has become clear that fieldwork is essential to 
developing a more informed opinion. Having investigated the Dutch experience for a number 
of years, and after thoroughly reading the vast literature published in English, I went to the 
Netherlands for one month in the summer of 1999 to get a feel for the local situation. 1 felt 
that this would provide the basis on which 1 could better interpret the findings of the 
available literature. 1 visited the major centers of medical ethics, as well as some research 
hospitals, and spoke with leading figures in the euthanasia policy and practice. The time spent 
was extremely beneficial and enriching. I followed in the footsteps of Carlos Gomez, who 
published a book following one month of extensive research in the Netherlands.’ Two years 
later, during the summer of 2001, 1 returned to the Netherlands for a further two weeks to update 
my research, and in April 2002 I arrived for a further eight days. The present study reports the 
main findings of my interviews and provides detailed accounts of the way in which some of the 
Netherlands’ leading experts perceive the policy and practice of euthanasia in their country. 
Their accounts are fascinating. Indeed, the experience was so overwhelming that after 1 left 
the Netherlands, 1 felt that 1 needed some months to digest the vast information in my mind 
before sitting down to write the book. 

I commence the discussion by addressing the way different democracies view euthanasia 
and physician-assisted suicide. Attention is given to the familiar distinction between active 
and passive euthanasia, and then the current legal positions in the Netherlands, Australia, the 
United States, Switzerland, Belgium, England, France and Canada are analyzed. 

The discussion in Part A begins with a review of the three major Dutch reports on 
euthanasia and the conflicting views and interpretations offered by the literature. Two of the 
reports, published in 1990 and 1995, appeared before my fieldwork to the Netherlands and 
the interviewees reflected on them. The third report conducted in 2001 and published in 2003 
became public after my interviews. After analyzing the three reports 1 provide some data 
about the Dutch practice of euthanasia, the legal framework, and the leading court cases. 

Part B of the study gives an account of the interviews conducted during the summer of 
1999, denoting the similarities and differences between the points of view {Phase T)? It then 
reports (in Phase IP) some of the major comments of the interviewees following their reading 
of the first draft of this study. 1 thought it is absolutely essential to let the interviewees have 
an opportunity to read the manuscript and voice their agreement, and disagreement, about the 
way their views were presented. 1 also provided the interviewees with the opportunity to read 



Carlos F. Gomez, Regulating Death (New York: The Free Press, 1991). 
One interview with Bert Keizer was conducted in April 2002. 



XI 




INTRODUCTION 



xii 

the second draft, if they so desired. In turn, Phase III gives account of the communications 
I had with the interviewees during the summer of 2001 and in April 2002, before and during 
my return to the Netherlands in order to update my research on recent developments, most 
notably on the new euthanasia law that was enacted in April 2001 and came into force in 
April 2002 as well as on the work of the regional committees that monitor the practice of 
euthanasia and physician-assisted suicide. 

Most of the discussion in Phase I gives voice to the interviewees. I want the readers to 
judge for themselves about how influential Dutch authorities in the field perceive the policy 
and practice of euthanasia in their country. My own voice is purposefully limited because I 
wanted to give the floor mainly to the Dutch, allowing them to describe what is going on in 
their country. That doesn’t mean that I am merely reporting. My opinion is clearly heard 
when certain ideas emerge that deserve close analysis and criticism. The conclusions are also 
clear and carefully crafted, aiming to better the situation in the Netherlands for the sake of all 
concerned. 

The analysis indicates that the Dutch Guidelines on the policy and practice of euthanasia 
are far from being stringent. Indeed they are loose enough to allow non-voluntary (when 
patients are incompetent) and involuntary euthanasia (when patients are competent and made 
no request to die). They do not provide effective safeguards against abuse and, in short, they 
simply do not work. Virtually every Guideline has been breached or violated. This finding 
reiterates that of Hendin.^ It should alarm all those who wish to make euthanasia legal. This 
finding should also press those who, like me, believe that physician-assisted suicide should 
be made legal, to devise better control mechanisms and establish more workable and 
effective guidelines. I believe that patients at the end stage of their lives should have the right 
to decide about the timing of their death."' However, there is always difficulty in moving 
from the recognition of an individual right to the implementation of a policy. The Dutch 
decision makers have the best of motives, but the policy suffers from serious flaws. The 
picture that arises from the literature, as well as from the interviews, is disturbing. The Dutch 
should continue to conduct further investigation and research to improve their policy and 
practice of euthanasia. Sincere debates and open discussions in which all people who are 
interested in the subject, from different walks of life, cultures and nationalities, should be 
encouraged. Exchange of ideas is beneficial to all people concerned. As John Stuart Mill 
observed, any intolerance of opinions involves, ipso facto, a claim to infallible knowledge. Even 
those opinions of whose truthfulness we are confident, such as "Newtonian philosophy," must be 
exposed to scrutiny and doubts. Those who assume that they know what the truth is provide 
reasons against pursuing constant inquiry and debate, depriving humanity of exploring further 
truths, and so blocking the wheels of progress. Unity of opinion. Mill argued, unless resulting 
from the fullest and freest comparison of opposite opinions, is not desirable, and diversity 
not an evil, but a good.^ According to this view, the quest for truth is a vital as well as an 



’ Herbert Hendin, Seduced by Death (New York: W.W. Norton, 1997), p. 23. 

“ See R. Cohen-Almagor, The Right to Die with Dignity: An Argument in Ethics, Medicine, and Law (Piscataway, 
NJ: Rutgers University Press, 2001). See also the compassionate article of Timothy E. Quill, “Death and 
Dignity: A Case of Individualized Decision Making,” New. Eng. J. Med., Vol. 324, No. 10 (March 7, 1991): 
691-694. 

’ John Stuart Mill, Utilitarianism, On Liberty and Representative Government (London: J. M. Dent, Everyman's 
edition, 1948), esp. p. 83. 




INTRODUCTION 



xiii 

expedient endeavor. Every opinion should be allowed to be aired and then checked against 
experience, this out of the respect that we feel for the other's freedom of thought and expression; 
because of the desire to advance the search for the truth; and because debates on different views 
help individuals become aware of the interests of others, and thus contribute to a sense of 
community. 

I conclude by recommending that the Netherlands amend its policy and remedy its 
troubling problems by adhering to more rigid Guidelines to prevent potential abuse. Many 
Dutch scholars take pains to emphasize that there is no slippery slope, and that the euthanasia 
practice is not deteriorating. Even if this observation is correct, the existing situation is bad 
enough. Democracies that struggle with the issue, whether to legalize euthanasia or 
physician-assisted suicide, should learn from the Dutch experience to avoid the pitfalls that 
are evident in the Netherlands. 




PRELIMINARIES: COMPARATIVE LAW 



INTRODUCTION 

This chapter addresses the way different democracies view the issue of the right to die with 
dignity. Attention is given to the familiar distinction between active and passive euthanasia, 
and then the current legal positions in the Netherlands, Australia, the United States, 
Switzerland, Belgium, England, France and Canada are analyzed. The analysis shows that 
the movement towards legalizing euthanasia and physician-assisted suicide (PAS) is growing 
and that there is more legal involvement in end-of-life medical decisions. 

Some patients may feel that they are about to die or wish to draw their death nearer while 
maintaining their dignity. Faced with the deterioration of the functions of their bodies, 
patients may find it hard to maintain their dignity. Some of them feel exhausted and no 
longer wish to continue their struggle, especially when they are required (so they feel) to use 
their energies not only to fight the decaying forces but also against relatives and nursing 
personnel who sometimes tend to treat them as either infantile or senile, subjects worthy or 
unworthy of their mercy. The patients’ motivations and inclinations help us recognize the 
right to die with dignity. A distinction should be drawn between the right to die with dignity 
and the process of dignified dying. 



ACTIVE AND PASSIVE EUTHANASIA 

Liberals consider first and foremost the rights and interests of the individual. It has been 
argued that respecting human life permits, and in some cases argues for, mercy killing 
(merciful treatment that results in death). In this context, a distinction has been made 
between active and passive euthanasia. Euthanasia is a Greek term meaning easy death {eu 
means good, easy; thanatos means death). Active euthanasia involves prescribing medication 
or treatment aimed at shortening life and suffering. The attending physician may do it using, 
for example, a poisonous injection or prescribing large doses of drugs with the intention of 
cutting short the patient’s life. Some describe this action as “killing.”' Passive euthanasia 
(also termed “forgoing life-sustaining treatment”) may take two forms: one is abstention 
from performing acts that prolong the patient’s life. An example may be refraining from 
connecting a patient to a respirator or to a resuscitation machine. The other form involves 
discontinuation of actions designed to sustain life. This means withdrawing machines to 
which the patient has already been connected.^ 

It might be argued that if PAS is sometimes morally permissible, then active euthanasia 
would also sometimes be morally permissible because both are morally equivalent actions. 

' For further discussion, see Natalie Abrams, “Active and Passive Euthanasia,” Philosophy, Vol. 53 (1978): 257- 
263; Philip Montague, “The Morality of Active and Passive Euthanasia,” Ethics in Science and Medicine, Vol. 
5 (1978): 39-45; Bruce Jennings, “Active Euthanasia and Forgoing Life-Sustaining Treatment: Can We Hold 
the Line?,” Journal of Pain and Symptom Management, Vol. 6, No. 5 (July 1991): 312-316. 

^ For further discussion, see James Rachels, “Killing and Letting People Die of Starvation,” Philosophy, Vol. 54, 
No. 208 (April 1979): 159-171. 



1 




2 



PRELIMINARIES: COMPARATIVE LAW 



This is the prevalent view in the Netherlands. Undoubtedly the role that the eonsenting 
doctors would be expected to play is great and onerous. Doctors who agree with this 
rationale would argue that while it is true that the doctor’s job is to prolong life, his or her 
job is also to prevent suffering and ensure the preservation of human dignity. Sometimes 
prolonging life and the preservation of human dignity are mutually exclusive. For a small 
minority of patients, the continuation of living at all costs is not an appealing option. These 
patients should not be ignored. Medicine and ethics should address their needs. Although not 
an easy task, the solution must not be beyond our reach either medically or ethically. That 
solution might change the nature of medicine but the “nature of medicine” is not a static 
concept. It is in constant flux and through the ages it has developed by using different 
standards and norms (see, for instance, the agenda and terminology of the Hippocratic Oath). 
The history of the last thirty years shows that medicine has changed dramatically due to rapid 
technological developments. These same developments make it possible to prolong life in 
difficult situations. An acrobatic argument that acknowledges technological advances but 
dismisses the evolving ethical issues that pose uncomfortable and disturbing questions is 
unfair to the community of patients. 



COMPARATIVE LAW 

Active euthanasia is considered a criminal offense in most countries of the world. The 
Netherlands exhibits the most permissive attitude in this sphere. Euthanasia and assisted 
suicide have been practiced and tolerated in the Netherlands over the past twenty years, even 
though it remained until the passing of the euthanasia law an illegal act under Articles 293 
and 294 of the Penal Code. Several lower court decisions, supported by a Supreme Court 
decision and reflected in the policies of the regional attorneys general and further 
promulgated by the Royal Dutch Medical Association, have held that when euthanasia meets 
a certain set of Guidelines, it may be defended under a plea oi force majeure and so is 
reasonably sure of being subjected to prosecution.^ The euthanasia law, which was approved 
by the Dutch Upper House of parliament on April 10, 2001 places euthanasia and PAS 
outside the Dutch Penal Code when doctors follow a specified administrative procedure. 
Euthanasia and PAS would be supervised, not as in the past by the public prosecutor, but by 
a public committee consisting of a doctor, a lawyer, and an ethics expert. Doctors must be 
“convinced” that the patient’s request is voluntary and well-considered and that the patient is 
facing “unremitting and unbearable” suffering; have advised the patient of his or her 
situation and prospects; and have reached a firm conclusion with the patient that there is “no 
reasonable alternative.” At least one other independent physician must have examined the 
patient. It also ensures that parental consent will now be required before incurably sick 
minors aged 12 to 16 can request euthanasia.'^ I will elaborate on the legal framework in 
Chapter 2. 



’ In February 1993 the Second Chamber of the Dutch Parliament accepted these provisions. See Margaret P. 
Battin, The Least Worst Death (New York: Oxford University Press, 1994), pp. 130-131. See also Sjef Gevers, 
“Physician Assisted Suicide: New Developments in the Netherlands,” Bioethics, Vol. 9, Nos. 3/4 (1995): 309- 
312, and RDMA, Euthanasia in the Netherlands (4th Edition) (Utrecht, December 1995). 

See “The Netherlands: Bill on Euthanasia and Assisting Suicide in the Netherlands,” European J. of Health 
Law, Vol. 5 (1998): 299-324; Tony Sheldon, “Netherlands Gives More Protection to Doctors in Euthanasia 




PRELIMINARIES: COMPARATIVE LAW 



3 



In Australia, the Legislative Assembly of the Northern Territory passed on May 25, 1995 
the Northern Territory Rights of the Terminally III Act 1995, allowing terminally ill patients 
to commit suicide with a doctor’s help. The legislation, applied only in the Northern 
Territory, enabled a terminally ill Australian adult, experiencing “unacceptable” pain, to be 
examined by a qualified physician to determine whether the patient could be cured.^ The Act 
required confirming examinations by two other independent physicians, one specializing in 
treating terminal illness and the other a qualified psychiatrist, to confirm that the patient is 
terminally ill and not clinically depressed.® After considering the advice of the consultants, 
medical assistance to die could not take place if there were palliative care options 
“reasonably available to the patient to alleviate the patient’s pain and suffering to levels 
acceptable to the patient.”^ 

The Act also included provisions intended to ensure that the patient was making an 
informed choice. The doctor had to have informed the patient of the nature of the illness, its 
likely course and the medical procedures available. Upon having the pertinent information, 
the patient could indicate that he or she wishes to end his or her life. The doctor had to be 
satisfied that the patient had considered the possible implications of the decision for his or 
her family, and that the decision had been made freely, voluntarily and after due 
consideration.* 

The Act provided for a nine-day “cooling off’ period comprised of two stages. Seven 
days had to elapse between the initial request and the signing of the certificate of request and 
a further 48 hours before providing assistance to terminate life.^ The signing of the certificate 
had to be witnessed by two doctors. If the patient was physically unable to sign the 
certificate, a person other than the doctors and psychiatrist referred to, who was at least 18 
years old, could sign it on behalf of the patient. The person could not be likely to receive any 
financial benefit from the patient’s death, and forfeited any benefit if he or she would in fact 
have received it.'® The statute provided that the patient could rescind at any time and in any 
manner," and the physician was under no obligation to assist suicide. If the physician chose 
to comply with the patient’s request, death could be hastened by prescribing or preparing a 
lethal substance, giving the substance to the patient for self-administration, or administering 
the lethal substance to the patient. The doctor had to remain present until the death of the 
patient.'^ 

The legislation became operative in July 1996, and in the following nine months four 
patients who requested to die received help under the provisions of the Act by Dr. Philip 



Cases,” British Medical Journal, Vol. 321 (December 9, 2000), 1433; Rory Watson, “MEPs Try to Mobilise 
Public Opinion against Extension of Euthanasia,” British Medical Journal, Vol. 322 (March 17, 2001): 638. 

^ Rights of the Terminally III Act 1995 (NT), Section 4. 

^ Ibid, Section 7. 

^ Ibid, Section 8. 

^ Ibid, Section 7. 

^ Ibid, Section 7. 

Ibid, Section 9. 

/ZizV/, Section 10. 

Ibid, Section 7. For further discussion, see Simon Chesterman, “Last Rights: Euthanasia, the Sanctity of Life, 
and the Law in the Netherlands and the Northern Territory of Australia,” International and Comparative L. Q., 
Vol. 47 (April 1998), esp. pp. 386-387; Andrew L. Plattner, “Australia’s Northern Territory: The First 
Jurisdiction to Legislate Voluntary Euthanasia, and the First to Repeal It,” DePaul J. of Health Care Law, Vol. 
1 (Spring 1997), esp. pp. 647-648. 




4 



PRELIMINARIES: COMPARATIVE LAW 



Nitschke.'^ The Act was annulled in March 1997, when federal parliamentarians by 38 votes 
to 34, with one abstention, passed the Commonwealth Euthanasia Laws Bill 1996. That Act 
effectively prohibits Australian territories from enaeting legislation that permits “the form of 
intentional killing of another called euthanasia. . . or the assisting of a person to terminate his 
or her life,” but allows the making of laws regarding the withdrawal or withholding of life- 
sustaining treatment and the provision of palliative eare to the dying, provided these do not 
sanction the intentional killing of the patient.'^ After Federal Parliament overturned the 
Northern Territory’s euthanasia law. Dr. Philip Nitschke revealed that he had helped 15 
patients, including some from Victoria, to end their lives. 

In the United States, attempts made in 1988-1992 in the states of Washington'^ and 
California** to pass laws recognizing the possibility of aetive euthanasia were unsuccessful. 
In a 1998 referendum, Michigan voters overwhelmingly (70% to 30%) rejected the 
legalization of physician-assisted suicide, and in November 2000, Maine voters had done the 
same, failing the ballot measure to legalize PAS by a narrow 51 percent to 49 percent 
decision.'^ In May 2002, Hawaii State Senate defeated a bill to allow assisted suicide when 
three lawmakers switched their votes. The Senate voted 14-11 to reject House Bill 2487, 
which would have allowed terminally ill, competent people to obtain lethal prescriptions that 
they could take themselves to end their lives. 

In November 1994, voters in Oregon approved the first American law allowing doctors to 
hasten death for the terminally ill. The Oregon Death with Dignity Act (Measure No. 16) was 
designed to protect the following interests of the patients: avoiding unnecessary pain and 
suffering; preserving and enhancing the right of competent adults to make their own critical 
health care decisions; avoiding tragic cases of attempted or successful suicides in a less 
humane and dignified manner; protecting “the terminally ill and their loved ones” from 
financial hardships they wish to avoid, and protecting “the terminally ill and their loved ones 



Philip Nitschke, “Do No Harm,” Family Circle (April 1, 1998), p. 126; Gay Alcorn, “First death under NT 
mercy law,” The Age (Melbourne) (Sept. 27, 1996). On Dr. Nitschke and his campaign for euthanasia in Darwin 
and Australia, see “Australia has its own ‘Kevorkian’,” The Associated Press (January 11, 1998); film The Road 
to Nowhere, Four Comers, ABC (broadcast in Australia on July 8, 1996). See also URL of the South Australian 
Voluntary Euthanasia Society (SAVES): http://www.on.net/clients/saves 

See the film Where Angels Fear to Tread, produced by the Australian Film Finance Corporation Ltd. and 
Annamax Media Pty. Ltd. (broadcast on the Science Channel No. 8 in Israel on November 4, 1998). 

’’ Helga Kuhse, “From Intention to Consent,” in Margaret P. Battin, Rosamond Rhodes and Anita Silvers (eds.). 
Physician Assisted Suicide (New York and London: Routledge, 1998), p. 252. 

Darren Gray, “Doctor: I helped 15 patients die,” The Age (Melbourne) (November 27, 1998). Chris Ryan, 
“Right-to-die bill pleases doctor,” The Age (Melbourne) (July 11, 1997). Further information is available from: 
Hon. Secretary, SAVES, PO Box 2151, Kent Town, SA 5071, Australia - Fax + 61 8 8265 2287. For further 
deliberation on end-of-life practice in Australia, see H. Kuhse, P. Singer, P. Baume et al, “End-of-Life 
Decisions in Australian Medical Practice,” Medical J. of Australia (MJA), Vol. 166 (1997): 191-196; Colleen 
M. Cartwright, "Attitudes of Australian Doctors, Nurses and Community Members towards Physician-Assisted 
Suicide and Euthanasia," in Agnes van der Heide et al. (eds.), Clinical and Epidemiological Aspects of End-of- 
Life Decision-Making (Amsterdam: Proceedings of colloquium, 2001): 135-147; Roger S. Magnusson, Angels 
of Death (Carlton South, Victoria: Melbourne University Press, 2002). 

Initiative for Death with Dignity, Washington Initiative No. 119(1 991). 

'* The California Death with Dignity Act, California Proposition No. 161 (1992). 

Tim Christie, “Voters in Maine Reject Assisted-Suicide Law,” The Register-Guard (Eugene, Ore.) (November 
14, 2000). See also E.J. Emanuel, "Euthanasia and Physician-assisted Suicide - A Review of the Empirical Data 
from the United States," Archives of Internal Medicine, Vol. 162 (January 28, 2002): 142-152. 

Lynda Arakawa and Kevin Dayton, “Assisted suicide bill rejected,” The Honolulu Advertiser (May 3, 2002). 




PRELIMINARIES: COMPARATIVE LAW 



5 



from unwanted intrusions into their personal affairs” by law enforcement officers and 
others?* 

In 1994, the Oregon law was approved by a 51 percent to 49 percent vote of the state 
residents, but was promptly put on hold amid great legal wrangling. Two days before the 
Death with Dignity Act was to take effect, a lawsuit was filed by a group of physicians, 
residential care facilities, and terminally ill Oregon residents challenging the Act on 
constitutional grounds. The federal district court granted a temporary injunction and eight 
months later struck down the Act on equal protection grounds.^"* 

This decision was subsequently vacated for procedural reasons, remanding the judgment 
of the district court for lack of jurisdiction.^’ Then, in 1997, the state’s voters backed the law 
again, this time by a decisive margin of 60 percent to 40 percent. 

The Oregon Death With Dignity Act allows Oregonian patients who suffer from a 
terminal disease and who have a life expectancy of no more than six months to receive 
prescriptions for self-administered lethal medications from their physicians. The Act 
legalizes only physician-assisted suicide, stating that “nothing in this Act shall be construed 
to authorize a physician or any other person to end a patient’s life by lethal injection, mercy 
killing or active euthanasia.” It permits a capable adult Oregon resident diagnosed 
with a terminal disease to make a written request for medication for the purpose of ending 
his or her life in a humane and dignified manner. Physicians who write such prescriptions in 
good-faith compliance with the Act are shielded from civil or criminal penalties and 
professional discipline. 

In response to concerns about inadequate safeguards, the authors of the Oregon Death 
With Dignity Act provided detailed procedures that patients and physicians must follow. The 
patient who is suffering from a terminal disease must first make an oral request, then a 
written request^^ and lastly an additional oral request before the “attending physician”^^ may 
assist. The written request must be signed and dated by the patient, and witnessed by at least 
two individuals one of whom must not be a relative, an heir, or the owner or operator of a 



Defendants’ Reply Memorandum in Support of Motion for Summary Judgment, Garry Lee v. State of Oregon, 
Civil No. 94-6467-HO, United States District Court (August 3, 1995), at 9. 

The voter turnout was 57 percent. A breakdown of the results showed that the vote was 55 percent for and 45 
percent against in the affluent areas. It lost in most rural counties that have smaller populations. Mark O’Keefe, 
“Assisted-suicide measure survives,” The Oregonian (November 10, 1994), at Al. 

Lee V. Oregon, 869 F.Supp. 1491 (D. Oregon 1994). 

Lee V. Oregon, 891 F.Supp. 1429 (D. Oregon 1995). For criticism of this court ruling, see Charles H. Baron, 
Clyde Bergstresser, Dan W. Brock et al, “A Model State Act to Authorize and Regulate Physician-Assisted 
Suicidt,'''’ Harvard J. of Legislation, Vo\. 33, No. 1 (1996): 14-16. 

Lee V. Oregon, 107 F.3d 1382, 1392 (9**^ Cir. 1997). 

The Oregon Death With Dignity Act § 3.14, Or. Rev. Stat. § 127.880 (1999). 

“Capable” is defined as having the ability to make and communicate health care decisions to a health care 
provider. Oregon Death With Dignity Act ^ 1.01(3). 

An “adult” is an individual who is at least eighteen years of age. 

Oregon Death With Dignity Act § 3.10. The residency requirement was intended to prevent individuals from 
other states from rushing to Oregon to take advantage of the Act. 

Oregon Death With Dignity Act § 4.01(1). Without this provision, physicians who assisted a suicide would be 
civilly and criminally liable under Or. Rev. Stat. § 163.125 (1995), which makes it a crime to intentionally 
cause or aid another in committing suicide. 

The statute contains a form for the written request, and requires that two witnesses affirm that the patient is 
capable and is acting voluntarily in making the request. See OregonDeath With Dignity Act §§ 2.02, 6.01. 

The “attending physician” is the doctor with primary responsibility for the care of the patient. 




6 



PRELIMINARIES: COMPARATIVE LAW 



health care facility where the patient is receiving treatment or is in residence. Neither of the 
witnesses shall be the patient’s attending physician. The requirement of both oral and written 
requests encourages the patient to consider his or her condition and the significance of the 
decision, thus serving the best interests of the patient. It also provides physicians with a 
record of the patient’s wishes, to safeguard them from liability. In order to ensure that the 
patient’s request is not a result of familial pressure, I suggest that the doctor or another 
member of the medical team will be obliged to conduct conversations with the patient and 
the relative to see that their motives are genuine, aiming to serve the patient’s best interests. 
The witness should not be a beneficiary with partisan interests that might cloud his/her 
judgment.^^ 

Physicians must also allow the patient to withdraw his or her request at any point, and 
are required to explicitly offer the patient the opportunity to change his or her mind before 
prescribing a lethal dose of medication.^"^ Like the requirement for both oral and written 
requests, these requirements provide additional safeguards to ensure that the patient is 
making a voluntary, informed, and cautious decision. They likewise protect the best interests 
of patients by encouraging them to reconsider their choice and provide prescribing 
physicians another indication that the patient is not making a rash or coerced decision. 

Once the patient makes the first oral request, the physician must inform the patient of the 
diagnosis, prognosis, potential risks and probable result of taking the prescription, as well as 
alternatives including pain management and comfort and hospice care.^^ This ensures that the 
patient could make a reasoned and informed decision. 

The physician must wait at least fifteen days after the patient’s first oral request before 
writing the prescription,^^ arguably too long for a patient who is on the verge of death. 
Although it is important to allow sufficient time for the patient to contemplate his/her 
decision and for physicians to assess the patient, establishing a fixed waiting period may 
prevent a patient closest to death from utilizing PAS before his or her natural death. During 
the waiting period, the attending physician must consult another physician^^ and ask the 
patient to notify next of kin regarding the decision. The referral to a consulting physician 
prevents one physician from making a unilateral decision to prescribe lethal medication. It 
also allows an important additional evaluation of the patient’s illness, prognosis, and mental 
soundness. 

The Oregon Act is a significant step toward establishing a patient’s right to autonomy and 
choice in deciding end of life issues. The findings of the Oregon Health Division portray the 
people opting for assisted suicide as well-educated, well-insured, often in hospice care, and 
very concerned about loss of independence. Worries about money played essentially no role 
in the patients’ decision. There is no evidence that the poor, uneducated, mentally ill, or 



See R. Cohen-Almagor and Monica G. Hartman, “The Oregon Death with Dignity Act: Review and Proposals 
for Improvement, ’Vourna/ of Legislation, Vol. 27, No. 2 (2001): 269-298. 

Oregon Death With Dignity Act § 3.07. 

’’ Oregon Death With Dignity Act § 3.01(2)(a)-(e). 

Oregon Death With Dignity Act § 3.08. 

’’ The “consulting physician” is the doctor qualified by specialty or experience to render a professional diagnosis 
and prognosis about the patient’s condition. 




PRELIMINARIES: COMPARATIVE LAW 



7 



socially isolated are disproportionately seeking or getting lethal prescriptions of drugs under 
the Oregon Death with Dignity Act?^ 

Following the Oregon Death with Dignity Act, attempts to legalize assisted suicide were 
made by many other states, among them Alaska, Arizona, California, Colorado, 
Connecticut, Illinois, Massachusetts, Michigan, Mississippi, Nebraska, Washington and 
Wisconsin. All attempts were rejected."^^ A bigger setback for assisted suicide advocates 
came in the summer of 1997, when the US Supreme Court upheld laws in Washington State 
and New York banning physician-assisted suicides. The Court reversed decisions of the 
lower courts that held those laws unconstitutional. 

In 1994, the United States District Court was asked to rule on the constitutionality of the 
State of Washington’s criminal prohibition against physician-assisted suicide. Specifically, 
the plaintiffs asserted that the Fourteenth Amendment to the Constitution guarantees 
mentally competent, terminally ill adults who act under no undue influence the right to 
voluntarily hasten their death by taking a lethal dose of physician-prescribed drugs. Chief 
Judge Rothstein held that such a right for these patients was liberty interest protected under 
the Fourteenth Amendment, and that the Washington 140-year-old anti-assisted-suicide 
statute violated equal protection by prohibiting these patients from seeking physician- 
assisted suicide but allowing withdrawal of life-support systems."^^ Later, this judgment was 
reversed by the United States Court of Appeals, Ninth Circuit, Judge Noonan, saying that 
the Washington statute did not deprive patients of constitutionally protected liberty interest. 



Amy D. Sullivan, Katrina Hedberg and David W. Fleming, “Legalized Physician-assisted Suicide in Oregon - 
the Second Year,” New Eng. J of Med., Vol. 342, No. 8 (February 24, 2000): 598-604. See also David Brown, 
“A picture of assisted suicide: most who use Oregon law are educated, insured; some change their minds,” 
Washington Post (February 24, 2000), p. A03. 

In September 2001, the Alaska Supreme Court ruled that Alaskans have no constitutional right to assisted 
suicide, despite a constitution and courts that strongly uphold individual liberty and personal privacy. In a 
unanimous decision the court upheld a state law that says helping others kill themselves is manslaughter. The 
court cited the state’s long history of opposition to assisted suicide and the danger that vulnerable Alaskans who 
are depressed or disabled might be pressured into dying when they do not really want to. Cf Sheila Toomey 
and Ann Potempa, “Court Upholds State Law Barring Assisted Suicide,” Anchorage Daily News (September 
22, 2001). http://www.adn.com/ 

Assisted suicide is a crime by statute in the following states: Alaska, Arizona, Arkansas, California, Colorado, 
Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, 
Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, New York, 
North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Washington and 
Wisconsin. Common law forbids assisted suicide in: Alabama, Idaho, Massachusetts, Nevada, Vermont and 
West Virginia. States in which physician-assisted suicide is considered a criminal act through statutes and 
common law are: Maryland, Michigan and South Carolina. States without common laws or statute laws on 
assisted suicide are North Carolina, Utah, and Wyoming. In addition, Virginia has no clear case law nor any 
statute on assisted suicide but does have a state statute that imposes civil sanctions on persons assisting in a 
suicide. And the Ohio Supreme Court ruled in October 1996 that assisted suicide is not a crime. Source: 
National Conference of State Legislatures (November 1997), reported by The Associated Press, Status of 
Assisted Suicide by State (January 5, 1998), and by American Medical News (May 2000). URL: 
http://www.ama-assn.org/amednews/2000/05/22/prsb0522.htm. For discussion on the legislative attempts to 
legalize PAS in ten states during 1997, see Russell Korobkin, “Physician-assisted Suicide Legislation: Issues 
and Preliminary Responses,” Notre DameJ. of Law, Ethics & Public Policy, Vol. 12, No. 2 (1998): 449-472. 
Compassion in Dying v. State of Washington, 850 F. Supp. 1454 (W. D. Wash. 1994). For further discussion, 
see Ronald Dworkin, Freedom ’s Law (Cambridge, Mass. Harvard University Press, 1996): 143-146. 




PRELIMINARIES: COMPARATIVE LAW 



The panel majority found that the statute prohibiting suicide promotion furthered, inter alia, 
the interest in denying to physicians “the role of killers of their patients. 

However, physicians do not fulfdl the role of “killers” by prescribing drugs to hasten the 
death of patients who voluntarily chose this option more than they do by withdrawing life- 
support machines. The court clouded an important issue by resorting to this radical language 
instead of probing the complexities involved and establishing procedures to ensure patients 
against possible abuse. 

The Ninth Circuit Court reheard the case, reversed the panel decision, and affirmed the 
District Court ruling.'*^ Circuit Judge Reinhardt opened his judgment with the following 
thoughtful words, which are quoted in full: 

This case raises an extraordinarily important and difficult issue. It compels us to address questions 
to which there are no easy or simple answers, at law or otherwise. It requires us to confront the 
most basic of human concerns — the mortality of self and loved ones — and to balance the interest 
in preserving human life against the desire to die peacefully and with dignity. People of good will 
can and do passionately disagree about the proper result, perhaps even more intensely than they 
part ways over the constitutionality of restricting a woman’s right to have an abortion. Heated 
though the debate may be, we must determine whether and how the United States Constitution 
applies to the controversy before us, a controversy that may touch more people more profoundly 
than any other issue the courts will face in the foreseeable future. 

The court held that there was a constitutionally protected liberty interest in determining 
the time and manner of one’s own death, an interest that must be weighed against the state’s 
legitimate and countervailing interests, especially those related to the preservation of human 
life. After balancing the competing interests, the court concluded that insofar as the 
Washington statute prohibited physicians from prescribing life-ending medication for use by 
terminally ill, competent adults who wish to hasten their deaths, it violated the Due Process 
Clause of the Fourteenth Amendment.'^® 

Finally, the Supreme Court, />er Chief Justice Rehnquist, reversed the judgment yet again, 
holding that the asserted right to assistance in committing suicide was not fundamental 
liberty interest protected by the Due Process Clause, and that Washington’s ban on assisted 
suicide was rationally related to legitimate government interests, among them the 
preservation of human life; the protection of the integrity and ethics of the medical 
profession; the protection of vulnerable groups from abuse, neglect, and mistakes; and 
furthermore, the protection of disabled and terminally ill people from prejudice, negative and 
inaccurate stereotypes, and societal indifference."^^ 

Interestingly, Chief Justice Rehnquist chose to conclude his opinion by calling on the 
public to continue the debate in earnest: 

Throughout the Nation, Americans are engaged in an earnest and profound debate about the 
morality, legality, and practicality of physician-assisted suicide. Our holding permits this debate to 
continue, as it should in a democratic society 



Compassion in Dying v. State of Washington, 49 F. 3d 586 (9*^ Cir. 1995), at 592. 
Compassion in Dying v. State of Washington, 79 F. 3d 790 (9*^ Cir. 1996). 
Compassion in Dying v. State of Washington, 96 C.D.O.S. 1507, at 2. 

Ibid. 

Washington v. Glueksberg, 1 17 S. Ct. 2258 (1997). 

Ibid, at 2275. 



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PRELIMINARIES: COMPARATIVE LAW 



9 



In 1996, Dr. Timothy Quill and his colleagues appealed to the courts to declare two New 
York statutes penalizing assistance in suicide unconstitutional in part. The physicians argued 
that the statutes under examination were invalid to the extent that they prohibited them from 
acceding to the requests of terminally ill, mentally competent patients for help in hastening 
death. The court struck down the statutes, finding that they violated the Equal Protection 
Clause of the Fourteenth Amendment because they were not “rationally related to a 
legitimate state interest.” Quoting a series of precedents from 1914 onwards, the court said 
that the right to refuse medical treatment has long been recognized in New York,'^* holding 
that physicians who are willing to do so may prescribe drugs to be self-administered by 
mentally competent patients who seek to end their lives during the final stages of a terminal 
illness. ^ 

Representatives of New York appealed to the Supreme Court that reversed the decision. 
The Comt, per Chief Justice Rehnquist, held that New York’s prohibition on assisted suicide 
did not violate the Equal Protection Clause of the Fourteenth Amendment. The Court 
maintained that the distinction between letting a patient die and making that patient die is 
important, logical, rational and well established.*® 

As a result of the two decisions, Washington v. Glucksberg and Vacco v. Quill, both 
given on June 26, 1997, by a 9 to 0 vote, the states have responsibility for insuring that the 
interests of all patients near the end of their lives are not imperilled. In the American 
pluralistic society there are widely differing values and sharply clashing views on mercy 
killings, physician-assisted suicide and the right to die with dignity. I mentioned Measure 16 
enacted in Oregon. In Michigan, a special statute was passed in 1993 to stop Dr. Jack 
Kevorkian from assisting patients to die.*’ However, Dr. Kevorkian stood trial several times 
and in all instances the juries refused to convict him of violating that statute, although 
Kevorkian admitted he had assisted people to commit suicide. Kevorkian was acquitted on 
the grounds that his main intent was to relieve pain, not to cause death.*^ In November 1998, 
he actively performed euthanasia on Thomas Youk, stood trial and was convicted of second- 
degree murder and for delivering a controlled substance for the purpose of injecting Youk 



* Schloendotff v. Society of New York Hosp., 211 N.Y. 125, 129 (1914); In re Storar, 52 NY2d 363, 420 NE2d 
64, cert denied, 454 U.S. 858, 70 L.Ed 2d 153, 102 S.Ct. 309 (1981); In re Eichner 52 N.Y. 2d 363, 438 N.Y.S. 
2d 266, 420 N.E. 2d 64 (1981); Rivers v. Katz, 67 N.Y. 2d 485 (1986). 

Quill V. Vacco, U.S. Court of Appeals for the Second Circuit (April 2, 1996), No. 95-7028, at 12. 

Vacco V. Quill 1 17 S.Ct. 2293 (1997), at 2295, 2301. For analysis of Washington v. Glucksberg, Compassion in 
Dying v. State of Washington, and Vacco v. Quill, see Yale Kamisar, “On the Meaning and Impact of the 
Physician-Assisted Suicide Cases,” Minnesota L. Rev., Vol. 82 (1998): 895-922; Cass R. Sunstein, One Case at 
a Time (Cambridge, Massachusetts: Harvard University Press, 1999): 75-116. For an overview of the 
legalization efforts of physician-assisted suicide in the US, see Carol A. Pratt, “Efforts to Legalize Physician- 
Assisted Suicide in New York, Washington and Oregon: A Contrast between Judicial and Initiative Approaches 
- Who Should Decide?,” Oregon L. Rev., Vol. 77 (Winter 1998): 1027-1 123. 

Mich. Comp. Laws Ann. 752.1027 (West Supp. 1995). See Janet M. Branigan, “Michigan Struggle with 
Assisted Suicide and Related Issues as Illuminated by Current Case law: An Overview of People v. Kevorkian,” 
Un. Of Detroit Mercy L. Rev., Vol. 72 (1995), at 959-960. 

State of Michigan v. Kevorkian, Michigan CirCt (Oakland City), verdict March 8, 1996. Kevorkian outlines his 
rationale for assisted suicide in Prescription: Medicide (New York: Prometheus Books, 1991). For further 
deliberation on developments in American law, see David Orentlicher, “The Legalization of Physician Assisted 
Suicide: A Very Modest Revolution,” Boston College L. Rev., Vol. XXXVllI, No. 3 (May 1997): 443^75. 




10 



PRELIMINARIES: COMPARATIVE LAW 



with lethal drugs. Kevorkian was given a jail sentence of 10 to 25 years on the 2nd degree 
murder conviction, and 3 to 7 years on the “controlled substance” conviction.^^ 

In November 2001 Attorney General John Ashcroft declared that doctors may not 
prescribe lethal doses of federally controlled substances to terminally ill patients. 
Overturning the policy adopted by Attorney General Janet Reno (Reno wrote an opinion in 
1998 saying that the federal drug law was never intended to regulate medical practice), 
Ashcroft sided with the Drug Enforcement Administration (DEA), which had long argued 
that doctors who prescribe drugs under Oregon’s assisted-suicide law could lose their 
licenses to write prescriptions.^"' While physicians are licensed by the states to practice 
medicine, the DEA registers doctors to prescribe drugs and the agency is responsible for 
enforcing the federal controlled substances law. Ashcroft determined that “assisting suicide 
is not a ‘legitimate medical purpose’ within the meaning of (the law) and that prescribing, 
dispensing or administering federally controlled substances to assist suicide” violates federal 
law.^^ 

The state of Oregon was quick to respond and filed motions in U.S. District Court 
seeking to temporarily prevent the federal government from implementing the new order 
barring doctors from prescribing federally controlled substances to hasten the deaths of 
terminally ill patients. Attorney General Hardy Myers also filed a lawsuit challenging the 
authority of U.S. Attorney General Ashcroft to limit the practice of medicine in Oregon by 
attempting to bar physician-assisted suicides. 

In April 2002, a federal judge ruled that the U.S. Justice Department lacks the authority 
to overturn a voter-approved Oregon law allowing physician-assisted suicides. U.S. District 
Judge Robert Jones scolded Attorney General John Ashcroft, saying Ashcroft with no 
advance warning to Oregon "fired the first shot in the battle between the state of Oregon and 
the federal government over which government has the ultimate authority to decide what 
constitutes the legitimate practice of medicine. Jones said Ashcroft attempted to "stifle an 
ongoing, 'earnest and profound debate' in the various states concerning physician-assisted 
suicide" with a directive declaring that assisted suicide was not a "legitimate medical 
practice."^* However, nothing in the plain language of the Controlled Substances Act (CSA) 
or its legislative history "demonstrates Congress' intent to grant defendants the authority 
under the CSA to determine that prescribing controlled substances for purposes of physician- 
assisted suicide in compliance with Oregon law is not a 'legitimate medical purpose'. He 
maintained: "As the Court acknowledged in Glucksberg, the citizens of Oregon, through 



For further deliberation on Kevorkian, see R. Cohen-Almagor, The Right to Die with Dignity: An Argument in 
Ethics, Medicine, and Law (Piscataway, NJ.: Rutgers University Press, 2001), pp. 191-200. 

Republican leaders in Congress complained that Reno had acted in secret, and her memo ignited legislative 
battles that flared throughout the 106th Congress of 1999-2000. However, the Bush administration’s internal 
debate over the Oregon law took place entirely behind closed doors and with the participation of few outsiders. 
Cf. Jim Barnett, “Bush policy on suicide is shielded in secrecy,” The Sunday Oregonian (November 1 1, 2001). 
James Vicini, “Federal doctor-assisted suicide policy reversed,” Reuters (November 6, 2001); Sam Howe 
Verhovek, “U.S. Acts to stop assisted suicides,” New York Times (November 7, 2001). 

Brad Cain, “Oregon files lawsuit against U.S. government over assisted suicide,” The Associated Press 
(November 7, 2001). 

’’ State of Oregon v. Ashcroft, US District Court for the District of Oregon, Civil No. 01-1647-JO (April 17, 
2002), pp. 2-3. 

Ibid, p. 3. 
ftW, pp. 18-19. 



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PRELIMINARIES: COMPARATIVE LAW 



11 



their democratic initiative process, have chosen to resolve the moral, legal and ethical debate 
on physician-assisted suicide for themselves by voting — not once, but twice — in favor of the 
Oregon act."^'* To allow an attorney general - "an appointed executive whose tenure depends 
entirely on whatever administration occupies the White House - to determine the legitimacy 
of a particular medical practice without a specific congressional grant of such authority 
would be unprecedented and extraordinary."^' The battle continues. 

While the USA struggles with controversy regarding the legality of assisted suicide, the 
Swiss legal system has condoned the practice for more than sixty years. In contrast to 
practices in the Netherlands, Australia and the various US proposals where assisted suicide is 
limited to physician-assisted suicide, Swiss law permits aiding the dying by laypersons.® 
Since 1937, Articles 114 and 115 of the Penal Code have governed assistance to suicide.® 
Although under Article 114 anyone taking another person’s life, even if for honorable 
motives of compassion and at the request of the sufferer, is liable to imprisonment,® still the 
judge will consider whether the patient is terminal, whether he requested death, and whether 
the patient acted for noble reasons.*’^ This is under Article 63 of the Penal Code of 1937, 
which instructs the judge to mete out punishment in accordance with the guilt of the actor, 
considering the motives, the prior life, and the personal circumstances of the guilty person. 
Swiss laws stipulate that persons who assist a suicide do so for humane reasons with no 
chance of personal gain. The Swiss Penal Code says, “assisted suicide is not punishable, 
provided it is not done for enrichment purposes and that the person [who wishes to commit 
suicide] carries out the final death act.”'’'’ Swiss law permits both passive euthanasia - 
deliberate renunciation or interruption of measures to preserve life, and active indirect 
euthanasia - administering of substances to reduce suffering whose secondary effects may 
reduce the period of the patient’s survival.'’^ 



“ Ibid, p. 4. 

“ Ibid, p. 27. 

S.A. Hurst and A. Mauron, "Assisted Suicide and Euthanasia in Switzerland: Allowing a Role for Non- 
physicians," British Medical Journal, Vol. 326 (February 1, 2003): 271-273. 

Article 1 15 of the Swiss Penal Code deals with inciting and assisting suicide. It holds: “Anyone with a selfish 
motive who incites a person to commit suicide or who helps that person to commit suicide, if the suicide is 
consummated or attempted, will be punished by a maximum of five years reclusion or imprisonment.” If there 
is no selfish motive, assisted suicide is legal. I am grateful to EXIT A.D.M.D Suisse Romande for sending me 
the information. E-mail: exit@freemail.ch. 

“Experts want Switzerland as first nation with legal euthanasia,” right_to_die@efn.org. E-mail sent on April 30, 
1999. 

An initiative proposal of a group of experts from the Federal Assisted Death Commission wishes to add a 
section to Article 114 that would read: “If the perpetrator helps a person, who is in the final stages of an 
incurable illness, to die in order to end insupportable and incurable suffering, the competent authority will not 
proceed against this person, will not force him to appear before a court nor inflict a penalty.” In Dr. Jerome 
Soble, “Assisted Death,” trans. from “Revue medicale de la Suisse romande,” Vol. 121 (2001): 163-164. Note 
that according to this proposal anybody can provide assisted suicide, not only people of the medical profession. 
Derek Humphry, The Right to Die (New York: Harper and Row, 1986), pp. 221-222; http://www.finalexit.org/ 
“Experts want Switzerland as first nation with legal euthanasia,” right_to_die@efn.org (April 30, 1999); “Swiss 
assisted suicide policy draws attention at euthanasia meeting,” APF news story (October 15, 1998). For a 
comparative study, see G. Bosshard, S. Fischer and W. Bar, "Open Regulation and Practice in Assisted Dying - 
How Switzerland Compares with the Netherlands and Oregon," Swiss Medical Weekly, Vol. 132 (October 12, 
2002): 527-534. 




12 



PRELIMINARIES: COMPARATIVE LAW 



Although Swiss law permits physicians and non-medical persons to assist suicides, the 
Swiss Academy of Medical Sciences, like many medical organizations, including the 
American Medical Association, opposes doctors helping patients to die.^* 

Today there are no less than four “right-to-die” organizations in a country with a 
population of seven million. The largest organization is EXIT, the Swiss Society for Human 
Dying, with 50,000 members, based in Zurich. The other three are much smaller in 
comparison: EXIT International®; Dignitas, with about 1,700 members, of which 1,000 are 
foreigners, and EXIT A.D.M.D. Suisse Romande, with about 10,000 members.’’’ Two of 
them offer help with hastened death to both terminally ill and chronically ill, be they resident 
or foreigner. One group will even visit a dying patient in another country if there is no 
alternative. The main organization, EXIT, requires that the applicant wishing to die with 
EXIT’S help be at least eighteen years old, a Swiss resident, mentally competent and 
suffering from intolerable health problems. He or she must personally apply for the service 
and convince the administrators of EXIT that there is no coercion or third party influence 
involved in the decision. An EXIT physician considers the application and decides whether 
or not assistance can be offered. In doubtful cases, a team composed of a lawyer, psychiatrist 
and a physician will make the decision jointly. Once a decision is made, the patient 
determines the date for his or her death. A member of EXIT team of suicide helpers then 
comes and brings the medication. The patient has to drink it by him/herself EXIT welcomes 
the presence of family members or the patient’s loved one’s. As soon as death is confirmed, 
the EXIT member calls the police. According to the Swiss law every unusual death has to be 
examined by the police to make sure that no crime was committed.” 

Between 100 and 120 people are openly helped in this way each year. EXIT performed 
124 assisted suicides in 2001 (96 in 2000) and provided consultation about assisted suicide to 
about 1,000 people.” So far, no member of an EXIT team has had to appear before the court 
for helping a person to commit suicide. It is estimated that the four “right-to-die” 



The Swiss Academy of Medical Sciences takes the view that helping a patient to commit suicide is beyond the 
scope of medical practice. This makes it difficult to use the law, given that the doctor is the person most 
qualified to give help to a terminally ill person who wants assistance in suicide. South Australian Voluntary 
Euthanasia Society, DID YOU KNOW? Assisted Suicide in Switzerland - SAVES Eact Sheet No. 20, issued 
February 1997. Correspondence with: Hon. Secretary, SAVES, PO Box 2151, Kent Town, SA 5071, Australia - 
Fax + 61 8 8265 2287. 

Contact EXIT. -International. Postfach 605, CH-3000, Bern 9. Switzerland. 

See www.exit.ch; http://www.dignitas.ch/; www.exit-geneve.ch; www.dghs.de; 
www.fmalexit.org/pract-swiss.html. 

“The Practice of Assisted Suicide in Switzerland,” A Report by Professor Meinrad Schaer, MD, President of 
“EXIT,” Society for Human Dying, Switzerland. 

http://www.fmalexit.org/swissframe.html. See also Jerome Sobel, “Assisted Suicide,” Exit A.D.M.D. I am 
grateful to Michael Brucker and Sandrine Rohmer for arranging this information. 

World Right-to-Die Newsletter, Issue 42 (November 2002), p. 7. Cf www.worldrtd.org 




PRELIMINARIES: COMPARATIVE LAW 



13 



organizations hasten some 200 deaths each year7^ EXIT A.D.M.D. performed some 40 
assisted suicides in 2001 (20 in 2000). Dignitas performed around 50 cases in 2001.^'^ 

Belgium has followed the euthanasia path of its Dutch neighbor. For some time, there 
were no formal registration and authorization procedure for end-of-life decisions in medical 
practice. Although euthanasia was illegal and treated as intentionally causing death under 
criminal law, prosecutions were exceptional and - generally speaking - the practice of 
euthanasia was tolerated. Since 1996, legalization of euthanasia was intensely discussed, 
both by the official Advisory Committee on Bioethics and the Belgian Parliament.’^ 
Proposals to remove euthanasia from the criminal law had angered doctors, who claimed 
they had not been properly consulted. Dr. Marc Moens, chairperson of the Belgian 
Association of Doctors Syndicates (BVAS), which comprises two thirds of the country’s 
40,000 doctors, argued that abolishing the law on euthanasia would do nothing to prevent 
abuses but would make “The exception the rule.”’^ A study conducted in Flanders showed 
that the frequency of deaths preceded by an end-of-life decision is similar to that in the 
Netherlands, but lower than that in Australia. However, in Flanders the rate of administration 
of lethal drugs to patients without their explicit request is similar to Australia, and 
significantly higher than that in the Netherlands.” 

On January 20, 2001 the euthanasia commission of Belgium’s upper house, the Senate, 
voted in favor of proposed euthanasia legislation, which would make euthanasia no longer 
punishable by law, provided certain requirements are met.’* Nine months later, on October 
25, 2001 Belgium’s Senate approved the law proposal, which was adopted on March 20, 
2001 by the joint commissions of Justice and Social Affairs, by a significant majority: 44 for, 
23 against, 2 abstentions and two senators who failed to register a vote. It was clear 
beforehand that there was general support among all six parties in the ruling coalition of 
Socialists, Liberals and Ecologists. In society at large, most people were behind the change. 
An opinion survey showed that three-quarters of those asked were broadly in favor of 
legalizing euthanasia.’^ On May 16, 2002, the lower house of the Belgian parliament 
endorsed the bill by 86 votes in favor, 5 1 against and with 10 abstentions.*” 



Fact sheet based on a paper by Professor Meinrad Schaer (Deeember 16, 1996), published by the South 
Australian Voluntary Euthanasia Society, op. cit. The data were verified by Derek Humphry (personal 
correspondence on January 4, 1999) who said that there has never been a prosecution for abuse of the law. 
Further information is available at: http://www.ol). admin. ch/f/index.html; Exit/ADM D (Suisse Romande) 
C.P. 100, 1222 Vesenaz, Geneva. Telephone: 41-22-735-7760; FAX: 41-22-735-7765; EXIT/Vereinigung fr 
humanes Sterben (German-speaking) Feldeggstraase 3, P.O. Box 309, CH-8034 Zurieh/Switzerland. Phone: 
+41-1-383 33 53; FAX: +41-1-383 33 78. 

World Right-to-Die Newsletter, Issue 42 (November 2002), p. 7. Cf www.worldrtd.org 
’’ Luc Deliens, Freddy Mortier, Johan Bilsen et al., “End-of-life Decisions in Medical Practice in Flanders, 
Belgium: A Nationwide Survey,” Lancet, Vol. 356 (November 25, 2000): 1806-1811. 

Tony Sheldon, “Belgium Considers Legalizing Euthanasia,” British Medical Journal, Vol. 320 (January 15, 
2000): 137. 

Luc Deliens, Freddy Mortier, Johan Bilsen et al., “End-of-life Decisions in Medical Practice in Flanders, 
Belgium: A Nationwide Survey,” op. cit., at 1806. See also F. Mortier, L. Deliens, J. Bilsen, M. Cosyns, K. 
Ingels and R. Vander Stiehele, "End-of-life Decisions of Physicians in the City of Hasselt (Flanders, Belgium)," 
Bioethics, Vol. 14 (July 2000): 254-267; Luc Deliens and Jan Bemheim, "Palliative Care and Euthanasia in 
Countries with a Law on Euthanasia," Palliative Medicine, Vol. 17 (2003): 393-394. 

Wim Weber, “Belgian Euthanasia Bill Gains Momentum,” Lancet, Vol. 357 (February 3, 2001), p. 370. 

’’ Andrew Osborn, “Belgians follow Dutch by legalising euthanasia,” The Guardian (October 26, 2001). 

See the website of the Belgian Senate: www.senate.be/home/home.html under the number 2-244/23. 




14 



PRELIMINARIES: COMPARATIVE LAW 



The legislation lays out the terms for doctors to end the lives of terminally ill patients - 
though, with doctors operating an informal system of euthanasia to some extent, no 
immediate or radical changes are expected in the way they function in Belgium. Patients 
must be at least 18 years old and have made specific, voluntary and repeated requests that 
their lives be ended. They must put this in writing. (Research indicates that Flemish doctors 
frequently disregard this issue and do not obtain the patient's request to end his/her life).*' 
Requests will be approved only if the patient is terminally ill, in constant suffering and of 
sound mind. At least one month must elapse between the written request, which can be made 
by a nominated adult if the patient is incapable of writing, and the mercy killing. An 
independent physician must be consulted. The consulted MD is required to inspect the 
medical file, to examine the patient and must ascertain the enduring and unbearable physical 
or mental suffering. The physician is then required to write a report. In a case of a nursing 
team that has a regular contact with the patient, the GP must discuss the request of the patient 
with that team or with members of that team. If the patient wishes so, the GP must discuss 
the request of the patient with the proxies indicated by the patient. Controversially, there is 
also provision for patients who are not in the final phases of a terminal illness to opt for 
euthanasia. Such a request requires a further authorization by a psychiatrist or a specialist in 
the disease. The consultant must be independent with regard to the patient, his/her GP, and 
also with regard to the first consultant.*^ All cases of mercy killing have to be fully 
documented in a special format and presented to a permanent monitoring committee, 
appointed by the government. If a case does not find the approval of at least two thirds of the 
committee members, which include 4 jurists and 12 physicians, 4 of them specialists for 
anesthesia and pain reduction, it is to be handed over to the state prosecution for further 
investigation.** 

Belgian doctors voiced opposition to the new law because it opens the door for 
euthanasia too wide. Marc Moens said that "Doctors know that this law is simply flawed and 
find it totally unacceptable that individuals who are not terminally ill will also be eligible for 
euthanasia."*^' 

For its part, English criminal law does not recognize active euthanasia as a defense in a 
murder charge. Lord Devlin directed the jury in R. v. Adams that no doctor, nor any man, no 
more in the case of the dying than of the healthy, has the right to deliberately cut the thread 
of life.** This argument was restated in R. v. Cox.^^ At the same time, it is established that 
passive euthanasia may be allowed in certain circumstances. Precedents prescribe 



Freddy Mortier and Luc Deliens, "The Prospects of Effective Legal Control of Euthanasia in Belgium: 
Implications of Recent End of Life Studies," in A. Klijn, M. Otlowski and M. Trappenburg (eds.), Regulating 
Physician-negotiated Death (Gravenhage: Elsevier, 2001), p. 180. 

Chapter II (Conditions and procedure), art. 3, § 2, 3 of law proposal no. 2-244/23. See website of the Belgian 
Senate: http://www.senate.be/home/home.html 

Rationalist International, Bulletin 104 (October 27, 2002), http://www.rationalistintemational.net/ 

“ Justin Sparks, "Belgian docs unhappy about proposed euthanasia law," Reuters Health (May 16, 2002). See also 
Andrew Osborn, "Belgian outcry over first mercy killing under new law," The Guardian (October 9, 2002); 
Herman Nys, "Euthanasia in the Low Countries: A Comparative Analysis of the Law Regarding Euthanasia in 
Belgium and the Netherlands," Ethical Perspectives, Issue 9/2 (June 2002): 73-85. 

R. V. Adams, Criminal Law Rev. (1957), at 365-377. 

See “GMC Tempers Justice with Mercy in Cox Case,” British Medical Journal, Vol. 305 (November 1992), p. 
1311. 




PRELIMINARIES: COMPARATIVE LAW 



15 



withholding medical care if such a course of action represents good medical practice,*^ and if 
it is done “in the best interests of the patient.”** This reasoning, which accentuates the best 
interests of the patient, has been reiterated in several court decisions and has become a 
cornerstone in English law. When determining these interests, the court balances the benefit 
of continued treatment against the pain and suffering of the patient concerned. In Re J. , Lord 
Donaldson of the Court of Appeal delivered an opinion against resuscitating a severely brain- 
damaged child because the pain and suffering likely to be experienced exceeded any benefit 
accruing from prolonging his life. Lord Donaldson argued that there are cases “in which the 
answer must be that it is not in the interests of the child to subject it to treatment which will 
cause increased suffering and produce no commensurate benefit, giving the fullest possible 
weight to the child’s, and mankind’s desire to survive.”*^ 

All requests for withdrawal of tube feeding in England must go through the courts. In the 
Airedale NHS Trust v. Bland case involving a football fan who was severely injured in the 
Hillsborough stadium disaster of April 1989, both the Court of Appeal and the House of 
Lords upheld a declaratory judgment by the Family Division of the High Court that 
withdrawing artificial nutrition and hydration from a patient in a severe, persistent vegetative 
state (PVS)’** did not constitute an unlawful act. The court held that artificial feeding and the 
administration of antibiotic drugs could lawfully be withheld from an insensate patient who 
had no hope of recovery when it was believed that the result would be that the patient would 
die shortly thereafter. It was also emphasized that by virtue of his condition, a PVS patient 
would not suffer as a result of being deprived of food and hydration, and that the major 
consideration in determining the best interests of the patient are medical: the opinion of the 
physicians decides the course of the treatment.^' The court explained that relevant 
considerations for deciding the best interests of PVS patients include the avoidance of 
invasive and undignified procedures, which would have an adverse effect upon the way such 
patients would be remembered by their loved ones. Lord Goff saw no reason to maintain 
medical treatment simply to prolong a patient’s life when such treatment had no therapeutic 
purpose of any kind, “as where it is futile because the patient is unconscious and there is no 
prospect of any improvement in his condition.”^^ Lord Mustill argued that Anthony Bland 
had no best interests because the loss of all cognitive functions meant that he had “no best 
interests of any kind.” Because the patient had no interest in staying alive, no legal 
justification existed for any invasive life-supporting treatment.^* 

In October 2000, the courts reiterated the same rationale while resorting for the first time 
to the Human Rights Act of 1998, which incorporates the European Convention on Human 

Bolam V. Friern Hospital Management Committee (1957), 2 All ER 1 18. 

** F V. West Bershire Health Authority (1989) 2 All ER 545, at 546. See also Re 7 (1990) 3 All ER 930. 

^ Re7, at938. 

I resent this term, thinking it is unethical and use instead the term Post-Coma Unawareness. See R. Cohen- 
Almagor, “Language and Reality at the End of Life,” Journal of Law, Medicine and Ethics, Vol. 28, No. 3 (Fall 
2000): l(fl-H%. 

Airedale NHS Trust v. Bland (\99i) 1 All ER 821. 

Ibid. 

Ibid, at 894. For further discussion, see Law Hospital NHS Trust v. Lord Advocate and Others, Court of 
Session: Inner Flouse (First Division) (22 March 1996), Inner House Cases; House of Lords, Select Committee 
on Medical Ethics, session 1993-94, Vol. II, Minutes of Oral Evidence (London: HMSO, 1994); Joan 
Loughrey, “Medical Decision Making and the Human Rights Act 1998,” Proceedings of the 13"' World 
Congress on Medical Law (Helsinki, August 6-10, 2000), Vol. II, pp. 687-695. 




16 



PRELIMINARIES: COMPARATIVE LAW 



Rights into UK law. The courts ruled in the cases of NHS Trust A v M and NHS Trust B v H 
that it was lawful to withdraw artificial nutrition and hydration from two patients in PVS. 
Four consultants in one case, and five in the other, had diagnosed the medical condition - a 
diagnosis which the Official Solicitor had not challenged and which fell within the guidelines 
established by the Royal College of Physicians for the determination of PVS. Therefore, “the 
continuation of artificially supplying nutrition and hydration to both patients was not in their 
best interest and could be withdrawn subject to being lawful within the provisions of the 
European Convention on Human rights, as incorporated into the domestic law of England 
and Wales by the Human Rights Act 1998, on 2 October 2000.” Article 2 of that Act protects 
the right to life, but the court held that existing practice in the United Kingdom, of 
withdrawing artificial nutrition and hydration, was in compliance with the provisions of 
Article 2 and was compatible with the values of democratic societies across the world.^"* 

In August 2001, the High Court in London has granted a woman who suffers from the 
incurable degenerative disorder motor neurone disease (Amyotrophic Lateral Sclerosis) 
permission to seek judicial review of the Director of Public Prosecutions’ (DPP) refusal to 
allow her husband of 25 years, Brian, to end her life. Diane Pretty, 47, was paralyzed from 
the neck down, had to be fed by tube, and had no decipherable speech, though her intellect 
was unimpaired. She claimed her quality of life had become so low that she had the right 
under human rights legislation to choose to end her life. She had exhausted all medical 
alternatives and had accessed palliative care services. However, knowing the inevitable 
progression of her disease, and the further distress it will cause her, she had decided that she 
wanted to die now. Ms. Pretty’s plea was supported by the Voluntary Euthanasia Society and 
civil rights group Liberty. Liberty asked the DPP, David Calvert-Smith, to guarantee her 
husband would not be prosecuted for aiding and abetting a suicide under Section 2 of the 
Suicide Act if he tried to help her.^^ 

In October 2001, Ms. Pretty argued her case in the Queen’s Bench Divisional Court that 
the blanket legal ban on assisting a suicide denied her the right to “die with dignity” and 
breached the European Convention on Human Rights. Her QC, Philip Havers, had told the 
judges that she was close to death and “frightened and distressed” at the suffering and 
indignity she would have to suffer if the disease ran its course. Her condition meant she was 
physically unable to kill herself, hence she wanted her husband to help her when the time 
came. Lord Justice Tuckey, Lady Justice Hale and Mr. Justice Silber ruled that parliament 
had given the DPP no power to rule out a prosecution in advance, and that the prohibition on 
assisting someone to commit suicide did not contravene the European convention. Lord 
Justice Tuckey rightly said: “We are being asked to allow a family member to help a loved 
one die, in circumstances of which we know nothing, in a way of which we know nothing, 
and with no continuing scrutiny by any outside person.”^^ Assisted suicide should not be 
carried by family members but rather by qualified physicians. 

Ms. Pretty appealed to the highest court without much success. The unanimous decision 
by five law lords denied her the right to appeal a decision by the DPP. Lord Bingham said 



Chris Docker, Press Release from Liberty and The Voluntary Euthanasia Society (August 17, 2001), circulated 
by Derek Humphry via ergo@efh.org. 

’’ “Head to Head: Assisted Suicide,” and Court Rules for ‘Right to Die’ Woman,” British Broadcasting Corp. 
News Online (Friday, August 31, 2001): http://news.bbc.eo.uk/hi/english/uk 

Clare Dyer, “Dying wife loses ‘Suicide Aid’ Case,” The Guardian (October 19, 2001); The Times (Oetober 23, 
2001 ). 




PRELIMINARIES: COMPARATIVE LAW 



17 



the European Convention on Human Rights, enshrined in the UK Human Rights Act, did not 
guarantee assisted suicide, and that Ms. Pretty could not establish that her rights had been 
infringed by the DPP’s refusal to waive any legal action against her husband. Lord Bingham 
rejected the argument that the right to life protected the right to self-determination over life 
and death. On the right of freedom of thought. Lord Bingham said that Ms. Pretty might have 
a sincere belief in the virtue of assisted suicide and was free to express that view. But it could 
not mean there was a requirement that her husband should be absolved from the 
consequences of conduct which was against the law. 

Lord Bingham maintained that assisted suicide and consensual killing were unlawful in 
all Convention countries except The Netherlands, but even there Mr. Pretty would be liable if 
he were to assist Mrs. Pretty to take her own life. He rightly asserted that it would have been 
a gross dereliction of the DPP’s duty and a gross abuse of his power had he ventured to 
undertake that a crime yet to be committed would not lead to prosecution. The claim against 
him had to fail on that ground alone.^’ 

Immediately after the hearing Ms. Pretty said: “I want to go on. I feel I have no rights. 
The law lords don’t want to admit that the law is wrong.” The Prettys vowed to fight on in 
the European Court of Human Rights.^* However, a panel of seven judges of the European 
Court of Human Rights ruled unanimously that Britain had not violated Europe's human 
rights convention by refusing to grant Brian Pretty immunity from prosecution if he helps his 
wife Diane commit suicide.’’ 

The French Penal Code distinguishes between “active” and “passive” euthanasia. The 
former involves direct intervention to cause the death of a patient. The latter refers to the 
foregoing of life-sustaining treatment for terminally ill people. Active euthanasia is regarded 
as murder while passive euthanasia is considered an offence against a French law, which 
makes it a crime not to help a person in danger. Recent studies said that almost half the 
deaths recorded as taking place in intensive care units in France resulted from a decision to 
stop treatment and could be classed as acts of “passive” euthanasia. Edouard Ferrand and 
colleagues expressed concern that that there are no guidelines to govern and justify the 
withholding or withdrawal of life-saving treatments. They explained this by saying that the 
relationship between patient and physician is limited in France to a traditional paternalism, 
based on the principle of beneficence. Only 42% of decisions were notified in the medical 
record, which may reflect the reluctance of physicians to record their decisions in the French 
legal circumstances.*” 



Regina (Pretty) v Direetor of Publie Prosecutions, Secretary of State for the Home Department, Before Lord 
Bingham of Comhill, Lord Steyn, Lord Hope of Craighead, Lord Hobhouse of Woodborough and Lord Scott of 
Foscote (Speeches November 29, 2001); Law Report, “No breach in proleptic refusal to grant immunity,” The 
Times (December 5, 2001). 

See http://www.thetimes.co.Uk/article/0,, 12-200156 18 14, 00. html 

“Diane Pretty loses right to die appeal,” The Guardian (November 29, 2001). 

’’ Paul Ames, "European court rejects British woman's assisted suicide appeal; supporters pledge to continue right 
to die campaign," Associated Press (April 29, 2002). For further discussion, see G.E. Dickinson, C.J. Lancaster, 
D. Clark, S.H. Ahmedzai and W. Noble, "UK Physicians' Attitudes toward Active Voluntary Euthanasia and 
Physician-assisted Suicide," Death Studies, Vol. 26 (July-August 2002): 479^90. 

Edouard Ferrand, Rene Robert, Pierre Ingrand, Francois Lemaire, “Withholding and Withdrawal of Life 
Support in Intensive-care Units in France,” The Laneet, Vol. 357, No. 9249 (January 6, 2001). 
http://www.thelancet.com/ 




18 



PRELIMINARIES: COMPARATIVE LAW 



In 2000, France’s National Ethics Committee has said that euthanasia may be allowed in 
certain circumstances. But the Committee underseored that this does not mean euthanasia 
should be decriminalized. In a report, whieh took three years to prepare, the eommittee 
speaks of the need for compassion where therapy has failed and when patients ask to be 
relieved of unbearable suffering. “If there is no other solution, if palliative care and pain- 
killers are ineffeetive, if all treatment or therapy has failed, if there is unanimous agreement 
that the situation has become intolerable, then one can envisage euthanasia,” said Ethics 
Committee President Dr Didier Sicard.'®' It marks a turnaround in the committee’s thinking 
and its first reeommendations on euthanasia for nine years. In 1991, it rejeeted a European 
Parliament proposal that euthanasia be carried out in hospitals and care centres. One 
committee member had estimated that there are about 2,000 elandestine acts of assisted 
suicide in France each year.'**^ 

In July 2001, the French Health Minister, Bernard Kouchner, has admitted he practiced 
euthanasia during his career when he served as a doctor in the war zones of Vietnam and 
Lebanon. Mr Kouchner - a founding member of the Paris-based medical aid agency, 
Medecins sans Frontieres (MSF) (Doctors without Frontiers) - also acknowledged that 
passive euthanasia, where doctors suspend treatment of dying patients, occurs frequently in 
France. However, although opinion polls showed wide support for the euthanasia practice in 
certain eases,'®^ Mr Kouchner said he had no plans to legalize euthanasia.''*'' 

In Canada, parliament debated a private member’s bill (C-261) to legalize active 
euthanasia. The bill was not adopted, but legislators became aware that physician-assisted 
suicide had widespread support in Canada. About three quarters of Canadians (77%) believe 
that doetors should be allowed to end the life of a patient whose life is immediately 
threatened by a disease that causes the patient great suffering. Canadians are less likely to 
support physician-assisted suicide if the patient is suffering from a disease that is not 
immediately life threatening, sueh as a chronically debilitating illness. Still, 57% of 
Canadians believe that doctors should be allowed, by law, to end the life of a patient who 
suffers from a disease that does not immediately threaten his or her life. This figure has not 
changed since 1995."’^ 

Two of the Canadian court cases should be mentioned. One concerns Nancy B., a twenty- 
five-year-old woman who had had generalized polyneuropathy for two and a half years as a 
result of Guillain-Barre disease. She initiated a legal action for an injunction permitting her 



The committee only has consultative powers, but most of its recommendations to French lawmakers are heeded. 
It has made recommendations on sensitive topics such as the sterilization of the mentally handicapped and 
obligatory psychiatric care for rapists. 

BBC London report, “2,000 assisted suicide in France,” Right To Die list <right_to_die@efn.org> 
http://www.FinalExit.org ; see also website of Association pour le Droit de Mourir dans la Dignite, URL: 
http://perso.infonie.be/admd 

Polls conducted in 1987 and 1997 showed that wide majority (85% in 1987 and 84% in 1997) were in favor of 
granting terminal patients in unbearable suffering the right to receive assistance in dying on request. 63% in 
1987 and 55% in 1997 were in favor of active euthanasia. Cf. website of Association pour le Droit de Mourir 
dans la Dignite (ADMD), URL: http://perso.club-intemet.fr/admd 

BBC: French Minister Admits Mercy Killings (July 24, 2001): http://news.bbc.co.uk; Reuters, “France has no 
plans to legalize euthanasia” (July 25, 2001). See also Craig S. Smith, "Son's wish to die, and mother's help, stir 
French debate," New York Times (September 27, 2003). 

Gary Edwards and Josephine Mazzuca, “Three Quarters of Canadians Support Doctor-Assisted Suicide,” 
Gallup News Service (March 24, 1999), http://www.gallup.com/poll/releases/pr990323.asp. See also Frederick 
H. Lowy et al., Canadian Physicians and Euthanasia (Ottawa: Canadian Medical Association, 1993), p. 3. 




PRELIMINARIES: COMPARATIVE LAW 



19 



physicians to withdraw the respirator. The Quebec Superior Court granted the injunction, her 
respirator was withdrawn and Nancy died.’**^ In Justice Dufour’s opinion, Nancy B.’s refusal 
of treatment was not an attempt to commit suicide but rather an attempt merely to allow a 
disease to take its natural course. 

The most known death-with-dignity case in Canada concerns Sue Rodriguez who was 
dying from Amyotrophic Lateral Sclerosis (ALS), a disease that causes progressive paralysis 
of the muscles: muscles of the face, the tongue, the throat, the respiratory system, the 
shoulders, hands and legs. In its final stages the patient cannot swallow, speak, cough, or use 
his respiratory muscles.''*’ One specialist described this situation as “a living hell.”*"* As her 
condition deteriorated, Ms. Rodriguez publicly expressed a wish to have a physician assist 
her in ending her life at a time of her choosing, when she herself would be unable to do so, 
rather than waiting helplessly to die by suffocation or choking. Ms. Rodriguez sought to 
challenge the Criminal Code of Canada prohibition on assisted suicide, on the grounds that it 
violated the Charter of Rights and Freedoms. The specific section of the Criminal Code is 
241(b): “Everyone who aids or abets a person to commit suicide, whether suicide ensues or 
not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding 
fourteen years.”*"" 

The appeal was rejected in a 5 (Sopinka, La Forest, Gonthier, lacobucci and Major) to 4 
(McLachlin, L’Heureaux-Dube, Lamer and Cory) landmark decision. The Court did not want 
to intervene in this delicate public matter, thinking that it is up to the legislature to change 
the law if such a change was deemed necessary.**" I discussed her case with three of the 
justices in the Canadian Supreme Court. One of them told me that this was the toughest 
decision s/he has ever made, and that the Court might overturn the decision if the legislature 
failed to address the issue adequately and another case came up.*** 

Patients in a devastating situation, who wish to cease living, if helped by a physician, are 
helped to relieve their suffering. The motivation is to assist one’s fellow by providing relief 
from enduring suffering. The decision to perform physician-assisted suicide is first and 
foremost a moral decision. The physician who provides the assistance is convinced that this 



Nancy B. v. Hotel-Dieu de Quebec et al. (1992), 86 DLR (4th) 385 (Que Sup Ct). For criticism of this ruling, 
see Arthur Fish and Peter A. Singer, “Nancy B.: The Criminal Code and Decisions to Forgo Life-sustaining 
Treatment,” Can. Med. Jss. J., Vol. 147 (September 1992): 637-642; Bernard M. Dickens, “Medically Assisted 
Death: Nancy B. v. Hotel-Dieu de Quebec," McGill Law Journal, Vol. 38, No. 4 (October 1993): 1053-1070. 

For general discussions concerning the progressive neuro-muscular disease Amyotrophic Lateral Sclerosis 
(ALS) and assisted suicide, see the October 1, 1998 issue of the New England Journal of Medicine. URL: 
http://www.nejm.org 

(Tel Aviv) 1 141/90 Benjamin Eyal v. Dr. Nachman Willensky and Others, Vol. 51, No. 3, pp. 187, 192. 

R.S.C. 1985, c. C-46. 

Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519. For a critical discussion, see Lorraine 
Eisenstat Weinrib, “The Body and the Body Politic: Assisted Suicide under the Canadian Charter of Rights and 
Freedoms," McGill Law Journal, Vol. 39 (1994): 619-644; Jerome E. Bickenbach, “Disability and Life-Ending 
Decisions,” in Margaret P. Battin, Rosamond Rhodes and Anita Silvers (eds.). Physician Assisted Suicide (New 
York and London: Routledge, 1998): 123-132. 

Personal discussion at the Canadian Supreme Court, Ottawa (September 28, 1998). In 1997, Robert Latimer 
was convicted of second-degree murder for the mercy killing of his severely disabled daughter. Fie is said to 
prepare an appeal to the Supreme Court of Canada to overturn his sentencing. Cf Barney Sneiderman, “The 
Case of Robert Latimer: A Commentary on Crime and Punishment,” Alberta L. Rev., Vol. 37, No. 4 (1999): 
1017-1044; idem, “Latimer in the Supreme Court: Necessity, Compassionate Homicide, and Mandatory 
Sentencing,” Saskatchewan L. Rev., Vol. 64, No. 2 (2001): 511-544. See also articles in Criminal Reports, Vol. 
39, Fifth Series (April 2001). 




20 



PRELIMINARIES: COMPARATIVE LAW 



act is justified not only medically but also morally, otherwise he or she would not have 
agreed to assist the patient in the first place. 



CONCLUSION 

This chapter surveys the attempts that have been made around the globe to facilitate “death- 
with-dignity.” In the United States, ten states during the past five years have passed bills 
making euthanasia or PAS illegal, and bills are pending in five more."^ Oregon’s Measure 
16 that allows assisted suicide is facing a challenge. In Australia, the Northern Territory Act 
that allowed terminally ill patients to commit suicide with a doctor’s help was declared void. 
The legislatures of England and Canada resist attempts to legalize assisted suicide and 
euthanasia. Switzerland condones the practice of assisted suicide but not of euthanasia. The 
Netherlands and Belgium are the only countries in the liberal world that accept the policy 
and practice of both euthanasia and physician-assisted suicide, without seeing much 
difference between the two. The legalization process of euthanasia in the Netherlands and 
Belgium during the years 2001-2002 may give fresh impetus to campaigns for legal mercy 
killing elsewhere in Europe - especially in Britain and France, where significant movements 
are pressing for it."^ 



Ezekiel J. Emanuel, “Euthanasia: Where the Netherlands Leads Will the World Eollow?,” British Medical 
Journal, Vol. 322 (June 9, 2001): 1376. Eor a general overview about assisted suicide laws around the world, 
see http://www.assistedsuicide.org/suicide_laws.html 

For further discussion, see Brian J. Pollard, "Can Euthanasia Be Safely Legalized?," Palliative Medicine, Vol. 15 
(January 2001): 61-65; Peter Singer, "Voluntary Euthanasia: A Utilitarian Perspective," Bioethics, Vol. 17, Nos. 
5-6(2003):526-541. 




Part A 



Background 




CHAPTER 1 



THE THREE RESEARCH REPORTS OF 1990, 1995 
AND 2001, AND THEIR INTERPRETATIONS 



1. PRELIMINARIES 

The Dutch understanding of euthanasia is said to be marked by its precision. Unlike other 
countries that distinguish between active and passive euthanasia, between direct and indirect 
euthanasia, and between voluntary and involuntary euthanasia, the Dutch definition of the 
term is exact: the intentional taking of someone’s life at his or her explicit request. 
According to the law, only a competent patient’s request can be accepted. Consequently: 

a. What is termed “euthanasia” in the Netherlands is called “active euthanasia” in other 
parts of the world. In the Dutch conception, euthanasia is active by definition and there is no 
need to specify the act by the term “active,” as other countries do. 

b. All other kinds of end-of-life (“terminal”) care bear other names. Thus, for instance, 
withdrawal of treatment is not considered euthanasia. Elsewhere it is termed “passive 
euthanasia.” In the Netherlands, this term is deemed illogical and useless insofar as passive 
euthanasia is self-contradictory because it concerns the omission of a treatment to which the 
patient has not consented.* Within the law, the difference between acting and refraining from 
acting has no particular relevance, and such a legal consideration takes precedence over the 
psychological experience of the difference. The prevailing Dutch perspective regards any 
treatment that has no clear medical benefit for the patient as futile. The argument is that no 
patient should be subjected to useless medical interventions, or that these treatments should 
be offered as an option to patients. In a leading test case, a Dutch court ruled that contrary to 
the wishes of the next of kin, a hospital was not obliged to return an 80-year-old cancer 
patient to intensive care when his condition was deteriorating.^ 

c. Unintended shortening of life in the course of treatment to abate suffering is viewed in 
the Dutch discussion as a physician’s duty to alleviate pain. Some call this “indirect 
euthanasia,” and others see it as coming within the “double effect doctrine.”^ The possibility 



G.K. Kimsma and E. van Leeuwen, “Dutch Euthanasia: Background, Practice, and Present Justifications,” 
Cambridge Q. of Healthcare Ethics, Vol. 2 (1993), p. 24. 

^ Cf. Tony Sheldon, “Doctors Not Obliged to Carry Out Treatment They Think ‘Futile’,” British Medical 
Journal, Vol. 319 (October 23, 1999), at 1088. 

^ The ethical concept of double effect is used to justify medical treatment designed to relieve suffering where 
death is an unintended, though foreseeable, consequence. The doctrine is based on two basic presuppositions: 
(1) the doctor’s intention is to alleviate suffering; (2) the treatment must be proportional to the illness. The 
doctrine applies if the desired outcome is judged to be “good” (e.g. relief of suffering); the “bad” outcome (e.g. 
death of patient) is not intended; the “good” outcome is not achieved by means of the “bad,” and the “good” 
outcome outweighs the “bad.” For further discussion on the double effect doctrine, see R. Cohen-Almagor, 
“Language and Reality at the End of Life,” The Journal of Law, Medicine and Ethics, Vol. 28, No. 3 (Fall 
2000): 267-278; Daniel P. Sulmasy and Edmund D. Pellegrino, “The Rule of Double Effect,” Archives of 



23 




24 



CHAPTER 1 



that a seriously ill patient might die as a result of such treatment does not constitute 
euthanasia. 

d. The decision to end a life without an explicit request is legally termed “killing a 
person” rather than euthanasia, although some physicians would disagree. Involuntary 
euthanasia is regarded as a contradiction in terms. 

e. The distinction between euthanasia and physician-assisted suicide (PAS) hardly figures 
in the Dutch discussion. Although assisted suicide was considered for many years to be a 
crime by law and the distinction may be seen as morally relevant, no relevance had been 
attributed to this distinction in the actual medical context in the cases of euthanasia that had 
been brought to trial. In both practices, the physician had to meet the same substantive and 
procedural requirements."^ Many of my interviewees said that euthanasia and physician- 
assisted suicide were and are considered one and the same in the Netherlands, implying the 
same responsibility of the physician. 

Since November 1990, prosecution is unlikely if a doctor complies with the Guidelines set 
out in the non-prosecution agreement between the Dutch Ministry of Justice and the Royal 
Dutch Medical Association. These Guidelines are based on the criteria established in court 
decisions relating to the conditions under which a doctor can successfully invoke the defense 
of necessity. The substantive requirements are as follows: 

(1) The request for euthanasia or physician-assisted suicide must be made by the 
patient and must be free and voluntary. 

(2) The patient’s request must be well considered, durable and consistent. 

(3) The patient’s situation must entail unbearable suffering with no prospect of 
improvement and no alternative to end the suffering.^ The patient need not be 
terminally ill to satisfy this requirement and the suffering need not necessarily 
be physical. 

(4) Euthanasia must be a last resort.*’ 



Internal Medicine, Vol. 159 (March 22, 1999): 545-550; Len Doyal, “The Moral Character of Clinicians or the 
Best Interests of Patients?,” British Medical Journal, Vol. 318 (May 29, 1999): 1432-1433. 

'' Cf. Johan Legemaate, “Twenty-Five Years of Dutch Experience and Policy on Euthanasia and Assisted Suicide: 
An Overview,” in David C. Thomasma, Thomasine Kimbrough-Kushner, Gerrit K. Kimsma, and Chris 
Ciesielski-Carlucci (eds.). Asking to Die (Dordrecht: Kluwer Academic Publishers, 1998), p. 20; Gerrit K. 
Kimsma, “Euthanasia and Physician Assisted Suicide in the Netherlands,” in Medizin, Ethik, Recht (1994): 
161-169. 

^ The Medical Association Executive Board emphasized that there are only limited possibilities for verifying 
whether suffering is unbearable and without prospect of improvement. In any case, the Board considered it the 
doctor’s task to investigate whether there are medical or social alternatives that could make the patient’s 
suffering bearable. John Griffiths, Alex Bood and Heleen Weyers, Euthanasia and Law in the Netherlands 
(Amsterdam: Amsterdam University Press, 1998), p. 66. 

^ John Keown, “The Law and Practice of Euthanasia in the Netherlands,” The Law Quarterly Review, Vol. 108 
(January 1992), p. 56. 




THE THREE RESEARCH REPORTS OF 1990, 1995 AND 2001 



25 



The procedural requirements are as follows: 

(1) No doctor is required to perform euthanasia, but those opposed on principle 
must make this position known to the patient early on and help the patient to 
get in touch with a colleague who has no such moral objections. 

(2) Doctors taking part in euthanasia should preferably and whenever possible 
have patients administer the fatal drug themselves, rather than have a doctor 
apply an injection or intravenous drip.^ 

(3) A doctor must perform the euthanasia. 

(4) Before the doctor assists the patient, the doctor must consult a second 
independent doctor who has no professional or family relationship with either 
the patient or doctor. Since the 1991 Chabot case,* patients with a psychiatric 
disorder must be examined by at least two other doctors, one of whom must be 
a psychiatrist. 

(5) The doctor must keep a full written record of the case. 

(6) The death must be reported to the prosecutorial authorities as a case of 
euthanasia or physician-assisted suicide and not as a case of death by natural 
causes.^ Since the legalization of the new law, cases of euthanasia and PAS are 
reported to the regional committees instead of the prosecutorial authorities. 

2. THE THREE RESEARCH REPORTS 

In 1990, the Dutch government appointed a commission to investigate the medical practice 
of euthanasia. The Commission, headed by Professor Jan Remmelink, Solicitor General to 
the Supreme Court, was asked to conduct a comprehensive nation-wide study of “medical 
decisions concerning the end of life (MDEL).” The following broad forms of MDEL were 
studied: 

(1) Non-treatment decisions: withholding or withdrawing treatment when 
treatment would probably have prolonged life; 

(2) Alleviation of pain and symptoms: administering opiates in such dosages that 
the patient’s life might be shortened; 

(3) Euthanasia and related MDEL: the prescription, supply or administration of 
drugs with the explicit intention of shortening life, including euthanasia at the 
patient’s request, assisted suicide, and life termination without explicit and 
persistent request.'® 



’ The Royal Dutch Medical Association’s refinements of the 1984 Guidelines (August 25, 1995). Cf. Marlise 
Simons, “Dutch doctors to tighten rules on mercy killings,” The New York Times (September 11, 1995), p. A3. 

^ Supreme Court of the Netherlands, Criminal Chamber (June 21, 1994), no. 96.972. For translation, see John 
Griffiths, Alex Rood and Heleen Weyers, Euthanasia and Law in the Netherlands, op. cit., Appendix II (2), pp. 
329-340. 

^ Marcia Angell’s Editorial, “Euthanasia in the Netherlands - Good News or Bad?,” New Eng. J. of Medicine, 
Vol. 335, No. 22 (November 28, 1996); Adriaan Jacobovits, “Euthanasia in the Netherlands,” Washington Post 
(January 23, 1997), p. A16; General Health Council, “A Proposal of Advice Concerning Careful Requirements 
in the Performance of Euthanasia” (The Hague, 1987). 

Cf. P.J. van der Maas, J.J.M. van Delden, and L. Pijnenborg, Euthanasia and other Medical Decisions 
Concerning the End of Life, Health Policy Monographs (Amsterdam: Elsevier, 1 992). 




26 



CHAPTER 1 



The study was repeated in 1995 and in 2001, making it possible to assess whether there were 
harmful effects over time that might have been caused by the availability of voluntary 
euthanasia in the Netherlands/^ It is still difficult to make valid comparisons with other 
countries because of legal and cultural differences, and also because similar comprehensive 
studies are quite rare/^ 

The three Dutch studies were said to give the best estimate of all forms of MDEL (/.e., all 
treatment decisions with the possibility of shortening life) in the Netherlands as approximately 
39% of all deaths in 1990, 43% in 1995, and 44% in 2001. In the third category of MDEL, the 
studies gave the best estimate of voluntary euthanasia as 2300 persons each year (1.9% of all 
deaths) in 1990^^ and 3250 persons each year (2.4%) in 1995. In 2001, the rate of euthanasia 
increased to 2.6%. The estimate for physician-assisted suicide was about 0.3% in 1990, 1995 
and 2001. There were 8900 explicit requests for euthanasia or assisted suicide in the 
Netherlands in 1990, 9700 in 1995, and 9700 in 2001.^"^ Less than 40% were actually 
undertaken. Euthanasia and PAS were mainly performed among patients dying of cancer. The 
most worrisome data are related to the hastening of death without the explicit request of 
patients. There were 1000 cases (0.8%) without explicit and persistent request in 1990, and 
900 such cases (0.7%) in 1995.^^ This number remained unchanged in 2001. Ending of life 
without a patient’s explicit request occurred most frequently among people dying at age 
younger than 65 years. There were still treatment alternatives in 8% of cases in which 
a life-terminating act was performed without explicit request of the patient. The physician 
did not use these alternatives when the patient indicated a desire to stop treatment 

Paul J. van der Maas, Gerrit van der Wal, Ilinka Haverkate et al, “Euthanasia, Physician-Assisted Suicide, and 
Other Medical Practices Involving the End of Life in the Netherlands, 1990-1995,” New Eng. J. of Med., Vol. 
335, No. 22 (November 28, 1996): 1699-1705; B.D. Onwuteaka-Philipsen, A. van derHeide, D. Koper, I. Keij- 
Deerenberg, J.A.C. Rietjens, M.L. Rump, A.M. Vrakking, J.J. Georges, M.T. Muller, G. van der Wal, P.J. van 
der Maas, "Euthanasia and Other End-of-life Decisions in the Netherlands in 1990, 1995, and 2001," Lancet, 
Vol. 362 (August 2, 2003): 395-399. 

For further discussion, see Johannes J.M. van Delden et al., “Deciding Not to Resuscitate in Dutch Hospitals,” 
J. of Medical Ethics, Vol. 19 (1993): 200-205; Tony Sheldon, “Euthanasia Law Does Not End Debate in the 
Netherlands,” BMJ, Vol. 307 (December 11, 1993): 1511-1512; Henk Jochemsen, “Euthanasia in Holland: An 
Ethical Critique of the New Law,” J. of Medical Ethics, Vol. 20 (1994): 212-217; Chris Ciesielski-Carlucci and 
Gerrit Kimsma, “The Impact of Reporting Cases of Euthanasia in Holland: A Patient and Family Perspective,” 
Bioethics, Vol. 8, No. 2 (1994): 151-158; J.K.M. Gevers, “Physician Assisted Suicide: New Developments in 
the Netherlands,” Vol. 9, No. 3/4(1995): 309-312. 

P.J. van der Maas, J.J.M. van Delden, and L. Pijnenborg, Euthanasia and other Medical Decisions Concerning 
the End of Life, op. cit., p. 41. 

B.D. Onwuteaka-Philipsen et al., "Euthanasia and Other End-of-life Decisions in the Netherlands in 1990, 
1995, and 2001," op. cit., p. 396. 

Gerrit van der Wal and Paul J. van der Maas, “Empirical Research on Euthanasia and Other Medical End-of- 
Life Decisions and the Euthanasia Notification Procedure,” in David C. Thomasma, Thomasine Kimbrough- 
Kushner, Gerrit K. Kimsma, and Chris Ciesielski-Carlucci (eds.). Asking to Die, op. cit., p. 171. See also Bill 
Mettyear, “advocating legalising voluntary euthanasia” (February 1997), http://www.on.net/clients/saves/ South 
Australian Voluntary Euthanasia Society. In his comments on the first draft of this study, van der Maas wrote 
that in 1990 the decision had been discussed with a patient in 46% of the cases and in 14% there had been an 
expressed wish. Because explicit request is defined very strictly in the Dutch studies, these were not counted as 
euthanasia on request. Van der Maas noted an interesting comparison: Replication studies in Australia and 
Belgium both found frequencies over 3% for ending of life without explicit request. He estimated the number of 
active cases involving ending of life among newborns in the Netherlands to be 10-15 cases per year. Personal 
communication on September 18, 2000. 

B.D. Onwuteaka-Philipsen et al, "Euthanasia and Other End-of-life Decisions in the Netherlands in 1990, 
1995, and 2001," op. cit., p. 397. 




THE THREE RESEARCH REPORTS OF 1990, 1995 AND 2001 



27 



because it “only would prolong suffering,” or because the expected gain was not enough to 
make the treatment worthwhile.’^ 

In 1990, 30% of the general practitioners (GPs) interviewed said that they had performed 
a life-terminating act at some time without explicit request (as compared with 25% of 
specialists and 10% of nursing home physicians).’” The numbers rose substantially in the two 
later reports. In 1995, 63% of the family physicians had ever performed euthanasia or PAS. 
In 2001, 71% performed those conducts. Among nursing home physicians the percentages 
were 21 in 1995, and 36 in 2001. The percentage of clinical specialists was 37 in both 1995 
and 2001. For physicians who would never perform euthanasia, the proportion fell 
consistently: 4% in 1990, 3% in 1995, and 1% in 2001.’” Physicians who oppose the practice 
of euthanasia are becoming extinct. Apparently, there are explicit and implicit pressures on 
physicians to accept the practice as part of the medical profession. 

The proportion of physicians who were ever engaged in life-terminating acts without 
explicit request of the patients decreased from 27% in 1990 to 23% in 1995, and further to 
13% in 2001.^” It should be noted that the level of consultation was significantly lower in 
life-termination acts without patient’s explicit request than in cases of euthanasia or 
physician-assisted suicide. A colleague was consulted in 48% of the cases (as compared with 
84% in euthanasia and assisted suicide cases). Relatives were consulted in 72% of the cases 
(as compared with 94% in euthanasia and assisted suicide cases). In 68% of the cases, the 
physician felt no need for consultation because the situation was clear.^’ Van der Maas and 
colleagues note that this should be considered in light of the very brief period by which life 
was shortened.^^ In 67% of the cases, life was shortened by fewer than 24 hours. In 21% of 
the cases, life was shortened by up to one week.^” 

About a quarter of the troublesome category 1000 patients had expressed a wish for 
voluntary euthanasia previously.^"* The patient was no longer competent in almost all of those 
cases, and death was hastened by a few hours or days. A question then arises: if death was 
impending within hours or a few days, what's the rush? Why not wait, provided that with the 
right palliative care it is possible to keep the patient comfortable? A small number of cases 
(approximately 15) involved babies who were suffering from a serious congenital disorder 
and were barely viable; hence the doctor’s decision, in consultation with the parents, to 



P.J. van der Maas, J.J.M. van Delden, and L. Pijnenborg, Euthanasia and other Medical Decisions Concerning 
the End of Life, op. cii., p. 62. 

Ibid., p. 58. ' 

B.D. Onwuteaka-Philipsen et al., "Euthanasia and Other End-of-life Decisions in the Netherlands in 1990, 
1995, and 2001," op. cit., p. 397. 

Ibid. 

In another study among family doctors, one quarter of the physicians said that they did not ask for a second 
opinion before administering euthanasia or assisted suicide, and 12% of the GPs had no consultation -with any 
professional health worker. Cf. G. van der Wal, J.Th.M. van Eijk, H.J.J. Leenen and C. Spreeuwenberg, 
“Euthanasia and Assisted Suicide. II. Do Dutch Family Doctors Act Prudently?,” Family Practice, Vol. 9, No. 2 
(1992), p. 140. 

P.J. van der Maas, J.J.M. van Delden, and L. Pijnenborg, Euthanasia and other Medical Decisions Concerning 
the End of Life, op. cit., p. 65. 

Ibid, p. 66. 

Henk A.M.J. ten Have, “Euthanasia: The Dutch Experience,” Annals de la Real Academia Nacional de 
Medicina, Tomo CXII (Madrid, 1995), p. 429. 




28 



CHAPTER 1 



hasten the end of life.^^ A pertinent question here relates to the accuracy of this estimation. It 
seems that a further investigation is required to ascertain that this data is correct. 

The Remmelink Commission regarded these cases of involuntary termination of life as 
“providing assistance to the dying.” They were justified because the patients’ suffering was 
unbearable, standard medical practice failed to help and, in any event, death would have 
occurred within a week. The Commission added that actively ending life when the vital 
functions have started failing is indisputably normal medical practice: “It deserves 
recommendation that the reporting procedures in place... will in the future also cover the 
active termination of life by a doctor in the framework of help-in-dying without an explicit 
request by the patient,” except in situations where there is “the beginning of irreversible, 
interrelated failure of vital functions.” In this last case, “natural death would very quickly 
occur even if the doctor did not actively intervene...” The recommendation goes on to say 
that this is not the case with patients whose vital functions are still intact and who are subject 
to life-shortening treatment without explicit request. Such cases should be reported.^^ 

The Dutch authorities acknowledge that not every case of termination of life is reported. 
This does not mean, however, that some doctors report cases and others fail to do so. The 
distinction is related, so it is claimed, to the nature of the case. Cases in which a patient’s life 
has been terminated without his or her explicit request are usually not reported. The 
explanation provided for this alarming phenomenon is that doctors may be confronted with 
appalling suffering on the part of “terminally ill patients who are no longer able to make their 
wishes known.”^’ These patients have no prospect of recovery and are no longer able to 
make their wishes known due to the failure of their body functions. In such circumstances, 
the doctor, in consultation with the patient’s relatives, may decide to actively hasten death. It 
is claimed that approximately 50% of these patients have clearly made it known at an earlier 
stage that they would wish to die upon reaching such a condition.^* According to Henk ten 
Have, only 25% have made an earlier statement about shortening their lives. 

Henk Ten Have finds it significant that only 17% of the physicians involved in the 1000 
cases under examination cited request by the patient as the reason to terminate life. This 
indicates an important shift in moral justification, as respect for autonomy had always been 
the prime argument in favor of euthanasia, publicly defended by physicians, lawyers and the 
courts. Here it appears not to be autonomy that is respected by the physicians, but other 
concerns, such as the patients’ suffering, medicine’s failure to heal, and the knowledge that 
patients will soon die.^^ 

In effect, what we are witnessing is a two-tier strategy on the part of euthanasia 
advocates: Whereas with competent patients, they champion autonomy and the need to 



See 1996 Study Findings, “Euthanasia and other decisions concerning the end of life in the Netherlands,” 
Foreign Information Department, Netherlands Ministry of Foreign Affairs. 

Remmelink Commission, Rapport Medische Beslissingen Rond het Levenseinde (The Hague: SDU, 1991), p. 
37. See also Henk A.M.J. ten Have, “Euthanasia: The Dutch Experience,” Annals de la Real Academia 
Nacional de Medicina, Tomo CXII (Madrid, 1995), p. 429. In his comments on the first draft of this study, 
Leenen wrote that the proposal of the Remmelink Commission was rejected by nearly all the Dutch 
commentators and also by the government. Letter dated July 25, 2000. 

1996 Study Findings, “Euthanasia and other decisions concerning the end of life in the Netherlands,” Foreign 
Information Department, Netherlands Ministry of Foreign Affairs. 

Ibid. 

Henk A.M.J. ten Have, “Euthanasia: The Dutch Experience,” Annals de la Real Academia Nacional de 
Medicina, Tomo CXII (Madrid, 1995): 429^30. 




THE THREE RESEARCH REPORTS OF 1990, 1995 AND 2001 



29 



respect their wishes, with incompetent patients they emphasize the need to rely on medical 
judgment and to relieve patients from what is conceived to be unbearable suffering. 
Beneficence thus appears to be the major consideration in the Dutch euthanasia policy. The 
argument here is that when a doctor grants a patient’s request for mercy killing, the basic 
motive is not respect for the patient’s autonomy, but rather compassion. Accordingly, the 
doctor wants first and foremost to spare the patient misery and pain.^® 

On the basis of the 1995 report, the government decided to decrease the influence of 
criminal law in cases of euthanasia by instituting regional review committees. These 
committees were charged with reviewing each case of euthanasia reported to the medical 
examiner and advising whether to dismiss the case or to prosecute the physician involved. By 
introducing this mechanism, the government attempted to raise the willingness of physicians 
to report cases of euthanasia. 

3. CONTRASTING INTERPRETATIONS 

The literature on the Dutch policy and practice of euthanasia is vast, and opinions contradict 
one another considerably. Gerrit van der Wal and Robert Dillmann present a positive, almost 
ideal, portrayal of the situation, contending an “uphill” change of events. They claim that 
there has been a substantial increase in reported cases; a heightened awareness of the 
requirements of careful practice, with the necessary consideration given to patients’ wishes; 
and a significant decrease in the proportion of physicians’ prosecutions to almost nil. Most 
euthanasia cases take place at home among patients with a life expectancy of less than a 
month, after hospital treatment has proved ineffective, and the number of euthanasia cases 
reported in nursing homes is very low.^’ 

Furthermore, the Dutch practice of euthanasia is not fueled by a scarcity of health care 
resources. Quite the opposite: The health care system has some features that allow euthanasia 
and other decisions at the end of life to be free from restraint and coercion. There is a 
“strongly developed system of primary care” and additional nursing care at home, as well as 
a “well developed system of care in nursing homes.” The hospital system and specialist 
medical care “are also of a uniformly high quality.” The nursing staff has a “well developed 
professional attitude and background and is usually involved in the decision making 
process. Almost all patients have health care insurance; consequently, there are no 
financial incentives for hospitals, physicians, or family members to stop the care of patients. 
The legal right of patients to health care on the basis of their insurance “will override budget 
and other financial agreements. 



See G.A. den Hartogh, “Self-determination and Compassion in the Dutch Euthanasia-debate,” Rekenschap, Vol. 
39, No. 2 (1992), p. 110. 

Gerrit van der Wal and Robert J.M. Dillmann, “Euthanasia in the Netherlands,” British Medical Journal, Vol. 
308 (1994): 1346-1349. 

Arie J.G. van der Arend provides data that refute this contention. Cf. “An Ethical Perspective on Euthanasia and 
Assisted Suicide in the Netherlands from a Nursing Point of View,” Nursing Ethics, Vol. 5, No. 4 (1998), at 
313. See also idem, “Euthanasia and Assisted Suicide in the Netherlands: Clarifying the Practice and the 
Nurse’s Role,” Int. Nurs. Rev., Vol. 45, No. 5 (1998), esp. p. 148; Ada van de Scheur and Arie van der Arend, 
“The Role of Nurses in Euthanasia: A Dutch Study,” Nursing Ethics, Vol. 5, No. 6 (1998), esp. pp. 505-506. 
Gerrit van der Wal and Robert J.M. Dillmann, “Euthanasia in the Netherlands,” op. cit.: 1346-1349. 




30 



CHAPTER 1 



Margaret Battin emphasizes that euthanasia in the Netherlands is comparatively rare. Her 
interpretation of the Remmelink report is quite favorable. She points out that each year, less 
than one-third of the 9,000 explicit requests for euthanasia are actually honored. She also 
finds it positive that the practice of euthanasia is based on general practitioners insofar as it is 
typically performed by the patient’s personal physician, rather than a stranger. Euthanasia is 
performed within the context of an extended period of consultation and care. Not only is it 
usually performed at home with the patient’s family present, but the physician also remains 
with the patient or in an adjoining room throughout the process.^^ 

Other advocates of the Dutch policy and practice of euthanasia reiterate that the findings 
of the 1995 report do not support the claim that the Dutch are on a slippery slope. A number 
of factors have contributed to the increase in voluntary euthanasia and medically assisted 
suicide from 2.1% to 2.7% of total deaths in the five-year period following the first report. 
They explain that mortality rates have risen as the population ages, with an increase in the 
proportion of deaths from cancer and heart disease. Life-prolonging techniques have become 
increasingly available, and there may have been generational and cultural changes in 
patients’ attitudes. The slightly fewer cases of ending life without an explicit request may be 
an indication of the increasing openness with which end-of-life decisions are discussed with 
patients. The South Australian Voluntary Euthanasia Society responded to the results of the 
1995 Dutch study by saying: 

Since the notification procedure was introduced, end-of-life decision making in the Netherlands 
has changed only slightly, in an anticipated direction. Close monitoring of such decisions is 
possible, and we found no signs of an unacceptable increase in the number of decisions or of less 
careful decision-making.^^ 

Here again, however, the interpretations are inconsistent. Hendin and colleagues argue 
that by 1995, the number of deaths in which physicians gave pain medication with the 
explicit intention of ending the patient’s life had increased from 1350 cases (1% of all 
deaths) to 1896 (1.4% of all deaths). They note that van der Maas and colleagues do not 
make these comparisons, maintaining that the total of all the deaths resulting from 
euthanasia, assisted suicide, ending life without consent, and giving opiates with the explicit 
intention of ending life must be considered. By so doing, it can be seen that the estimated 
number of deaths caused by active intervention of physicians has increased from 4813 (3.7% 
of all deaths) in 1990 to 6368 (4.7% of all deaths) in 1995, representing an increase of 27% 
in such cases. If one adds to this number the cases in which treatment was withheld or 
withdrawn with the explicit intent of shortening life (18,000), the cases in which the lives of 



Margaret P. Battin, The Least Worst Death (New York: Oxford University Press, 1994), at 132-133. See also 
Pieter V. Admiral, “Justifiable Euthanasia,” Issues in Law and Medicine, Vol. 3, No. 4 (Spring 1988): 361-370; 
H.M. Kuitert, “Euthanasia in the Netherlands: A Practice and Its Justification,” lecture delivered at the First 
World Congress of Bioethics (Amsterdam, 1992). 

South Australian Voluntary Euthanasia Society, Fact Sheet 17 (February 1997). 

Herbert Hendin, Chris Rutenfrans and Zbigniew Zylicz, “Physician-Assisted Suicide and Euthanasia in the 
Netherlands,” JAMA, Vol. Ill, No. 21 (June 4, 1997), p. 1721. Van der Maas et al object to combining 
different categories of actions at the end-of-life. Cf. Johannes J.M. van Delden, Loes Pijnenborg and Paul J. van 
der Maas, “Dances with Data,” Bioethics, Vol. 7, No. 4 (1993): 323-329, at 325. 




THE THREE RESEARCH REPORTS OF 1990, 1995 AND 2001 



31 



neonates were intentionally ended (90 cases), and the cases of psychiatric patients who were 
assisted in suicide (2 to 5 cases), then the total rises to over 24,000 cases. 

The Dutch investigators minimized the significance of the number of deaths without 
consent by explaining that the patients were incompetent.^* However, Hendin et al argue that 
in the 1995 study, 21% of the individuals classified as “patients whose lives were ended 
without explicit request” were competent, whereas in the 1990 study, 37% were reported as 
competent. They maintain that more than 4000 additional competent patients were given pain 
medication in amounts likely to end their lives by physicians without discussing this decision 
with the patients, though the primary intention was not to end their lives. The physicians 
justified their actions by saying that they had some previous discussion with the patient. Yet, 
Hendin et al conclude, “it seems incomprehensible that a physician would terminate or put at 
risk the life of a competent patient on the basis of a previous discussion without checking 
what the patient felt currently.”*^ 

A study, presented at the 20* International Congress of Chemotherapy in Sydney (July 
1997), claimed that the law exempting Dutch physicians from criminal prosecution in cases 
of strictly controlled euthanasia had created a “slippery slope.” It pointed to the hundreds of 
patients whose lives had been ended without their explicit request through the use of 
painkillers by physicians in the Netherlands in 1995. One of the study’s authors. Dr. Dick 
Willems, referred to this situation as “very worrisome,” while at the same time denying that 
the situation had worsened since euthanasia’s quasi-legalization.^'* 

Other commentators were already arguing in the late 1980s that there were grounds for 
concern about the Dutch experience. Ph. Schepens stated that the performance of euthanasia 
without the consent of the patient was from two to five times more frequent than euthanasia 
with consent.'" Some Dutch studies have indicated that elderly people may be fearful of their 
lives being ended without their consent and that, in fact, families in Holland request 
euthanasia more often than the patient.'*^ 



’’ Henk Jochemsen and John Keown, “Voluntary Euthanasia under Control? Further Empirical Evidence from the 
Netherlands,” Journal of Medical Ethics, Vol. 25 (1999): 16-21, at 19-20, reprinted in brief in Issues in Law 
and Medicine, Vol. 14 (Spring 1999), at 474. See also J. Keown, “Euthanasia in the Netherlands: Sliding Down 
the Slippery Slope?,” Notre Dame J. of Law, Ethics and Public Policy, Vol. 9 ( 1 995): 407^48. 

Paul J. van der Maas, Gerrit van der Wal, llinka Haverkate et al, “Euthanasia, Physician-Assisted Suicide, and 
Other Medical Practices Involving the End of Life in the Netherlands, 1990-1995,” New Eng. J. of Med., Vol. 
335, No. 22 (November 28, 1996): 1699-1705. See also Loes Pijnenborg, Paul van der Maas, Jan W.P.F. 
Kardaun et al. “Withdrawal or Withholding of Treatment at the End of Life,” Arch. Intern. Med., Vol. 155 
(February 13, 1995), esp. at 291. 

’’ Herbert Hendin, Chris Rutenfrans and Zbigniew Zylicz, “Physician-Assisted Suicide and Euthanasia in the 
Netherlands,” op. cit., p. 1721. 

Steve Dow, “Dutch laws linked to fears over euthanasia,” The Age: Melbourne Online (July 4, 1997). See 
http://www.theage.com.au. 

Ph. Schepens, “Euthanasia: Our Own Future?,” Issues in Law and Medicine, Vol. 3, No. 4 (Spring 1988): 371- 
384. 

J.H. Segers, “Elderly Persons on the Subject of Euthanasia,” Issues in Law & Medicine, Vol. 3 (1988): 407- 
424; John Keown, “The Law and Practice of Euthanasia in the Netherlands,” Law Quarterly Review, Vol. 108 
(January 1992): 51-78; R. Fenigsen, “A Case Against Dutch Euthanasia,” Hastings Center Report, Vol. 19 
(Supp.) (1989): 22-30. See also Fenigsen’s further critique in “The Report of the Dutch Governmental 
Committee on Euthanasia,” Issues in Law & Medicine, Vol. 7, No. 3 (Winter 1991): 339-344; “Physician- 
Assisted Death in the Netherlands: Impact on Long-Term Care,” Issues in Law & Medicine, Vol. 11, No. 3 
(1995): 283-297, and “Dutch Euthanasia Revisited,” Issues in Law & Medicine, Vol. 13 (Winter 1997): 301- 




32 



CHAPTER 1 



Daniel Callahan claims that despite the large number of estimated cases each year, the 
actual reports that are required by law amount to no more than three hundred. There is no 
way of knowing whether the other conditions specified by the Dutch Supreme Court are 
actually being met. There is no effective legal supervision of euthanasia in the Netherlands, 
and no evidence that the Court’s conditions are taken seriously. Moreover, no significant 
efforts are made by the Dutch police authorities to seek out those practicing euthanasia 
without reporting it."^^ 

The British Medical Association, in its memorandum before the House of Lords 
regarding the situation in the Netherlands, stated: 

All seem to agree that the so-called rules of careful conduct (official guidelines for euthanasia) are 
disregarded in some cases. Breaches of rules range from the practice of involuntary euthanasia to 
failure to consult another practitioner before carrying out euthanasia and to certifying the cause of 
death as natural. Some would see this as lending credence to the view that even careful 
circumscription of the practice cannot guarantee observance of the rules.'"' 

Paul van der Maas and colleagues reported that the general practitioner consulted a 
colleague in 81% of eases, whereas in-hospital consultation occurred in 93% of cases."^^ The 
study does not say whether the consulting colleague was independent from the physician 
who requested the consultation. Another study holds that consultation takes place in more 
than sixty percent of euthanasia and PAS cases, in 99% of the cases reported to the public 
prosecutor and in approximately 37% of unreported cases. In 1990, 7% of GPs met all the 
criteria for good consultation; this increased to 64% in 1995."'^ No pertinent data is available 
in the 2001 study. Herbert Hendin argued that consultation in euthanasia eases is often for 
the sake of the form and that the consulting doctor often does not see the patient at all. In 
response to criticism about this situation, the Royal Dutch Medical Association has issued 
revised Guidelines that urge consultants to actually see the patient, stating that a telephone 
conversation with the referring doetor is insufficient. Aecording to Hendin, consultation 
offers the patient little proteetion anyway. In cases where the details are available, the 
consultant is usually found to be a euthanasia advocate who routinely confirms proceeding 
with the process without conducting a truly independent evaluation."^^ 



311. In his comments on the first draft of this study, Leenen wrote that Schepens, Segers, Fenigsen and 
Callahan do not base their arguments on research. These are not ‘studies.’ Letter dated July 25, 2000. 

Daniel Callahan, The Troubled Dream of Life (New York: Simon and Schuster, 1993), at 113. See also Daniel 
Callahan and Margot White, “The Legalization of Physician-Assisted Suicide: Creating a Regulatory Potemkin 
Village,” Un. of Richmond L. Rev., Vol. 30, No. 1 (January 1996): 1-81, esp. 13-18; Richard Fenigsen, “The 
Netherlands: New Regulations Concerning Euthanasia,” Issues in Law and Medicine, Vol. 9, No. 2 (Fall 1993): 
167-173; C..I. Dessaur and C. J. C. Rutenfrans, “The Present Day Practice of Euthanasia,” Issues in Law and 
Medicine, Vol. 3, No. 4 (Spring 1988): 399^05; Peter A. Singer and Mark Siegler, “Euthanasia - A Critique,” 
New England J. of Medicine, Vol. 322 (June 1990): 1881-1883; John Keown, “On Regulating Death,” The 
Hastings Center Report, Vol. 22 (March-April 1992): 39-43. 

"" House of Lords, Select Committee on Medical Ethics, session 1993-94, Vol. II, Minutes of Oral Evidence 
(London: HMSO, 1994), at 33. 

P.J. van der Maas, J.J.M. van Delden, and L. Pijnenborg, Euthanasia and other Medical Decisions Concerning 
the End of Life, op. cit., p. 47. See also p. 44. 

Breje D. Onwuteaka-Philipsen, Gerrit van der Wal, Piet J. Kostense and Paul J. van der Maas, “Consultation 
with another Physician on Euthanasia and Assisted Suicide in the Netherlands,” Social Science and Medicine, 
Vol. 51 (2000): 429^38. 

Herbert Hendin, “The Slippery Slope: The Dutch Example,” Duquesne L. Rev., Vol. 35 (1996), pp. 429^30. 
See also KNMG Guidelines on Assisted Suicide and Euthanasia (August 1995). 




THE THREE RESEARCH REPORTS OF 1990, 1995 AND 2001 



33 



Because of these contrasting interpretations, fieldwork is necessary for the understanding 
of the Dutch euthanasia policy and practice. Before introducing my research and presenting 
the interviewees’ responses to my questions concerning the worries expressed supra, let me 
provide some further background about the practice of euthanasia and the legal framework. 




CHAPTER 2 



THE PRACTICE OF EUTHANASIA AND THE EEGAE 

FRAMEWORK 



1. THE PRACTICE OF EUTHANASIA 

The three relevant categories of Dutch doctors who are involved in the practice of euthanasia 
are GPs, nursing-home doctors, and specialists. Every person in the Netherlands has a more 
or less permanent relationship with a GP, who provides primary health care and is the point 
of entry for specialist care. GPs have the most extensive experience with euthanasia insofar 
as they discuss it most frequently with their patients, they receive two-thirds of all requests, 
and they are generally the most willing to perform it. The level of experience with euthanasia 
among specialists is about half that of GPs (with 3% of all deaths in their practice 
attributable to euthanasia). By contrast, euthanasia plays a small role in the practice of 
nursing-home doctors, who receive relatively few requests (only a fifth of them have ever 
honored one).' 

The Guidelines speak of “persistent request." A request made on impulse or as a result of 
a temporary period of depression should not be honored. The request must have been 
discussed repeatedly and thoroughly a number of times during several conversations. 
However, van der Wal and colleagues conducted a survey among a random sample of family 
doctors, showing that in 22% of cases the request was made only once.^ 

The rate of record keeping^ and written requests"* in euthanasia cases improved during the 
1990s, but the situation is still unsatisfactory. There are written requests in about 60% and 
written record keeping in some 85% of all cases of euthanasia.^ A most troubling 
phenomenon is the significant number of unreported euthanasia cases. Since November 
1990, new state regulations require physicians to report cases of euthanasia to the local 
coroner and the public prosecutor. The number of reports rose from 454 cases in 1990 to 591 
in 1991, to 1323 in 1992, to 1318 in 1993, and to 1424 in 1994. In 1999, the total number of 
reports was 2216.^ This considerable increase suggests that more physicians are willing to 



John Griffiths, “Effective Regulation of Euthanasia and Other Medical Behavior that Shortens Life," in Ejan 
Mackaay (ed.), Uncertainty and the Law (Montreal: Editions Themis, 1999), pp. 72-73. 

^ G. van der Wal, J.Th.M. van Eijk, H.J.J. Leenen and C. Spreeuwenberg, “Euthanasia and Assisted Suicide. II. 

Do Dutch Family Doctors Act Prudently?,” Family Practice, Vol. 9, No. 2 (1992), p. 1 12. 

^ A doctor has an obligation to maintain a full dossier on every patient and to accurately record therein what he or 
she does and why. Keeping adequate records is a general requirement of medical practice, and specifically is 
one of the requirements of careful practice in the case of euthanasia. 

'' Kimsma notes that written requests for euthanasia are preferable but not mandatory. Another acceptable 
solution is a witness. 

^ John Griffiths, “Effective Regulation of Euthanasia and Other Medical Behavior that Shortens Life,” op. cit., p. 
74. 

^ I thank Henk Leenen for this piece of information. 



35 




36 



CHAPTER 2 



acknowledge and report their actions, having seen that their colleagues are not being 
prosecuted for performing euthanasia. At the same time, the Remmelink Commission 
detected 2300 cases of euthanasia, which means that about half are still unreported.^ John 
Griffiths writes that the reporting rate for euthanasia* was 18% in 1990, and that by 1995 it 
had risen to 41%. A situation in which less than half of all cases are reported is unacceptable 
from the standpoint of effective control.^ 

The Dutch approach to euthanasia is said to reflect an open attitude towards tackling a 
difficult moral issue. For the past twenty five years, the debate has been discussed openly in 
all circles of society. It has been considered in the Parliament, addressed by the courts, 
debated in religious institutions, and has required the constant attention of the Royal Dutch 
Medical Association. It continues to be a focus of the media, and polls have been conducted 
from time to time to examine public attitudes on this issue. 

Despite this apparent openness, the 1990 study shows that 22% of physicians feel that 
they should not always be required to report euthanasia as unnatural death. The legal 
ambiguity that existed for twenty years made Dutch doctors feel uncomfortable with 
reporting euthanasia, citing prosecution as an objection. They emphasized that they would be 
prepared to report euthanasia as such, but did not wish to be considered as a suspect in a 
criminal act. Thus, the uncertainty of what might happen to the physician was considered an 
obstacle to reporting an unnatural death.’® To address this issue, a careful, clearly stated 
procedure was needed, one that would be explicitly recognized under the law. 

2. THE LEGAL FRAMEWORK 

The legal ambiguity was the result of prohibiting euthanasia under the law while allowing 
the practice under certain circumstances. Two Articles of the Criminal Code explicitly 
prohibit euthanasia: Article 293 prohibits killing a person at his or her request (“Any person 
who takes another person’s life at that person’s express and earnest request shall be liable to 
a term of imprisonment not exceeding twelve years or a fine of NLG 100,000”); Article 294 
prohibits assisted suicide (“Any person who intentionally incites another person to commit 
suicide, assists him in the act or provides him with the means to commit suicide shall, if 
suicide follows, be liable to a term of imprisonment not exceeding three years or a fine of 
NLG 25,000”).” 

Despite these legal provisions, the courts have held that Article 40 of the Criminal Code 
(“Any person who was compelled by force majeure to commit a criminal act shall not be 



^ Henk A.M.J. ten Have, “Euthanasia: The Dutch Experience,” Annals de la Real Academia Nacional de 
Medicina, Tomo CXII (Madrid, 1995), pp. 436^37. 

^ Reporting, as opposed to record keeping, refers to the requirement that a doctor report a case of euthanasia to 
the authorities as an unnatural death. 

^ John Griffiths, “Effective Regulation of Euthanasia and Other Medical Behavior that Shortens Life,” op. cit., 
pp. 74-75. 

P.J. van der Maas, J.J.M. van Delden, and L. Pijnenborg, Euthanasia and other Medical Decisions Concerning 
the End of Life, op. cit., p. 98. 

Netherlands Ministry of Foreign Affairs - APPENDICES. For further reading, see H.J.J. Leenen, “Euthanasia, 
Assistance to Suicide and the Law: Developments in the Netherlands,” Health Policy, Vol. 8 (1987): 197-206; 
J.K.M. Gevers, “Legal Developments Concerning Active Euthanasia on Request in the Netherlands," Bioethics, 
Vol. 1, No. 2 (1987): 156-162, and 

http://www.bz.minbuza.n1/English/Policy/c_eutheng-app.html# 




THE PRACTICE OF EUTHANASIA AND THE LEGAL FRAMEWORK 



37 



criminally liable”)*^ provides a defense to doctors charged under Articles 293 and 294. The 
overmacht defense, which, like force majeure, translates as overpowering foree, envisions a 
case of urgency whereby the accused is driven by his or her conscience to commit an offence 
that amounts to a lesser evil than would have ensued had events been permitted to run their 
course. As such, the accused decided to make the deliberate moral choice to break the law 
because the force of circumstances precluded delaying action. However, the defense does not 
stand if there was a reasonably available option whereby the accused could have avoided the 
commission of the offence.*^ 

A major step was taken in 1990 on behalf of physicians practicing euthanasia. In 
soliciting for the approval and cooperation of the Royal Dutch Medical Association with the 
Remmelink study, the Ministry of Justice not only promised legal immunity for physicians 
participating in the national investigation, but it also agreed to proclaim a notification 
procedure that included the following elements: 

(a) The physician performing euthanasia does not issue a declaration of a 
natural death and informs the local medical examiner by means of an 
extensive questionnaire; 

(b) The medical examiner reports to the district attorney; 

(c) The public prosecutor decides whether a prosecution must be started. As a 
general rule, cases in which the doctor has complied with the requirements 
for euthanasia would not be prosecuted.*"^ 

The notification procedure was granted a formal legal status by a procedural law that 
came into force on June 1, 1994. According to this law, a physician performing euthanasia in 
compliance with the criteria that have been developed in case law and medical ethics will, as 
a general rule, not be prosecuted.’^ 

On November 28, 2000, the Dutch Lower House of parliament, by a vote of 104 for and 
40 against, approved the legalization of euthanasia. On April 10, 2001 the Dutch Upper 
House of parliament voted to legalize euthanasia, making the Netherlands the first and at that 
time only country in the world to legalize euthanasia. Forty-six members of the 75-seat 
Senate voted for the Termination of Life on Request and Assistance with Suicide Act, twenty- 
eight voted against; one member was not present. A year later, in April 2002, the legalization 
process was completed when the law was approved by the Dutch Senate. 

The new legislation makes it legal to end a patient’s life, subject to the following criteria: 
the patient must be suffering unbearable and unremitting pain, with no prospect of 
improvement. The patient must make a sustained, informed and voluntary request for help to 



http://www.bz.minbuza.n1/English/Policy/c_eutheng-app.html# 

Barney Sneiderman and Marja Verhoef, “Patient Autonomy and the Defence of Medical Necessity: Five Dutch 
Euthanasia Cases,” Alberta Law Review, Vol. XXXIV, No. 2 (1996), p. 376. In England and Canada, the 
defense of medical necessity has been recognized in abortion cases (see R. v. Bourne [1938] 3 All E.R. 615 and 
R. V. Morgentaler, [1975] 20 C.C.C. 2d, 449), but it is not available in euthanasia cases. See R. v. Cox [1992], 
unreported. R. Porter, “Doctor convicted of attempted murder,” Sunday Telegraph (September 20, 1 992), and 
the Latimer case, http://www.cnn.com (November 5, 1997); Reuters, Toronto, “Canada farmer gets two years 
for mercy killing of daughter” (December 1 , 1997). 

Robert J.M. Dillmann and Johan Legemaate, “Euthanasia in the Netherlands: The State of the Legal Debate,” 
European J. of Health Law, Vol. 1 (1994), p. 84. 

A translation of the law can be found in John Griffiths, Alex Bood and Heleen Weyers, Euthanasia and Law in 
the Netherlands, op. cit., pp. 308-313. 




38 



CHAPTER 2 



die. All other medical options must have been previously exhausted. A seeond medical 
opinion must be sought to eonfirm diagnosis and prognosis. The termination of life must then 
be carried out in a medieally appropriate care and attention. The physician is obliged to 
report the death to the municipal pathologist, specifying whether the cause of death was 
euthanasia or assisted suicide.’^ 

Doctors will be immune from prosecution for helping a patient to die, as long as they 
follow this set of Guidelines. They will still report cases of voluntary euthanasia to the 
coroner and a regional committee, who can recommend prosecution leading to a prison 
sentence of up to 12 years if the Guidelines have not been followed. The new Act changed 
the emphasis on who should prove guilt or innocence if the code of practice is breached. 
Previously, the onus was squarely on the doctors to prove that they had followed the 
Guidelines and were therefore innocent of any offence. However, the new law shifts the 
responsibility for proving guilt to the regional committees. 

The law contains special provisions dealing with requests from minors for termination of 
life and assisted suicide. The most controversial aspect of the original act was that incurably 
ill minors between the ages of 12 and 16 may request and receive help to die, with the 
agreement of their parents. In exceptional circumstances, doctors may even be able to help 
the child to die without parental consent, although such cases are likely to be rare. Persons of 
16 to 18 years of age would be able to request euthanasia without recourse to their parents’ 
approval.” 

In July 2000, in response to critical questions by members of parliament, the Cabinet 
dropped the provision that euthanasia requests by minors between 12 and 16 years in 
exceptional cases could be granted without the parents’ consent. Some analysts viewed this 
retreat as a manoeuvre to win approval for other controversial provisions of the new 
legislation, such as legalizing euthanasia for victims of Alzheimer’s disease.'* Still, allowing 
euthanasia for minors 12 years of age and older seriously overestimates the capacity of 
minors to evaluate the meaning and consequences of a request to die. It places an 
unacceptable burden on these young people and may well disturb society’s confidence in the 
relationship between physicians, parents and children. Jochemsen rightly says that unless we 
are prepared to give minors the right to do everything else in life that an adult can do, giving 
them the right to end life seems out of place. 

The new law also establishes a legal basis for advance euthanasia declarations via a type 
of living will in which competent patients would request euthanasia in the event they become 
mentally incompetent. Though such a statement does not imply that a physician has a duty to 
perform euthanasia, it provides the legal opening to end the life of incompetent patients who 
had signed such a document. 

The Royal Dutch Medical Association (KNMG) welcomed the legislation process. It has 
long argued for ending the paradoxical legal situation that physicians acting within the 



Reuters, “Dutch Parliament votes to legalize euthanasia" (November 28, 2000). 

“Minderjarige mag euthanasie vragen,” NRC Handelsblad (July 10, 1999), p. 3. See also Marilyn Gardner, 
“Dutch poised to legalize euthanasia,” The Christian Scienee Monitor (June 30, 2000). 

http://www.csmonitor.eom/durable/2000/06/28/text/p 1 s4.html 
'* “Dutch call off aided suicide for children,” The International Herald-Tribune and The Associated Press (July 
15,2000). 

Henk Jochemsen, “Update: The Legalization of Euthanasia in The Netherlands,” Ethies & Medicine, Vol. 17, 
No. 1 (2001): 7-12. 




THE PRACTICE OF EUTHANASIA AND THE LEGAL FRAMEWORK 



39 



criteria for careful conduct could still face criminal prosecution. The Justice Minister, Benk 
Korthals, emphasized that physicians must be convinced of the “objective medical reasons” 
for the patient’s suffering. Being merely “tired of life” was not sufficient.^” 



2.1. Leading Court Cases 

The first case in which a physician was found guilty under Article 293 but not punished took 
place in the early 1950s. It concerned a patient who had been suffering from advanced 
tuberculosis and had for some time been urging his brother, who was a physician, to end his 
misery. Finally, the brother administered painkillers and sleeping pills and killed the patient. 
The physician was prosecuted, convicted and received a one-year probation. Apparently, the 
court considered the relationship between the physician and his brother, as well as the 
patient’s terminal illness, as mitigating factors.^* 

In 1966 a young woman named Mia Versluis suffered cardiac arrest under anesthesia and 
became comatose. After five months, the anesthesiologist, who had continued to care for her, 
went to remove her from the ventilator. Her father, who believed mistakes had been made 
during the original anesthetic, lodged a complaint with the Medical Disciplinary Tribunal 
(equivalent to our Board of Medical Examiners), and the case went through the court system. 
The court ruled that in termination of life support, other colleagues must be consulted first, 
and the situation must be discussed with the family. The doctor was fined 1000 guilders and 
the court ruling was made public (relatively severe sanctions under Dutch disciplinary law).^^ 
However, it was not until the Postma case that the euthanasia movement was really put in 
motion. 



2.1.1. Postma 

The campaign to legalize physician-assisted suicide in the Netherlands began in 1973 with 
this case, in which a family doctor was prosecuted for giving a lethal injection of morphine 
to her mother, who lived in a nursing home. Ms. Postma, a 78-year-old widow, had been in a 
nursing home since a cerebral hemorrhage had left her paralyzed on one side. On several 
occasions, she had asked her daughter to end her life. She had also spoken of not wanting to live 
any more to her other daughter and to the nursing home staff Finally, after many repeated 
requests, her daughter acquiesced in the presence of the daughter’s husband, who was also a 
physician. She was promptly charged with manslaughter, which stirred up a great deal of 
public sympathy for the daughter. After two years, the court found her guilty under existing 
law, ruling that the lethal injection was not a reasonable means to put an end to her mother’s 
suffering. At the same time, the court acknowledged that doctors are not obliged to prolong life 
at any cost and that under certain conditions it can be legitimate to use medication with the 
intention of shortening life. Consequently, the verdict was very lenient, with Dr. Postma given a 



Tony Sheldon, “Netherlands Gives More Protection to Doctors in Euthanasia Cases,” British Medical Journal, 
Vol. 321 (December 9, 2000), p. 1433. 

Jim Persels, “Forcing the Issue of Physician-assisted Suicide,” Journal of Legal Medicine, Vol. 14 (1993), p. 
105. 

Joseph B. Vander Veer Jr., "Euthanasia in the Netherlands," Journal of the American College of Surgeons, Vol. 
188, Issue 5 (May 1999): 532-537. 




40 



CHAPTER 2 



conditional jail sentence of one week with a one-year probation. Later, even that sentence was 
suspended.^^ 

Undoubtedly, this was a highly emotional case. The procedure, however, was very 
problematic. From the details of the case it seems that no independent physician was 
consulted and that all decisions remained in the family. The extent to which close members 
of the family are able to make unbiased, non-partisan and professional decisions is 
questionable. The control mechanisms of the euthanasia practice require including 
uninvolved professionals. 

Following the Postma decision, the KNMG (Royal Dutch Medical Association) issued a 
statement that the administration of pain relieving drugs and the withholding or withdrawal 
of futile treatment could be justified even if it resulted in death. In 1981, a lay volunteer, 
named Ms. Wertheim, assisted in the suicide of a non-terminally ill patient, who on many 
occasions had expressed her wish to die. The patient’s GP had refused to accede to her 
request and had referred her to Ms. Wertheim, who, after a few meetings, assisted with the 
patient’s suicide. She was prosecuted in the Rotterdam Criminal Court, which acknowledged 
the patient’s right to self-determination and set forth standards for non-criminal aid in dying. 
The most noteworthy of these were that a patient requesting the aid need not be terminally 
ill, but need only be experiencing unremitting physical and mental suffering, and that a 
doctor must be involved in the decision and must determine the method to be used. As a jail 
sentence would have been too much of a burden for the 76-year-old Ms. Wertheim to bear, 
she was given a conditional sentence of six months subject to a one-year probation.^'* 



2.1.2. Schoonheim 

The first acquittal of a doctor committing euthanasia took place in 1983 and was upheld by 
the Supreme Court (called Hoge Raad) in the Schoonheim case in 1984. The case concerned 
Maria Barendregt, a 95-year-old bedridden patient who was totally dependent on the nursing 
staff for her bodily needs and who continuously expressed her desire to die. Her doctor 
consulted with another physician, who concurred that the patient was unlikely to regain her 
health. However, although the patient was suffering, her illness was not terminal. The 
Alkmaar Court diverged from the existing criteria of continuous and unbearable suffering of 
a physical and spiritual nature, and instead required the defense to show that the patient was 
only under continuous suffering and that euthanasia could be justified solely on the basis of 
psychological suffering.^^ The prosecution appealed to the Court of Appeals in Amsterdam, 
which, in turn, rejected Schoonheim’s defense and found him guilty, holding that his conduct 
constituted an offence under Article 293 of the Penal Code. At the same time, the Court used 
its discretion not to impose any punishment, given the judges’ assessment that the doetor 

Charles F. McKhann, A Time to Die: The Place for Physician Assistance (New Haven, Conn.: Yale University 
Press, 1999), p. 122. The Postma case was the best known prosecution during this period of a person who killed 
another at the latter’s request, but it wasn’t the only one. There were at least three other prosecutions for 
violations of Articles 293 or 294. Cf Carlos F. Gomez, Regulating Death (New York: The Free Press, 1991), 
pp. 28-32; John Griffiths, Alex Bood and Heleen Weyers, Euthanasia and Law in the Netherlands, op. cit, p. 
53. 

Jim Persels, “Forcing the Issue of Physician-assisted Suicide,” op. cit., p. 106; John Griffiths, Alex Bood and 
Heleen Weyers, Euthanasia and Law in the Netherlands, op. cit., pp. 58-59. 

Jim Persels, “Forcing the Issue of Physician-assisted Suicide,” op. cit., p. 107. See also Joseph B. Vander Veer 
Jr., "Euthanasia in the Netherlands," op. cit. 




THE PRACTICE OF EUTHANASIA AND THE LEGAL FRAMEWORK 



41 



acted with integrity and due caution. On further appeal, the Supreme Court affirmed the 
appellate court’s absence of material illegality analysis. However, it remanded the case to the 
Court of The Hague to determine if Schoonheim’s conduct was justified under the defense of 
necessity (Article 40). The Court accepted the doctor’s defense that he faced a conflict of 
responsibilities between preserving the patient’s life and alleviating suffering. In cases where 
the doctor is confronted by such a conflict and the objective circumstances justify shortening 
the patient’s life, the resolution of the conflict might necessitate the performance of 
euthanasia. This decision would have to be reached on the basis of the doctor’s responsible 
medical opinion, as measured by the prevailing standards of medical ethics.^^ The Hague 
Court of Appeals acquitted Schoonheim, deeming that he had properly resolved his conflict 
of duties. 

The reading of the details of this case suggest that there were compelling reasons to 
perform euthanasia. First, the patient’s decision was voluntary. Mrs. Barendregt agonized 
over her progressive degradation as she became steadily less able to communicate with her 
loved ones and the medical staff. By the last week of her life, she was no longer able to take 
liquids or to speak, and she was suffering from periodic lapses of consciousness. However, 
when she regained some ability to communicate, she adamantly expressed her horror at the 
fact that she was still alive. Available medical treatment did not seem to help her. Mrs. 
Barendregt was fully aware of her condition, which brought her to pray for death. There was 
no indication that her family exerted pressure on her to die. She was the one who begged her 
son to urge the physician to end her life at the earliest possible moment. The patient had a 
long farewell with her son and daughter-in-law, at which time she expressed her gratitude to 
Dr. Schoonheim for his devoted care and for agreeing to terminate her life. Finally, the case 
was documented, as it should be. 

Having said that, the decision-making process remains somewhat questionable. Although 
it involved Mrs. Barendregt, her son, and the two physicians, more should be done to verify 
the patient’s diagnosis and to see that euthanasia is the last resort, after exhausting all 
treatment alternatives. If the series of talks involved only Dr. Schoonheim and his assistant, a 
young physician working in his office, then it contravenes the requirement of independent 
consultation. In order to minimize misdiagnosis and to allow the discovery of other medical 
options, the decision-making process should include a second opinion provided by a 
specialist who is not dependent on the first doctor, either professionally or otherwise. 
Furthermore, it is preferable to broaden the decision-making team to include a lawyer, who 
can examine the legal aspects of the case; a social worker, who can assess the relationships 
within the family and verify that the euthanasia request is voluntary and free of coercion; and 
a psychologist, who can evaluate the patient’s frame of mind. Possibly a public 
representative should be included as well. This extra caution should ensure that the right to 
die with dignity does not become a duty. 



Nederlandse Jurisprudentie, 1985, no. 106. John Griffiths, Alex Bood and Heleen Weyers, Euthanasia and Law 
in the Netherlands, op. cit., pp. 18-19, 62-63, 322-328; B. Sneiderman and M. Verhoef, “Patient Autonomy 
and the Defence of Medical Necessity: Five Dutch Euthanasia Cases,” op. cit., pp. 388-392; Julia Belian, 
“Deference to Doctors in Dutch Euthanasia Law,” Emory Int. L. Rev., Vol. 10 (Spring 1996): 255-295, in URL: 
http://www.law.emory.edu/EILR/volumes/spring96 




42 



CHAPTER 2 



2.1.3. Admiraal 

The decision in Schoonheim was followed by the Pols case,^’ and these two court rulings led 
to a series of judicial decisions through which the conditions and limitations of the defense 
were gradually worked out. In 1985, the District Court of The Hague acquitted Dr. Pieter 
Admiraal for the charge of offence under Article 293. The case concerned Karin L., a 34- 
year-old patient who had been afflicted with multiple sclerosis since 1976. The progressive 
deterioration of her condition led to a nursing home admission in 1981. By mid-1983, she 
was completely paralyzed except for the movement of her left hand. Karin was dismayed by 
her state of total dependency, remarking that she could not even brush away a fly. Despite 
the fact that Karin’s condition was not defined as “terminal,” she could barely swallow or 
speak above a whisper, her sight was failing, and she was experiencing intractable bone pain. 
Her breathing was becoming more labored, and although she feared suffocation, Karin was 
appalled at the thought of artificial ventilation. She repeatedly asked to die, knowing that her 
intolerable condition bore no prospects for improvement. She asked her nursing home 
physician to end her life, and when he refused she approached the Dutch Voluntary 
Euthanasia Society for help. Then Dr. Admiraal entered the scene. 

The decision-making process was extensive but not flawless. Dr. Admiraal consulted 
with the terminal care team at his hospital, which cannot be deemed as independent. There 
were a number of sessions in which he and the team conferred with Karin and her parents. At 
Dr. Admiraal’ s request, her family physician of thirty years had a long talk with Karin about 
her request for euthanasia. The family pastor was also consulted and informed Karin that he 
did not oppose her decision.^* On November 4, 1983, Dr. Admiraal performed euthanasia 
with Karin’s family at her bedside. He then reported the case to the police as an unnatural 
death. 

The public prosecutor responded by charging him with failure to consult an expert 
neurologist on multiple sclerosis prior to acting. The District Court disagreed, holding that 
Dr. Admiraal had scrupulously complied with the euthanasia Guidelines stipulated by the 
Supreme Court in the Schoonheim case. The Court ruled that when confronted by a situation 
of necessity, he had carefully weighed the conflicting duties and made a justifiable choice.^^ 
All of the factors supporting Dr. Admiraal’s actions convinced the Court to discount the 
importance of independent consultation with a neurologist and to acquit him. 

Although Karin had thought about ending her life for some time, it was said that she 
initially decided against taking extreme measures only because she did not want to 
traumatize her parents. But in the end, the decision to die was undoubtedly made 
voluntarily. Clearly, her pain was not only physical but mental as well. After seven years of 
struggling with the disease, Karin was simply exhausted and did not want to continue living 
such a dependent life. 



The tax K Atxnhed'mie\m\hy GnffAhs et al, Euthanasia and Law in the Netherlands, op. cit., pp. 63-65. 
Ibid. 

Nederlandse Jurisprudentie 1985, no. 709; Griffiths et al, Euthanasia and Law in the Netherlands, pp. 66-67. 
B. Sneiderman and M. Verhoef, “Patient Autonomy and the Defenee of Medical Necessity: Five Dutch 
Euthanasia Cases,” op. cit., p. 392. 




THE PRACTICE OF EUTHANASIA AND THE LEGAL FRAMEWORK 



43 



2.1.4. Duintjer 

That same year, on October 4, 1985, 50-year-old Martha N. died after ingesting a lethal dose 
of cyclobarbital provided by her psychiatrist. Dr. Duintjer. Martha had a history of 
depression and alcohol abuse dating back about 25 years. She was diagnosed as suffering 
from a character neurosis, with depressive and dependent traits and a strong self-deprecation 
leading to suicidal ideation. During 1983-1984, she tried to commit suicide three times, 
unsuccessfully. She decided to isolate herself in her bedroom, often denying access to her 
husband and children. 

Martha repeatedly asked Dr. Duintjer and her family physician. Dr. W., to assist in her 
suicide, describing her own life as “one big black hole.” Dr. W. arranged for Martha’s pastor 
to talk to her, and after about a dozen meetings he reported that he had come to believe that 
her case was hopeless and that the physicians were morally entitled to assist in her death. On 
October 3, 1985 she signed the following statement: “I declare that life has no more value to 
me and that 1 voluntarily and in full consciousness, at my time and with the method of my 
choice, wish to end this life.” When Dr. Duintjer reported the assisted suicide, the public 
prosecutor charged him with aiding suicide under Article 294.^' 

The Court found that the medico-legal criteria had been satisfied: The patient was 
mentally competent and was acting out of her free will; she had made persistent requests to 
die; and there were no alternative measures that could relieve her intolerable suffering. The 
prosecution appealed the decision, but the acquittal was upheld by the Hague Court of 
Appeals. The Appellate Court rejected the prosecution’s argument that psychiatric patients 
were by definition mentally incompetent to qualify for assisted suicide. The Court held that 
Martha was mentally competent and that there were no treatment prospects likely to better 
her situation. The Court admonished the accused for failing to consult a physician not 
involved in the patient’s treatment. However, it let the verdict stand because of the 
compelling testimony by psychiatrists and psychologists, who had been treating her for 
years, that Martha’s suffering was indeed unbearable and irremediable.^^ 

It was said that her husband and children were caring and supportive over the years but 
that Martha was still unhappy and preferred not to have their company. It was also said that 
she desperately wanted to die, not only for her own sake but also to put an end to the 
constant stress and turmoil that her condition imposed upon her family.^^ This sort of 
consideration deserves special attention to ensure that the patient’s decision is not a result of 
familial or environmental pressures. The description of the case does not mention the option 
of moving Martha out of her house to a new location. Perhaps there were other available 
options to rescue Martha from her depression. The extent to which we can speak of “free 
will” in a deeply depressed person is an open question. 

Moreover, the decision-making process was insufficient. The two doctors that were 
heavily involved in her treatment did not consult another physician, who could have brought 
a fresh outlook and new insight to the situation. It was appropriate to involve the pastor, but 
it is still unclear why another professional psychiatrist was not consulted. It is preferable to 
include members of the relevant professions (social work, psychology, and law), as well as a 
public representative. 



“ Ibid., pp. 396-397. 

Ibid, at 398. 

“ Ibid. p. 397. 




44 



CHAPTER 2 



2.1.5. Dr. K 

Mrs. M., a 73-year-old patient with multiple sclerosis, started talking about euthanasia upon 
suffering a major deterioration in her health. She had lived a difficult life, but always had 
continued fighting to gain control over her life. In 1982, fighting seemed to be totally 
useless. Unable to change the course of her disease, she refused any of the alternative 
medications proposed by Dr. K., her psychiatrist and friend. On August 4, 1982, Dr. K. 
committed euthanasia on Mrs. M. and informed her action to the prosecutor.^'^ 

On March 1, 1984, the District Court of Groningen argued that it is possible to find some 
criminal act not liable to punishment if it is a medical action, if it is necessary for medical 
reasons or of critical importance for adequate medical care, and if it is required by prudent 
medical science. Whether this is the case depends on five preconditions. Accordingly, 
euthanasia may be performed: 

(1) by a physician after consultation with another physician, who has personally 
seen the patient; 

(2) on a patient whose condition is irreversible and who is suffering unbearably; 

(3) when the explicit and earnest request can be considered lasting and based on a 
proper evaluation by the patient of his/her own condition and the available 
alternatives; 

(4) when the patient does not think that there is a reasonable alternative; 

(5) when all other requirements of prudence are fulfilled.^^ 

In this case, the first precondition was not fulfilled. Dr. K. had merely informed other 
physicians and discussed the case of Mrs. M. with them. However, none of these physicians 
had actually seen the patient. Further, the psychiatrist evidently knew her patient well, but at 
the same time she was a personal friend of Mrs. M. This friendship might have 
overshadowed her judgment and ability to make a decision free of biases. As in Postma, the 
control mechanisms of the euthanasia practice should include independent, uninvolved 
professionals. Dr. K. was found guilty and liable to punishment. Upon appeal to the High 
Court of Leeuwarden, the Court affirmed the conviction under Article 293 of the Criminal 
Code. Dr. K. further appealed to the Supreme Court, and the conviction was affirmed yet 
again.^^ 



2.1.6. Kors 

On October 31, 1990, Maria S. was assisted to die by her longtime pediatrician. Dr. Kors. 
Maria was a 25-year-old anorexic, weighing no more than 19 kilos. She persisted in her 
requests for assisted suicide. Determined to die, Maria had resolved to refuse further tube 
feeding and hospitalization. She was vomiting incessantly and experiencing severe stomach 
pains. In light of her condition, Dr. Kors decided to help her. After 16 years of treatment, he 
saw no likelihood that her condition would improve. Dr. Kors consulted a psychiatrist, who 
had seen Maria on numerous occasions and reported that Maria was mentally competent and 
that there were no treatment options that held the prospect of easing her suffering. 



Jos V.M. Welie, “The Medical Exception: Physicians, Euthanasia and the Dutch Criminal Law,” Journal of 
Medicine and Philosophy, Vol. 17 (1992), p. 430. 

’’ ftW., at431. 

ftW.,pp. 431^32. 



36 




THE PRACTICE OF EUTHANASIA AND THE LEGAL FRAMEWORK 



45 



Maria’s decision to opt for death was influenced by her familial circumstances. At about 
the time that she managed to achieve something in her life - graduating from high school and 
finding work as a lab technician - her parents divorced. Then her younger brother Ernst 
became seriously depressed, and some years later he committed suicide. At his funeral, six 
months before her own death, Maria announced her intention to follow suit. She told Dr. 
Kors: “When Ernst died, I knew that finally I was allowed to go as well. I cannot go on any 
longer. I want salvation now. Therefore, I am asking you as a friend to help me. Please help 
me.”'’ 

When Dr. Kors finally agreed to provide the drugs to enable her to commit suicide, Maria 
signed her last will and then arranged for a videotape in which she explained the reasons for 
ending her life. Dr. Kors reported her death to the authorities, and the public prosecutor 
responded by charging him with aiding her suicide under Article 294.'* 

The Court was satisfied with the evidence that the medico-legal Guidelines had been 
fulfilled: The patient was free of psychosis and was otherwise mentally competent; her wish 
to die was well considered, persistent and free; her suffering was relentless and intolerable; 
and there were no reasonable treatment regimens to ameliorate her condition. The Court 
accordingly granted the motion to dismiss the appeal of the public prosecutor.'^ 

The last case to be examined also resulted from exceptional familial circumstances that 
led the patient to request assistance in dying.'*” As it is a highly controversial case, I will 
review it in more detail. Like all of the previous cases, this case also involved a woman.'*’ 
Unlike the other cases, however, it was the first time that the Supreme Court considered 
assisted suicide for a psychiatric patient. It should be noted that physician-assisted suicide in 
psychiatric practice has been estimated to occur two to five times a year in the Netherlands.'*' 



2.1.7. Chabot 

Unlike Martha N. and Maria S., Hilly Bosscher was a 50-year-old patient with no history of 
psychiatric disorder. She wanted to die because she felt that her life had lost its meaning after 



B. Sneiderman and M. Verhoef, “Patient Autonomy and the Defenee of Medical Necessity: Five Dutch 
Euthanasia Cases,” op. cit., pp. 393-394. 

“ Ibid, pp. 393-395. 

” Ibid. p. 396. 

Two important precedents, Prins and Kadijk, not considered here were eoncerned with the termination of life of 
severely defective newborn babies. Cf. Griffiths et ai, Euthanasia and Law in the Netherlands, op. cit., pp. 83- 
84, 341-351. For further deliberation, see A. van der Heide, P.J. van der Maas, G. van der Wal et al, “Medical 
End-of-life Decisions Made for Neonates and Infants in the Netherlands,” Lancet, Vol. 350 (1997): 251-255; 
Henk Jochemsen, “Dutch Court Decisions on Nonvoluntary Euthanasia Critically Reviewed,” Issues in Law & 
Medicine, Vol. 13, No. 4 (1998), esp. pp. 450^58; Arlene Judith Klotzko, “What Kind of Life? What Kind of 
Death? An Interview with Dr. Henk Prins,” in David C. Thomasma, Thomasine Kimbrough-Kushner, Gerrit K. 
Kimsma, and Chris Ciesielski-Carlucci (eds.). Asking to Die, op. cit., pp. 388^06; Joseph B. Vander Veer Jr., 
"Euthanasia in the Netherlands," op. cit. 

Dr. Herbert Cohen, a well-known practitioner of euthanasia in the Netherlands, explains that all of the cases that 
have broken new ground in Dutch law involved women by saying that women can make an appeal to a doctor 
that is stronger, more existential. See Herbert Hendin, “Seduced by Death: Doctors, Patients and the Dutch 
Cure,” Issues in Law and Medicine, Vol. 10, No. 2 (1994), p. 137. In general, more euthanasia cases are found 
in women than in men. Cf. Gerrit van der Wal and Paul J. van der Maas, “Empirical Research on Euthanasia 
and Other Medical End-of-Life Decisions and the Euthanasia Notification Procedure,” op. cit., p. 157. 

Johanna H. Groenewoud, Paul J. van der Maas, Gerrit van der Wal et al, “Physician-assisted Death in 
Psychiatric Practice in the Netherlands,” New Eng. J. of Medicine, Vol. 336, No. 25 (June 19, 1997), p. 1797. 




46 



CHAPTER 2 



the death of her two sons: Peter from suicide at the age of 20, and Robbie five years later 
from cancer, also at the age of 20. In May 1991, on the day of Robbie’s death, Mrs. Bosscher 
tried to commit suicide, unsuccessfully. After her personal family doctor, as well as some 
other people she knew, refused to help her commit suicide, she approached the Dutch 
Voluntary Euthanasia Society for help, and they referred her to a psychiatrist. Dr. Chabot.'*^ 
Dr. Chabot conducted a “trial therapy” with Mrs. Bosscher, consisting of a series of thirty 
sessions of 55 minutes each over a two-month period. However, Mrs. Bosscher told Dr. 
Chabot that she was not prepared to undertake the commitment to work with him to change 
her bleak outlook on life. In her personal diary she wrote: 

I have lost everything and will never get it back. I do not want to become another person than I 
was when I was a mother and happy. It is finished, it is all over. For me alone there is no purpose 
in life. I know who 1 am or what I am. To become so different that I will want to or have to live 
means to me that 1 have to lose again. I am not allowed to be who 1 am or was. That’s not right. ‘‘‘* 

In a letter to Dr. Chabot in September 1991, after he told her that he would assist 
in her suicide, Mrs. Bosscher wrote: 

1 feel so ‘happy’ with the help in dying I’ll receive. I got everything in my life with which I 
couldn’t possibly live any further. Am I egoist to not want, nor not to be able, to live on? Not 
having the urge or power to endure, to fight?... I am certainly making life difficult for you. You 
told me that was none of my business. You wanted to ‘invest’ in me (I don’t know how to express 
this in a better way). You are a psychiatrist, and as such you tried everything to hold me. But I feel 
you tried as a human being as well. I must have been a heavy load to take on.'*’ 

I asked Dr. Chabot what Mrs. Bosscher meant by her use of the term “invest.” In his 
personal letter, Chabot’s response was that Mrs. Bosscher felt that he really wanted her to go 
through her vale of grief. He offered her intensive grief therapy, not just in an impersonal 
way but also in a way that showed he cared about her as a human being. Mrs. Bosscher “was 
not just an egocentric who could not perceive” Chabot’s intentions; “she had felt that, as a 
professional, I wanted ‘to invest’ (time, energy, sharing her pain, etc.) in her.” This she could 
not or would not accept."^^ 

The short but intense acquaintance with Mrs. Bosscher (from August 3 to September 7, 
1991) led Dr. Chabot to conclude that she was a mentally competent person whose freedom 
of choice was not constricted by mental illness. In his opinion, Mrs. Bosscher had been 
suffering from a complicated grief process for five years following the suicide of her son, 
Peter, in 1986. Chabot did not see any psychiatric illness, clinical depression, trace of 
psychosis, or personality disorder. He believed that for her, there was no future without her 
children. He accepted that suicide was the only option to end Mrs. Bosscher’ s misery and 
was convinced that she would kill herself in any event, with or without his help. Chabot tried 
to give her antidepressant medication but she refused, saying that “the only sense life has got 
for me now is to find my way to Peter and Robbie through a dignified death.”'^^ 



'*’ Herbert Hendin, Seduced by Death (New York: W.W. Norton, 1997), pp. 60-61. 

‘*‘* B. Sneiderman and M. Verhoef, “Patient Autonomy and the Defenee of Medical Necessity: Five Dutch 
Euthanasia Cases,” op. cit., p. 400. For further aecount, see Herbert Hendin, “Seduced by Death: Doctors, 
Patients and the Dutch Cure,” op. cit., pp. 145-152. 

I am grateful for Dr. Chabot for sending me (on July 16, 2000) excerpts from Mrs. Bosscher’s farewell letter. 

'**’ Chabot’s letter dated August 14, 2000. 

'*’ “Arlene Judith Klotzko and Dr. Boudewijn Chabot Discuss Assisted Suicide in the Absence of Somatic Illness,” 
Cambridge Quarterly of Healthcare Ethics, Vol. 4 (1995), pp. 241-242. 




THE PRACTICE OF EUTHANASIA AND THE LEGAL FRAMEWORK 



47 



Strangely, in his discussion with Arlene Klotzko, Chabot said that he did insist on a trial 
with antidepressants before he agreed to assist in her suicide."^* Yet, later in the same 
discussion, when asked whether Mrs. Bosscher rejected the option of antidepressant 
medication, Chabot answered: “This question I consider to be very tendentious given her 
grief. I hope that no pill will be discovered that will prevent or cure grief. Certainly, 
antidepressants don’t cure grief I asked Dr. Chabot about this puzzle, and his answer was 
that he did insist on antidepressants for the few symptoms of depression that he noticed. He 
felt that the patient should give them a serious try. But, Chabot explained, depression is not 
identical with grief It was Mrs. Bosscher’s grief that he considered to be by far the most 
important in her wish to die. Chabot testified that he has had quite a lot of experience in grief 
therapy and has been successful in that field, “but never with pills.” Hence, urging Mrs. 
Bosscher to try antidepressants for what Chabot conceived as “mild depression” seemed to 
him perfectly compatible with his hope that there would be no medicine discovered that by 
itee//(Chabot’s emphasis) would cure grief 

Dr. Chabot had transcribed all the sessions with Mrs. Bosscher, which he sent to four 
psychiatrists and a clinical psychiatrist. He also consulted a family physician and a 
theologian-ethicist. He then held lengthy telephone conversations with the consultants, four 
of whom he met with in person. He asked one of the psychiatrists to meet with Mrs. 
Bosscher in person, but the colleague declined because Dr. Chabot’ s extensive 
documentation of the case had convinced him that it was not necessary. All save one 
reported that it was unlikely that anything could be done to make Mrs. Bosscher’s life 
bearable and that they would support his decision to assist in her suicide. The psychiatrist 
who expressed a contrasting view thought that Mrs. Bosscher’s condition was not hopeless 
and that Dr. Chabot should persist in treating her.^* 

In a personal communication. Dr. Chabot wrote that the account of the case, as described 
by Barney Sneiderman and Marja Verhoef, is accurate. The immediate questions that come 
to mind are: Why did the four experts, who read the detailed transcripts, take the time to 
meet with Dr. Chabot but not see a need to meet with Mrs. Bosscher? In other words, if the 
transcripts were so straightforward, to the extent of making a meeting with the patient 
redundant, why was there a need to meet with the doctor? Furthermore, was the lone 
dissenter asked to meet with Mrs. Bosscher? What was his reaction? Did he refuse as well? 
Maybe he could have saved her life. 

Hendin argues that Chabot asked only Dr. Frank van Ree, one of the few Dutch 
psychiatrists publishing on assisted suicide, to see Mrs. Bosscher. Van Ree felt that this was 



Ibid., p. 244. 

Ibid, at 246. 

Chabot’s letter dated August 14, 2000. 

B. Sneiderman and M. Verhoef, “Patient Autonomy and the Defence of Medical Necessity: Five Dutch 
Euthanasia Cases,” op. cit., p. 402. According to Hendin, two of the experts did not recommend Dr. Chabot to 
assist in her suicide. See “Seduced by Death: Doctors, Patients and the Dutch Cure,” op. cit., p. 147. I asked 
Chabot about this discrepancy, and he explained “both Sneiderman et al. and Hendin are right; they simply refer 
to different moments in the process.” Sneiderman et al. refer to the period when Mrs. B. was still alive, whereas 
Hendin refers to the later phase, when the Medical Disciplinary Board invited another expert to give his opinion 
and he disagreed with Chabot. Strictly speaking, this latter expert was not consulted by Chabot. Letter dated 
August 14, 2000. 

Personal communication by Dr. Chabot, dated June 5, 1999. 




48 



CHAPTER 2 



unnecessary.^^ If this information is correct, it is like inviting the “right” answer rather than 
seeking professional evaluation of the patient’s condition. Later, the court asked van Ree 
why he did not see the patient. Van Ree explained that he felt he knew the case and that it 
would only cause the patient further pain to be seen again by someone else. Presumably, 
Hendin writes, it was less harmful to Mrs. Bosscher to help her commit suicide.^'* 

Given the near unanimity of opinion. Dr. Chabot felt assured that he could in good 
conscience assist Mrs. Bosscher’s suicide. Sneiderman and Verhoef wrote that still Chabot 
sought further counsel from Dr. V., a family physician whose clinical judgment he highly 
respected. After lengthy discussions on the case. Dr. V. agreed that Mrs. Bosscher’s frame of 
mind precluded any change of heart. However, he was not asked to examine the patient. 

This is striking and strange. Why not? It seems that the purpose of the meeting was to 
calm the conscience of Dr. Chabot and to reassure his decision, rather than to seek an 
independent and free opinion. It seems that Dr. Chabot was seeking not just any opinion, but 
a certain opinion, namely, one that conformed to the decision that he apparently had already 
made to help Mrs. Bosscher end her life. 

On September 28, 1991, Dr. Chabot assisted Hilly Bosscher to commit suicide and 
subsequently stood trial. This was a little over two months after their first meeting and about 
four months after the death of her younger son. The Assen District Court acquitted him in 
April 1993 after becoming convinced that Mrs. Bosscher was experiencing long-term 
psychic suffering that for her was unbearable and unremitting. 

Four of the clinical experts consulted by Dr. Chabot appeared as witnesses for the 
defense. They all testified that the case was so well documented that it was “highly unlikely” 
that any new information would have been gained by interviewing the patient. The Court 
then consulted three additional experts who provided written testimonials. None of the seven 
experts expressed disagreement with Dr. Chabot’s role in Mrs. Bosscher’s suicide,^^ a fact 
which critics of the Dutch policy on euthanasia may take to be worrisome and disturbing. 

The Appeal Court of Leeuwarden upheld Dr. Chabofs acquittal, but on June 21, 1994, 
the Supreme Court reversed the decision and convicted Dr. Chabot under Article 294 of the 
Penal Code. The Supreme Court accepted the contention of the public prosecutor that the 
defense of overmacht was not allowable because none of the experts consulted by Dr. Chabot 
had personally examined the patient. The Supreme Court held that in non-somatic cases (i.e., 
cases that have to do with the psychological rather than the physiological condition of the 
patient), the absence of a face-to-face examination leads to the conclusion that, as a matter of 
law, the physician may not have truly acted in a state of necessity. Thus, personal contact 
between consultant and patient constituted a pre-condition to the acceptance of the 
overmacht defense in such a case. 

Although Dr. Chabot was found guilty under Article 294 of the Penal Code, the Supreme 
Court exercised its prerogative under Article 9(a) of the Criminal Code not to impose any 



Hendin, “Seduced by Death: Doctors, Patients and the Dutch Cure,” op. cit., p. 147. See also “Arlene Judith 
Klotzko and Dr. Boudewijn Chabot Discuss Assisted Suicide in the Absence of Somatic Illness,” op. cit., p. 
245. 

Hendin, “Seduced by Death: Doctors, Patients and the Dutch Cure,” op. cit., p. 150. 

’’ B. Sneiderman and M. Verhoef, “Patient Autonomy and the Defence of Medical Necessity: Five Dutch 
Euthanasia Cases,” op. cit., p. 402. 

Ibid., p. 403. See also Gene Kaufmann, “State v. Chabot: A Euthanasia Case from the Netherlands,” Ohio 
Northern University Law Review, Vol. 20 (1994): 815-820. 




THE PRACTICE OF EUTHANASIA AND THE LEGAL FRAMEWORK 



49 



punishment or other measure in light of the character of the defendant and the circumstances 
in which the offence was committed.®^ However, the Amsterdam Medical Disciplinary Court 
found Dr. Chabot guilty of professional misconduct and imposed the sanction of reprimand. 
The Disciplinary Court’s ruling was based on three accounts: (1) Chabot was faulted for not 
insisting on therapy as an alternative to assisted suicide. The patient’s refusal of treatment 
should have been a reason for Chabot to refuse the request; (2) Chabot failed to arrange for 
Mrs. Bosscher to be personally examined by another consultant, a failure which amounted to 
an ethical breach of duty; and (3) Chabot had not adequately preserved his professional 
distance, particularly in light of the frequency and length of his sessions with Mrs. Bosscher 
and the fact that these took place at his home.^* Dr. Chabot himself regrets his failure to 
arrange consultation in person with Mrs. Bosscher.^^ 

Between 1981 and 1997, there were 20 prosecutions against physicians that ended with a 
judicial verdict. In nine of these cases, the doctor was found guilty. No punishment was 
made in three cases and in the other six the doctor was given a conditional sentence without 
imprisonment. In a few cases, a fine was imposed because the death had been incorrectly 
reported as natural.^” 

In the United States, Linda Ganzini and colleagues conducted in 1997 a study among 
board-certified forensic psychiatrists. The study showed that many psychiatrists would 
support procedural and legal safeguards for patients choosing assisted suicide. For the 
majority of respondents, a patient requesting assisted suicide would be found competent after 
an evaluation by two independent examiners, followed by judicial or local administrative 
review, rendering a determination of competence at a clear and convincing level of proof. 
The recommended extensive evaluation would assure that only competent patients have 
access to assisted suicide. The presence of major depression would automatically result in a 
finding of incompetence.*’* 

After laying down the medical and legal foundations for the understanding of the Dutch 
policy and practice of euthanasia and physician-assisted suicide (PAS), Part II elaborates on 
the main findings of my fieldwork in the Netherlands. 



Nederlandse Jurisprudentie, 1994, no. 656; John Griffiths, “Assisted Suicide in the Netherlands: The Chabot 
Case,” Modern L. Rev., Vol. 58 (March 1995), p. 239. 

John Griffiths, “Assisted Suicide in the Netherlands: Postscript to Chabot," Modern L. Rev., Vol. 58 (November 
1995), p. 896. See also http://www.bz.minbuza.nl/English/Policy/c_eutheng-A.htm 
’’ “Arlene Judith Klotzko and Dr. Boudewijn Chabot Discuss Assisted Suicide in the Absence of Somatic Illness,” 
op. eit., p. 246. 

Simon Chesterman, “Last Rights: Euthanasia, the Sanctity of Life, and the Law in the Netherlands and the 
Northern Territory of Australia,” International and Comparative Law Quarterly, Vol. 47 (April 1998), pp. 377- 
378. 

Linda Ganzini, Gregory Leong, Darien S. Fenn et al, “Evaluation of Competence to Consent to Assisted 
Suicide: Views of Forensic Psychiatrists,” .dmeWcon J. of Psychiatry, Vol. 157, No. 4 (April 2000): 595-600, 
esp. at 599. 




Part B 



Fieldwork 




CHAPTER 3 



THE METHODOEOGY 



Before arriving in the Netherlands, I wrote to some distinguished experts in their respective 
fields: medicine, psychiatry, philosophy, law, social sciences and ethics, asking to meet with 
them in order to discuss the Dutch policy and practice of euthanasia. Three people advised 
me that they will be out of the country during the time of my visit. Only one - Dr. Chabot - 
explicitly declined my request for an interview, saying that he preferred to stay in the 
background rather than be interviewed.* The majority of interviewees were known to me 
through their writings. The remainder of interviewees was suggested to me by colleagues. 



PHASE I - THE INTERVIEWS 

The interviews took place during July-August 1999 in the Netherlands. One interview, with 
Bert Keizer, was conducted in April 2002. Prior to each interview I told the interviewee that 
the interview is conducted as part of my research on euthanasia in the Netherlands, that I 
intend to use the material compiled during the interview for my research, and that I will send 
him/her the content of the interview prior publication. The interviews lasted between one to 
three hours each, with most taking more than two hours. During the interviews, I asked more 
or less the same series of questions^ and took extensive notes that fill some 200 pages. Later 
the interviews were typed and analyzed.^ 

The interviews were conducted in English, usually in the interviewees’ offices. Four 
interviews were conducted at the interviewees’ private homes, and four interviews took place 
in “neutral” locations, such as coffee shops and restaurants. Two interviews were conducted 
at the office kindly made available to me at the Department of Medical Ethics, Free 
University of Amsterdam. To obtain a sampling from different locations, I traveled from 
Groningen in the north to Maastricht in the south, making extensive use of the efficient train 
system in the Netherlands. 

The interviews were semi-structured. I began with a list of 1 5 questions, but did not insist 
on answers to all of them if I saw that the interviewee preferred to speak about subjects that 
were not included in the original questionnaire. With a few interviewees - most notably 
the General Practitioners (GPs) performing euthanasia and the de B. family, who openly 



In his letter dated June 5, 1999, Dr. Chabot wrote: “After four years waiting for the final court judgement 
(1991-1995) and discussing the case with many people from abroad, I hope you will understand that I prefer to 
remain in the background now and not to make an appointtnent with you.” He, however, agreed to answer via e- 
mail some specific questions relating to his conduct that brought about the charges against him. 

^ My questionnaire had 15 questions. The Dutch comprehensive study of 1995 consisted of 120 pages and the 
interviews lasted for an average of 2.5 hours. Cf Paul J. van der Maas, Gerrit van der Wal, Ilinka Haverkate et 
al, “Euthanasia, Physician-Assisted Suicide, and Other Medical Practices Involving the End of Life in the 
Netherlands, \99Q-\995'' New Eng. J. of Med., Vol. 335, No. 22 (November 28, 1996), at 1700. 

^ lam grateful to UCLA School of Law for the generous assistance. 



53 




54 



CHAPTER 3 



discussed their own personal experience with euthanasia (the head of family underwent 
euthanasia) - I spoke only about their direct involvement in the practice of euthanasia. As I 
was interested in the problematic aspects of the euthanasia practice, after some general 
questions I addressed the troublesome aspects reiterated in the Remmelink report and in the 
critical discussions mentioned supra. This line of questioning disturbed some of the 
interviewees, who wanted to know my own opinion on the subject matter before continuing 
to answer my questions. Others seemed eager to bring the interview to a close. 

I was struck by the defensiveness expressed by some of the interviewees. Carlos F. 
Gomez also reported suspicion and guardedness on the part of his interviewees.'' The attitude 
of some of my interviewees reminded me of my own initial reaction when I attended debates 
of post-Zionists outside of Israel during the late 1980s and early 1990s. At that time, I felt 
that the “dirty laundry” should not be aired in public, that the debate should be restricted to 
Israelis who are familiar with the intricate aspects of the debate, and that everyone taking 
part in open forums should show responsibility when addressing the issue before non-Israelis 
and non-Jews, who might then exploit the information to harm Israel’s interests. In the 
Netherlands, I sensed that the interviewees did not like the idea of a foreigner asking these 
questions. Their attitude spurred me to entitle one of the first articles I published as a result 
of this research An Outsider’s View on the Dutch Euthanasia Policy.’ Although they 
realized that their euthanasia policy is imperfect, they tried to defend it to the best of their 
abilities.^ As a matter of fact, I was somewhat troubled by their lack of criticism and their 
readiness to accept the euthanasia policy and practice with all of the accompanying flaws. ^ I 
presume that some of the interviewees identify with their government’s decision-making to 
the extent of defending the system and suspecting foreigners like me who press them with 
difficult questions. I also suspect that after the publications of Gomez," Keown," and 
Hendin,*" they were not enthusiastic about cooperating with me. One interviewee was candid 
enough to tell me this directly. When I asked why he was willing to sit with me and answer 
my questions, he replied that he felt obliged as a researcher and scientist to cooperate and 
wanted his viewpoint to be heard. 



“ Carlos F. Gomez, Regulating Death, op. cit., pp. 59-60. 

^ Issues in Law and Medicine, Vol. 17, No. 1 (Summer 2001): 35-68. 

‘ In her remarks on the first draft of this study, Heleen Dupuis wrote: “We do not want to defend our views, nor 
do we want to persuade others to adopt them. We are just very weary when the hundred and umpteenth 
foreigners come with questions we already have discussed the same number of times. Personally I am very tired 
by the endless interrogations, whereas I feel that euthanasia is a private matter, such as abortion, and even more 
so. I also feel that there is a certain exaggeration when it comes to the gravity of the problem.” Personal 
communication on July 25, 2000. 

’ In his comments on the first draft of this study, Henk Leenen wrote that he doesn’t agree that there is a lack of 
criticism in the Netherlands: “We have for more than 25 years discussed euthanasia publicly and between all 
kinds of opinions in a good atmosphere. Nobody was excluded. I personally lectured in meetings of opponents 
who invited me. I don’t know of a country where this is possible.” Leenen maintained that gradually a kind of 
consensus has grown “within a majority” and the problem is that “people like Fenigsen” never took part in this 
debate and only ventilated their opinions elsewhere. Letter dated July 25, 2000. 

* Carlos F. Gomez, Regulating Death, op. cit. 

’ John Keown, “The Law and Practice of Euthanasia in the Netherlands,” The Law Quarterly Review, Vol. 108 
(January 1992): 51-78; idem, “Euthanasia in the Netherlands: Sliding Down the Slippery Slope?,” Notre Dame 
J. of Law, Ethics and Public Policy, Vol. 9 (1995): 407^48. 

Herbert Hendin, Seduced by Death (New York: W.W. Norton, 1997). 




THE METHODOLOGY 



55 



Some of the interviewees were nominated by the Dutch government to conduct research 
on the policy and practice of euthanasia and to submit their recommendations for changes. 
Science commissioned by the state can be a tricky issue. The researcher might become 
identified with the project to the extent of becoming “the voice of the state” and forgoing 
impartiality. It is preferable that research on controversial matters be funded by non-partisan 
foundations, rather than by an interested government." 

Appendix I compiles the list of interviews held during the summer of 1999, including the 
place and date of each interview. 

PHASE II - THE INTERVIEWEES’ GENERAL COMMENTS 

Prior to each interview I pledged to my interviewees that I would send them the rough draft 
of the entire manuscript prior to submitting the study for publication. After completing the 
first draft of writing in July 2000, I sent it to all the interviewees, inviting their comments 
and criticisms. In my cover letter, I explained that I wished to give each interviewee an 
opportunity to see that the references to our discussion adequately represented his or her 
views. I added that the issue at hand was not my analysis and interpretation. Rather, the aim 
was to ascertain that the interviewee’s views were characterized in a fair and honest manner, 
and that the opinions attributed to him/her were correct. 

Yet two of the interviewees strongly objected to my interpretations of the Dutch policy 
and practice of mercy killing to the extent that they asked to remove any association to them 
from the book. Fortunately, the majority of interviewees had more respect for free expression 
and academic freedom and they commented in writing on the first draft. Those commenting 
on the draft included Arie J.G. van der Arend, Rob Houtepen, Evert van Leeuwen, Henk 
Jochemsen, H.J.J. Leenen, Heleen Dupuis, Johannes JM van Delden, John Griffiths, A. van 
Dantzig, James Kennedy, Ron Berghmans, Ruud ter Meulen, Govert den Hartogh, Paul van 
der Maas and Gerrit Kimsma. Arko Oderwald provided some comments. George Beusmans 
and Bert Thijs read the draft and had no problems with my accounts of their views. Chris 
Rutenfrans has asked to comment on the last draft and promptly provided his concise 
comments. I also sent the parts concerning the Chabot case to Boudewijn Chabot, who 
provided thorough comments and further material about his court case. The interviewees’ 
comments on specific points and their arguments during the interviews are integrated into the 
discussion. Their general comments are assembled in Phase 11 - Interviewees’ General 
Comments. 



PHASE III - UPDATES 

As said, the initial fieldwork was conducted during the summer of 1999. On April 10, 2001 
the euthanasia law was approved by the Dutch Parliament and I thought it is necessary to 



' In his comments, van der Maas wrote: “Our studies were funded by the Government. There was an independent 
committee, both in 1990 and 1995, to ensure the scientific quality of the studies. We have performed these 
studies under the condition that we would report our scientific studies separately from the Remmelink 
commission report. These studies are examples of how scientific independence should be guaranteed in 
government funded research.” Personal communication on September 18, 2000. Van der Maas does not provide 
a compelling explanation why he and his colleagues restrained themselves to collecting and presenting the data 
and refrained from providing critique and suggestions as to how the situation could be improved. 




56 



CHAPTER 3 



examine my interviewees’ initial reaction to the new law. In June 2001 I returned to the 
Netherlands for two additional weeks. Prior to my arrival I had notified most of the 
interviewees of my arrival and welcomed them to express their views on two crucial issues: 
the legislation process and the role of the regional committees.'^ 

Seven of the interviewees answered the two queries via electronic or regular mail. Four 
other interviewees discussed these questions with me over the phone for 10-20 minutes 
while in the Netherlands. Six of the other interviewees I met in Amsterdam for discussions 
that lasted from 40 to 120 minutes each. The meetings took place either in the interviewees’ 
offices or in restaurants. During these discussions some of the interviewees raised further 
issues of concern, which are reported as well. It is striking that those ten interviewees raised 
more or less the same issues. Appendix II compiles the list of interviews and phone calls held 
during the summer of 2001, including the place and date of each interview. 

On April 1, 2002 the euthanasia law was approved by the Dutch Senate, making the 
Netherlands the first country in the world to legalize mercy killing. I returned to the 
Netherlands for a final update and met ten interviewees in Amsterdam, Maastricht and The 
Hague. Nine interviews took place in offices and lasted from one hour to two hours each. 
The interview with Bert Keizer in a nursing home was conducted in the presence of an IKON 
TV crew who asked permission to photograph our meeting and exchange. Some months later 
parts of our conversation were shown on television. Keizer is the only interviewee who 
joined the project in its final phase, after the withdrawal of one interviewee, and I decided to 
present his views in Phase I. I did not think that the timing of the interview was significant to 
the extent of presenting his views separately. Appendix III compiles the list of interviews 
held during April 2002. 

A personal note before moving to the main part of this book, the interviews. Prior my visit to 
the Netherlands I supported euthanasia and physician-assisted suicide. I believed that, in 
certain cases, we should recognize the necessity for ending life. On such occasions, which 
should be clearly defined, euthanasia and PAS are morally permissible, and I believed that 
killing and letting die are morally on a par. I published a few articles articulating these 
views. 



This time I contacted only the ethicists, lawyers and psychiatrists whom I thought could offer interesting views 
on recent developments. 

For instance, R. Cohen-Almagor, “Autonomy, Life as an Intrinsic Value, and Death with Dignity,” Science and 
Engineering Ethics, Vol. 1, No. 3 (1995): 261-272; “Reflections on the Intriguing Issue of the Right to Die in 
Dignity,” Israel Law Review, Vol. 29, No. 4 (1995): 677-701; “The Patients’ Right to Die in Dignity and the 
Role of Their Beloved People,” Annual Review of Law and Ethics, Vol. 4 (1996): 213-232. 




PHASE I: THE INTER VIEWS 



CHAPTER 4 

WHY THE NETHERLANDS? 



The Netherlands was the first democracy to tolerate euthanasia. The opening question was 
“Why the Netherlands?” Why does the Netherlands accept euthanasia de facto if not de Jure? 
What are the significant factors that made the Dutch tradition and culture open to the 
euthanasia movement? 

Some literature addresses this question. Bert Gordijn argues that the Dutch policy is a 
typical example of a policy of pragmatic tolerance. To better understand this societal 
phenomenon, one should look at Dutch history. The historical roots can be traced to the 
Dutch republic of the 17* century, where two dominant and sometimes contradictory societal 
forces influenced Dutch mentality and policy. The merchants advocated peace and freedom 
through a policy of tolerance, exemptions and compromises. The Calvinists, on the other 
hand, strove for normative regulation of all human behavior in accordance with their rigid 
moral standards. These two forces constituted the Dutch policy of pragmatic tolerance: 
Certain criminal acts remained unpunished, and certain conditions for immunity from 
criminal prosecution were formulated in advance and in public by the authorities. Gordijn 
contends that the practice of tolerance of illegal deeds was normatively regulated and that its 
influence is significant in the present euthanasia policy.' 

Egbert Schroten as well as John Griffiths and his colleagues provide another layer of 
explanation. They emphasize the developments that took place since the 1960s, arguing that 
the 1960s and 1970s were a crucial watershed for Dutch society. From a conservative, 
tradition-bound country, the Netherlands was transformed into a society of social and 
cultural experimentation. The Netherlands took a prominent place in the sexual revolution, 
the legalization of abortion, the acceptance of soft drugs, the democratization of educational 
institutions, and the questioning of religious authority. The process of secularization that 
started in the 1960s gradually undermined the status of traditional institutions. In 1958, 24% 



Bert Gordijn, “Euthanasie: strafbar und doch zugestanden? Die niederlandische Duidungspolitik in Sachen 
Euthanasie," Ethik Med, Vol. 10 (1998), p. 12. 



57 




58 



CHAPTER 4 



of the population had no affiliation, 42% belonged to the Roman Catholic Church, and about 
33% were affiliated with the Protestant churches. In the 1990s, the respective figures were 
57% (no affiliation), 22% (Catholic) and a bit more than 20% (Protestant).^ 

Societal relationships also changed to the effect that the social distance between ordinary 
people and people in powerful positions declined. As such, ordinary citizens developed 
expectations about their roles and influence in society and their ability to affect matters 
concerning their lives. The political elite, in turn, accommodated themselves to the new 
reality. In many cases, the elite supported the new ideas, and its members were even 
spokesmen for them. The political culture of conflict-avoidance, as well as the traditional 
conviction that it is better to guide social developments than to try to stop them, were 
instrumental in coping with the waves of change.^ 

In a study conducted by Loes Pijnenborg 34 experts (23 from the Netherlands and the rest 
from the United States, Australia, Canada, the United Kingdom and Germany) were asked 
two questions: What is the explanation of the fact that the current discussion on euthanasia in 
the Netherlands differs from the discussion in other countries? Do you think that the current 
euthanasia practice in the Netherlands differs from that of other countries? According to the 
respondents, the most important factors influencing the Dutch policy and practice of 
euthanasia were the relationships among physician, patient and health care (mentioned by 24 
respondents); culture and society (22 answers); legal aspects (15); history (11); church and 
religion (10); definition of euthanasia (6), and moral principles (5).^^ 

These issues were reiterated by my interviewees. Some preferred to answer this question 
by delineating the historical process that brought about the practice of euthanasia.^ They 
explained that up until the late 1960s, the Netherlands was a divided society, with Catholic 
pillars, Protestant pillars, liberal pillars, and socialist pillars. Each organized its own political 
party, schools, medical organization, newspaper, media, club, union, etc. These pillars, 
especially the religious ones, eventually broke down and collapsed. The student revolution of 
1969 had a profound effect on the country as the social movement rebelled against the 
traditional values, autocracy and established hierarchies. After more than two decades of 
digesting the horrors of WWII, the time was ripe for change. The old morality based on 
religious perceptions had collapsed. Church values were no longer appealing to large sectors 
of the population, who were looking for a different set of morals upon which to base their 
lives. 

Consequently, the Netherlands had to find a secular basis for morality. One of the 
essential moral foundations established was that of individual choice, liberation from 
collective morality, and the shifting of the focus to autonomy and individuality. The religious 
view of the sacredness of life was abolished and replaced by secular moral views. The 
discussion on morality has revolved since then around the rights of the individual, including 



^ Proceedings of Euthanasia and Assisted Suicide in the Netherlands and in Europe, Maastricht, June 10-11, 
1994 (Luxembourg: Office for Official Publications of the European Communities, 1996), p. 101. 

’ John Griffiths, Alex Bood and Heleen Weyers, Euthanasia and Law in the Netherlands (Amsterdam: 
Amsterdam University Press, 1998), pp. 12-13. 

Loes Pijnenborg, “The Dutch Euthanasia Debate in International Perspective,” in End-of-Life Decisions in 
Dutch Medical Practice (Department of Public Health, Erasmus University, Rotterdam, 1995, doctorate thesis), 
pp. 119-132. I am most grateful to Paul van der Maas for sending me this work as well as some other 
publications. 

’ James Kennedy, Govert den Hartogh, Heleen Dupuis, Henk Jochemsen, and A. van Dantzig. 




WHY THE NETHERLANDS? 



59 



issues like contraception, abortion (the law became liberal in 1969), suffering, and ending of 
life. The increased democratization of society and the emphasis on individual control thus 
made the practice of euthanasia more open and available.^ 

Henk Jochemsen, Director of the Professor Lindeboom Institute, who also holds a 
privately funded chair for medical ethics at the Free University, further explained that 
Calvinism stresses personal responsibility and that there should be no contradiction between 
teaching and practice. When physicians realized that there were occasions when euthanasia 
should be performed, they started pressing for some accommodation to utilize this practice.^ 
In 1969, Jan Hendrik van den Berg, a renowned psychiatrist, published his book Medical 
Power and Medical Ethics.^ The book discussed the tragic conditions of various patients, 
who were described as victims of medical power. Had they lived 100 or even 50 years ago, 
they would have been allowed to die in peace. These days, however, they are being kept 
alive simply because the capacity to do so is available, regardless of the patients’ best 
interests. Van den Berg suggested granting those victims of medical power a dignified 
death.^ James Kennedy, Egbert Schroten and H.J.J. Leenen maintain that this book started 
the euthanasia discussion in earnest, focusing on life that had lost its purpose. The thesis 
spoke of recognizing the need to put an end to pointless suffering with the help of a doctor.'” 
At that time, the medical establishment was very much against physician-assisted suicide and 
euthanasia. Some journals, including Tijdschrift voor Geneeskunde {Journal of Medicine), 
refused to discuss euthanasia for a long time. Another leading medical journal, Medisch 
Contact, was unique in allowing letters and articles to be published on this issue. 

In 1972, the Council of Health commissioned its own study on euthanasia, concluding 
that euthanasia ought to remain illegal, but that public opinion was changing and that there 
was a need for reprisal." In 1973, the first euthanasia court case occurred in Leeuwarden: the 
Postma case discussed supra, which received a great deal of publicity, prompting certain groups 
to argue that euthanasia should be allowed. Leenen and van der Maas see this court case as most 
instmmental in paving the way toward tolerating euthanasia. 



‘ Evert van Leeuwen, Jaap Visser, Bert Thijs, and Gerrit van der Wal expressed similar views. 

’ Ruud ter Meulen made a similar point. For further deliberation on Calvinism, see David E. Holwerda (ed.), 
Exploring the Heritage of John Calvin (Grand Rapids, Michigan: Baker Book House, 1976). See especially an 
article by Theodore Minnema, “Calvin’s Interpretation of Human Suffering,” pp. 140-162. 

* The book was translated to English and published by W.W. Norton in 1978. 

’ Joop van Holsteyn and Margo Trappenburg, “Citizens’ Opinions on New Eorms of Euthanasia. A Report from 
the Netherlands,” Patient Education and Counseling, Vol. 35 (1998), p. 63. 

Van den Berg’s book responded to widely felt concerns and was reprinted 21 times within seven years and 
thoroughly discussed in magazines and other media. See John Griffiths, Alex Bood and Heleen Weyers, 
Euthanasia and Law in the Netherlands, op. cit., p. 48. 

" On changes in public opinion from 1966 to 1991, see Paul J. van der Maas, Loes Pijnenborg and Johannes J.M. 
van Delden, “Changes in Dutch Opinions on Active Euthanasia, 1966 Through 1991,” JAMA, Vol. 273, No. 18 
(May 10, 1995): 1411-1414; Dick J. Hessing, John R. Blad and Roel Pieterman, “Practical Reasons and 
Reasonable Practiee: The Case of Euthanasia in the Netherlands,” J. of Social Issues, Vol. 52, No. 2 (1996): 
161-166. According to two consecutive polls, 70% of the Dutch people accepted active euthanasia in 1985, and 
76% in 1986. Cf Richard Fenigsen, “A Case Against Dutch Euthanasia,” The Hastings Center Report, Vol. 19, 
Special Supp., (January/Eebruary 1989): 22-25. A 1998 survey showed that more than 90 percent of the 
population was in favor of euthanasia. Cf. Suzanne Daley, “The Dutch Seek to Legalize Long-Tolerated 
Euthanasia,” The New York Times (June 20, 2000). URL: 
http://wwwl0.nytimes.eom/library/world/europe/062000holland-mercy.html 




60 



CHAPTER 4 



In the mid-1970s, the Dutch Voluntary Euthanasia Society was formed and the discussion 
spread into different circles: media, literature, politics, and academia. The Conservatives, 
Socialists and Social-Liberals all included the issue of euthanasia in their political platforms. 
Long deliberations in the Parliament failed to result in concrete steps, as all initiatives were 
blocked by the ruling party, the Christian-Democrats. 

Many physicians felt that the issue needed to be addressed carefully and sincerely. The 
Dutch Medical Association set up a committee in 1983 to examine the practice of euthanasia. 
The Society did not adopt a specific standpoint, but nevertheless said that if physicians practiced 
euthanasia, they needed to follow the jurisprudential Guidelines that Henk Leenen helped to 
formulate. This was a very important step in the process, and Leenen perceives those years as 
the formative years in the euthanasia debate. A social movement was created, involving a variety 
of different interests: physicians, patients’ groups, politicians, lawyers, courts, and religious 
organizations. 

In 1987, a state committee, under a Catholic president, recommended legalizing euthanasia, 
thereby according it a legitimate status for the first time. However, the Christian-Democrats 
continued to block all legislative attempts. Leenen and Kennedy emphasize that during this 
period, physicians continued to practice euthanasia and more cases were brought before the 
courts. Arie van der Arend and Govert den Hartogh noted that patients’ groups and voluntary 
euthanasia advocates gained a stronger influence then. 

John Griffiths explains that the Dutch have a history of tolerance and moral ambiguity - 
they tolerate things that are illegal but not undesirable enough to stop. As Paul van der Maas 
puts it, the Dutch raise moral questions and try to settle them through pragmatic means. For 
instance, one of the problems faced by the Netherlands in the last quarter of the twentieth 
century was that of squatters, people who illegally resided in empty buildings. According to 
Griffiths, the city government of Groningen understood that the problem might become 
worse if they evacuated the squatters by force. Hence, it tried to find them housing, and the 
squatters even formed their own organization to negotiate with the local municipalities. 

A. van Dantzig, one of the nation’s most well-known psychiatrists, pointed out another 
phenomenon that illustrates how the Dutch have their own way of dealing with moral 
questions. Their attitude of “live and let live” is exemplified by the policy on soft drugs. It is 
forbidden for coffee shops to buy drugs, but they are allowed to sell them, and the authorities 
don’t ask how the shops obtained the drugs. In essence, this is a politics of accommodation 
and compromise between the interests of each fragment of society as long as they recognize 
the authority of the State. 

Not everyone is happy with the increased sense of secularization and the prevailing 
liberalism. G.F. Koerselman, another well-known psychiatrist, explains that the Netherlands 
shifted too rapidly from one extreme to another. Whereas before the 1950s the country was 
very religious, since then the secularization process has brought about “totalitarian 
humanism.” It is totalitarian because humanism cannot be discussed; it is self-evident, 
unquestioned, taken for granted. 




WHY THE NETHERLANDS? 



61 



This view has significant implications for public life. First and foremost, there is absolute 
respect for individual autonomy. It is almost dogma that people should be, and are, 
autonomous. Consequently, the prevailing view is that decisions, especially on life and death, 
should be left in the hands of individuals. Second, argues Koerselman, there is a societal 
battle against suffering. People should not suffer and, in the name of relieving suffering, it is 
thought better to seek death. Euthanasia is one form of resolving the issue of suffering. 
Similarly, Henk Jochemsen says that the social climate in the Netherlands is one in which 
euthanasia seems a good solution for suffering, and that it is up to the doctor to provide this 
solution. 

Interviewees emphasized “openness” as the trait that made euthanasia possible. Dutch 
people prefer to put things on the table and to discuss everything openly - from drugs, 
prostitution and pornography to homosexuality, abortion and euthanasia. Sex education is 
explicit and universal in Dutch schools. There are open debates on moral issues, a plurality of 
views, and an overall atmosphere of permissiveness.’^ Recently the Netherlands became the first 
country to allow gay couples to legally marry and adopt children. Indeed, in a comparative 
survey of 15 countries, including the United States and Canada, the Dutch had by far the most 
permissive orientation.’^ 

Interviewees noted that the Dutch enjoy having the kind of theological discussion that 
includes probing norms and values. They further mentioned compromise as a basic mechanism 
by which resolutions are reached, explaining that the Netherlands has been in trade for 
centuries and consequently developed the necessary ability to compromise. The ambiguity of 
having euthanasia Guidelines, yet prohibiting euthanasia under the Penal Code, is the result 
of compromise between the religious and secular circles of society, between the legalistic 
and the realistic, in trying to resolve the issue of suffering. The Netherlands has a history of 
consensus governments based on compromise and mutual tolerance. The Dutch resent 
authority and have never had an authoritarian regime. As Gerrit van der Wal and Johannes 
JM van Delden have pointed out, the average Dutch citizen is liberal, pragmatic and tolerant, 
and appreciates plurality. There is a sense of obligation in Dutch society to try to reach a 
consensus on controversial matters. 

Bert Keizer explained that the Dutch are a relatively stable society; "our commonwealth 
is not under threat"; people dare to address complicated issues such as euthanasia. The Dutch 
have the time to focus on such issues. Furthermore, the Netherlands is a country of 16 
million people, 16 million theologians who ask themselves ethical questions. Keizer 
maintained: "You ask: Why the Netherlands? I, on the other hand, ask why other countries 
are so uptight about euthanasia, not to say hypocritical or cowardly." 

Another important consideration is the Dutch attitude in regard to the law. Some 
interviewees argue that one of the lessons of WWII relates to the limits of authority and the 
need to dissent when strong moral grounds are provided.’^ Many Dutch physicians during 



Interviews with John Griffiths, J.K. Gevers, Bert Thijs, Arie van der Arend, Ron Berghmans, and Ruud ter 
Meulen. 

Peter Ester, Loek Halman and Ruud de Moor, The Individualizing Society: Value Change in Europe and North 
America (Tilburg: Tilburg University Press, 1994), pp. 56-60. 

Interviews with Jaap Visser and John Griffiths. This point was reiterated also by Frank Koerselman, Egbert 
Schroten and Govert den Hartogh. 

Evert van Leeuwen, John Griffiths and Gerrit van der Wal. 




62 



CHAPTER 4 



the war felt that the state should not intervene in the doetor-patient relationship and thus 
refused to participate in the German euthanasia program, openly defying an order to treat 
only those patients who had a good chance of full recovery.'^ In this context, Chris 
Rutenfrans spoke of a laek of sufficient safeguards against abuse as a result of historical 
shortsightedness. Unlike the United States, Germany and other countries where the eugenic 
movement was active during the 1930s, the Netherlands did not have such a movement. 
While those countries were alarmed at how the Nazis implemented euthanasia, the Dutch 
collective memory is unaware of the Nazi experience in this regard. If one has compelling 
moral reasons, it is considered acceptable to break the law in compliance with one’s 
conscience. The fact that the courts tended to be very lenient towards doctors who performed 
euthanasia reflects the prevailing positive attitude on this issue. 

Many interviewees emphasized the importance of the Dutch healthcare system. As 
previously mentioned, the Netherlands has inclusive health insurance based on general 
practitioners who have longstanding relationships with their patients. The result is that most 
patients trust their doctors.’^ Emphasis is put on the autonomy of the patients, enabling them 
to have self-determination. At the same time, the strong trust in their GPs may lead patients 
to yield their autonomy or, ultimately, even their lives. This possibility exists especially as 
long as doctors suggest euthanasia to their patients.'* 

The literature describes the strongly developed system of primary care in the 
Netherlands, with 6300 general practitioners and additional nursing care at home. Many 
patients (40%) die at home, especially patients with cancer (48% of all cancer deaths). 
Almost all patients (99.4%) have health care insurance, and 100% of the population is 
insured for the cost of protracted illness.'^ 

When faced with the choice of going to the hospital to obtain the necessary health care or 
to receive the care at home, the Dutch generally prefer the latter. The same is also true for 
giving birth, a high percentage of which take place at home. Although women are aware of 
the possible risks involved in giving birth at home, many still prefer home delivery. Home is 
seen as the place to start life and to finish life. The GP typically visits the patient at home and 

Leo Alexander, “Medical Science Under Dictatorship,” New Eng. J. of Med., Vol. 241 (July 14, 1949), p. 45. 
Interviews with J.K. Gevers, Jaap Visser, Heleen Dupuis, Gerrit van der Wal, Henk Jochemsen, Govert den 
Hartogh, Arko Oderwald and Rob Houtepen. 

'* This is one of the reasons why doctors should not initiate discussions on euthanasia. 1 will address this issue 
later on. Leenen contests this view, arguing that a recent study in which he is involved shows that patients do 
not yield autonomy due to their trust in their GPs. Letter dated July 25, 2000. 

Gerrit van der Wal and Robert J.M. Dillmann, “Euthanasia in the Netherlands,” British Medical Journal, Vol. 
308 (1994), p. 1346. For further deliberation on the Dutch health care system, see Jan van der Made and Hans 
Maarse, “Access to Health Care in the Netherlands,” in Jo Lenaghan (ed.). Hard Choices in Health Care: 
Rights and Rationing in Europe (London: BMJ Publishing Group, 1997); 93-1 1 1 . 




WHY THE NETHERLANDS? 



63 



establishes a personal relationship that is discrete and private. In this realm of intimacy, 
outside control often does not exist and is conceived by both parties as interfering and 
damaging to the personal trust and special bond that have evolved over time. Many incidents 
of euthanasia happen at home and are not reported because this is considered a private 
matter, something between the patient, his/her family, and the doctor. 

The next chapter reports the general views on the practice of euthanasia in the 
Netherlands. 




CHAPTER 5 



VIEWS ON THE PRACTICE OF EUTHANASIA 



My next question was formulated in general terms. I wondered how the interviewees felt in 
regard to the praetiee of euthanasia and whether they were content with the way in whieh it is 
conducted. The majority of interviewees expressed some reservations, but at the same time 
felt that the system worked relatively well and that euthanasia should be permitted. A small 
minority felt that the system did not work (i.e., that the Guidelines were quite often violated) 
and that euthanasia should not be allowed. This small minority complained that the 
establishment tried to silenee them, labelled them as reactionaries and/or religious 
fundamentalists, and dismissed their point of view. 

Sjef Gevers and Bert Keizer have a positive attitude toward the policy. In Gever's 
opinion, every society will have to address the issue and people will want to have a say about 
what happens at the end of their lives. The difficult challenge is to develop public policy. 
Gevers and Keizer see that there are risks involved, but that in the Netherlands, these risks 
are discussed and generally contained and controlled. They feel that there is no abuse and 
that, on the whole, the poliey works and that the practice is fine. 

Heleen Dupuis, an ethicist who has written widely on euthanasia, also expresses 
satisfaction with the euthanasia policy. She argues that very limited groups (e.g., cancer and 
AIDS patients) request euthanasia and that their lives are shortened by one or two weeks at 
the most.* One of the prineipal Duteh authors on researeh in the fields of euthanasia and 
physician-assisted suicide (PAS) declared “it is pretty safe to die in Holland.” Political 
scientists estimate that 80% and more of the Dutch population are in favor of euthanasia 
under certain conditions.^ 

Several authorities^ said that the Dutch euthanasia policy is basically a good policy and 
that attempting to forbid euthanasia by law is misguided in light of how often it is done. They 
are satisfied that the option of euthanasia is available. In Rob Houtepen’s view, the major 
problem is the low level of reporting, most of whieh can be attributed to laziness and ean 
hopefully be rectified by the regional eommittees. Van Delden maintained that the rules are 
flexible, and clinieal eircumstances do not always conform to solid-rock guidelines. 



In her comments on the first draft of this essay, Dupuis clarified: “What I wanted to say by that is that clearly 
euthanasia is not about ‘life and death,’ as you say somewhere in the book, but about a way of dying of patients 
who will die anyway in a short period of time. Assisted suicide is a different matter, and morally much more 
complicated.” Personal communication on July 25, 2000. 

^ loop van Holsteyn and Margo Trappenburg, Het laatste oordeel. Meningen over nieuwe vormen van euthanasie 
(Ambo, Baarn 1996). Likewise, Govert den Hartogh and Egbert Schroten are satisfied with the existing 
arrangement. At the same time, they voice their fear that the new legislation might extend the options for 
euthanasia too far. For discussion on the law proposal, see H.J.J. Leenen, “Bill on Euthanasia and Assisting 
Suicide in the Netherlands,” European J. of Health Law, Vol. 5 (1998): 299-324. 

^ A. van Dantzig, Rob Houtepen, Johannes van Delden and Henri Wijsbek. 



65 




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CHAPTER 5 



However, there is danger in interpretation: what does “unbearable suffering” mean? At the 
same time, these authorities voiced their trust in doctors, claiming that neither life-shortening 
without the patient’s explicit request nor administrating mortal doses of morphine without 
apparent justification happens in the Netherlands more than in other countries.'' Given that it 
is difficult to deal with the euthanasia policy, that there are and will always be some pitfalls, 
much of the practice is out in the open and the situation is quite satisfactory. 

Similarly, H.J.J. Leenen is satisfied with the practice of euthanasia, arguing that no 
slippery slope exists. He emphasizes that very few doctors have been convicted for 
euthanasia and that there is positive cooperation on this issue among different circles of 
society. He notes that 88% of the population is in favor of the practice. In his comments on 
the first draft of this study, he asked to add that he strongly objects to not reporting 
euthanasia and that he insists on this issue in his law proposal.^ 

Gerrit Kimsma is “fairly happy with the practice,” conceiving it as brave and pragmatic. 
He does, however, have reservations in the area of clinical care, arguing that inadequate pain 
relief might lead patients to request euthanasia. He maintains that the Netherlands does well 
in palliative care, as compared to other countries, but still needs to improve its expertise in 
pain treatment. Kimsma notes that there are no comparative studies on the level and quality 
of expertise in pain management. He also believes that the Dutch neglect the area of 
transference and counter-transference,^ claiming that sometimes physicians proceed with 
euthanasia because their patients manipulate them. But, Kimsma immediately adds, this can 
be said in only a minority of cases. On the whole, he thinks that the euthanasia policy 
represents the results of mediation between two competing values: protection of life vs. 
alleviation of suffering. This policy has caused a dramatic change in medicine because what 
used to be hidden is now public and open. 

Some interviewees expressed reservations regarding the lack of control mechanisms. 
John Griffiths reiterates the problem that many physicians practicing euthanasia do not report 
their conduct because they do not want to be prosecuted or to provide an opportunity for 
prosecution. He seemed more troubled than Houtepen on this issue but, like Houtepen, 
Griffiths argued that the situation in the Netherlands is better than in any other place in the 
world, and that no slippery slope exists.^ He assumes that the control system will be 
improved. Similarly, Evert van Leeuwen and Arie van der Arend think that euthanasia has a 
place in the medical profession, but at the same time are worried about the lack of reporting. 
In their view, physicians need to understand that death is not only a medical issue, but also a 
public issue. 

Govert den Hartogh argues that in this area there is no social policy without risk or loss. 
Given the ideology of autonomy prevalent in the Netherlands the risk of the Dutch policy is 



“ However, there are studies that show euthanasia is more prevalent in the Netherlands than in other countries. 
See, for instance, Martien T. Muller, Gerrit K. Kimsma and Gerrit van der Wal, “Euthanasia and Assisted 
Suicide: Facts, Figures and Fancies with Special Regard to Old Age,” Drugs & Aging, Vol. 13, No. 3 
(September 1998): 185-191. 

’ Letter dated July 25, 2000. 

‘ For discussion on these concepts, see Jay Katz, The Silent World of Doctor and Patient (New York: The Free 
Press, 1984): 142-150. 

’ See also John Griffiths, Alex Bood and Heleen Weyers, Euthanasia and Law in the Netherlands, op. cit., pp. 
299-305. 




VIEWS ON THE PRACTICE OF EUTHANASIA 



67 



that the life of some patients will be ended on their request, even if they could have had a 
worthwhile span of life. But it must be recognized on the other hand that there are cases in 
which life is indeed a hell and in which euthanasia constitutes the best solution. Weighing the 
risks den Hartogh favors continuation of the existing policy, despite the problems involved in 
the actual practice. 

A few of the interviewees, including Koerselman and Jochemsen as well as Rutenfrans, 
are well known for their critique of the Dutch policy and practice of euthanasia. G.F. 
Koerselman was described to me as the most outspoken critic of Dutch euthanasia practice in 
general and assisted suicide with psychiatric patients in particular. He certainly lived up to 
his reputation by voicing his grave concern about the developments in the field, warning that 
the Netherlands is on the wrong road. Koerselman works in two hospitals and says that it is 
common practice to make euthanasia decisions too quickly and without careful attention. As 
a psychiatrist, he was invited to investigate and speak with patients requesting to die. 
Occasionally he was called on Friday, and the medical staff urged him “to finish the process” 
during the weekend. Koerselman maintains that his colleagues stopped using his services as 
a consultant once they realized that he would not easily authorize euthanasia. 

Henk Jochemsen conceives of euthanasia as unethical insofar as the practice runs contrary 
to a medical ethic that always seeks to sustain life. He feels that the practice is largely out of 
control and argues that whatever opinion one may hold about euthanasia, the state must be 
expected to provide effective control. It is impossible to monitor the work of each and every 
physician, and having such control would necessitate compromising the values of privacy 
and confidentiality. In essence, he says, effective control on the one hand, and privacy and 
confidentiality on the other, are mutually exclusive. Furthermore, he believes that the practice 
of euthanasia is contrary to a situation in which the state is obligated to protect the life of its 
citizens.* 

Chris Rutenfrans, a Roman Catholic who declares that his opposition to euthanasia does 
not stem from his religion but from practical reasoning, also objects to the policy and 
practice of euthanasia. He contends that euthanasia might have been necessary during the 
1920s, but not today, when pain medication is available. He argues that the Dutch have 
mistakenly generalized from highly exceptional cases, in which painkillers could not help, to 
a policy of using euthanasia as an easy and acceptable solution for suffering.^ It is done in 
the name of self-determination, even when the patient’s self-determination is actually being 
compromised. 

It should be noted that in Oregon, where the policy of physician-assisted suicide is 
closely examined, eight patients in 2000 (29%) and seven patients in 1999 (26%) expressed 
concern about inadequate control of pain as their illness progressed, as compared with two 

* For further deliberation, see Henk Jochemsen, “The Netherlands Experiment,” in John F. Kilner, Arlene B. 
Miller and Edmund D. Pellegrino (eds.). Dignity and Dying (Grand Rapids, ML: William B. Eerdmans 
Publishing Co., 1996): 165-179. 

’ Van der Maas contests this view. In his comments, he wrote that not only his studies but also studies in other 
countries have established time and again that pain is rarely the reason for a euthanasia request. Personal 
communication on September 18, 2000. However, van der Maas’s own study from 1990 shows that in 46% of 
cases, pain was the reason given by the patient for requesting euthanasia or PAS. P.J. van der Maas, J.J.M. van 
Delden, and L. Pijnenborg, Euthanasia and other Medical Decisions Concerning the End of Life, op. cit., pp. 
43-44. 




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patients (12%) in 1998. These findings may reflect advances in palliative care in Oregon, 
which ranks among the top five states in per capita use of morphine for medical purposes.” 
Other studies have shown that pain is not prominent in oncology patients’ attitudes toward 
PAS. Ezekiel J. Emanuel and colleagues found that patients actually experiencing pain were 
more likely to find euthanasia or physician-assisted suicide unacceptable.” 

On the other hand, the Oregon findings that only two patients in 1998 and a more 
significant number of patients in 1999 and 2000 expressed concern about inadequate pain 
control may indicate only physicians’ opinions that they are capable of managing pain. It 
might also be the result of poor communication between cancer patients (the majority of 
patients who asked for lethal drugs) and physicians. This hypothesis is strengthened when 
one looks at interviews with family members, conducted in 1999. The most frequently cited 
reasons by family members for the patient’s decision to request assistance with death were 
concern about loss of control of bodily functions (68 percent), loss of autonomy (63 percent), 
and physical suffering (53 percent).” Linda Ganzini and colleagues report that pain was an 
important consideration for 43 percent of patients who requested prescription for a lethal 
medication.” 

Moreover, studies showed that pain control for cancer patients is often inadequate and 
that physicians typically underestimate pain. Patients with significant pain caused by cancer 
visit their physicians and frequently leave with as much pain as they came with because their 
pain was never discussed or treated. Impediments to adequate pain treatment include health 
care providers’ fear of inducing physical or psychological addiction, misconceptions about 
pain tolerance, and assessment biases.” Furthermore, communication about pain often 
depends on the patients’ complaining of it. Patients, however, are often reluctant to report 
pain for a variety of reasons, including wanting to be a “good” (noncomplaining) patient, 
concern about having to take strong painkillers, or worries that talking about pain might take 
too much time and distract the physician from dealing with the disease itself” Moreover, 
many patients seek pain relief from complementary therapies. Often they feel that these 



Amy D. Sullivan, Katrina Hedberg, and David W. Fleming, “Legalized Physician-Assisted Suicide in Oregon - 
The Second Year,” New Eng. J. of Medicine, Vol. 342, No. 8 (February 24, 2000), at 600; Amy D. Sullivan et 
al., “Legalized Physician-Assisted Suicide in Oregon, 1998-2000,” New Eng. J. of Med., Vol. 344 (February 
22, 2001); Editorial, “The concerns stated by those who received suicide assistance in Oregon call into question 
why such a practice is needed,” American Medical News (March 19, 2001) .See also Erin Hoover Barnett, 
“Oregon’s Death With Dignity Act influences end-of-life care across the State as doctors wrestle with 
prescribing pain treatment,” The Oregonian (Portland) (Eebruary 18, 2001), and 

http://www.ohd.hr.state.or.us/chs 

" Arthur E. Chin et al., “Legalized Physician-Assisted Suicide in Oregon: The First Year’s Experience,” New 
Eng. J. of Med., Vol. 340, No. 7 (February 18, 1999), p. 582. 

Ezekiel J. Emanuel et al., “Euthanasia and Physician-assisted Suicide: Attitudes and Experiences of Oncology 
Patients, Oncologists, and the Public,” Lancet, Vol. 347 (June 29, 1996), p. 1809. 

Amy D. Sullivan et al., “Legalized Physician-Assisted Suicide in Oregon — The Second Year,” New Eng. J. of 
Med., Vol. 342, No. 8 (Eebruary 24, 2000), p. 601. 

Linda Ganzini et al., “Physicians’ Experiences with the Oregon Death with Dignity Act,” New Eng. J. of Med., 
Vol. 342, No.8 (February 24, 2000), p. 559. 

Kathleen Foley, “Dismantling the Barriers: Providing Palliative and Pain Care,” Medical Student Journal of the 
American Medical Association, Vol. 283 (January 5, 2000), p. 115. 

S. Ward et al., “Patient-Related Barriers to Management of Cancer Pain,” Pain, Vol. 53 (1993): 319-324; 
Charles S. Cleeland et al., “Pain and Its Treatment in Outpatients with Metastatic Cancer,” New Eng. J. of Med., 
Vol. 330 (1994): 592-596. 




VIEWS ON THE PRACTICE OF EUTHANASIA 



69 



methods offer a holistic approach that is lacking in the traditional allopathic model. It is 
advisable that doctors examine whether the prescribed pain control is adequate. Palliative 
care is able to prevent or at least to ease most manifestations of physical pain.'* 

PROS AND CONS OF THE DUTCH EUTHANASIA POLICY AND PRACTICE 

This question supplements the former question and is more specific. In response to the 
former question, the interviewees could have raised any issue that came to mind. This 
question provided respondents with the opportunity to elaborate on the positive aspects of the 
Dutch euthanasia policy and practice and, at the same time, pressed those who did not 
mention the negative aspects to address the problems involved. Many interviewees were 
eager to speak about the pros and far more reluctant to address the cons, to the extent that I 
had to press them to answer also the second part of the question. Some were ambivalent 
about the euthanasia practice. Koerselman, Jochemsen and Rutenfrans who emerged as the 
critical voices in my study continued to substantiate their grim assessments about the 
practice. 

Heleen Dupuis and A. van Dantzig voiced the most supportive views on the policy and 
practice of euthanasia.’^ Dupuis, who served as president of the Dutch Voluntary Euthanasia 
Society, sees only positive aspects in the policy and practice. Dying is a private matter and 
should be a private choice, with soeiety providing safeguard meehanisms and allowing 
euthanasia as an option. When pressed about the cons, she responded by saying: 
“Theoretically there are cons, but I never heard about them.” 

Van Dantzig emphasizes the openness of the practice, maintaining that it is rational for 
one to say that upon reaching a certain level of dementia life should be ended. The role of the 
doctor is to verify that the person has indeed reached that stage. He argues that when a doctor 
ends a person’s life, it is not a crime provided that the act was done on medical grounds. Van 
Dantzig thinks that it is wrong to criminalize euthanasia and believes that a doctor does not 
commit a crime when he provides this service. He recommends that physicians interview 
every person who requests euthanasia. Many times it is possible to find another solution. In 
any event, van Dantzig claims, someone who wants to carry out euthanasia will do so 
regardless of law and policy. He says that after accepting the rationale for euthanasia, all that 



Catherine S. Magid, “Pain, Suffering, and Meaning,” Medical Student Journal of the American Medical 
Association, Vol. 283 (January 5, 2000), p. 1 14. 

To institute effective pain eontrol, new programs for the training and certifieation of palliative eare consultants 
need to be developed and implemented. See Franklin G. Miller et al., “Regulating Physician-Assisted Death,” 
New Eng. J. of Med., Vol. 331, No. 2 (July 14, 1994): 119-123; Timothy E. Quill et ai., “Palliative Options of 
Last Resort,” Journal of the American Medical Association, Vol. 278, No. 23 (December 17, 1997): 2099- 
2104; P. D. Doyle et al. (eds.), Textbook of Palliative Medicine (New York: Oxford University Press, 1998); 
Anne Scott, “Autonomy, Power, and Control in Palliative Care,” Cambridge Quarterly of Healthcare Ethics, 
Vol. 8, No. 2 (1999): 139-147; Janet L. Abrahm, “The Role of the Clinieian in Palliative Medicine,” Medical 
Student Journal of the American Medical Association, Vol. 283 (January 5, 2000), p. 116. For further 
deliberation, see several articles published in JAMA, Vol. 290, No. 18 (November 12, 2003), and 
http://www.painandthelaw.org/ 

In his comments, van Dantzig wrote: “I have different opinions from Prof. Dupuis. I do not believe in the 
autonomous decision of the patient, as she does.” Fie noted that his views “are not as radical as you think.” 
Personal communication on July 6, 2000. 




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is left is to solve the practical problems, and these can be sorted out. Van Dantzig trusts 
doctors to carry out their professional responsibilities.^'’ 

Henri Wijsbek was happy to speak about the pros and far less eager to discuss the cons. 
Wijsbek praised the Guidelines because they insist on a voluntary request by the patient, they 
attempt to find an answer to the suffering, and they also require consultation. He believes 
that euthanasia is justified when good reasons are provided. No cons were mentioned. 

Paul van der Maas points to a number of relevant issues: the Dutch universal health care 
coverage that removes the economic pressure of forcing families to spend their resources on 
their loved ones; the fact that GPs know their patients for many years; and the legal aspect 
that discourages prosecution if there is ample justification. According to van der Maas, most 
people feel that there are sufficient safeguards and that the prescribed limits are acceptable 
and safe, in line with what people want. He also notes that euthanasia is rarely performed - 
once every 50 deaths - and that it is performed only when people are really suffering.^’ 
Finally, van der Maas stresses the self-limiting aspects of euthanasia: Most doctors want to 
avoid euthanasia because they find it too emotional. 

Regarding the cons involved in the practice, van der Maas said that the number of 
requests for euthanasia rose substantially from 1990 to 1995,^^ and one might think that some 
doctors may be pressured by their patients’ requests for euthanasia. Van der Maas also 
regards it as important that doctors spend sufficient time discussing euthanasia with patients, 
meaning more than one session. More research should be conducted on this issue. 

Bert Keizer who thinks the Dutch practice of euthaansia is fine argues that the pros are 
that people in unbearable situations can ask for death. Keizer testifies that he supports and 
performs euthanasia because he hopes that he would receive a similar treatment if required 
and he would wish it. Keizer finds the term “unbearable suffering” difficult to explain. He 
says that suffering almost never has to do with pain alone. For instance, when people are old, 
recognizing that they are unable to escape a certain situation, then they might lose hope, 
feeling trapped in a situation, and then they might opt for euthanasia as an escape. 

The cons are, says Keizer, that once euthanasia is allowed in certain situations, the policy 
might be stretched too much. The slippery slope is an actual concern. Euthanasia is an ethical 
issue, and it is the characteristic of an ethical issue that one doesn’t know one’s way about. 
Doubts are creeping in, and people may see euthanasia as a solution in less clear cases. 
Furthermore, the Netherlands is in trouble internationally because of the euthanasia policy. It 
is criticized by many countries. Some of the criticisms contain blatant lies. Baseless 
accusations are heard. For instance, argues Keizer, the film Death on Request caused the 
Netherlands a lot of harm.^^ People outside the country criticized the physician’s conduct. 



In his comments on the first draft of this study, van Dantzig added a general remark: “euthanasia is not killing, 
it is ending a life. Killing has criminal associations, and should not be used for the professional actions of a 
doctor.” Personal communication on July 6, 2000. 

Cf. Gerrit van der Wal and P.J. van der Maas, “Empirical Research on Euthanasia and Other Medical End-of- 
Life Decisions and the Euthanasia Notification Procedure,” in David C. Thomasma et al. (eds.). Asking to Die 
(Dordrecht: Kluwer Academic Publishers, 1998), p. 155. 

In 1995, the annual number of requests made to doctors for euthanasia or PAS “at a later time” was estimated at 
34,500, an increase of 37% as compared with 1990. In total, 9,700 explicit requests were made for euthanasia or 
PAS, an increase of 9%. Gerrit van der Wal and P.J. van der Maas, “Empirical Research on Euthanasia and 
Other Medical End-of-Life Decisions and the Euthanasia Notification Procedure,” Ibid., p. 155. 

Some problematic aspects of this film are discussed in Chapter 9. 




VIEWS ON THE PRACTICE OF EUTHANASIA 



71 



saying that he lacked the needed expertise to take care of the patient. Keizer does not agree 
with this criticism. 

James Kennedy admits that he is ambivalent about the practice. The positive thing about 
it is that large segments of society participate in the open and long deliberations. 
Furthermore, there is sensitivity to suffering and respect for autonomy, as well as a genuine 
attempt to reach a consensus. Having said that, Kennedy feels that despite its openness, the 
Dutch public really does not know a lot about the practice of euthanasia. Unlike the 
specialists, the public is not aware of all the problematic aspects revealed in the 1990 
Remmelink report and in the 1995 report, the research on withdrawal and withholding of 
treatment, or the employment of the double effect doctrine. These issues should be further 
discussed and researched. 

In regard to critics of euthanasia, Kennedy contends that they are not taken seriously 
enough in the Netherlands. The Dutch are sensitive to criticism from abroad and are 
defensive about their policies. As Koerselman, Rutenfrans and Jochemsen have testified, 
Dutch critics are also resented. The common argument against foreign critics is that they do 
not understand the Dutch policy, whereas the common argument against Dutch critics is that 
they belong to religious sects. 

The Dutch may be overconfident about the need for euthanasia and the justification of its 
practice. One may assume that if the given Guidelines are not complied with, then people 
will see that there is a serious problem. Yet, the Dutch people do not seem to feel this way.^"* 
Indeed, the moral superiority of Dutch euthanasia advocates is evident in Herbert Cohen’s 
claim that they see foreign criticism as evidence that the United States and the rest of the 
world are not as enlightened as the Netherlands.^® 

Egbert Schroten answers the question in general terms, holding that there is no 100% 
black or white picture in ethics. There are both pros and cons in the euthanasia policy and 
practice but, generally speaking, the pros outweigh the cons. Whereas Schroten considers the 
Guidelines strict and sufficient, van Delden feels that the Guidelines could be more specific 
and should clarify such vague terms as “no prospect of improvement” and “unbearable 
suffering.” Van Delden adds that an unfortunate result of such ambiguity might be that some 
patients would be rejected due to their failure to meet the criteria for receiving euthanasia. 

Evert van Leeuwen and John Griffiths reiterate the problem of lack of reporting. On the 
positive side, van Leeuwen speaks of allowing people to die when they are conscious of their 
surroundings, when they are still able to appreciate their lives, and when they can choose the 
time of their death. He emphasizes that 90% of the reported cases are terminal cancer 
patients and 1 0% are ALS patients, who suffer degenerative diseases - all of them patients 
who are suffering without hope of improvement or cure. 

Ruud ter Meulen and Ron Berghmans stress that the positive aspects of euthanasia 
practice have to do with the ability to conduct an open discussion and that patients are 
allowed to play an important role in deciding their fate. Berghmans is in favor of providing 
assistance in dying and considers it humane to have the option. He maintains that in contrast 
to Germany, where the climate is not conducive to having a rational and productive debate 
on euthanasia, in the Netherlands it is possible to discuss everything. 

In his comments on the first draft of this study, Leenen wrote that the Guidelines are working. Only the 

procedural requirement of reporting is still defective. Letter dated July 25, 2000. 

Herbert Hendin, Seduced by Death (New York: W.W. Norton, 1997), p. 148. 




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As for the negative aspects, ter Meulen sees a dangerous shift from allowing euthanasia 
for cancer patients to allowing it for psychiatric patients. The criteria are in flux, shifting too 
broadly towards what some might call a slippery slope. The Netherlands started the process 
with cancer patients and then expanded euthanasia practice to other groups of patients, 
including psychiatric patients, sick children, and cases of dementia. First, there was 
insistence on respecting the autonomy of the patient and honoring his/her desire to determine 
the moment of death. Now the discussion is shifting to mercy killings without the explicit 
request of the patient. Koerselman, Rutenfrans and Jochemsen have voiced similar concerns. 

Ron Berghmans points to the significant number of cases of non-voluntary euthanasia, 
emphasizing the need to seek more information about these cases. Moreover, like Frank 
Koerselman, he feels that there is a need to further discuss the issue of advance directives, 
particularly with regard to dementia patients. The main problem in cases of dementia is in 
determining how to evaluate suffering, because the regulations require meeting the condition 
of unbearable suffering. In addition, there is the issue of control. Berghmans fears that this 
will always remain a problem in regulating euthanasia. He asserts that the Netherlands 
should strive for 100% transparency, but he is pessimistic about the probability that this will 
happen. As long as euthanasia remains criminal, Berghmans does not think that the level of 
doctors’ reporting will increase. At the same time, he does not have a clear position on 
whether euthanasia should be decriminalized.^^ 

Chris Rutenfrans focuses only on the cons, arguing that there are many cases of people 
who are killed prematurely. He claims that euthanasia policy has shifted from voluntary to 
involuntary, from terminal illness to earlier stages of the disease. Patients are killed when the 
prospects for health improvement are slim.^^ 



An advance directive (AD) is a document that allows patients to express what life-sustaining treatments they 
want and for whom they want to make these decisions for them. In the United States, more than forty states 
have enacted legislation supporting the use of ADs. For further discussion, see Joseph J. Fins, “The Patient Self- 
determination Act and Patient-Physician Collaboration in New York State,” N.Y. State J. of Medicine, Vol. 92 
(November 1992): 489^93; Nitsa Kohut and Peter A. Singer, “Advance Directives in Family Practice,” 
Canadian Family Physician, Vol. 39 (May 1993): 1087-1093; Maarthen Reinders and Peter A. Singer, “Which 
Advance Directive Do Patients Prefer?,” Journal of General Internal Medicine, Vol. 9 (January 1994): 49-51; 
Dallas M. High, “Families’ Roles in Advance Directives,” Hastings Center Report, Special Supplement 
(November-December 1994): S16-S18; Stuart Homett, “Advance Directives: A Legal and Ethical Analysis,” in 
John Keown (ed.). Euthanasia Examined (N.Y.: Cambridge University Press, 1995), pp. 297-314; Hans-Martin 
Sass, Robert M. Veatch and Rihito Kimura (eds.). Advance Directives and Surrogate Decision Making in 
Health Care (Baltimore: Johns Hopkins University Press, 1998); Lawrence P. Ulrich, The Patient Self- 
Determination Act (Washington, D.C.: Georgetown University Press, 1999): 219-251; David Degarzia, 
“Advance Directives, Dementia, and ‘The Someone Else Problem’,” Vol. 13, No. 5 (1999): 373-391; 

D. William Molloy, Gordon H. Guyatt, Rosalie Russo et al, “Systematic Implementation of an Advance 
Directive Program in Nursing Homes,” JAMA, Vol. 283, No. 1 1 (March 15, 2000); Joan M. Teno, “Advanced 
Directives for Nursing Home Residents,” JAMA, Vol. 283, No. 11 (March 15, 2000); Paul Biegler, Cameron 
Stewart, Julian Savulescu and Loane Skene, “Determining the Validity of Advance Directives,” Medical J. of 
Australia, Vol. 172 (2000): 545-548. URL: 

http://www.mja.com.au/public/issues/172_l 1 050600/biegler/biegler.html 

Henk Leenen is similarly happy that Dutch society discusses controversial matters, like euthanasia, in the open. 
However, he reiterates the need for better control, stressing that euthanasia is not a matter for doctors and 
patients alone. The entire society needs to get involved in the process, and then the level of reporting should 
improve. 

In his comments, van der Maas asks: “Is there any serious research on which Mr. Rutenfrans can establish these 
claims? I have never seen any.” He maintains that he fails to understand how I am using the results of his 
extensive research, claiming that they may not be impartial because the government funded those studies, and at 




VIEWS ON THE PRACTICE OF EUTHANASIA 



73 



Van der Arend, a nurse, is not satisfied with the role of nurses in the euthanasia 
procedure. Nurses are not systematically involved in the decision about whether to honor 
euthanasia requests. Furthermore, nurses perform euthanasia in 20% of the cases in hospitals, 
in clear violation of the Guidelines, which require a doctor to perform euthanasia. According 
to van der Arend, nurses are often unaware that they are administering euthanasia in 
violation of the Guidelines. When euthanasia is conducted at patients’ homes, nurses are 
often not consulted about the decision and sometimes discover it only after the death.^^ It 
should be added that research shows that approximately half of the GPs did not consult with 
nurses about a patient’s request for either euthanasia or assisted suicide, the intention to 
administer them, and the actual administration.^® 



the same time use “the kind of undocumented insinuations by Mr. Rutenfrans.” Personal communication on 
September 18, 2000. 1 believe that researchers should better review all possible sources of information. 

Van der Maas and colleagues report that a nurse or someone else sometimes performs euthanasia with a drug 
that was prescribed for this purpose by a physician. P.J. van der Maas, J.J.M. van Delden, and L. Pijnenborg, 
Euthanasia and other Medical Decisions Concerning the End of Life, op. cit., p. 193. 

Martien Tom Muller, Death on Request (Amsterdam, Vrije Universiteit Thesis, 1996), p. 80. 




CHAPTER 6 



WORRISOME DATA 



HASTENING DEATH WITHOUT THE EXPLICIT REQUEST OF PATIENTS 

The following question opened the critical line of the interviews: “Some of the most 
worrisome data in the two Dutch studies are concerned with the hastening of death without 
the explicit request of patients. There were 1000 cases (0.8%) without explicit and persistent 
request in 1990, and 900 cases (0.7%) in 1995. What is your opinion?” 

Most of the interviewees offered similar interpretations of this finding. They said that this 
group includes cancer patients, Persistent Vegetative State patients,' newborns with severe 
health problems, and patients who are suffering that would die within a matter of days or 
even hours. By so doing, physicians strive to alleviate the pain of very sick patients at the 
end of their lives. In essence, what they are saying is that it is right to replace autonomy with 
beneficence in such severe circumstances. Some of the interviewees saw no problem in this, 
arguing that the balance favors termination of life in such instances. Many interviewees also 
emphasized that this practice was common long before euthanasia became available in the 
Netherlands and that it is not a specifically Dutch problem; there is a similar policy in 
hospitals all over the world.^ 

Consider the view of one of the foremost euthanasia activists, H.J.J. Leenen, who argues 
that these are not cases of euthanasia. Indeed, strictly speaking, these are not euthanasia cases 
because the Dutch definition speaks of patients who made a persistent voluntary request for the 
practice. Leenen argues that nearly all of the cases involved cancer patients in the last phase of 
their lives, who were suffering greatly and who had had so much medication that they were no 
longer competent. Their physicians sometimes help these suffering, dying patients with the last 
push. Such cases do not indicate a slippery slope, and they occur in every country. Nevertheless, 
Leenen is worried that the physicians did not discuss the option of termination of treatment early 



' The term PVS is used in reference to patients who are in a twilight zone between life and death. Those patients 
have suffered brain injuries from different causes: trauma, cerebral anoxia from hypotension or cardiac arrest, 
cerebrovascular accidents, or dementia. They have periods of wakefulness and physiological sleep/wake cycles, 
but at no time is the patient aware of himself or herself or the environment. Neurologically, being awake but 
unaware is the result of a functioning brain stem and the total loss of cerebral cortical functioning. No voluntary 
action or behavior of any kind is present. On this group of patients, and my ethical objections to the term PVS, 
see R. Cohen-Almagor, “Some Observations on Post-Coma Unawareness Patients and on Other Forms of 
Unconscious Patients: Policy Proposals,” Medicine and Law, Vol. 16, No. 3 (1997): 451^71; “Language and 
Reality at the End of Life,” Journal of Law, Medicine and Ethics, Vol. 28, No. 3 (Fall 2000): 267-278, and The 
Right to Die with Dignity: An Argument in Ethics, Medicine, and Law (Piscataway, NJ.: Rutgers University 
Press, 2001). For further deliberation, see Carl Zimmer, "What if there is something going on in there?," New 
York Times (September 28, 2003). 

^ Interviews with John Griffiths, Evert van Leeuwen, Govert den Hartogh, Bert Thijs, A. van Dantzig, Fleleen 
Dupuis, Flenri Wijsbek, and Arie van der Arend. 



75 




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on with these patients. Physicians know the consequences of increased doses of medication and 
should discuss the options at the beginning of the dying process. It is a physician’s responsibility 
to verify what patients want.^ 

Bert Thijs and Evert van Leeuwen recommend ethical and practical training as well as 
open discussions to overcome this problem. Physicians should discuss and debate this issue 
by holding regular consultation sessions. These discussions would make it possible for 
physicians to reflect on their decision-making process among themselves and with 
paramedics in their teams. 

Two of the most productive researchers in the field of euthanasia expressed remarkably 
similar opinions. They said that they are not worried about the data, explaining that this 
category of patients, who did not make an explicit request for euthanasia, includes comatose 
patients whose families asked whether it was necessary to keep the patients alive and who 
wanted to stop their suffering. Two-thirds were cancer patients in the advanced stage of the 
disease. They were suffering extremely, vomiting, unable to express themselves, and totally 
immersed in their agonizing condition. In other countries, Gerrit van der Wal maintains, 
ending a patient’s life in such cases would be called double effect. In the Netherlands, “we 
are more explicit, more Calvinistic” (I asked what this meant, and he answered “more open, 
rigid, honest, straightforward”). He further argued that in most of these cases, the issue of 
euthanasia was not discussed sufficiently beforehand. Therefore, it is important to make the 
climate around euthanasia more open and to exchange views between physicians and 
patients. Very few of these patients had living wills, but about half had indicated in the past 
that they would prefer to hasten death under such terrible conditions; the other half had given 
no indication of what they would have wanted.^ 

Van der Wal also notes that the doctors’ intentions regarding these patients were unclear. 
He, Heleen Dupuis and another senior researcher argue that most of the patients died from 
large doses of painkilling morphine (“double effecf ’), rather than the euthanasia drugs that 
paralyze the muscles. The doctors wanted to alleviate the pain and suffering of their patients, 
most of whom were in the advanced stages of cancer. They had only days or hours left to live 
and had been rendered incompetent from painkilling drugs. The doctors were then forced to 



’ Cf. Jan H. Veldink, John H.J. Wokke, Gerrit van der Wal, J.M.B. Vianney de Jong and Leonard H. van den 
Berg, "Euthanasia and Physician-assisted Suicide among Patients with Amyotrophic Lateral Sclerosis in the 
Netherlands," New Engl. J. Med., Vol. 346, No. 21 (May 23, 2002): 1638-1644. 

“ See Herbert Hendin, Seduced by Death (New York: W.W. Norton, 1997), pp. 88-89. Jaap Visser argues in 
answering this question that in many of these cases, the patients had living wills. In contrast, van Delden 
claimed that a very small number of these patients had a living will. The 1990 study reports that about one- 
quarter of the patients had previously “indicated something” regarding life termination. Cf P.J. van der Maas, 
J.J.M. van Delden, and L. Pijnenborg, Euthanasia and other Medical Decisions Concerning the End of Life, 
Health Policy Monographs (Amsterdam: Elsevier, 1992), p. 69. Van der Wal, van der Maas et al. report that in 
about half of these cases, either the decision was discussed with the patient earlier in the illness or the patient 
had expressed a wish for euthanasia if suffering became unbearable. In the other cases, the patient was deemed 
incompetent. Cf Paul J. van der Maas, Gerrit van der Wal, Ilinka Haverkate et al, “Euthanasia, Physician- 
Assisted Suicide, and Other Medical Practices Involving the End of Life in the Netherlands, 1990-1995,” New 
Eng. J. of Med., Vol. 335, No. 22 (November 28, 1996), p. 1701. John Griffiths says that this category of 
patients is highly heterogeneous, including severely defective newborn babies, long-term coma patients, and 
persons who at some earlier time have expressed a general wish for euthanasia but who in the final stages of the 
process of dying are no longer capable of expressing their will. John Griffiths, “The Slippery Slope: Are the 
Dutch Sliding Down or Are They Clambering Up?,” in David C. Thomasma et al. (eds.). Asking to Die, op. cit.. 




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77 



act based on their own initiative without having an opportunity to consult the patients 
regarding euthanasia.® 

Bert Keizer asserts that from the British hospice world we hear that patients in the 
Netherlands are being put to death all the time, "while they in fact treat their patients the way 
we treat ours by administering liberal dosages of morphine to terminal patients." Doctors 
resort to morphine to ease suffering. Keizer said that morphine is not administered without 
asking the consent of patients, or without telling the patients that morphine might shorten 
life. The truth is you cannot always be sure whether the administered morphine only 
alleviates pain, while not shortening the patient’s life. What happens in the Netherlands 
happens also in other parts of the world. The Dutch are simply more open and candid about 
the practice. So the worrisome data do not worry Keizer “at all”. 

Johannes van Delden provides the most interesting answer to the question regarding these 
worrisome data. He said that these findings were in part artifact, the creation of the 
researchers in the construction of the categories, which included clear-cut expressed wishes, 
cases of no explicit request, and cases with some remarks. Of the 1000, 56% expressed some 
view. However, the authors of the research “decided to have a clear-cut euthanasia group, 
and this group emerged from the way we chose to analyze.” Van Delden explained, “You 
need autonomy and beneficence to perform euthanasia.” There might be very extreme cases 
in which doctors decide to conduct euthanasia without the patient’s explicit request, but these 
cases are few in number. It is hardly conceivable to act in this way, “maybe in pediatrics.” 
Van Delden did recognize that most of these cases were insufficiently justified and insisted 
that the autonomy requirement be maintained.^ 

Henri Wijsbek, Arie van der Arend and Rob Houtepen see no reason for alarm in regard 
to this data. Most of these cases involve situations in which patients are unconscious, 
suffering greatly, in the last stage of disease, and physicians then do not have any other 
choice but to end the patient’s life. Wijsbek says that those patients would have died within a 
short time.^ This practice occurs in many countries, and Wijsbek sees no problem with it. He 
adds his hope that under such circumstances, his doctors would do the same for him. When 
there is hopeless suffering, and doctors cannot alleviate the pain, the option of euthanasia 
should be available. Van der Arend is not worried about the numbers, saying that he could 

^ For further deliberation, see Gerrit van der Wal, “Unrequested Termination of Life: Is It Permissible?,” 
Bioethics, Vol. 7, No. 4 (1993): 330-339. 

^ In another forum, van Delden explained that the type of patients involved were eancer patients with brain 
metastases and, consequently, were rendered incompetent. It would give “a false picture of Holland if one 
thought that we put away demented people or the weak ones in society. It really is the patient who is dying and 
already fading away.” Proeeedings of Euthanasia and Assisted Suicide in the Netherlands and in Europe, 
Maastricht, June 10-11, 1994 (Luxembourg: Office for Official Publications of the European Communities, 
1996), p. 47. 

’ Aceording to van der Wal, van der Maas et al, life was shortened by 24 hours at most in 33% of these cases, 
and in a further 58% it was shortened by one week at most. Cf Paul J. van der Maas, Gerrit van der Wal, Ilinka 
Haverkate et al, “Euthanasia, Physician-Assisted Suicide, and Other Medical Practices Involving the End of 
Life in the Netherlands, 1990-1995,” op. cit., p. 1702. The 1990 study reports that in 21% of the eases, life was 
shortened by one to four weeks; in 7% of the eases, life was shortened by one to six months; and in a small 
number of cases, life was shortened by more than half a year. These patients were not in the terminal stage of 
their illness. Cf P.J. van der Maas, J.J.M. van Delden, and L. Pijnenborg, Euthanasia and other Medical 
Decisions Concerning the End of Life, op. cit., pp. 66, 183. See also Loes Pijnenborg, Paul J. van der Maas, 
J.J.M. van Delden and Caspar W.N. Looman, “Life-terminating Acts without Explicit Request of Patient,” 
Lancet, Vol. 341 (May 8, 1993); 1196-1199. 




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not imagine that termination of life was the result of careless medical practice. He added: 
“There will always be cases like these.” 

In turn, Rob Houtepen testifies that he is quite liberal about termination of life when 
people are suffering, even if they are incompetent. He believes that compassion is the 
primary consideration for euthanasia. Autonomy is a secondary consideration. It is unjust 
that people be denied the option to end their suffering, an option that is available to 
competent patients. In his mind, we should not make strict distinctions between competent 
and incompetent patients. Hence, Houtepen is “not shocked” by the figures, though he does 
recognize the need for stricter notification procedures so as to make more data available 
about the circumstances of each and every patient who did not make an explicit request. 

Ron Berghmans supports the need for more information about these cases and the 
circumstances involved in each case, particularly when the patient could have expressed an 
opinion about the issue. In addition, the issue of advance directives (ADs) needs to be 
discussed further. The new law stipulates that ADs have the legal force of the patient’s 
voluntary explicit request. Berghmans reiterates the problem of how to evaluate suffering in 
cases of dementia and expresses doubt about whether we should honor the ADs of dementia 
patients.^ 

In his comments on the first draft of this study, Govert den Hartogh wrote that my 
implicit assumption is that the worrisome data are the result of the lax Dutch rules. He thinks 
that probably the opposite is true: In other countries, this figure would probably be much 
higher, precisely because euthanasia is forbidden and hence cannot safely be discussed with 
patients. Accordingly, the result of the Dutch rules, on this account, is that the figure is 
unusually low. This, however, does not mean that the data are not worrisome. 

To substantiate his point, den Hartogh referred to the recent research project in Flandres, 
which is a replica of the van der Maas/van der Wal studies. Belgian law at that time forbade 
euthanasia and assisted suicide, and there is no equivalent there to the Dutch judge-made 
law. According to this research, the overall percentage of deaths as a result of euthanasia or 
assisted suicide in Belgium is somewhat lower, but not very much lower, than it is in the 
Netherlands. However, the percentage of deaths from “euthanasia” without explicit request is 
five times as high (3.5%).’ Den Hartogh’s interpretation of these data is not that Belgian 
doctors, any more than Dutch doctors, “get rid of unwanted patients.” Although they believe 
themselves to be acting in the best interests of the patient and fulfilling the wishes of the 
patient, they are simply reluctant to discuss the matter openly.'’ It is outside the scope of this 
discussion to delve into an extensive review of the Belgian situation. I should say, however, 
that my independent research in Belgium which included survey of literature and interviews 
with some leading experts reveals that the policy and practice of euthanasia in Belgium is 
worrisome, and that further investigations are warranted to shed light on the scope of abuse. 

A minority of interviewees did express concern in regard to these data. When patients are 
suffering and on the verge of death, they do not view it as problematic if the doctor provides 



For further deliberation, see R. Berghmans, “Advance Directives and Dementia,” in R. Cohen-Almagor (ed.). 
Medical Ethics at the Dawn of the 2T‘ Century (New York: New York Academy of Sciences, 2000), Vol. 913 
oiihQ Annals: 105-110. 

^ Cf. Luc Deliens, Freddy Mortier, Johan Bilsen, Marc Cosyns, Robert Vander Stichele, Johan Vanoverloop and 
Koen Ingels, “End-of-life Decisions in Medical Practice in Flanders, Belgium: A Nationwide Survey,” Lancet, 
Vol. 356 (November 25, 2000): 1806-1811. 

Personal communication on August 27, 2000. 




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morphine to ease the pain and the patient dies. However, in eases where the patients were 
competent and the doctor took their lives without asking them, this is worrisome. Some of 
the doctors’ justifications for their actions with these patients were invalid as was the 
apparent unwillingness of some doctors to consult a colleague.” Indeed, according to the 
1 990 report, among the considerations by the physician in performing a life-terminating act 
without explicit request of the patient were the patient’s low quality of life (31% of the 
cases), inability of the patient’s relatives to cope with the situation (32%), and economic 
considerations (1%).'^ 

Egbert Schroten, who has served on many medical committees, says that the findings are 
worrisome but that the discussion about their seriousness is exaggerated. Such medical 
behavior always existed before the invocation of the euthanasia policy, and a good doctor 
needs to help patients who are in great pain. Suffering of body and spirit is the most 
important consideration, and here we speak of incompetent patients in the very last days of 
their lives, who suffer miserably. 

Ruud ter Meulen indicates that the issue worries him. He would like to have in place an 
explicit policy on termination of life, with no room for interpretation. The policy should 
insist on the explicit request of the patient and on strict medical criteria. There is also a need 
to define the concept of suffering. Ter Meulen expresses a critical view of the existing 
practice of passive euthanasia and the use of morphine to shorten life. He argues that it is not 
clear on which criteria decisions for passive euthanasia are based and what role the patient 
has in the decision-making process. 

As expected, the three most critical voices in the present survey did not justify the 
existing situation. Both Chris Rutenfrans and Henk Jochemsen expressed concern about the 
lack of control mechanisms and the freedom that physicians have to decide the fates of their 
patients without consulting them. Jochemsen acknowledged that some were probably cases 
of double effect, but in others patients were competent and were still not apprised of the 
situation. This is not morally justifiable. The major consideration for physicians must be the 
suffering of the patient. Autonomy gives an additional justification, but does not constitute 
the major reason. While recognizing that the termination of life took place in the last stage of 
the disease, Jochemsen emphasized that there was no preference expressed by patients in a 
significant number of cases. 

Most outspoken was Frank Koerselman, who contends that junior doctors readily make 
Do Not Resuscitate (DNR) orders without much thought, especially when patients are old. 
Young doctors often evaluate a patient’s quality of life without even knowing the patient, 
and many of them do not find compelling reasons for working to save a 90-year-old patient. 



" Paul J. van der Maas, Gerrit van der Wal, Ilinka Haverkate et al, “Euthanasia, Physician-Assisted Suicide, and 
Other Medical Practices Involving the End of Life in the Netherlands, 1990-1995,” op. cit., p. 1704, Table 4. 

P.J. van der Maas, J.J.M. van Delden, and L. Pijnenborg, Euthanasia and other Medical Decisions Concerning 
the End of Life, op. cit., p. 64. 

According to the 1990 report, the patient had given some indication about terminating life in 28% of cases. 
Interestingly, this consideration is mentioned by physicians in only 17% of cases. Apparently, it was not so 
much the wish of the patient but the circumstances that made the physician appreciate the patient’s wish. Cf. 
P.J. van der Maas, J.J.M. van Delden, and L. Pijnenborg, Euthanasia and other Medical Decisions Concerning 
the End of Life, op. cit., p. 64. 




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Koerselman testifies that he has seen many cases in which DNR orders were taken by phone 
or given by a junior physician without consulting a senior colleague.’"* 

FEARS OF ELDERLY PATIENTS 

The next question was: “Some Dutch studies appear to indicate that some elderly people fear 
their lives will be ended without their consent^^ and that, in fact, families in the Netherlands 
request euthanasia more often than the patient.’^ Is this true?” 

A study in thirty nursing homes showed that when medical indications for hospitalization 
of elderly patients arose, nursing home physicians decided not to transport the patient to the 
hospital in 12% of cases, particularly when there was a life-threatening emergency. In a 
considerable number of cases, the decisions were made without consulting the patients or 
their families.’^ In a study done in Dutch hospitals, doctors and nurses reported that more 
requests for euthanasia came from families than from patients. The family, the doctors, and 
the nurses often pressured the patient to request euthanasia.’* 

Herbert Cohen said in an interview with John Keown that he would be put in a very 
difficult position if a patient told him that he really felt he was a nuisance to his relatives 
because they wanted to enjoy his estate. Asked whether he would rule out euthanasia in such 
a case, Cohen replied that in the end he wouldn’t because “that kind of influence - these 
children wanting the money now - is the same kind of power from the past that. . . shaped us 
all.” Cohen maintained that the same thing goes for religion, education, family of origin, “all 
kinds of influences from the past that we can’t put aside.”’’ It is unclear how this view could 
be seen as an acceptable interpretation of the Guidelines that speak of free and voluntary 
request of the patient as well as of unbearable suffering. 

A minority of the interviewees dismissed the question as “ridiculous.” Dupuis, van 
Dantzig and Keizer expressed the most supportive voices for the existing policy and practice 
of euthanasia.^® Heleen Dupuis explained that when the patient is incompetent, the only 
available option for physicians is to cease treatment, not to perform euthanasia. She 
maintained that most people are afraid of having no option at the end of life and that in any 
event, old and demented patients receive treatment. There is no room for fear, and it is 
ridiculous to be afraid. In turn, van Dantzig dismissed the question as propaganda of the anti- 



C.I. Dessaur and C.J.C. Rutenfrans wrote that a young doctor expressed objections to the use of pacemakers in 
people older than seventy-five years and declared that society may not be burdened with the duty of keeping old 
people alive. Cf. “The Present Day Practice of Euthanasia,” Issues in Law and Medicine, Vol. 3, No. 4 (Spring 
1988), at 402. 

J.H. Segers, “Elderly Persons on the Subject of Euthanasia,” Issues in Law & Medicine, Vol. 3 (November 4, 
1988): 407^24; R. Fenigsen, “A Case Against Dutch Euthanasia,” Hastings Center Report, Vol. 19 (Supp.) 
(1989): 24-26. Fenigsen argues (p. 24) that spouses have coerced their husbands or wives to undergo 
“voluntary” euthanasia. 

R. Fenigsen, “A Case Against Dutch Euthanasia,” Ibid, 22-30. 

Richard Fenigsen, “Physician-Assisted Death in the Netherlands: Impact on Long-Term Care,” Issues in Law cfe 
Medicine, Vol. 11, No. 3 (1995): 293-294. 

Flerbert Flendin, Seduced by Death, op. cit, p. 93. 

John Keown, “The Law and Practice of Euthanasia in the Netherlands,” The Law Quarterly Review, Vol. 108 
(January 1992), p. 63; idem, “Euthanasia in the Netherlands: Sliding Down the Slippery Slope?,” Voire Dame J. 
of Law, Ethics and Public Policy, Vol. 9 (1995), p. 412. 

In his comments on the first draft of this study, van Dantzig wrote succinctly: “I do not wholeheartedly support 
the existing system.” Personal communication on July 6, 2000. 




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euthanasia lobby. Cases that include bad relations in a family should not prevent euthanasia 
in the many other cases where the motivation is sincere. However, the patient needs to 
express a will to die. If the patient does not express such a will and does not suffer, then it is 
not an appropriate case for euthanasia. If the patient had a living will, then the living will 
should be respected. 

Bert Keizer said that it is not true that families request euthanasia more often than the 
patient. At least this is not his experience. Relatives may ask to shorten the dying process but 
doctors care about their patients and would never cut life short simply because relatives find 
it difficult to watch a dying patient. Keizer added that these requests take place at the end of 
life, during the last 2 or 3 days of life. As for the alleged fears of elderly people that their 
lives will be ended without their consent, Keizer regarded this as "crap, evil crap." He says 
that he is not going to answer such a question. He never sensed such fears among his 
patients. 

Likewise, George Beusmans and Gerrit Kimsma who also practice euthanasia testified 
that in their medical practice they always provide information to the patient as well as to the 
family. It is irrelevant if the family wants to take a certain course of action when the patient 
does not share the same preference. It is only the patient’s request that counts. When they 
practice euthanasia, it is done in the open with the consent of the patient, who must voice 
repeated requests and sign a written document. Kimsma asserts that his patients’ families 
have always been satisfied with the euthanasia procedure. He has never had a family member 
object to euthanasia, and he has sometimes organized family meetings to resolve differences 
of opinion. At the same time, Kimsma declares that euthanasia is an individual matter of the 
patient and that he always resists family pressures for euthanasia when the patient does not 
want it. 

Van der Wal also dismissed the question, saying that Segers who wrote about fears of 
elderly patients was speculating, and that the articles I cited are “nonsense” and 
“scientifically unsound.” In one of the articles he co-authored, van der Wal wrote that Dutch 
studies do not provide any evidence for the elderly being in danger of becoming “victims” of 
euthanasia or assisted suicide.^’ Furthermore, van der Wal did not know of any study on the 
role of families (according to H.J.J. Leenen and Govert den Hartogh, no research has been 
done on the role of the family), and he and his research team were exploring the issue of 
conducting such research at the time of the interview. Van der Wal knows of only one 
opinion poll designed to investigate the issue, which, in his opinion, was conducted by a 
biased fundamentalist organization and was scientifically unsound. He further notes that 
euthanasia and assisted suicide among the elderly are rare. The age of most patients 
requesting euthanasia varies between 55 and 15 ?^ 

Having said that, although van der Wal dismisses the issue as “nonsense,” he 
acknowledges that sometimes families find the suffering of their loved one unbearable and 
that there has been incidental anecdotal evidence of family pressure being brought to bear in 



Martien T. Muller, Gerrit K. Kimsma and Gerrit van der Wal, “Euthanasia and Assisted Suicide: Facts, Figures 
and Fancies with Special Regard to Old Age,” Drugs & Aging, Vol. 13, No. 3 (September 1998), p. 185. 

Cf. P.J. van der Maas, J.J.M. van Delden, and L. Pijnenborg, Euthanasia and other Medical Decisions 
Concerning the End of Life, op. cit., pp. 44, 137. In both tables, the first age category is 0^9; the second 50-64. 
The same age categories are used in Table 3 of the 1995 study. Cf. Paul J. van der Maas, Gerrit van der Wal, 
Ilinka Flaverkate et al, “Euthanasia, Physician-Assisted Suicide, and Other Medical Practices Involving the End 
of Life in the Netherlands, 1990-1995,” op. cit., p. 1703. 




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the termination of a patient’s life. That is to say that family pressures do exist, but doctors 
testify that they are able to resist those pressures. Van der Wal emphasizes that, unlike other 
countries, there are no financial incentives for requesting euthanasia in the Netherlands 
because the costs of maintaining patients are not borne by their families. 

H.J.J. Leenen says that he has never heard of patients who are afraid of euthanasia. On 
the contrary, one hears more about patients who fear that they will ask for euthanasia when 
their time comes, but their request will not be honored. J.K. Gevers and Govert den Hartogh 
do not think that families request euthanasia any more than patients do, or that physicians act 
on the wish of the family more than on the wish of the patient. In his comments on the first 
draft of this study, den Hartogh wrote that in all of the cases reported, the doctor acted on the 
request of the patient, and that in almost all instances the family supported the request of the 
patient. There is hardly any evidence of undue influence of the wishes of the family on the 
decision of the doctor, either from the reported cases or from other sources. 

On the other hand, some physicians and consultants are insufficiently aware of the 
possibility of subtle forms of psychological pressure exerted on patients by their families. 
They routinely allow the family to be present at all discussions with the patient. This is one 
of the ways in which the SCEN-project (a network of consultants with whom physicians can 
consult on euthanasia cases) may lead to substantial improvement, as SCEN-doctors are 
trained to be alert to this possibility.^^ 

Some interviewees argued that even if such fears on the part of patients exist, they are 
unfounded. Opinion polls show that the public thinks it is unacceptable for the family to 
request euthanasia because they cannot cope with the patient’s condition. Families may 
request euthanasia for the patient because they might become exhausted by dealing with the 
patient’s suffering and illness, but such a request would not be granted because testimony of 
a relative does not constitute sufficient grounds for euthanasia. Schroten, Wijsbek and van 
Leeuwen have heard that elderly patients fear their lives might be terminated prematurely 
without their consent. Schroten and Wijsbek believe that these fears often arise from 
religious convictions and are totally unrealistic. The three ethicists noted that euthanasia is 
rarely conducted in nursing homes. Indeed, studies show that Dutch nursing home physicians 
together receive an average of 300 requests for euthanasia and assisted suicide annually, of 
which they comply with only 25.^"* In comparison to general hospitals, nursing homes have a 
less permissive policy on euthanasia.^^ Bert Keizer writes that most of the patients in nursing 
homes belong to the generation that still associates “euthanasia” with “mass murder.”^*’ 

Van Leeuwen maintains that there might be cases of inadequate care and, as a result, 
patients may die earlier than expected. Van Leeuwen further testifies that he once heard a 



Personal communication of den Hartogh on August 27, 2000. 

Martien Tom Muller, Death on Request (Amsterdam, Vrije Universiteit Thesis, 1996), p. 18. See also Table 3 in 
Paul J. van der Maas, Gerrit van der Wal, Ilinka Haverkate et al, “Euthanasia, Physician-Assisted Suicide, and 
Other Medical Practices Involving the End of Life in the Netherlands, 1990-1995,” op. cit., p. 1703, and Table 
2 in Gerrit van der Wal and P.J. van der Maas, “Empirical Research on Euthanasia and Other Medical End-of- 
Life Decisions and the Euthanasia Notification Procedure,” in David C. Thomasma et al. (eds.). Asking to Die, 
op. cit., p. 172. 

Dick J. Hessing, John R. Blad and Roel Pieterman, “Practical Reasons and Reasonable Practice: The Case of 
Euthanasia in the Netherlands,” J. of Social Issues, Vol. 52, No. 2 (1996), p. 155. 

Bert Keizer, Dancing with Mister D (London: Black Swan, 1997), p. 258. Keizer also testifies that only a small 
percentage of his patients really want to die (emphasis mine, RCA). Ibid., p. 268. 




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83 



physician describing how he and his colleagues could have improved a patient’s situation, 
but did not do so because the patient had no family to care for him were his condition to 
improve, thus leaving him alone in a difficult situation?^ In addition, when some families 
request that the elderly die peacefully, they are indirectly exerting their influence on the 
decision-making. 

Parenthetically, let me refer to Bert Keizer’s exchange with a nephew of one of his 
patients, who assured him that “this is not at all what he [the patient] wanted, ending his days 
in a place like this.” Keizer, who praetices medicine in a nursing home in Amsterdam, 
writes: “it always annoys me, that tone of voice in which people say. Uncle would never 
have wanted this. What they mean is, he’s not as stupid as those other 56,000 Dutch people 
staying in nursing homes who have ‘let things go too far’.”^* 

Van Delden, one of the authors of the 1990 eomprehensive study, based his answer on 
this study. The study shows that relatives made an explicit request to hasten the death of the 
patient in 14% of the cases, and others (physician, nurse or someone else who is not a 
relative) made the request in 1% of cases.^^ 

Van der Arend tells of arguments he witnessed between relatives over financial affairs, 
even about an inheritance while the patient was still alive. Therefore, families should be 
engaged in the decision-making, but should not be given the last word. All parties should be 
involved in the euthanasia decision: the patient, the physicians and nurses, and the patient’s 
family. If members of the family are not involved, they might end up going to court. Van der 
Arend added that patients usually trust physicians not to terminate their lives without their 
consent. When the patient is rendered incompetent and has not prepared a living will, the 
family assumes a larger role in the decision-making process, but still does not have the last 
word. 

Rob Houtepen and Ron Berghmans argue that families do exert pressure for, but also 
against, euthanasia. Most physicians are aware of the pressure on them to perform 
euthanasia, and they resist it. The common procedure is to inform and to speak with family 
members. They estimate that families are consulted in the majority of euthanasia cases. In 
turn, John Griffiths identified the issue of family pressure as one of the problems that needs 
to be addressed by effective regulation. Families that can no longer cope with the patient’s 
situation might exert pressure on doctors and influence them to opt for euthanasia rather than 
to provide adequate pain relief. Griffiths maintained in a later communieation that this 



In his comments, van Leeuwen asked me to emphasize that he heard this once, and only once. Personal 
communication on August 30, 2000. 

Bert Keizer, Dancing with Mister D, pp. 301-302. See also pp. 306, 3 12. 

P.J. van der Maas, J.J.M. van Delden, and L. Pijnenborg, Euthanasia and other Medical Decisions Concerning 
the End of Life, op. cit., p. 134. 

Aceording to the 1990 study, GPs consulted with patients’ relatives in 97% of the eases, and specialists 
consulted with relatives in 85% of cases. Cf. P.J. van der Maas, J.J.M. van Delden, and L. Pijnenborg, 
Euthanasia and other Medical Decisions Concerning the End of Life, op. cit., p. 47. According to the 1995 
death-certificate study, “relatives or others” were consulted only in 70% of euthanasia and assisted-suicide 
cases. Paul J. van der Maas, Gerrit van der Wal, Ilinka Haverkate et al, “Euthanasia, Physician-Assisted 
Suicide, and Other Medical Practices Involving the End of Life in the Netherlands, 1990-1995,” op. cit., p. 
1704. Interestingly, another study shows that patient’s relatives were “eontacted” in more than 90% of the 
euthanasia and assisted-suicide cases. Gerrit van der Wal, Paul J. van der Maas, Jacqueline M. Bosma et al, 
“Evaluation of the Notification Procedure for Physician-Assisted Death in the Netherlands,” New Eng. J. of 
Med., Vol. 335, No. 22 (November 28, 1996), p. 1709. 




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problem is in no way limited to euthanasia. His impression is that it is far more important 
quantitatively in connection with abstention decisions. 

Ruud ter Meulen, Henk Jochemsen and Frank Koerselman voiced the most critical voices 
on this matter. Ter Meulen is worried about the position of elderly people, given that there 
are waiting lists for nursing homes and for home care. The Netherlands is facing a shortage 
of resources, cuts in the nursing staff and a larger number of the elderly who wish to be in 
nursing homes. We can expect that the quality of care for the elderly will deteriorate. 
Euthanasia may be a promising alternative as a solution to a pressing problem, and ter 
Meulen adds that this is especially true with respect to elderly patients who do not want to be 
a burden on their families. This consideration may play a role in their request for euthanasia. 
However, in his comments on the first draft of this paper, ter Meulen added that there is no 
evidence of this issue playing a role in the practice of euthanasia at this point. 

Henk Jochemsen contends that it is often the case of the family, rather than the patient, 
asking for euthanasia when the patient has become a burden. Hence, Jochemsen thinks that 
some elderly patients indeed have good reason for this fear. He adds that patients sometimes 
also fear that treatment will continue beyond the necessary point. Jochemsen also objects to 
providing unnecessary treatment. 

Koerselman expressed the most critical view, agreeing with the studies of Segers and 
Fenigsen, and testifying about his own experience. He argued that such fears on the part of 
the elderly do exist. In his view, families have informal influence on doctors, and it is 
impossible to ascertain that families who find it difficult to cope with the suffering of their 
loved ones do not influence the decision-making process. Koerselman told the story of an 85- 
year-old patient with pneumonia and depression, both of which are treatable conditions. His 
family did not wish to treat him, and the GP agreed with the family that there was no point in 
treatment. Koerselman was invited to consult on the patient’s depression and said that if he 
had not taken an active role in this case, they would have taken the easy way out: “He would 
die, all would say that I acted humanely and would receive a nice bottle of wine from the 
family who physically wanted to prevent me from treating him.” Koerselman asked the 
patient’s GP whether he had spoken with the patient alone. The response was negative. 
Koerselman had to order security guards to remove the family from the room so that he 
could speak privately with the patient. The patient said at first that there was no reason to 
continue treatment and that he did not want to become a burden on his family. Koerselman 
explained to him that he suffered from pneumonia and depression, two perfectly treatable 
conditions, and that he might as well try to be a healthy 85-year-old man. The patient then 
agreed to treatment and was eventually discharged from the hospital in very good condition, 
both mentally and physically. 




CHAPTER 7 



THE REMMELINK CONTENTION AND 
THE BRITISH CRITICISM 



THE REMMELINK CONTENTION 

The next question was: The Remmelink Commission held that actively ending life when the 
vital functions have started failing is indisputably normal medical practice.' Is this correct? 
What is your opinion? 

When I first read this statement, I was puzzled. It is unclear what “the vital functions 
have started failing” exactly means. What vital functions? What does “started failing” 
signify? Moreover, is this really the common practice in the Netherlands? The assertion is 
unqualified. The consent of the patient does not appear in it. To say that it is “indisputably 
normal medical practice” seemed to be quite dangerous. 

Interestingly, some interviewees denied that the Report actually said this. Most of them 
disagreed with the unqualified statement. Two interviewees agreed with the statement and 
two others understood it to refer to double effect, which is an acceptable doctrine in the 
Netherlands as well as in other countries. 

Evert van Leeuwen and Heleen Dupuis disagreed with the Remmelink statement and 
added that they did not think the Commission had actually expressed such a vague statement. 
“Failing of vital functions” is not a common phrase, and it does not convey a clear meaning. 
They questioned the statement’s rationale: If vital functions are failing, that means the 
patient is dying. If someone is dying, why is there a need to kill him? Heleen Dupuis 
wondered: What does “vital functions” mean? If the statement refers to patients in a coma, 
the practice is to stop treatment after several months. But this rule as stated here “is 
nonsense.” The doctor must know more in order to terminate life. Three interviewees, 
Schroten, Koerselman and van Delden, said that if the vital organs are irreversibly failing, 
then the patient is dying. Switching ventilators is a normal practice, but not injections 
designed to kill. Medical treatment should stop under such circumstances, but this does not 
mean actively ending life. In any event, lethal injections are not normal treatment, and 
euthanasia is not a normal practice. It is an exceptional treatment used in cases of exceptional 
suffering of the patients concerned. 

Van Delden was familiar with the statement, which accompanied the 1990 study report 
that he co-authored with van der Maas and Pijnenborg, and expressed disagreement with it. 
He emphasized that there were two documents: one of the Commission and one of the van 
der Maas research group, in which he participated. This contention was made in the 
Commission’s Report, and this part of the Report was not accepted by the Dutch parliament. 
Van Delden explained that the contention was made by the Commission to justify what was 



Henk A.M.J. ten Have, “Euthanasia: The Dutch Experience,” Annals de la Real Academia Nacional de 
Medicina, Tomo CXII {Madrid, 1995), p. 429. 



85 




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going on, but that this was not something he would condone. Likewise, van der Wal was 
familiar with the statement and thought that the Commission erred in including it. In his 
view, this went a step too far, and he did not endorse this reasoning. He asserted that 
euthanasia is not a normal practice and should be avoided as much as possible. As such, we 
pass a boundary when we say that it is normal and accept ending life without an explicit 
request of the patient. 

Arie van der Arend also did not agree with the Remmelink statement, saying that 
physicians in general do not want to terminate life. They want to do whatever they can to 
save the lives of their patients. Preserving life is the normal medical practice, and he doubted 
that the Remmelink Commission actually made the above statement. In his view, the normal 
practice, if any at all, with respect to hopeless situations is to withhold treatment, not to 
actively end the life of the patient. He testified from personal experience in the neonatal 
department that withholding treatment occurs, but not active euthanasia. Van der Arend is 
convinced that doctors in the Netherlands do not accept or follow the Remmelink statement. 

Bert Thijs remarks that the entire function of the Intensive Care Unit (ICU) is to try to 
save patients whose vital functions have failed, whose breathing is difficult, and whose blood 
pressure has dropped considerably. The normal practice in all ICUs, including the one that he 
directs, is to try to save the lives of these patients. 

Henk Jochemsen, H.J.J. Leenen, Bert Keizer and Govert den Hartogh expressed strong 
disagreement with the Remmelink statement. Jochemsen explained that the Remmelink 
statement concerned the 900 and 1000 patients who had not given their consent. He argued 
that actively shortening life is not normal medical practice and that the government and the 
courts do not conceive of this as normal medical practice. After all, if such a practice is 
considered normal, then why report? Why control? It does not make sense. 

Leenen insisted time and again that euthanasia is not normal medical practice, and that 
the Remmelink’s view is absolutely unacceptable in the Netherlands. The Guidelines speak 
of autonomous decision-making, whereas the Remmelink statement does not refer to 
autonomy. In his later comments, Leenen asserted that the Remmelink contention had no 
relevance in the debate. Hence, “why give it so much accent?”^ Den Hartogh explained that 
when dealing with patients whose vital functions are failing, doctors should cease treatment 
but continue with palliative care. They should not actively end life. He maintained that the 
Remmelink statement is contrary to what is accepted today in the Netherlands and that 
euthanasia should remain an exceptional medical practice conducted in cases of unbearable 
suffering.^ 

On the other hand, Henri Wijsbek and A. van Dantzig agreed with the Remmelink 
statement, arguing that it is senseless to continue treatment and medications when vital 
functions start failing. Although there is no consent on the part of the patient, life beyond 
repair is senseless and euthanasia is permitted under these conditions. Van Dantzig explained 
that “failing vital functions” means keeping a person alive by external means, such as 
respirators and heart stimulation. The welfare of the patient is the main concern, and in such 



^ Letter dated July 25, 2000. 

’ Similarly, Rob Houtepen, Ruud ter Meulen and Ron Berghmans rejected the contention, saying that no form of 
active termination of life is normal medical procedure. Rather, euthanasia is an exceptional practice and should 
remain so. 




THE REMMELINK CONTENTION AND THE BRITISH CRITICISM 



87 



severe circumstances the patient should be allowed to die. In turn, John Griffiths explains 
that “normal medical practice” is a legal term referring to the behavior (otherwise illegal) 
that doctors can perform by virtue of the authority to practice medicine. The statement refers 
to people who would have died within hours, who were suffering an irreversible failure of all 
functions, and whose doctors shortened the process of death. Upon my expressed pity that 
Remmelink did not state all of this explicitly, Griffiths responded that Remmelink thought 
the point was obvious and, therefore, did not explain.^ 

J.K. (Sjef) Gevers also understands this statement to mean providing extra morphine to 
ease suffering during the final hours of the patient’s life. In his mind, it is a grey area that 
needs to be discussed, not a matter only for doctors to decide. Gevers did maintain that it 
would have been preferable to elaborate on this statement, but unfortunately Remmelink did 
not do so. 

I found it most troublesome that the person who was nominated by the Dutch government 
to study the practice of euthanasia had made the above ambiguous statement, disregarding 
one of the basic components required for the euthanasia practice: the will of the patient. 
Many of the interviewees also found this statement troublesome for similar reasons. Critics 
of the Dutch practice might possibly note that the unqualified statement reflects a certain 
dangerous culture that is unhealthy for patients, culture that tends to forego life too easily. 

THE MEMORANDUM OF THE BRITISH MEDICAL ASSOCIATION 

One of the most thorough investigations of euthanasia and physician-assisted suicide (PAS) 
is that of the British House of Lords Select Committee on Medical Ethics. In their lengthy 
report, the Select Committee interviewed many interested individuals and parties and 
detailed the main arguments pro and con allowing mercy killings. 

Among the interested parties was the British Medical Association (BMA) that voiced its 
strong opposition to allowing euthanasia or PAS in Britain. A key argument in their critique 
of those two practices was the apparent failure of the Dutch policy on mercy killings. In its 
memorandum before the House of Lords, the BMA held that in regard to Holland, “all seem 
to agree that the so-called rules of careful conduct (official Guidelines for euthanasia) are 
disregarded in some cases. Breaches of rules range from the practice of involuntary 
euthanasia to failure to consult another practitioner before carrying out euthanasia and to 
certifying the cause of death as natural.”^ I asked my interviewees: Do you agree? 

This statement is straightforward, and anyone who is familiar with the Dutch policy and 
practice should concede that it is true. I wanted to see whether the protective mechanisms of 
the Dutch policy employed by some of the interviewees might bring them to deny this 
assertion, and on what grounds. 



“ In his comments on the first draft of this essay, Griffiths referred me to p. 1 32 of his book, Euthanasia cfe Law in 
the Netherlands, in which he relates to the Remmelink contention about patients whose bodily functions are 
“successively and irreversibly failing.” Griffiths thinks that understanding the contention in these terms makes a 
big difference, claiming that “you will find that doctors know perfectly well what this means, and furthermore 
that it is standard practice in a large number of countries and has been for many years (although only in the 
Netherlands is anyone prepared to talk about it).” Personal communication on luly 10, 2000. 

’ House of Lords, Select Committee on Medical Ethics, session 1993-94, Vol. II, Minutes of Oral Evidence 
(London: HMSO, 1994), at 33. 




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Many interviewees conceded that this assertion is, indeed, correct.^ Two interviewees 
disregarded the issue and three others said that the assertion is both true and untrue. Van der 
Arend and Berghmans agreed with the assertion and added that what is needed is more 
education on the rules of careful conduct. But, they said that we need to recognize that there 
will always be physicians who will not follow the Guidelines, and they should be prosecuted. 
They maintained that these are marginal cases and that, essentially, the practice is no 
different from what is happening in other countries in a more secretive way. In a similar 
fashion, their colleague Rob Houtepen agreed with the British statement but added that a fair 
appraisal of the Dutch euthanasia practice required a comparison with other countries. Bert 
Keizer also conceded that the British statement is correct. Indeed, only fifty per cent of 
euthanasia cases are reported in the Netherlands. But, Keizer added, we know nothing about 
what is going on in the United Kingdom; there the reporting rate is zero. In the Netherlands, 
at least, "we know part of the picture and we are working to improve the situation." Van 
Leeuwen said that he does not think we can blame physicians for intentional killing. More 
simply, not all physicians are aware of the need to consult. Hence, more education and 
explanation of the procedures are required. Egbert Schroten asserted that in the 1980s and the 
beginning of the 1990s, not all doctors knew the exact wording of the Guidelines. They did 
not know that they needed to consult a colleague. Now, in 1999, things are clearer and most 
of the doctors do consult a colleague. 

Similarly, van Delden acknowledged that the British statement is factually true. He added 
that it is difficult to move from justified individual cases to policy making. There will always 
be people who abuse their power. Van Delden explained that a pertinent distinction is 
between content Guidelines and procedural Guidelines. Content Guidelines refer to such 
aspects as the condition of the patient and the expression of a reiterated voluntary request, 
whereas the procedural Guidelines refer to the notification procedure and consultancy. Van 
Delden holds that many un-notified cases meet the content Guidelines, but not the procedural 
Guidelines. This happens because doctors fear the hassle involved in reporting, respect the 
privacy of their patients, and do not wish to be scrutinized. 

Ruud ter Meulen indicated that the British criticism is correct and that the current 
situation is the result of unclear Guidelines (like van Delden, he wonders what does 
“unbearable suffering” mean) and lack of control, which bring some doctors to disregard the 
criteria for careful conduct. Frank Koerselman added that what is most troublesome is not the 
fact that the Guidelines are broken, but that they keep changing and becoming more 
receptive to euthanasia. It is the climate that worries him. Similarly, Henk Jochemsen is 
worried about the missionary vigor employed by the establishment to defend the policy and 
practice of euthanasia. 

In his comments on the first draft of this study, Arko Oderwald wrote that the cases of 
involuntary euthanasia are worrisome and that further research is necessary. In his view, the 
most troublesome fact is the tendency to allow doctors to act on their own without 
somebody, in the name of society, watching over their shoulder. If doctors are as honorable 
as they say, they have nothing to hide and they should understand this issue as a social issue, 
not as a purely medical or personal issue. ^ 



^ John Griffiths, Evert van Leeuwen, Henri Wijsbek, Ruud ter Meulen, Bert Keizer, Arie van der Arend, Henk 
Jochemsen, Chris Rutenfrans, Frank Koerselman, Egbert Sehroten and Rob Houtepen. 

’ Personal communication on August 28, 2000. 




THE REMMELINK CONTENTION AND THE BRITISH CRITICISM 



89 



As said, two interviewees did not pay much notice to the issue and three others said that 
the British statement is both true and untrue. Van Dantzig and Dupuis remained most 
protective of the Dutch policy and practice of euthanasia. Van Dantzig answered that he did 
not “know about the British statement.” He didn’t wish to relate to the content of the 
statement.® Heleen Dupuis, who is professor of medical ethics, disagreed with the BMA’s 
statement, saying that she could not imagine doctors who fail to consult a colleague when 
euthanasia is concerned. She acknowledged that sometimes not all the Guidelines are 
satisfied but insisted that the same happened all over the world. That some doctors do not 
observe all the Guidelines does not mean that the Guidelines are wrong. What is needed is to 
punish the sloppy doctors. 

This line of questioning provoked Dupuis to make the following statement: “Doctors try 
to save life, not to kill patients. Why should doctors kill their patients? What would be the 
motive? After all, the doctor knows he would go to jail if he does. It is ridiculous to assume 
this.” She maintained that the phenomenon of “angels of death” never happens in Holland.^ 
It happens in countries that do not discuss euthanasia in the open, “but not here where 
everything is in the open,” discussed and under scrutiny.'” 

Henk Leenen, Go vert den Hartogh and Gerrit van der Wal said that the British statement 
is both true and untrue. Leenen only agreed with the British contention regarding the lack of 
reporting." Den Hartogh argued that there is no proof of involuntary euthanasia, but it is true 
that there have been cases in which physicians failed to report and to consult. In his 
comments on the first draft of the study, den Hartogh added that he is sure that no “practice” 
of involuntary euthanasia (i.e. “euthanasia” contrary to the wishes of the patient, doctors 
getting rid of unwanted patients) exists because there is not the slightest trace of evidence of 
it, and it would be impossible for such a practice to exist without a trace. However, non- 
voluntary euthanasia does, of course, occur as documented by the two van der Maas 
reports.’^ Van der Wal explained that in 1995, the consultation rate was 63% and now it is 



In his comments, van Dantzig wrote: “I hope that you will be so kind as to remove all linkage between Prof. 
Dupuis and myself. She is a friend of mine, and I hold her in the highest regard, but on some things we are of 
different opinions.” Personal communication on July 6, 2000. 

^ In “A Case Against Dutch Euthanasia,” op. cit., pp. 24-25, Fenigsen argued that in 1987, a series of killings of 
comatose patients took place at the department of neurosurgery at the Free University Hospital in Amsterdam. 
Four nurses were responsible for these serial killings. Furthermore, a doctor was apprehended in The Hague 
under suspicion of having killed twenty inhabitants of the De Terp old people’s home without their consent or 
knowledge. He pleaded guilty to five, was accused of four, and convicted of three killings. Witnesses testified 
that some of the victims were not ill but only senile and querulous, and that the doctor was impatient with 
elderly people, reluctant to treat them, frequently absent, and left many decisions to the male head nurse. 
Hendin writes on angels of death, a team of travelling physicians that provided euthanasia to patients when 
family doctors were unwilling to do so. See Herbert Hendin, Seduced by Death, op. cit., pp. 1 10-113. 
Interestingly, Koerselman comments in this regard that the prime obligation of doctors all over the world is to 
fight for life, to save life. This is not the case in the Netherlands. Here the prime consideration is to relieve 
suffering. Arko Oderwald says that doctors do not like to do nothing; they like to act in order to change the 
situation. If there is nothing to do medically but to wait for death and to care for the patient, they might be 
prompted to perform the last act that is still available: euthanasia. 

This was reiterated in Leenen’s letter dated February 2, 2001, commenting on a draft of this study. 

Personal communication on August 27, 2000. 




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higher.'^ Consultancy has to include experienced doctors actually seeing the patient. I asked 
whether consultation is carried out over the phone, and van der Wal answered “I don’t know. 
Possibly yes.” This calm and calculated tone of the answer, which was repeated in many 
interviews, worried me. I shall discuss this issue in chapter 9. But let me first reflect on the 
question of whether physicians should suggest euthanasia to their patients. 



According to the physicians’ interviews in the 1995 survey, physicians consulted with a colleague in 93% of the 
reported cases, but in only 18% of the unreported cases of euthanasia and assisted suicide. Gerrit van der Wal 
and P.J. van der Maas, “Empirical Research on Euthanasia and Other Medical End-of-Life Decisions and the 
Euthanasia Notification Procedure,” in David C. Thomasma et al. (eds.). Asking to Die, op., cit., Table 6, p. 
176. 




CHAPTER 8 



SHOULD PHYSICIANS SUGGEST EUTHANASIA 
TO THEIR PATIENTS? 



INTRODUCTION 

Before asking about consultation, I asked the interviewees to focus on one issue that I 
consider as ethically problematic: Whether a physician should suggest euthanasia or assisted 
suicide to his or her patients. The KNMG report on euthanasia describes a situation in which 
the physician has the impression that the patient would like to start a conversation about the 
end of his life and his wishes concerning the end of his life, but hesitates to start this 
conversation. If this is the case, then the physician might choose to start this conversation. 
However, this has to be done with the utmost precaution in order to avoid making the patient 
feel pushed in a certain direction.' The 1990 study shows that 36% of specialists, 24% of 
home physicians, and 65% (!) of general practitioners believed that there can be situations in 
which the physician should raise euthanasia as a possibility with the patient.^ The 1990 
prospective study shows that the initiative for discussion about the action to be performed at 
the end of life came from the patient in only about half of the cases. ^ Van der Maas and van 
der Wal estimated that of all cases of euthanasia, PAS and the ending of life without the 
patient’s explicit request, the physician initiated the discussion in 21 percent."' Another study 
holds that 54 percent of physicians believe that in certain situations it is the physician’s 
professional duty to raise euthanasia as an option with the patient.^ Neither the physicians 
nor the study’s investigators seem to acknowledge to what extent the voluntariness of the 
process may be compromised by such a suggestion.^ 

Pieter Admiraal revealed that “contrary to most doctors,” who will not discuss euthanasia 
before the patient requests it, he discusses this option with the patient, “for it can be of great 
value and great comfort for many.” Admiraal further explains that not discussing euthanasia 
with a patient can take the medical team by surprise if a patient suddenly asks for it later. 
One might question whether this issue is of real concern. Admiraal argues that if one 
considers euthanasia permissible under some circumstances, then not to broach the 



' Inzake Euthanasie. Koninklijke Nederlandsche Maatschappij tot bevordering der Geneeskunst (1995), p. 15. 
ISBN 90-71994-10-4. See also “Diseussienota van de Werkgroep Euthanasie,” van de Koninklijke 
Maatschappij tot Bevordering der Geneeskunst (KNMG), Medisch Contact, Vol. 30 (1975): 7-16. 

^ P.J. van der Maas, J.J.M. van Delden, and L. Pijnenborg, Euthanasia and other Medical Decisions Concerning 
the End of Life, Health Policy Monographs (Amsterdam: Elsevier, 1 992), p. 102. 

’ Ibid., p. 156. 

“ Paul J. van der Maas and Gerrit van der Wal, A letter to the Editor, New Eng. J. of Med., Vol. 336, No. 19 (May 
8, 1997), p. 1386. 

’ Paul van der Maas and Linda L. Emanuel, “Factual Findings,” in L.L. Emanuel (ed.). Regulating How We Die 
(Cambridge, Mass.: Harvard University Press, 1998), p. 168. 

‘ Herbert Hendin, Chris Rutenfrans and Zbigniew Zylicz, “Physician-Assisted Suicide and Euthanasia in the 
Netherlands, ’V.4M4, Vol. 277, No. 21 (June 4, 1997), at 1721. 



91 




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possibility with a patient is to deny that patient the full range of available options. Suggesting 
euthanasia to a patient is thus a measure of respect for the patient’s autonomy.^ Herbert 
Cohen likewise claims that raising the subject of euthanasia by the physician has an 
emancipating effect.* 

My own inclination was to contest these arguments for the following reasons. The Dutch 
health care system is built around the general practitioner that has known his/her patients for 
many years. Based on this history of trust and confidence, the GP might feel comfortable 
raising the issue of euthanasia with the patient. This might have devastating implications — 
the doctor whom the patient has trusted for so long has nothing to offer but death. Knowing 
that the physician has given up might cause the patient to give up as well, to surrender his or 
her life. What if the patient wishes to continue living? Could the patient still trust a physician 
who offers to kill him? Could the patient trust that the GP would do everything possible to 
fight to maintain that patient’s life? This might create a very uncomfortable situation for both 
physician and patient. 

Furthermore, in the Netherlands, the patient has few options for changing the GP. Usually 
patients build long term relationships with their GPs, relationships that last decades during 
which trust and confidence are crystallized. Patients are hesitant to replace the familiar and 
trusted physician with someone else. Clearly, one does not seek more complications in the 
end-of-life fragile stage, and it would be difficult to build trust in a new physician. Moreover, 
in the Netherlands’ cultural atmosphere, where patients generally do not want to become a 
burden on their families, an offer of euthanasia by their GP might be taken as a sign that they 
are living on borrowed time, which the GP does not find useful or of high quality. The GP’s 
offer might lead not only to giving up the fight but also to increasing the patient’s feelings of 
guilt for still being alive. ^ 

For all these reasons, it was interesting to hear the thoughts of the interviewees about this 
issue, and whether they were at all aware of this ethical problem. Some interviewees did not 
share my concerns. For various reasons they thought physicians should offer euthanasia as an 
option. Two interviewees asserted that doctors don’t propose euthanasia to their patients. 
Five interviewees objected to physician’s initiative. 

THE INTERVIEWEES’ RESPONSES 

John Griffiths’ stated that there is no basis for Dutch doctors to propose euthanasia to their 
patients. He added that although euthanasia is not offered to patients, sometimes it would 
actually be better to propose it. Later in the interview, Griffiths acknowledged that 
suggesting euthanasia does happen, albeit infrequently and not on the level of constituting a 
social problem. In his comments on the first draft of this essay, Griffiths clarified: 



’ Carlos F. Gomez, Regulating Death (New York: The Free Press, 1991), p. 109. 

* Herbert Hendin, Seduced by Death (New York: W.W. Norton, 1997), p. 52. 

’ On the quality of life concept in medicine, see R. Cohen-Almagor and M. Shmueli, “Can Life Be Evaluated? 
The Jewish Halachic Approaeh vs. the Quality of Life Approach in Medical Ethics: A Critical View,” 
Theoretical Medicine and Bioethics, Vol. 21, No. 2 (August 2000): 117-137. On the power of the word and 
certain terminology, see R. Cohen-Almagor, “Language and Reality at the End of Life,” J. Law, Medicine & 
Ethics, Vol. 28, No. 3 (Eall 2000): 267-278, and see Andrea Nye (ed.). Philosophy of Language (Malden, 
Mass.: Blackwell, 1998). 




SHOULD PHYSICIANS SUGGEST EUTHANASIA TO THEIR PATIENTS? 



93 



What I did say is that the suggestion by Hendin et al. to the effect that doctors steer their patient’s 
decision making is based on a misreading of the relevant data (whieh refer only to ‘first raising the 
question’). The latter seems to me good medical practice, in eertain eircumstances. It does not 
necessarily imply any sort of pressure or suggestion on the doetor’s part. Whether the latter occurs, 

I do not know (I assume it does, doctors being human and therefore not always perfeet). I do think 
an effective control system needs to guard against the risk.'" 

On the other hand, Arie van der Arend, a medical ethicist from Maastricht, did not think 
that these were rare incidents. He made a distinction between the physicians’ initiation in 
offering euthanasia as an option, and the physicians’ interpretation of patients’ indications. 
While physicians should never offer euthanasia as an option, they should inquire about what 
their patients want.” Physicians may mention euthanasia only after the patient has indicated 
thinking about it and has discussed the issue while using other terms. In some cases, patients 
may be reluctant to raise the issue per se, and the physicians are required to label what the 
patients have indicated.*^ 

Paul van der Maas who played a major role in the writing of the three major reports of 
1990, 1995 and 2001, said that most physicians wish to include the euthanasia option in 
medicine. He thinks that it is important for the physician to be open to discussing all of the 
options with the patient, making it clear that the euthanasia option is available. If the patient 
does not initiate the discussion, then the doctor should do so. Van der Maas thinks that such a 
conversation is necessary when the physician does not know what the patient wants, just in 
case the patient loses consciousness. In a letter written with van der Wal in response to 
Hendin’s critique, van der Maas explains that taking the initiative to create an opportunity for 
patients to discuss their wishes concerning the end of life is very different from Hendin’s 
portrayal of “telling the patient that his or her life is not worth living.”” 

Two physicians who have been practicing euthanasia for many years, George Beusmans 
and Gerrit Kimsma, did not share my concerns about driving patients to opt death by raising 
the euthanasia option. Beusmans underestimated the ethical concerns, while Kimsma was 
aware of them but stressed the overriding principles that justify the physician’s initiation of a 
discussion on euthanasia. Both of them believe it necessary for the physician to raise the 
issue to the patient because some patients may feel uncomfortable raising it themselves. 
Beusmans and Kimsma, in turn, feel comfortable raising the issue and consider it part of 
their role as doctors. 

The two doctors elaborated on their conduct well beyond the framework of my question 
and gave interesting accounts that warrant a detailed description. Beusmans explained that 
most of his patients expressed appreciation for his initiation of the conversation. This is a 
very difficult issue for patients, who wish to be perceived as strong. They view the initiation 



Personal communication on July 10, 2000. 

" Cf. Richard B. Balaban, "A Physician's Guide to Talking About End-of-Life Care," Journal of General Internal 
Medieine, Vol. 15, Issue 3 (March 2000): 195; A. Chopra, "Communicating Effectively at the End of Life," J. 
Am Osteopath Assoe., Vol. 101, No. 10 (October 2001): 594-598; S. Z. Pantilat, A. J. Markowitz, "Perspectives 
on Care at the Close of Life. Initiating End-of-Life Discussions with Seriously 111 Patients," JAMA, Vol. 285, 
No. 22 (2001): 2906. 

In a similar fashion, Ron Berghmans and Ruud ter Meulen, medical ethicists from Maastricht, voiced their 
objections to the doctor’s initiation of discussion, but qualified their answers by saying that they could imagine 
exceptional cases to the general proscription of leaving the issue to be raised by the patient. The physicians 
should not raise the issue immediately, but they might mention it during the process approaching the end of life. 
A letter to the Editor, New Eng. J. of Med., Vol. 336, No. 19 (May 8, 1997): 1386. 




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of a discussion on euthanasia as a sign of weakness, indicating that the patient is unable to 
cope with the suffering. Beusmans articulated that in the first discussion on euthanasia, he 
does not say much. He offers it as an option and suggests that the patients consult with their 
families. This first discussion usually takes place when Beusmans estimates that the patient 
has two to three months to live. He likes to raise the issue then so as to enable the patients 
some time to crystallize their decision. The patients are more capable of thinking clearly 
without experiencing a lot of pain that might obscure critical reflection. Two weeks later, 
Beusmans discusses the options available to the patients: assisted suicide, euthanasia, or 
optimal treatment. The problem is not only pain. Many patients are fearful of dying and do 
not know what to expect. Physicians can handle the pain, but it is much more difficult to 
handle the mental aspects. Ultimately, the patients decide what they want. 

Beusmans testifies that some 10 of his patients in the past decade have asked for his help 
in terminating their lives: nine asked for physician-assisted suicide and one for euthanasia. 
The one who asked for euthanasia was very sick, could not take any food and fluids, and 
asked for a lethal injection. Beusmans said that, on the whole, he does not like to give lethal 
injections.’"* Probably his reluctance to do so influenced his patients to choose physician- 
assisted suicide. Most Dutch physicians who perform PAS and euthanasia do not exhibit 
such reluctance, and consequently there are far more cases of euthanasia than cases of PAS. 
Beusmans performs physician-assisted suicide when the patient’s loved ones (usually 3—4 
people) are present. All of these cases took place at the patients’ homes with their families 
and/or friends present. Beusmans knew the patients and their families for years. All of them 
were cancer patients; all were competent and conscious.’^ 

Gerrit Kimsma portrays a picture that is similar in some aspects and different in others. 
Similarly, all of his euthanasia patients had cancer. He knew them for a long time, most of 
them for more than 10 years. Most of his patients, “maybe all of them,” were men. Unlike 
Beusmans, Kimsma says that in 12 years of performing euthanasia and PAS, only a handful 
of cases involved PAS.” Kimsma sees no substantive ethical difference between the two 



Likewise, a family of K who was euthanized told me that their GP was relieved when K was able to take the 
lethal medication orally. The GP was willing to give the lethal injection if necessary, but was greatly comforted 
when the patient took the glass and drank the medication by himself The de B. family, in turn, was reassured by 
the act that this was, indeed, what K wanted. 

Herbert Hendin, Seduced by Death, op. cit., p. 53. One study, which compared attitudes and practices 
concerning end-of-life decisions between physicians in Oregon and in the Netherlands, showed that an equal 
proportion of Dutch physicians considered euthanasia and PAS as ethically acceptable. Conversely, American 
physicians were consistently less likely to find euthanasia acceptable as compared with PAS. Cf Dick L. 
Willems, Elisabeth R. Daniels, Gerrit van der Wal, P.J. van der Maas and E.L. Emanuel, “Attitudes and 
Practices Concerning the End of Life: A Comparison Between Physicians from the United States and from the 
Netherlands,” Arch Intern Med., Vol. 160 (2000): 63-68. See also R.J. Kohlwes, T.D. Koepsell, L.A. Rhodes, 
and R.A. Pearlman, "Physicians' Responses to Patients' Requests for Physician-assisted Suicide," Archives of 
Internal Medicine, Vol. 161 (March 12, 2001): 657-663; R. Cohen-Almagor and Monica G. Hartman, “The 
Oregon Death with Dignity Act: Review and Proposals for Improvement,” Journal of Legislation, Vol. 27, No. 
2(2001): 269-298. 

Beusmans added that if the patient “agrees with me to do it, and then falls into [a state of] unconsciousness, 
maybe I would do it.” He continued to tell the story of one patient who was in a coma and very unquiet. “The 
family asked for something. I gave her morphine and after one day she died. It was a normal dose and I did not 
expect her to die so soon.” 

I asked Dr. Kimsma how many euthanasia cases he actually performed, and his answer was that the number is 
not important. It is the quality, not the quantity that is important. He said that he has been performing euthanasia 




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95 



practices: The effect and motive are exactly the same, and only the method is different. At 
the same time, he acknowledges that there is a moral difference for him as a physician 
between injecting the lethal medieation and providing the patient with the drugs. He asserts 
that physicians choose the needle more than the cup (oral medication) because they do not 
doubt the need for euthanasia and because the patients ask for it. Kimsma says that most of 
his own patients asked to die by the needle as soon as possible. As with Beusmans, the 
patients’ ehoices probably reflect the physician’s preferences. 

Kimsma thinks that doctors need to promise their patients that they will not abandon 
them. Patients should not be left alone suffering. When a potentially terminal disease is 
found, the doetor should discuss the issue of euthanasia with the patient. Accordingly, 
Kimsma holds conversations about euthanasia with all of his ‘terminal’ patients. His opening 
remark to patients who have been informed of their terminal illness is: “Now you have heard 
this diagnosis, it may be that you have expectations or ideas about the end of life. If you wish 
to discuss these, I will be available for you, now or in some future time, whenever you feel 
the need.”'* 

Kimsma also advises his patients to join the Dutch Voluntary Euthanasia Society.'^ He 
maintains that in the Netherlands “we have physicians who never talk about end-of-life 
issues” because they are afraid that the patient will start a discussion on euthanasia. Doctors 
and patients alike should be sensitive and open in discussing end-of-life issues. Physicians 
should discuss with their patients what the expectations are and which options they would 
like to consider. Sometimes patients do not, or will not, talk about euthanasia. In Kimsma’s 
view, in 80% of the cases, physicians wait until the patient starts talking about euthanasia. In 
10% of the cases, physicians are the ones who initiate the conversation, and in another 10% 
of the cases, it is the families that initiate discussion. 

On too many occasions, because everyone is reluctant to initiate the conversation, it is 
postponed and then the physicians need to act under pressure. Kimsma testifies that beeause 
physicians wait too long, in 13% of the cases euthanasia is performed within 24 hours from 
the request for it, and in 50% within a week. Kimsma’s conclusion is that it is medically 
proper for physicians to initiate the discussion on euthanasia. A patient can make an 
informed ehoice only when all options are discussed openly. It is better to open a discussion 
well ahead of time than for the patient to make hasty decisions, sometimes in a panic. Govert 
den Hartogh, a philosopher who is a member in the newly instituted Amsterdam regional 
committee that reviews all reported euthanasia cases in the region, expressed the same 
argument, while Egbert Schroten, Director of the Center for Bioethics and Health Law at 
Utreeht University, said that physicians can and do suggest euthanasia to their patients. After 
all, they know them very well and know what their needs and aspirations are. 

In his very detailed response to this argument, den Hartogh maintains that in the 
Netherlands, the doctor is supposed to inform patients about all the relevant aspects of the 
decisions to be made and should never “advise” patients to actively end their life or have it 
ended. Nevertheless, in the case of some illnesses (e.g., eancer) in which the doctor knows 
from experience that the probability of severe suffering is very high, it is advisable to inform 



and PAS since 1979, and that he conducts these practices when the patient is suffering and when he 
autonomously and voluntarily wants either of them. 

This is a quote from Kimsma’s comments on the first draft. Personal communication on September 9, 2000. 

The Dutch Voluntary Euthanasia Society’s (NVVE) internet address is: http://www.nvve.nl 



19 




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CHAPTER 8 



the patient at an early stage that when the development of the illness takes a bad turn, 
euthanasia or assisted suicide can be considered. At the same time, the need for careful 
action must be explained and it must be clear beyond a doubt that the patient, rather than the 
doctor or the family, really wants to take this course of action. Even so, euthanasia will never 
be considered as an option for choice, but only as a measure of last resort in cases of 
unbearable suffering. 

In the Dutch context, argues den Hartogh, providing such information at this stage does 
not at all convey the meaning that the doctor withdraws his support, but rather the contrary. 
It may provide the patient with sufficient trust to go on coping with extremely exacting 
conditions, and so may actually be a way of avoiding euthanasia. Furthermore, it will prevent 
acting in haste without carefully discussing the request and its meaning, and without 
allowing room for an open consultation. 

Interestingly, Rob Houtepen and Heleen Dupuis, medical ethicists from Maastricht and 
Leiden respectively, assert that there is no basis for arguing that doctors propose euthanasia 
to their patients. Rob Houtepen, who never heard of such cases, thinks that physicians are 
restricted in this respect. Houtepen believes that doctors should not raise the subject, so as to 
avoid exerting pressure on patients. While the result is sometimes that the decision about 
what to do is delayed for too long, he feels that we should accept this. It is in the spirit of 
KNMG guidelines that the patient should raise the issue, not the physician. Dupuis said, in 
turn, that doctors are horrified by the need to perform euthanasia and that they never offer it 
to their patients as an option. Henri Wijsbek, a medical ethicist from Rotterdam, thinks that 
there might be cases in which the physician should offer euthanasia as an option, but that 
these cases are quite rare. 

Five interviewees, Johannes van Delden who co-authored the 1990 study, G.F. 
Koerselman, a psychiatrist, Henk Jochemsen, a medical ethicist who objects to euthanasia on 
religious grounds, Chris Rutenfrans, a former law professor and currently a journalist, and 
Bert Keizer, a physician at a nursing home, objected to physicians’ initiating a discussion of 
euthanasia on ethical and practical grounds. While acknowledging that many doctors 
conceive it as good and humane to take the initiative and raise the issue of euthanasia, they 
think that this might compromise the patients’ voluntariness, undermine the trusted 
relationship between physicians and patients, and push patients to forgo life prematurely. 

Keizer thinks that only the patient should initiate a request for euthanasia. He testifies 
that he would never put euthanasia on the menu of alternatives for treatment. It is for the 
patient, not the doctor, to state that all hope has gone. Keizer thinks it is awful that doctors 
offer death. He says he knows how to look after dying patients, and that for him there is 
always hope that there is something he could do. A precondition for euthanasia is the 
patient's request for it, evolving from his/her subjective loss of hope. 

In twenty years of practice, Keizer was involved in 21-22 cases of euthanasia, on average 
one case per year. He does not see any ethical difference between euthanasia and PAS, but 
still only in the minority of cases did he perform euthanasia. As a young doctor, Keizer said 
he was more willing to perform euthanasia instead of PAS. Now, however, he requires the 
patient to show him that he/she is willing to do something about this himself/herself Keizer 
would perform euthanasia only if the patient could not swallow the medication. He promises 
his patients that they will die within an hour and if they do not, he resorts to injecting lethal 
drugs to end the lingering life. It should be noted that the patient at this stage is deep in 
coma. This has happened in a small minority of eases. Keizer estimates that in 5 of the 21-22 




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97 



cases he was required to inject a curare-like drug after the patient had taken the suicide pills. 
In two of the cases, euthanasia was committed because the patients eould not swallow the 
medication. 



DISCUSSION 

The physician's role is commonly understood as a healing role.^° With respect to professional 
ethics, talking about euthanasia upon a patient's request is different from suggesting it to the 
patient. By suggesting euthanasia to a patient, the physician implicitly includes euthanasia in 
the canon of proffered rational treatment options. In light of the professional authority that 
she is exercising, she thereby establishes euthanasia as a rule, and not as an exception. This 
conduct conflicts much more with the role of the physician as a healer than it is the case if 
the physician talks about euthanasia upon the patient's request. This fits into the 
“interpretative model” of physician-patient relationship.^' The “interpretive model” portrays 
the physieian as counselor, whose responsibility it is to elucidate the patient’s values and to 
help the patient select the interventions that realize these values. The elucidation of values is 
complex but erucial to the principle of patient autonomy. It requires physicians to listen more 
than to talk.^^ Here, the physician is simply responding to an issue which the patient has 
raised, thereby not including euthanasia in the array of standard treatment options and 
implicitly emphasizing that euthanasia is an exception of the principle of physicians as 
healers. 

The prineiple of physieians as healers can be perforated by the rule of allowing 
euthanasia in specific cases without questioning the general principle.^^ When a physician 
talks about the option of euthanasia upon the patient's request, we are faeed with the 
exceptional situation in which patient's autonomy and the physician's understanding of 
benefieence meet and manifest in the option of euthanasia.^'' Thus, in this particular case, the 
healing model may be compromised in order to allow medical intervention based on a 
consensus between the patient and the physician which is in accordance with the principles 
of benefieence and patient's autonomy. But a physician should not suggest euthanasia to a 
patient because she would thereby establish euthanasia as a rule rather than as an exception. 

Furthermore, it does not occur to Kimsma, den Hartogh and Schroten, who emphasize the 
autonomy and voluntariness of the patient’s actions, that when euthanasia is offered, the very 



See J.R. Peteet, "Treating Patients Who Request Assisted Suicide. A Closer Look at the Physician's Role," Arch 
Fam Med, Vol. 3, No. 8 (August 1994): 723-727; E. Rosenthal, “When A Physician Is Asked, 'Help Me Die,’’’ 
New York Times (March 13, 1997), pp. Al, B4. 

See E.J. Emanuel and L.L Emanuel, “Four Models of the Physician Patient Relationship,” JAMA, Vol. 267 
(1992): 2221-2226. 

Deborah Cook, “Patient Autonomy vs. Paternalism,” Critical Care Medicine, Vol. 29 (2001): N24-N25. 

Cf. Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1977), pp. 22-28. 

The principles of autonomy and beneficence would also not be conflicting in a case when both, the autonomous 
patient and the beneficent physician, do not consider euthanasia. Conflicts arise if the autonomous patient 
favors an option that the physician does not see as in accordance with what she considers beneficent (of course, 
the content of beneficence is dependent on the particular culture). Other examples for a conflict between 
autonomy and beneficence may be a healthy “patienf’ who demands to have a good tooth extracted. The 
physician refuses. Or the beneficent physician offers a treatment which the patient, exercising autonomy, 
rejects. Those cases are not hard cases like performing euthanasia because they don't conflict with the role of 
the physician as a healer. 




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offer might undermine the patient’s voluntary wishes. The patient, who trusts the long-time 
GP, might feel that he (most of Kimsma’s euthanasia patients were men) is being condemned 
to death and that he is wasting the doctor’s time. When all is said and done, all the physician 
has to offer him is death. 

Interestingly, while Beusmans' patients chose physician-assisted suicide, Kimsma's 
patients chose euthanasia. My assumption is that patients' choices reflect their physicians' 
attitude. Physicians' suggestions constitute powerful influence on the patients' choices of 
treatment. Thus, if the assumption is correct then it may challenge autonomous decision- 
making by the patient, which is the precondition of ethical justification of euthanasia in the 
Netherlands. 

The role of the physician is not to push patients to choose euthanasia. To be sure, today in 
the Netherlands it is impossible to argue that patients are unaware of the option. Ignorance is 
not a factor. Hence, physicians need to ask themselves why patients are reluctant to raise the 
issue. They must examine all relevant and possible answers, including the idea that the 
patient wishes to live despite her severe illness and medical condition. The physician should 
consider the consequences of what such an offer might entail for the patient’s condition; for 
the patient’s loved ones; and for the doctor-patient relationship built over the years. In a 
matter of life and death, caution is not only recommended, it is a must. 

Den Hartogh finds it significant that in the area assigned to his regional review 
committee, cases of undesirable haste in the conduct of euthanasia tend to occur mainly in 
orthodox Protestant communities in the south, where the patient and the doctor are both 
reluctant to broach the subject. Yet, to my mind, in the current atmosphere in the 
Netherlands, where it is a well-known fact that the majority of physicians support the act of 
euthanasia and are willing to perform it, it would suffice to make a general statement to the 
effect that: “I would be willing to assist you in every possible way, considering any of your 
wishes in order to relieve your suffering and help you cope with your condition.” I find it 
difficult to fathom how den Hartogh does not see the compromising effect that the doctor’s 
initiation of discussion on euthanasia might have on the relationship with the patient and on 
the level of trust between the two parties, as well as on the patient’s mental framework. 

Physicians need to remain aware of the very powerful role their recommendations can 
play in people's treatment choices, and of the undue ways their recommendations can 
influence patients. This is especially true when physicians and patients have long-standing 
relationships that span over decades. The challenge for physicians is to use their influence for 
the best purposes. Furthermore, as Peter A. Ubel warns, physicians should not make 
treatment recommendations that might promote their own interests against those of patients. 
When physicians worry that their own interests or speciality biases are influencing their 
recommendations, they should encourage patients to get second opinions and also try to 
make their biases explicit to patients. It is also important to get patients to talk out loud 



Personal communication on August 27, 2000. 

Of course, second opinions may lead to contradictory recommendations. As difficult as conflicting 
recommendations can be for patients, these recommendations still leave patients with the option of accepting 
one recommendation or another, rather than feeling like they made the entire decision by themselves. When 
patients face difficult decisions, they are often going to learn that there is no simple right or wrong medical 
answer. In these situations, it is plausible to think that a series of even contradictory physician recommendations 
is more comforting than a series of nonrecommendations. Cf Peter A. Ubel, '"What Should I Do, Doc?' Some 




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99 



about their values before making treatment recommendations. Often, this type of 
conversation will make it easier for physicians to determine what recommendation is most 
appropriate for a patient and whether the patient is eomfortable deciding what to do without 
receiving a recommendation.^^ 

It should be noted that at the Free University Hospital, one may never decide to initiate 
euthanasia in the case of someone who suffers unbearably and without hope, but who has not 
requested euthanasia.^** The Alkmaar Euthanasia Protocol instructs that the request for 
euthanasia must come from the patient himself or herself, and must be well considered, 
voluntary, expressed repeatedly over time, "and as permanent as possible, such as in written 
form or by dictation."^’ The voluntary nature of the request must be established before 
considering it. 



CONCLUSION 

The aim of this chapter was to provide account of the interviewees to the question of whether 
physicians should suggest euthanasia to their patients. The argument is that physicians' 
initiation of euthanasia might foster a sense of abandonment on the part of the patients, 
compromise the voluntariness of the request required by the euthanasia Guidelines, exert 
pressure on patients to die, and undermine seeking alternative treatments short of death, like 
good palliative care. Professional ethics prescribes that emphasis be put on the procedural 
requirement that the patient - not the physician - should raise the issue. It is disturbing to 
note that the majority of interviewees who are very influential in the euthanasia debate in the 
Netherlands discount the objections to the initiation of euthanasia. 

When physicians suggest mercy killing to their patients they maneuver themselves into a 
situation where it is unclear whether they still act in accordance with professional ethics. The 
role of a physician is generally defined as the role of a healer. When the physician suggests 
euthanasia to a patient on her own initiative, she acts as if euthanasia was a normal treatment 
option, like other options that physicians offer to their patients. However, euthanasia should 
be handled as an exception than as a rule. It should not be included in the array of treatment 
options that a physician routinely offers to a patient at his/her end of life. 

By not offering it to the patient but, instead, talking about it only upon the patient's 
request, the physician implicitly acknowledges the exceptional character of the case, and the 
conflict of performing euthanasia and her healing duty. In particular cases, she is willing to 
do it, because the patient requests it and the individual physician is able to see the request in 
accordance with her understanding of beneficence. 



Psychologic Benefits of Physician Recommendations," Archives of Internal Medicine, Vol. 162, No. 9 (May 13, 
2002 ). 

Ibid. 

Gerrit K. Kimsma and Evert van Leeuwen, "Comparing Two Euthanasia Protocols: The Free University of 
Academic Hospital Amsterdam and the Medical Center of Alkmaar," in David C. Thomasma, Thomasine 
Kimbrough-Kushner, Gerrit K. Kimsma, and Chris Ciesielski-Carlucci (eds.). Asking to Die (Dordrecht: Kluwer 
Academic Publishers, 1998), p. 119. 
ftW.p. 124. 

Cf. T.L. Beauchamp and J.F. Childress, Principles of Biomedical Ethics (New York: Oxford University Press, 
1989), 3rd edition. 




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That is to say, in sum, that euthanasia is an option in the Netherlands but there is a 
difference between a patient who initiates the discussion about it upon realizing that the end 
of life is nearing, and a physician who is putting it in the menu of treatment options. The 
physician should be convinced that euthanasia is, indeed, the wish of the patient and that 
he/she is sure to have it, sure enough to find the energies within him/herself to raise it. In this 
context I should emphasize the importance of open and candid communication between 
patients and their physicians. In Asking to Die, a physician testified that he found that when 
patients know euthanasia can be an option for them, they often keep silent about it. Open 
discussions help them face their disease because they know that if pain becomes unbearable 
and euthanasia is really necessary, "I am going to help them." Knowing euthanasia is an 
option gives the patients comfort and they do not necessarily have to act on it. Satisfied to 
have this support, most of the time they do not even talk about euthanasia anymore and they 
go on to die of natural causes.^' 

Parenthetically, it is worth noting that in an American study conducted by Ezekiel 
Emanuel and his colleagues, oncology patients were interviewed to provide empirical data 
of patients’ attitudes and practices related to euthanasia and physician-assisted suicide. 
Oncologists and members of the general public were also interviewed to compare their 
responses with those of the oncology patients. It was found that 53% of oncologists, as 
compared with 37.2% of patients and 44.4% of the general public, thought that discussions 
between patients and physicians on “end-of-life care that included explicit mention of 
euthanasia or physician-assisted suicide” would reduce patients’ trust in the physician. By 
contrast, 41.6% of patients, 32.8% of the general public, and only 15.6% of oncologists 
thought that such discussions would increase patients’ trust in the physician. Patients with 
depression and psychological distress were significantly more likely to feel that discussions 
which included explicit mention of euthanasia or physician-assisted suicide would increase 
trust in their physician, whereas patients with pain believed that such discussions would not 
increase trust. 



"Annie Asked, 'Are You Going to Help Me?,'" in David C. Thomasma, Thomasine Kimbrough-Kushner, Gerrit 
K. Kimsma, and Chris Ciesielski-Carlucei (eds.). Asking to Die, op. cit., p. 279. 

Leenen wrote in his comments that the conclusions of this study are not applicable to the Netherlands because 
the United States lacks the family-doctor system “as we have it.” Letter dated July 25, 2000. 

Ezekiel J. Emanuel, Diane L. Fairclough, Elisabeth R. Daniels and Brian R. Clarridge, “Euthanasia and 
Physician-assisted Suicide: Attitudes and Experiences of Oncology Patients, Oncologists, and the Public,” 
Lancet, Vol. 347 (June 29, 1996), p. 1808. The Assisted Suicide Consensus Panel asserts that physicians should 
not encourage patients to hasten death, even when practicing in jurisdictions that allow assisted dying. Cf 
James A. Tulsky, Ralph Ciampa and Elliot J. Rosen, “Responding to Legal Requests for Physician-Assisted 
Suicide,” Annals of Internal Medicine, Vol. 132 (March 21, 2000): 494-499. For further deliberation, see 
Timothy E. Quill, "Initiating End-of-Life Discussions with Seriously 111 Patients: Addressing the 'Elephant in 
the Room,"' JAMA, Vol. 284, No. 19 (November 15, 2000): 2502; Susan D. Block, "Psychological 
Considerations, Growth, and Transcendence at the End of Life," JAMA, Vol. 285, No. 22 (June 13, 2001): 2898; 
Maria E. Suarez-Almazor, Catherine Newman, John Hanson and Eduardo Bruera, "Attitudes of Terminally 111 
Cancer Patients About Euthanasia and Assisted Suicide: Predominance of Psychosocial Determinants and 
Beliefs Over Symptom Distress and Subsequent Survival," Journal of Clinical Oncology, Vol. 20, Issue 8 
(April 2002): 2134-2141. 




SHOULD PHYSICIANS SUGGEST EUTHANASIA TO THEIR PATIENTS? 1 0 1 



Of course, it is not easy to compare between the healthcare conditions of the USA with 
those of the Netherlands. At the same time, note the relatively high percentage of oncologists 
who believe that it is unwise to explicitly mention euthanasia and PAS in discussions with 
patients. The patients have no clear idea about the issue and present divided opinions. 
Interestingly, depressed patients and patients with psychological distress saw value in 
explicit mentioning of euthanasia or physician-assisted suicide. For them, euthanasia and 
PAS should be considered as viable solutions. Instead, some therapy is advisable to treat the 
depression and help them find some meaning in life. 




CHAPTER 9 



BREACHES OF THE GUIDELINES 



CONSULTATION 

The notification procedure states the following criteria for good consultation: the consultant 
should not work in the same practice or be a co-attending physician, should see the patient, 
and should consult a psychiatrist if the patient has a psychiatric illness. The consultant should 
draw conclusions concerning the patient’s condition and estimated life-expectancy, the 
possibility of alternative treatments, and whether the patient’s request is voluntary, well- 
considered and persistent.' 

My next question explored the issue of consultation, as follows: The physician practicing 
euthanasia is required to consult a colleague in regard to the hopeless condition of the 
patient. Who decides who the second doctor will be? I also asked about what happens in 
small rural villages where it might be difficult to find an independent colleague to consult. 
One prosecutor told John Keown that in the countryside there are towns with only two or 
three doctors. He therefore asked rhetorically: “What’s the use of asking one of those two or 
three to judge the handling of a euthanasia case by the other one? How objective can that be? 
I don’t see it.”^ 

The Dutch movie Death on Request, broadcast on Dutch television in October 1994, 
showed that the doctor performing the euthanasia called a colleague to consult with him 
about his ALS patient.^ It is unclear why Dr. Wilfred van Oijen picked this specific 
consultant. Was it because of his particular field of expertise or because the physician knew 
this doctor and assumed that he would back his decision without too many questions? From 
the tone of the discussion, it seemed that the two doctors knew one another quite well and 
were on friendly terms. What worries me is that the requirement to consult could become a 
“dead dogma”,'' used only to fill the reports, and that, in essence, one hand simply washes the 
other: you approve euthanasia for my patients, and I will approve it for yours. Obviously, a 
doctor who approves of euthanasia would not call a colleague that is against it or is hesitant 
about the practice.^ Indeed, one study showed that the consultant was nearly always a partner 



' Breje D. Onwuteaka-Philipsen, Gerrit van der Wal, Piet J. Kostense and Paul J. van der Maas, “Consultation 
with another Physician on Euthanasia and Assisted Suicide in the Netherlands,’’ Social Science and Medieine, 
Vol. 51 (2000), p. 430. 

^ John Keown, “The Law and Practice of Euthanasia in the Netherlands,’’ The Law Quarterly Review, Vol. 108 
(January 1992): p. 68. 

’ Death on Request, IKON, Interkerkelijke Omroep Nederland, Postbus 10009, 1201 DA Hilversum. 1 thank 
IKON for sending me a copy of this film. For deliberation and critique of the content of this film, see Herbert 
Hendin, Seduced by Death (New York: W.W. Norton, 1997), pp. 1 14-120. 

“ Cf. John Stuart Mill, Utilitarianism, Liberty and Representative Government (London: J.M. Dent, 1948), 
chapter 2 of On Liberty, p. 95. 

’ Jochemsen thinks that the patient was pushed to ask for euthanasia. His wife made most of the talking and 
supported the euthanasia decision. The patient had a limited role in the conversations. And van Oijen was 



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in the practice or a locum. At least 60% of the “independent consultants” giving the second 
opinion already knew the patient before the consultation. In only 5% of the cases did the 
family doctor seek a second opinion from a doctor that he did not know personally.^ Another 
study showed, unsurprisingly, that almost all consultants regarded the request of the patient 
to be well-considered and persistent, conceded that there were no further alternative 
treatment options, and agreed with the intention to perform euthanasia or assisted suicide. In 
general, the GPs did not need to change their views or plans following the consultation.^ 

Consultation takes place in about 99% of reported cases of euthanasia and assisted 
suicide (to reiterate, only 41% of cases are reported). It is estimated that consultation takes 
place in 37% of unreported cases. In 88% of cases, the consultant has seen the patient.* 
Physicians mainly consult colleagues from their own specialty. Recent research shows that 
familiarity and accessibility are very important factors in the choice of the consultant. Half of 
the physicians who had served as consultants more than once had previously been consulted 
in the most recent case of the same physician. In 24% of these cases, the treating physician 
and the consultant had previously acted as consultants for each other. Physicians who 
previously consulted or had been consulted by the same physician agreed more often with 
the intended euthanasia or assisted-suicide than physicians who did not (90% vs. 80%, 
respectively).^ 

The interviews revealed sharply contrasting and contradictory opinions on the matter of 
consultation. I suspect that not all of the interviewees were completely candid in their 
answers, again possibly because they were “protecting the system” and viewed me with 
suspicion as a “foreigner.” 

John Griffiths says that there are problems in the consultations of doctors with their 
colleagues. This may be particularly true in rural areas, where it can be difficult to get hold 
of a colleague, especially an “independent” doctor, as doctors in rural areas are often 
members of the same substitution group. In Griffiths’ opinion, the consultation requirement 
should be adhered to more strictly than now appears to be the case. However, the 
complexities of concrete situations require a rule that can be applied in a flexible and 
casuistic way, something that is difficult in the context of criminal enforcement. Currently 
the courts are rather lenient with doctors who do not comply, but the regional assessment 
committees seem to be trying to give the requirement more teeth.’® In this context, Jacqueline 



presented as a hero. Jochemsen believes it is obscene to perform euthanasia in front of the TV-camera and in 
addition gain reputation for this. 

^ G. van der Wal, J.Th.M. van Eijk, HJ.J. Leenen and C. Spreeuwenberg, “Euthanasia and Assisted Suicide. II. 
Do Dutch Family Doctors Act Prudently?,” Family Practice, Vol. 9, No. 2 (1992), pp. 1 13, 1 15. 

^ Bregje Dorien Onwuteaka-Philipsen, Consultation of Another Physician in Cases of Euthanasia and Physician- 
assisted Suicide (Amsterdam: Vrije Universiteit, 1999), Thesis, pp. 29, 31. Interestingly, Onwuteaka-Philipsen 
et al report in another study that in 17% of cases of intended euthanasia and PAS the consultant advised against 
the practice and that in almost all of these cases the attending physician acted in accordance with the 
consultant’s judgment. Cf Breje D. Onwuteaka-Philipsen, Gerrit van der Wal, Piet J. Kostense and Paul J. van 
der Maas, “Consultation with another Physician on Euthanasia and Assisted Suicide in the Netherlands,” Social 
Science and Medicine, Vol. 51 (2000), p. 436. 

^ Bregje D. Onwuteaka-Philipsen, Gerrit van der Wal, Piet J. Kostense and Paul J. van der Maas, “Consultants in 
Cases of Intended Euthanasia or Assisted Suicide in the Netherlands,” MJA, Vol. 170 (1999): 360-363. 

^ ftzV/.,pp. 360-363. 

Henri Wijsbek reiterated this point of lenient courts saying he did not know of any prosecutions for lack of 
consultation, and that consultation should be “observed and complied closely.” Leenen, on the other hand, 




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105 



M. Cuperus-Bosma et al examined the Minutes of the Assembly of Prosecutors General and 
note that if all requirements for accepted practice were met, except consultation, the 
physician was not prosecuted but the case was usually referred to the Health Inspector. 
However, if there were doubts about other requirements for accepted practice being met, an 
inquest was held.” 

Furthermore, according to Griffiths, some of the prosecuted cases involved a doctor who 
consulted another doctor, and then the consulted doctor performed the euthanasia, rather than 
the first doctor who asked for the consultation. However, the Guidelines say that the 
physician who first recommended euthanasia, not the consulted doctor, should perform the 
euthanasia. When this “role reversal” occurs, the case may not be reported for fear of 
prosecution. Griffiths added that it is wrong to suppose that all unreported cases are 
unjustified. 

Griffiths estimated that 10% of physicians in the Netherlands principally oppose the 
practice of euthanasia, and that a further 6% would not perform euthanasia themselves, but 
refer patients who ask for it to another doctor.'^ Griffiths further stated that there are 
indications from the regional assessment committees that consultation by specialists is 
sometimes quite inadequate, being performed over the phone or by a busy specialist who 
stops by a hospital ward and notes on the patient’s status sheet that he agrees with the 
attending physician. He argues that consultants should always see the patient, but that the 
prosecution and the courts do not regard this as an absolute requirement. The Supreme Court 
should broaden the requirement of consultation in person to all patients, and not limit it to 
psychiatric patients only.” The nursing staff should also be included in the euthanasia 
discussions. In cases of euthanasia performed at the patient’s home, the patient usually has 
home nursing care, and the on-site nurse should be included in the decision-making process. 

Sjef Gevers explained that until 1995, consultants did not need to see the patients. The 
Dutch Medical Association Euthanasia Guidelines of 1995 changed the picture, requiring 
that the consultant be an independent colleague, rather than part of the doctor’s group, and 



wrote that it is incorrect to say that the courts are very lenient towards lack of consultation. Letter dated July 25, 
2000 . 

Jacqueline M. Cuperus-Bosma, Gerrit van der Wal and Paul J. van der Maas, “Physician-assisted Death: Policy- 
making by the Assembly of Prosecutors General in the Netherlands,” European J. of Health Law, Vol. 4 (1997), 
p. 232. 

In his book, Griffiths writes that twelve percent of Dutch doctors are principally unwilling to perform 
euthanasia and that most of them would refer a patient requesting it to another doctor. See John Griffiths, Alex 
Bood and Heleen Weyers, Euthanasia and Law in the Netherlands (Amsterdam: Amsterdam University Press, 
1998), p. 253. According to van der Maas et al, 9% of all physicians would never perform euthanasia and 
assisted suicide but would refer patient seeking it to another physician. 3% would never perform the practices or 
refer patients. Cf Paul J. van der Maas, Gerrit van der Wal, Ilinka Haverkate et al, “Euthanasia, Physician- 
Assisted Suicide, and Other Medical Practices Involving the End of Life in the Netherlands, 1990-1995,” New 
Eng. J. of Med., Vol. 335, No. 22 (November 28, 1996), p. 1702. Compare to physicians’ attitudes in other 
countries: B.J. Ward and P.A. Tate, “Attitudes among NHS Doctors to Requests for Euthanasia,” British 
Medical Journal, Vol. 308 (May 21, 1994): 1332-1334; Diane E. Meier, Carol- Ann Emmons, Sylvan 
Wallenstein et al, “A National Survey of Physician- Assisted Suicide and Euthanasia in the United States,” New 
Eng. J. of Med., Vol. 338, No. 17 (April 23, 1998): 1193-1201; Ethics and Human Rights Committee, 
American College of Physicians-American Society of Internal Medicine, “Physician- Assisted Suicide [Position 
Paper],” ^/7/7(3/5 of Internal Medicine, Vol. 135, No. 3 (August 1, 2001): 209-216. 

Griffiths added that the physician is supposed to discuss the matter with the patient’s family and, in his opinion, 
should be required to explain in writing if this is not done. If the patient does not wish the family to be included 
in the deliberations, then the doctor should be required to have the patient put that refusal in writing. 




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must talk with the patient himself and be informed of the patient’s medical situation. 
Consultation over the phone or by looking at the patient’s file is insufficient. However, the 
courts do not insist that the consultant see the patient. Following the Chabot precedent, 
consultation is required in person only in psychiatric cases. 

Several interviewees'"^ explained that in hospitals the general practice is to consult the 
whole medical team, including nurses, not just another physician. Thus in hospitals, 
consultants always see the patients; examining their medical files is considered insufficient. 
In nursing homes, the standard procedure is to invite a consultant from another nursing 
home. As for GPs, many physicians have a trusted colleague whom they always consult in 
euthanasia cases. It was noted that it is important that the consultant not be from the GP’s 
medical team or someone who fills in for the doctor on weekends. However, often GPs 
consult colleagues on their own team. The consultant is perceived to be independent because 
he or she is not directly involved with the patient, but of course that is not total independence 
from the perspective of the best interest of the patient. The common view is that the 
physician needs to hear and see the patient, examine him, feel him, listen to what the patient 
wants. 

On the other hand, Ron Berghmans and A. van Dantzig do not think that finding an 
independent doctor is a major problem. The Netherlands is a small country, and it is possible 
to find a consulting doctor who does not belong to the same medical team who would be 
willing to travel to see the patient. Berghmans thinks the GP and the consultant might have 
other shared interests, but that they would not compromise the independence requirement. 
With regard to consultation over the phone, Berghmans contends that in the past too much 
respect was granted to maintaining privacy in physician-patient relationships, even to the 
extent of allowing consultation over the phone. This picture is now changing, and the new 
law requires that the consultant see the patient. 

Paul van der Maas explains that “real consultation” means consultation with a colleague 
who is an expert in the field and who is able to verify that there are no available alternatives 
for treatment. The consultant should also verify that the patient really wants euthanasia, and 
that the decision-making process did not involve problems of transference and counter- 
transference between doctor and patient.'^ Van der Maas maintains that he and his team train 
consultants to see the patient and examine his condition first hand. Similarly, van Dantzig 
argues that consultation involves seeing the patient, determining the motive for the wish to 
die, and exploring avenues of treatment. Seeing the patient is required to verify that 
euthanasia is the only solution, and the most desirable solution. 

Frank Koerselman was consulted in the past and objected to the practice. He testified that 
he felt pressure from his colleagues to sign the documents approving the euthanasia decision. 
At some point, his colleagues gave up on him and stopped consulting him. Koerselman 
offered to serve as an expert witness in one court trial, but the court was not interested in 
hearing his expert testimonial. 



Bert Thijs, Rob Houtepen, Arie van der Arend, Jaap Visser, Ruud ter Meulen, and Henk Jochemsen. 

Freud recognized that doctors’ unconscious has an impact on their relations with patients. Counter-transference 
has been defined in the psychoanalytie literature as reactions in the therapist engendered by the patient. Cf. Jay 
Katz, The Silent World of Doctor and Patient (New York: The Free Press, 1984), p. 147. 



15 




BREACHES OF THE GUIDELINES 



107 



I questioned how much time is needed for consultation. Van der Arend thought that a 
totally independent physician is unable to evaluate the condition of the patient within the 
customary 1/2 hour or hour of consultation. Ideally, the consulting physician should meet the 
patient several times. If there is only one short meeting, there may be a lack of 
communication. Van der Arend advised having three different meetings before the consultant 
writes the report.'*’ 

George Beusmans and Gerrit Kimsma do not share this view. According to Beusmans, 
after several meetings with the patient, he asks for the patient’s request for euthanasia in 
writing. At a certain moment, when the patient says: “I can’t deal with the suffering, you can 
do it,” Beusmans asks: “When?” This discussion takes place when the patient is in the final 
phase of life, having only about two weeks left. When the patient insists that he wants 
euthanasia, Beusmans arranges for a colleague to come and see the patient. At this stage, 
Beusmans also contacts a pharmacy to arrange for the lethal drugs. The colleague is a 
General Practitioner with whom Beusmans does not work. Beusmans has two colleagues 
with whom he cooperates on euthanasia matters, and these two colleagues also ask 
Beusmans to serve as a consultant for their euthanasia cases. The consultant will see the 
patient, speak with him, and decide whether it is necessary to perform euthanasia. The 
consultant usually signs the papers after thirty minutes of conversation with the patient. 
Beusmans thinks thirty minutes is enough to verify that the patient qualifies for euthanasia. 

Gerrit Kimsma also insists that the consultant see the patient. He thinks 1/2 hour is 
enough when the consultant comes prepared with all the pertinent information.'^ The 
consultant reads the patient’s medical records, sees the patient, asks for the patient’s view on 
his condition, and checks whether the patient knows why the consultant came. The 
consultant needs to see that the patient is of sound mind and is requesting euthanasia without 
pressure. He is required to verify that the Guidelines have been fulfilled and that Kimsma’ s 
euthanasia decision was correct. 

Kimsma testifies that he consults a colleague for whom he covers during the weekends. 
In his opinion, the independence requirement is not compromised because the main concerns 
are to examine the issues of transference and counter-transference, and to determine that the 
GP has arrived at the euthanasia decision without pressure and without identifying with the 
patient to the point of obscuring his own medical judgment. 

My interviews also included a meeting with the de B. family who experienced the 
euthanasia decision-making process. K was a cancer patient who knew that death was 
inevitable. He could not adequately digest food and was very weak; he suffered great pain 
and consumed large doses of pain medication. K felt that his life had no quality and filled out 
the papers he had obtained from the Dutch Voluntary Euthanasia Society, in which he 
expressed a wish to die. He reiterated his request to his personal doctor and at a later stage 
entered into a state of unawareness for a few days. The meeting with the consultant to 
approve the GP’s decision was scheduled ahead of time, and on that day the consultant 
arrived an hour after K woke up. K was in a good mood and did not believe that he had slept 
for four days. The GP told K that he had arrived to discuss K’s euthanasia decision, and K 



As a nurse, van der Arend is dissatisfied that nurses are not represented on the committees. In his mind, it would 
be better to have a balance of ideas before making the euthanasia decision by including nurses and independent 
physieians, and by following the rules of carefulness in detail. 

Van Leeuwen also thinks half an hour is suffieient for the purpose of consultation. 



17 




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stated he did not believe the situation was that bad; he thought his family and the physicians 
had made this up. The consultant talked with K about euthanasia, but K found it difficult to 
comprehend why the consultant wanted to discuss euthanasia with him since he had had such 
a good sleep and was feeling quite happy. Clearly, the family testified, K was not ready for 
euthanasia though K still backed his euthanasia decision. I asked what the consultant decided 
after this confusing episode and was told that the consultant arrived again later, when K’s 
condition had deteriorated yet again, and confirmed the decision for euthanasia. 

Though I felt that K’s family acted sincerely in a bona fide manner, this episode is 
disturbing and demonstrates the intricacy of this issue. It is unclear why the GP and the 
consultant arrived that day. If K had been unconscious for four days, the GP should have 
been aware of this. Surely, the consultant could not fulfill his responsibility if the patient was 
unaware and unable to communicate. The consultant here was not satisfied by the first visit, 
during which the patient clearly wanted to live, and felt an obligation to visit the patient 
again. Additionally, it must have been quite a blow for K to see his beloved family and the 
physicians, including his trusted GP, around his bed discussing his mercy killing at a time 
when he felt well. 

Bert Keizer tells the disturbing story of a cancer patient who arranged to end her life, but 
during the last days became increasingly muddled. On the evening of her death, when she 
heard the doorbell, she let the doctor in, greeting him with some bewilderment: “And what 
brings you here tonight, doctor?” The doctor and the other people present at her home 
refreshed her memory and later that evening the patient did take her dose. Before the doctor 
left he asked the patient’s daughter: “This is what Mother wanted, isn’t it?”'* 

Many interviewees spoke about the new Support and Consultation of Euthanasia in 
Amsterdam (SCEA) project that began in Amsterdam and became a national Dutch project 
(SCEN).*’ In 1997, the SCEA project was initiated to provide all GPs working in Amsterdam 
with a support group of about twenty especially trained GPs for consultation or advice on 
euthanasia and PAS. The purpose was not only to make it easier for GPs to find an 
independent and knowledgeable consultant, but also to make the consultation more 
professional.^" SCEN provides a telephone service that enables doctors to speak with trained, 
professional staff who can offer practical medical or legal advice or arrange a formal 
consultation. Staff will follow a consultation protocol, and a written record of consultations 
will be kept.^' Physicians are required to contact SCEN consultants before they perform 
euthanasia, in order to make consultation as effective as possible. Van der Wal says that most 
doctors do not like the idea that they do not select the doctor themselves, especially at the 
time when euthanasia was officially illegal. Physicians preferred to consult with someone 
they knew. Gerrit Kimsma saw no problem in choosing the consultant himself or, for that 
matter, in allowing every GP to choose his/her consultant. He said that there was good faith 
among physicians. 



Bert Keizer, Dancing with Mister D (London: Black Swan, 1997), p. 117. 

Interviews with Evert van Leeuwen, John Griffiths, J.K. Gevers, Gerrit van der Wal, Jaap Visser, H.J.J. Leenen, 
Henk Jochemsen, Gerrit Kimsma, Paul van der Maas, Govert den Hartogh and Johannes van Delden. 

Bregje Onwuteaka-Philipsen, Consultation of Another Physician in Cases of Euthanasia and Physician-assisted 
Suicide (Amsterdam: Department of Social Medicine, Vrije Universiteit, 1 999), Doctoral Thesis, p. 9 1 . 

Tony Sheldon, “Netherlands Sets Up Euthanasia Advisory Body,” British Medical Journal, Vol. 318 (February 
6, 1999): 348. 




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109 



Four of the interviewees (van Leeuwen, Kimsma, van Delden and den Hartogh) are 
members of the newly established regional committees whose role is to review euthanasia 
cases and see that the rules of carefulness are observed. In November 1997, the Secretaries of 
Justice and of Healthcare, Well Being and Sports published their intention to inaugurate five 
regional review committees to supervise physicians in actively ending the lives of their 
patients. The five regions are (1) Groningen, Friesland and Drenthe; (2) Overijssel, 
Gelderland, Utrecht and Flevoland; (3) North Holland; (4) South Holland and Zeeland; 
(5) North Brabant and Limburg. These committees have been functioning since November 
1998 and retrospectively evaluate the reported cases of euthanasia and physician-assisted 
suicide. The committees’ members consist of a lawyer (who serves as chairperson), a 
physician, and an ethicist, and their responsibility encompasses all cases in which a voluntary 
request has been made by a competent patient. Cases of physician-assisted death without 
such a request are sent directly to the Office of the Prosecution. The primary goal of having 
regional committees is to evaluate the prudence of the practice of physician-assisted death, 
with the intent of public control of a highly sensitive medical practice and moral issue. The 
secondary goal is to increase the number of reported cases and thus make public control 
more effective. In short, the role of the committee is to examine whether the physicians 
observe the rules of caution, including reporting. 

Evert van Leeuwen and Govert den Hartogh provided detailed insight about the 
respective regional committees on which they are members. Each month, van Leeuwen’s 
committee examines 50 cases of euthanasia and physician-assisted suicide that took place in 
North Holland. In turn, den Hartogh’s committee reviews 36 cases per month. Other regions 
have 35 cases on average. Each regional committee meets once a month, and each of the 
committee members reads all cases before the meeting. They try to reach a consensus on 
each and every case. Van Leeuwen, den Hartogh and their colleagues on the committee 
review the files in a given case and verify that the physician made a careful judgment 
according to the Guidelines. They assess the durable wish of the patient, the patient’s 
suffering, the GP’s consultation with a colleague, and the use of proper drugs to perform the 
euthanasia. 

Thus, the committee provides moral support to physicians who conduct euthanasia in a 
moral way. If euthanasia has not been done according to the Guidelines, then the committee 
asks the physician to provide clarification and further information. Each report should 
contain a declaration by the patient, the physician’s report, a statement from the consultant, 
and the coroner’s statement. Sometimes there is also a letter from the family. 

Van Leeuwen emphasized that the committee is not a prosecutorial body. Its aim is to 
convince physicians to report. Van Leeuwen explained that the KNMG envisioned a body of 
control between the law and the practice. Until the early 1990s, the police checked every 
incident of unnatural death. In some regions, the police arrived at both the home of the 
physician and the home of the patient; in other regions, the police arrived at the physician’s 
home only. This was very disturbing, so those visits were stopped in the early 1990s. 

In van Leeuwen’s opinion, euthanasia is not only a medical act; it is an extraordinary act 
that physicians should report to the public. However, there are physicians who consider it a 



Evert van Leeuwen and Gerrit Kimsma, “Problems Involved in the Moral Justification of Medical Assistance in 
Dying: Coming to Terms with Euthanasia and Physician Assisted Suicide,” in R. Cohen- Almagor (ed.), Medical 
Ethics at the Dawn of the 21st Century (New York: New York Academy of Sciences, 2000): 157-173. 




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private matter between themselves and their patients. The regional committees are 
attempting to change this view. They are also attempting to persuade physicians that if 
euthanasia is performed properly, then there is no reason to fear prosecution. Members of the 
committees write letters to physicians explaining the need for reporting and how they should 
perform euthanasia. However, the letters are sent to physicians who report, not to those who 
don’t, as the committee gets their names from the reported fdes. 

The committee’s verdict on each euthanasia case goes to the District Attorney’s (DA) 
Office, where the prosecutor checks whether the committee examined the case thoroughly. 
There have been a few cases in which the DA disagreed with the conclusion of van 
Leeuwen’s committee. Den Hartogh testified that there was no single case in which the 
prosecution overruled the decision of his committee. Under the new law, the regional 
committees review the reported euthanasia cases. Lawyers object to granting the committees 
the power to decide whether or not to prosecute because there is only one lawyer on each 
committee. Van Leeuwen expects that there will be discussions on this issue in parliament 
and that ultimately this power will not be granted. He believes that the parliament will seek a 
way for the DAs to retain their freedom to prosecute. 

Most of the reported cases were cancer patients (90% of the cases reported to den 
Hartogh’ s committee; 80-90% of the cases reported to van Leeuwen’s committee). Den 
Hartogh said that cancer patients are the accepted group for euthanasia and speculated that 
doctors might not report euthanasia performed for non-cancer patients because they fear the 
committee might consider this conduct as unusual and might launch an inquiry into the 
matter. This is an interesting speculation. Is it the case that most euthanasia cases involve 
cancer patients or, alternatively, that physicians who provided mercy killing to non-cancer 
patients did not report, and hence contributed indirectly to the data that associate euthanasia 
with cancer patients? This is a difficult and interesting question, which requires further 
empirical research and analysis. 

Van Leeuwen’s committee had reviewed some 300 cases by the time of his interview, 
and in most of these cases the Guidelines had been observed. In a small number of cases 
(between four and eight), the requests were very clear, the physicians could do nothing to 
help, and the patients were suffering, but were not on the verge of death; they still had four to 
six months to live. Van Leeuwen felt that these were cases in which palliative care could 
have helped. This issue is something that still needs to be explored and developed. Govert 
den Hartogh testified that the problematic cases usually involved consultants who were not 
truly independent. Sometimes the patient did not form what den Hartogh terms a “categorical 
request” for euthanasia, or the practice was conducted too early. Nevertheless, the committee 
only “on occasion” asked physicians to clarify their actions, and only “rarely” concluded that 
the physician’s actions were not carefully taken. 

In his detailed comments on the first draft of this study, den Hartogh elaborated his 
explanation by saying that the cases in which his committee asked for more information 
and/or clarification, were not cases involving a breach of the Guidelines. Rather, these were 
cases in which the information provided (by the doctor, the consultant or both) was 
insufficient to make a reliable judgment on the issue. Such probing questions were asked in 
15-20% of the cases. Den Hartogh added that other committees have done so less frequently. 

In 1-2% of the cases, members of the committee were not satisfied with the replies and 
invited the doctor for an interview. In one case, the committee decided after the interview, 
“the patient had not made a relevant request, so the committee was not competent to decide 




BREACHES OF THE GUIDELINES 



111 



the case, and the report was sent to the public prosecutor.” In three or four cases, the 
committee had some doubts concerning the presence of unbearable suffering, “but having 
interviewed the doctor we finally decided that his action had met the criteria.” In three cases, 
the committee found that the requirement of independent consultation had not been satisfied. 
In three cases, the committee’s final judgment was that the doctors had acted carefully on the 
whole, but that during the procedure some mistakes had been made, either by themselves or 
their colleagues, requiring the attention of the health care inspection agency.^^ These last 
cases have all been scrutinized by the public prosecutor, which did not lead to actual 
prosecution. The committee never recommended prosecution; it only recommended 
investigation by the health care inspection agency.^"' 

Sometimes the committee saw from the report that the request for euthanasia, the 
consultation with another doctor, and the act of euthanasia had all been performed on the 
same day. Den Hartogh explained that this happened when the patient was suffocating and 
suffering severely. Ordinarily, such rapid decision-making should not take place. 
Nevertheless, these cases constituted, in den Hartogh’s view, “unavoidable exceptions.” 

Evert van Leeuwen testified that his committee did not review even one incident of 
consultation conducted over the phone. He considers it is essential for the consultant to see 
the patient, to verify that he or she is competent and acting upon free will, and to review the 
patient’s medical condition, by both physical examination and also examination of the 
medical files. 

Govert den Hartogh explains that doctors who do not consult a colleague do not report to 
the regional committee. KNMG advises consultants to see the patients, and the consultants 
have adhered to this requirement. The reports he reviewed said the consultation lasted 1 to 2 
hours, but den Hartogh testified that he was unsure about this. He is certain that the time for 
consultation is often shorter, especially in hospitals. Den Hartogh maintained that doctors in 
some islands in the south might find it difficult to find a consultant. In his comments on the 
first draft he wrote that in August 2000 his committee reviewed a case of a doctor from one 
of those southern islands with an orthodox Protestant majority, in which the doctor had 
consulted his own associated partner. The physician explained that he had tried to find 
another consultant but without success. Thus, such cases do occur, though probably rarely. In 
the reported cases, there is always a consultant who has seen the patient; if there are still 
cases in which all consultation has been done over the phone, they are never reported.^^ 

Den Hartogh further wrote in his comments that one unfortunate side-effect of the fact 
that the rules for justifiable euthanasia are court-made and rely on the defense of necessity is 
that the matter of consultation has not been given sufficient attention. As a result of KNMG- 
policy and of the growing involvement of the government in the assessment of acts of 
euthanasia and assisted suicide, this matter has gradually been improving. In hospitals the 
report is often nothing but a short written note on the patient’s state. But there is evidence 
that the SCEN project already has had good effects on the quality of both consulting and 
reporting. Den Hartogh believes that the training of SCEN consultants and of doctors 
generally will be far more effective in shaping the Dutch practice than any possible form of 
legal regulation. 



This is an agency, independent of the public prosecution. Its activities may lead to disciplinary law trials. 
Den Hartogh’s personal communication on August 27, 2000. 

Personal communication on August 27, 2000. 




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Since the installation of the regional review committees, the requirement is that the 
consultant should be independent, that he/she should see the patient in person, and consider 
both the character of the request and the nature of the suffering. Den Hartogh clarifies that 
that doesn’t mean that a doctor who failed to consult a colleague at all, or failed to consult an 
independent one, could not appeal to necessity. He/she can make that appeal even when the 
new law has formalized the new requirement.^^ 

Johannes van Delden is a member of a third regional committee. His response to my 
inquiry about his work was far more reserved than the responses of van Leeuwen and den 
Hartogh. Van Delden said that almost all reported euthanasia cases “had something in 
writing,” but he is “not allowed to say how many cases there were.”^’ The documents, inter 
alia, clarified that the patient had made the euthanasia request. Van Delden maintained that it 
is too early to judge the regional committees’ effectiveness. He explained that if the 
committees were too harsh on the doctors, then they would fail to comply with reporting 
requirements. On the other hand, if the committees were too lenient, then their work would 
have no real purpose. Thus, the committees must attempt to preserve a delicate balance in 
their work. They tend to keep the process outside the realm of criminal law and to emphasize 
educating the doctors. If it appears that a doctor did not follow the Guidelines, then 
discussions will be held with him or her and, if required, with the consultant as well, 
explaining what was lacking and how their practice of euthanasia should be improved. 

Van Delden maintains that the consultant should see the patient for one hour after 
examining the patient’s medical files and speaking with the GP, inquiring whether the doctor 
explored other medical alternatives prior to the euthanasia decision. The consultant is 
required to explain his reasoning; simply writing “I agree” on the form is insufficient. Van 
Delden’s committee asks for detailed explanations. The role of the committee is also 
educational, explaining that the reports should be informative. According to van Delden’s 
testimony, there was only one incident in hundreds of cases reviewed by his committee in 
which the GP consulted a colleague over the phone. The committee reported the case to the 
medical inspector. Van Delden does not think there is any problem with consultation in rural 
areas. Most doctors are willing to be involved in the practice of euthanasia, and it is not 
difficult to find an independent doctor. 

Many interviewees^*^ oppose the practice of looking at the medical files in lieu of 
examining the patient, thinking that the consideration of unbearable suffering should be 
closely examined, and physicians cannot verify that by only looking at the files. 

One interviewee spoke of Sippe Schat, a physician who was viewed as “a God in his 
village,” who did not consult colleagues, and who did everything alone without consultation. 
Eventually he was prosecuted and found guilty for not consulting a colleague prior to 
performing euthanasia (District Court, Leeuwarden, April 8, 1997).^^ 

Personal communication on August 27, 2000. 

In his comments on the first draft of this chapter, van Delden explained that his hesitation to disclose numbers at 
that point in time derived from the fact that these numbers were not public yet. Personal communication on 
August 4, 2000. 

Van Leeuwen, Griffiths, Gevers, Thijs, van der Arend, Houtepen, Jochemsen, den Hartogh, van Delden, Visser 
and van der Maas. 

Griffiths et al. argue that the facts found by the District Court, involving multiple and serious failures to 
conform to the requirements of careful practice, seem to call for a serious medical disciplinary measure, perhaps 
revocation of the license to practice medicine. See John Griffiths, Alex Bood and Heleen Weyers, Euthanasia 
and Law in the Netherlands, op. cit., p. 293, note 56. 




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113 



Egbert Schroten said that, to the best of his knowledge, most doctors consult their 
colleagues, and at least until the early 1990s the consultation was done over the phone. When 
I asked whether this is sufficient to warrant euthanasia, Schroten answered that doctors 
apparently think they can approve euthanasia without seeing the patients, believing they have 
enough information to decide the matter. 

These testimonies are alarming. I question whether it is possible to conduct a reliable 
consultation over the phone. It should be obligatory to see the patient, to examine him or her, 
to confirm that the patient freely wishes euthanasia, and that all options for treatment were 
exhausted before resorting to medical killing. At first I was astonished by the interviewees’ 
relaxed tone while speaking about consultation by telephone. In turn, they were somewhat 
surprised to see my alarm. 

H.J.J. Leenen does not share my alarm. He explains that during the 1980s, consultation 
was often conducted over the phone. Euthanasia was regarded as any other medical practice. 
Leading decision makers and policy consultants, among them Leenen himself, said that 
euthanasia was, is and should remain an exception. Consequently, a view emerged that 
euthanasia is not like other medical procedures that could be consulted about over the phone. 
Physicians now make their decisions by looking at the medical files or by meeting patients in 
person. Although euthanasia is an exceptional medical procedure, Leenen does not think the 
consultant should always see the patient. In his view, consultation in person is often 
unnecessary. Leenen doesn’t agree with the Dutch Medical Association (KNMG) 1995 
directives that consultants see the patients, because most of those asking for euthanasia are dying 
from cancer, and their evaluations can be done by reviewing their medical files. Many patients’ 
families regard the consultation requirement as a beaurocratic stupidity, a redundant control 
mechansism. Leenen agrees that consultants need to see psychiatric patients, but feels there is no 
such need in what he terms to be “clear somatic cases.”^° He states that he tmsts doctors and the 
experience he had working with doctors for the past twenty-five years has been positive: 
“Doctors are morally decent and competent people.” Leenen criticizes them for not spending 
enough time with their patients, “but their intentions are good.” Leenen maintained that 
consultation was a problem in small villages, but in May 1999, following SCEA, the 
government initiated the organization of consultation teams all over the country. Consultants 
will travel to small villages to examine medical files and to see patients. Hospital specialists 
are required to examine the files. The scheme is not fully operational yet, and time will tell to 
what extent it will succeed; Leenen thinks the consultation mechanism has gradually 
improved. 

Heleen Dupuis contested the views of most of her colleagues. Unlike Leenen, she thinks the 
wish of the patient and his/her medical condition need to be confirmed by a second opinion; 
hence consultation in person is absolutely required. Doctors would jeopardize themselves by 
not consulting another doctor or compromise their duty by just sending the patient’s medical 
files. Hence, consultation over the phone “is impossible.” It is “not acceptable” and it “does 
not happen.” As for the situation in rural areas, Dupuis asserted that those who request 
euthanasia are mainly cancer patients (who are examined by hospital doctors), and it doesn’t 
occur often. The requirement of independent consultation is not compromised, and if there is 
no independent doctor, euthanasia is not performed. 



30 



Leenen’s letter dated February 2, 2001. 




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LACK OF REPORTING 

Next I asked about the worrisome data on the lack of reporting. The question was formulated 
as the following: Record keeping and written requests of euthanasia cases have improved 
considerably since 1990; there are now written requests in about 60% and written record- 
keeping in some 85% of all cases of euthanasia. The reporting rate for euthanasia was 18% in 
1990, and by 1995 it had risen to 41%. The trend is reassuring, but a situation in which less 
than half of all cases are reported is unacceptable from the point of view of effective 
control.^’ What do you think? I then added, how can the reporting rate be improved? 

Most interviewees did express concern about the lack of reporting and would like to 
introduce changes to increase the level of reporting. John Griffiths suggests that non-criminal 
control on euthanasia would be more appropriate.^^ Given that doctors do not report and it is 
difficult to locate abuse, Griffiths thinks that a different system is needed. In his view, the 
only way to improve the situation is to leave the issue within the realm of the medical 
profession. Griffiths suggests a three-tier system: medical committees to review the 
euthanasia cases, plus medical inspectors, plus disciplinary committees. Instead of five 
regional committees, Griffiths suggests a low level of control in which each hospital would 
have its own review committee to examine the circumstances of death, including abstinence 
and pain relief What is needed is effective control of the “whole balloon,” in Griffiths’ 
terms. Griffiths explains that pressing the balloon on one side would increase it on the other 
side. In other words, control of euthanasia might increase death as a result of pain relief and 
abstinence. Therefore, it is advisable to establish a committee in each hospital, whose role 
would be to review all cases of death and to refer questionable cases to medical disciplinary 
committees. 

Similarly, Bert Thijs predicts that the reporting rate will be improved if the threat of 
prosecution is lessened. He hopes that the introduction of the regional committees will 
improve the reporting rate, insofar as the committees are closer to the medical profession and 
have no legal authority. Whereas previously all cases went to the public prosecutor, now the 
committees will serve as a buffer and the role of the public prosecutor will decrease 
accordingly.^"^ Thijs believes that another means to improve reporting is through medical 
education. Promoting discussion on the ending of life in medical schools and in society at 
large is one example of increasing social control through education and communication. 



John Griffiths, “Effective Regulation of Euthanasia and Other Medical Behavior that Shortens Life,” draft paper 
(October 14, 1998), pp. 10, 11; John Griffiths, Alex Bood and Heleen Weyers, Euthanasia and Law in the 
Netherlands, op. cit., pp. 236-237. 

In his comments on the first draft of this chapter, Griffiths wrote that he does not regard the situation as perfect, 
“the imperfections are a matter of concern, and something should be done about them. As a matter of fact, 
something is being done: unlike other countries, the Dutch are continually working on the adequacy of control 
of this sort of intrinsically dangerous medical behavior.” Personal communication on July 10, 2000. 

For elaborated discussion, see John Griffiths, Alex Bood and Heleen Weyers, Euthanasia and Law in the 
Netherlands, op. cit., chap. 6. 

Cf. Jacqueline M. Cuperus-Bosma, Gerrit van der Wal, Caspar W.N. Looman and Paul J. van der Maas, 
“Assessment of Physician-assisted Death by Members of the Public Prosecution in the Netherlands,” Journal of 
Medical Ethics, Vol. 25 (1999): 8-15. 




BREACHES OF THE GUIDELINES 



115 



Some interviewees think that the major problem in the practice of euthanasia in the 
Netherlands is the low level of reporting. They said that 41 percent of reporting is 
unacceptable. Several explanations for this finding were given: (1) euthanasia came under 
the Penal Code and doctors feared possible prosecution; (2) preference of secrecy, as part of 
the doctor-patient relationship. Physicians wished to maintain trust with their patients and 
felt euthanasia was a private matter; (3) laziness on the part of doctors who wished to avoid 
the paper work; (4) many physicians were also willing to lie at the patient’s/family’s request 
or for their own personal reasons. 

While trusting doctors, the view is that doctors need to report because euthanasia should 
never become a routine action. Euthanasia should be considered an extraordinary measure to 
be employed in extraordinary circumstances. Doctors should discuss their conduct in the 
open and expose the practice of euthanasia to public scrutiny. Several interviewees^^ 
emphasized that doctors need not worry if they follow the Guidelines. They think that the 
new proposal - to report to the regional committees - might bring some improvement. In this 
context it is noted that Leenen, who on the whole is skeptical about the work of the committees, 
nevertheless estimates that seventy percent of the Amsterdam cases were reported in the SCEA 
project in 1999. In turn, Jaap Visser also thinks there is an improvement in the level of 
reporting. However, he estimates that of the euthanasia cases only 55-60 percent is now 
reported. 

G.F. Koerselman does not share the optimism about the positive role of the regional 
committees. He thinks the regional committees would not change much. He believes the 
organization is secondary, and it is the value system that is important. At this point, almost no 
one contests the vital policy decisions that were made. Koerselman added that even if the 
regional committees improve the level of reporting, a change in the climate is what is really 
needed. 

Henk Jochemsen thinks the regional committees might improve the level of reporting, but 
like Koerselman he does not think this is the real issue. Physicians are now more aware of 
the Guidelines, there is more pressure on them to report, and we can assume this pressure 
will continue. Jochemsen’s impression is that the committees are and will continue to be 
tolerant of the physicians. The committees also educate physicians on the proper 
performance of euthanasia, and in his view, this will help to make euthanasia even more a 
part of society. Similarly, Chris Rutenfrans does not see great importance in the regional 
committees as they receive only the politically correct cases, those performed according to 
the Guidelines. He thinks the level of under-reporting is quite high. 



’’ Sjef Gevers, Rob Houtepen, Ruud ter Meulen, Ron Berghmans, Henk Leenen and Egbert Schroten. 

Van der Maas and his colleagues stated that after performing euthanasia and assisted suicide, three quarters of 
the general practitioners and about two thirds of the specialists reported “natural death” in the declaration of 
death. The most important reasons for falsely declaring natural death were: the “fuss” of a legal investigation 
(55%), fear of prosecution (25%), the desire to safeguard relatives from judicial enquiry (52%) and bad 
experiences in the past with stating non-natural death (12%). P.J. van der Maas, J.J.M. van Delden, and L. 
Pijnenborg, Euthanasia and other Medical Decisions Concerning the End of Life, Health Policy Monographs 
(Amsterdam: Elsevier, 1992), pp. 46^8. See also Gerrit van der Wal, Paul J. van der Maas, Jacqueline M. 
Bosma et al, “Evaluation of the Notification Procedure for Physician-Assisted Death in the Netherlands,” New 
Eng. J. of Med., Vol. 335, No. 22 (November 28, 1996), esp. p. 1707; Martien Tom Muller, Death on Request 
(Amsterdam, Vrije Universiteit Thesis, 1996), p. 73. 

Van Leeuwen, Gevers, Schroten and Wijsbek. 




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Van der Arend would be surprised if the regional committees manage to substantially 
increase the level of reporting. He thinks the committees will generate more paper work, 
with meager substantive positive results and will not change the GP’s inclination not to 
report euthanasia cases. 

Many of the interviewees found it necessary to call other countries into their 
conversation, always with the purpose of apologetically arguing that the situation in the 
Netherlands is no worse than in those countries. The same line of apologetic tone can be 
found in Dutch publications authored by scientists who fundamentally agree with the policy 
of euthanasia. Consider, for instance, the following concluding statement of an article 
compiling a very brief sketch of reports about incidence of euthanasia, assisted suicide and 
“actions intended to hasten a patient’s death” in the Netherlands, Australia, the UK, the US, 
Denmark and Norway: 

...the conclusion is that EAS [euthanasia and assisted suicide] is occurring in medical care at the 
end of life in all countries studied... Most worldwide surveys on incidence of EAS show lower 
figures than those reported in the Netherlands, where there is a lenient policy for prudent practice. 

Yet, in the Netherlands the actual incidence of EAS is lower than the number of requests received; 
more requests are refused than granted.^* 

H.J.J. Leenen, who has been instrumental in his efforts to change the Penal Code so as to 
permit voluntary euthanasia, said that outside the Netherlands no one reports. Doctors 
perform euthanasia and the act is reported as a normal, natural death. If the Dutch want to 
conduct euthanasia in the open, it should be adequately controlled and the reporting needs to 
be full and complete. The Dutch Medical Association accepted the new law proposal, which 
Leenen helped to formulate, stating that a physician who performs euthanasia but does not 
report it will be prosecuted for murder. 

In a letter commenting on this study, Leenen wrote that in France in 1991 thirty-six 
percent of the doctors said that they had administered euthanasia once or twice a year. In the 
United Kingdom the percentage was twelve in 1994. In these countries the level of reporting 
was zero. The same is true for the United States where Leenen knows that euthanasia is 
administered. So, Leenen asks, “how can you blame a country in which many cases are 
reported and a policy exists to increase the reporting - although I agree that we have not yet 
reached our goal - while you say nothing about [other] countries?”^^ 

Den Hartogh mentioned religion as a significant factor that might hinder reporting. In the 
orthodox Protestant communities, doctors are more reluctant to perform euthanasia. Some 
would refuse, and others would refer patients to another doctor. Those who are willing to 
perform it would do so secretly and would fail to report. Den Hartogh said that when the 
regional committees were established, he had hoped that their existence might lead to an 
improvement in reporting. However, this has yet to happen. 

George Beusmans revealed that his experience with reporting (which involved calling a 
coroner) was not very good. He explained that the practice of euthanasia constitutes an 
intimate moment between himself and the patient’s family; and when an intruder (the 
coroner) arrives, that intimacy is destroyed. When the patients had families, he advised them 
that it was not necessary to call a coroner. However, Beusmans maintained that during the 



Martien T. Muller, Gerrit K. Kimsma and Gerrit van der Wal, “Euthanasia and Assisted Suicide: Facts, Figures 
and Fancies with Special Regard to Old Age,” Drugs & Aging, Vol. 13, No. 3 (September 1998), at 190. 

Letter dated February 2, 200 1 . 




BREACHES OF THE GUIDELINES 



117 



last few years he did eall a coroner. Ten years ago (i.e., 1989), euthanasia was more the 
exception, but currently it is practiced more often, and Beusmans now has more experience 
with euthanasia. He and his colleagues talk about it in their continuing education programs. 
Interestingly, Beusmans does not thirrk that the regional committees will make any 
difference. 

Gerrit Kimsma admitted that he did not report his first euthanasia case. He was convinced 
that he was doing the right thing and that the law lacked sensitivity. He claimed that his 
second case took place several years later, and that he did report it. From then on, Kimsma 
reported all his cases. He thinks that physicians serve a social role with a professional 
obligation to society, and thus they are required to report. He believes that it is 
unprofessional not to obey the Guidelines, and that doctors should not fear prosecution if 
they conform. In regard to the regional committees, Kimsma is unsure about whether they 
will increase the level of reporting. He testifies from his experience as a member of one 
regional committee that of 300 to 400 cases examined, there was only one case in which a 
physician was deemed not careful enough in the euthanasia procedure."^'’ 

Bert Keizer, who like Beusmans and Kimsma practices euthanasia, provided a very 
candid and thorough reflection on reporting and the need to improve it during my interview 
with him in April 2002. Keizer testified about his own experience, saying that in 1983 he 
decided to euthanize one of his patients. He tried to consult with one of his colleagues but all 
were afraid of prosecution, so he performed the euthanasia without consultation, and without 
reporting. The act was done in secret, with no assessment, "a conspiracy almost," said 
Keizer, between him and the patient. Keizer maintained that the first ten euthanasia cases 
were done in secret, and the death of the ten patients was reported by him as a natural death. 

I asked Keizer whether he regrets any of his euthanasia cases and he answered that he 
regrets one: the case of a 56 year old dying patient who had been treated by oncologists for 
two years, after which period they gave him up, saying that there was nothing more they 
could do for him. The patient was furious. He had undergone very painful and drastic 
treatments upon the assumption that there was hope, and after all those harsh treatments he 
realized that the doctors had been misleading him. The disillusioned patient went to Keizer 
and asked for death, and Keizer complied. Keizer did not consult anyone and, looking back, 
he regrets that he failed to consult a colleague, and that he assisted in this patient’s “revenge 
on life” as it were. Keizer emphasized that of the twenty two euthanasia cases that he was 
involved in, he regrets only this one. 

By the end of the 1980s, the atmosphere changed and Keizer felt more at ease consulting 
and reporting cases of euthanasia. Some court cases received public attention. The Dutch 
Royal Medical Association addressed the issue with a more favorable eye. The National 
Voluntary Euthanasia Society grew stronger. There was a more sympathetic attitude to 
performing euthanasia and PAS. Keizer could have found physicians to consult before 
performing euthanasia. In any event, said Keizer, he always observed all the rules of careful 
conduct, with the exception of consultation and reporting. He always asked the euthanasia 



In his comments Kimsma wrote that the percentage of reported cases is the Achilles heel of the practice. But 
one must realize also that in the non-reported cases physicians and families are involved and in their opinion 
often the law has no place at the sickbed. Kimsma disagrees strongly with this position but he acknowledges 
that some physicians do not report because “they still have bad memories of reported cases in the past and have 
lost trust in the prosecution.” Personal communication on September 9, 2000. 




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request in writing, and he always spoke with the patients' families. Since the late 1980s he 
consulted with colleagues he knew who were working in other Amsterdam nursing homes. 

In 2002, anonymous surveys indicate that 50 per cent of all cases are reported. Keizer is 
not impressed by the argument that doctors fail to report because of the paper work involved. 
The paper work takes only five minutes. He thinks that there are what he terms "cowboy 
doctors" who do not want to be controlled. They cherish their independence and are certain 
that they are doing the right thing. Keizer objects to this way of thinking, arguing that there 
should be some mechanism of control. He first contended that reporting could possibly be 
improved by trying to change the psychology of doctors, but on second thought he feared 
that this cannot be done. 

A. van Dantzig and Heleen Dupuis were sympathetic in regard the physicians’ lack of 
reporting. They both said that physicians performing euthanasia do not want to be bothered 
with filling out forms and waiting months to find out whether they will be prosecuted. Van 
Dantzig regards the institution of the regional committees as an improvement and a preferred 
mechanism over the criminalizing of euthanasia. Dupuis claims that lack of reporting is the 
consequence of legal ambiguity. Physicians who feel that their behavior was moral do not 
see why they need to comply with the bureaucracy. Van Dantzig and Dupuis think that 
euthanasia should remain in the realm of medical practice, not of criminal law."" 

VIEWS ON THE GUIDELINES 

The critical line of questioning suggests that the Guidelines are not working; that they cannot 
be regarded as providing a sufficient control mechanism to prevent abuse. The answers of 
most interviewees affirm that the euthanasia policy and practice in the Netherlands suffer 
from some basic flaws. I wanted to examine the mechanism of guardedness. Most of my 
interviewees answered my preliminary question as to whether they are satisfied with the 
Dutch practice of euthanasia in the positive. After reviewing the failure of the Guidelines, I 
asked: Are you happy with the Guidelines? 

This question came immediately after discussing the evident deficiencies in consultation 
and reporting. Still, many interviewees said that they are content with the Guidelines. This is 
quite a puzzle. Some of them"*^ stated succinctly in one single sentence that they are content 
with the Guidelines on euthanasia: The Guidelines are good, generally enforced, and there is 
no need to change or amend them. Others have reservations and proposed amendments to 
improve the policy. 

Rob Houtepen said that he is not only happy with the Guidelines, but he could not think 
of better ones. Heleen Dupuis asserted that the Guidelines provide workable criteria, but, of 
course, they cannot cover everything. In the final analysis, we have to rely on the 
competence and accountability of physicians who perform euthanasia. Dupuis and Schroten 
stated that they know the medical profession very well and, on the whole, trust the doctors 
involved. Most of them are very responsible, and it would be ludicrous to assume that there 
is some sort of a criminal gang in the medical sector whose aim is to kill their patients. 



See also van Dantzig's general statement in Phase II. Personal communication on July 6, 2000. 

H.J.J. Leenen, A. van Dantzig, Bert Thijs, Gerrit van der Wal, Henri Wijsbek, Ron Berghmans and George 
Beusmans. 




BREACHES OF THE GUIDELINES 



119 



Similarly, Johannes van Delden approves of the Guidelines, as they require an explicit 
request from the patient in situations without prospect for cure or recovery. If no reasonable 
palliative care is available to relieve suffering, then considering euthanasia is permissible. 

Paul van der Maas and Sjef Gevers were ambivalent about the issue, feeling that while 
the Guidelines are fine overall, some amendments should still be made. Gevers has two 
suggestions for improvement: specify how to treat demented patients, and clarify the role of 
advance directives. The Guidelines say nothing about advance directives, and he feels that 
they should address this issue."^^ In this regard, Ron Berghmans is worried about advance 
directives for demented patients."^ 

Ruud ter Meulen and James Kennedy assert that more discussion is needed in Dutch 
society about the meaning of the terms “helplessness,” “misery,” “suffering,” “unbearable,” 
etc. These terms, used in the Guidelines, should be less ambivalent and more specific. They 
feel that these terms are open to various interpretations. Ter Meulen objects to the general 
trend that the Netherlands is following and accuses the country of being much too liberal and 
unclear about the criteria that facilitate euthanasia. He claims that some basic questions about 
palliative care remain unanswered, particularly about what to do if the patient rejects 
palliative care and insists on euthanasia. Kennedy asserts that the ambiguity on the issue is 
evident, especially when one looks at pertinent court rulings. There have been numerous 
occasions on which the Guidelines were not honored, but the physicians involved were 
exonerated because their intentions were perceived to be genuine and noble, and the 
Guidelines were interpreted in a way that supported their conduct.^^ 



On the other hand, Ruud ter Meulen explicitly rejected the proposal (within the new law) to give advance 
directives or living will a legal status. Decisions for euthanasia should be based on medical criteria and enduring 
request of the patient. A living will, he argued, is not an enduring request. Demented patients cannot make an 
explicit request and should for this reason be kept out of the euthanasia practice, even if they have made up a 
living will. Ter Meulen maintained: “I do think that children are not able to make a real assessment of their 
medical situation, thus I am against the proposal to give children the right to ask for euthanasia. This has also 
been left out of the new proposal, after severe criticisms.” Personal communication on August 23, 2000. 

^ Nederlands Tijdschrift voor Geneeskunde, Vol. 143 (1999), at 17, reported the case of a 71-year-old man who 
for four years had had a psycho-organic disorder, diagnosed as deteriorating cerebral atrophy and multiple brain 
infarction. He asked his doctor to help him to die because he did not want to cope with further decline. The 
hospital’s chief psychiatrist, a committee of independent professionals, and an external consultant psychiatrist 
assessed the patient’s case. Four months after assessment the patient drank a high dose solution of barbiturate 
given to him by his doctor and died. The public prosecutor approved the procedure after consultation with the 
national forum of procurators general. The case raised fears that it might bring euthanasia for demented elderly 
patients a step closer. The Dutch Alzheimer Foundation warned: “Dementia itself could never be a reason for 
assisted suicide because the patient is incapable of making an informed request.” The doctor involved in the 
case defended her actions, saying that she opposes euthanasia and assisted suicide for patients who are unable to 
express their will, and she agrees that most patients with dementia cannot. Her patient, however, was lucid at all 
times and completely able to understand the consequences of his request. Medical Director of the Royal Dutch 
Medical Association, Rob Dillmann, said that if a patient was in the early stages of dementia but still clearly 
competent and with an untreatable progressive neurological disease then there was the possibility of appropriate 
PAS. Cf. Tony Sheldon, “Euthanasia Endorsed in Dutch Patient with Dementia,” BMJ, Vol. 319 (July 10, 
1999), at 75. For further discussion, see R. Cohen-Almagor, The Right to Die with Dignity (Piscataway, NJ.: 
Rutgers University Press, 2001), chap. 5. 

For discussions of the leading legal cases, from Postma to Chabot, and the legal changes, see Chapter 2 and 
John Griffiths, Alex Rood and Heleen Weyers, Euthanasia and Law in the Netherlands, op. cit., pp. 51-88. For 
outcomes of criminal prosecutions during 1981-1995, see Ibid., p. 245. See also Carlos F. Gomez, Regulating 
Death (New York: The Free Press, 1991), pp. 25-39. 




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Evert van Leeuwen believes that the Guidelines should specify the drugs used for 
euthanasia and should be more explicit in regard to consultation requirements. The 
requirement for an “independent consultant” is open to interpretation, and a stricter definition 
is in need to specify that the consultant needs to be a truly independent expert. 

John Griffiths reiterated that the system is ineffective and should be changed to rectify 
the inadequate reporting and difficulties of enforcement in cases of euthanasia. The 
Netherlands must function under a different system in which the medical profession controls 
itself 

Five interviewees are not happy with the existing situation, arguing that the Guidelines 
have not been followed."^^ Den Hartogh would like to institute effective control mechanisms 
to improve the level of reporting and provide adequate consultation. He also contends that 
many physicians do not understand the legal situation and that the euthanasia policy should 
be clarified to avoid misunderstanding and diffuse unnecessary fears. Van der Arend and 
Koerselman made two suggestions: 

(1) Insist on providing quality palliative care (see Chapter 10).*'' 

(2) Include in the Guidelines the requirement that the patient must be in the 
terminal stage of disease. Koerselman says that there should be a link established between 
euthanasia and life expectancy by limiting the practice to situations involving the final stage 
of an incurable disease. Such an inclusion would limit the number of euthanasia cases and 
would help prevent a slippery slope."^* 

In this context, I recall a conversation I had with a physician who practices euthanasia. I 
asked him whether he regretted any of the cases. Without hesitation or thinking, the doctor 
reacted by saying “No.” I asked him: Please do not answer so quickly. Reflect for a minute. 
The doctor reiterated his conclusive “No.” I pressed him for the third time, asking him to 
think about the patients that he had had throughout the years, ponder for a minute or two, and 
only then answer my question. After such a reflection, the doctor said “well, maybe one 
case,” and told me the following story about the very first time he performed euthanasia. The 
case involved a man who suffered from cancer and had lost the will to continue living. He 
wanted to have full control over his life and death, even to determine the moment of his 
death. The doctor explained to him that he was not in the final stage of the disease, that he 
anticipated the patient still had a few more months to live, and that the euthanasia act could 
wait. The patient would not take “no” for an answer. He persisted with his request until the 
doctor could not stand his nagging and complied despite feeling that the act was premature. 
The doctor explained to me that the patient was “quite a character” and absolutely 
determined to decide his destiny, where and when he wanted his life to end. Looking back on 
this case years later, the doctor acknowledged that he should not have succumbed to the 
pressure. During those years, doctors who performed euthanasia did not consult a colleague 
and all was left to the patient and the doctor. 



Govert den Hartogh, Chris Rutenfrans, Henk Jochemsen, Arie van der Arend and G.F. Koerselman. 

Van Delden stressed that because euthanasia is the last resort, there is a place in the Guidelines to specify the 
option of providing palliative care prior to euthanasia. Jaap Visser explained that the Guidelines were the 
outcome of consultation between the medical profession and jurisprudence, and they are basically good. Their 
problems are in implementation and lack of experience. Physicians should be more aware of the possibility of 
palliative care and should refer patients to alternative treatment prior to opting for euthanasia. 

Kimsma also believes euthanasia should be available as an option only at the final stage of life. 




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121 



The next chapter addresses the need for adequate palliative care and asks whether there is 
a “culture of death” in the Netherlands that makes euthanasia a simple, maybe too simple and 
premature, option. 




CHAPTER 10 



ON PALLIATIVE CARE AND THE DUTCH CULTURE 



PALLIATIVE CARE 

Herbert Hendin testified that his experience with a few physicians who had performed or 
been consultants in dozens of euthanasia cases indicated that they were uninvolved in 
palliative care.' Zbigniew Zylicz regarded the lack of hospice care and the fact that there 
were only 70 palliative care beds in the country as reflections of having the easier option of 
euthanasia. He argued that palliative care was virtually unknown in the Netherlands and that 
people mistakenly equated palliative care with the use of morphine or other drugs, not 
understanding that it involved much more than the use of painkillers.^ The next question, 
therefore, was posed as follows: It has been argued that the policy and practice of euthanasia 
is the result of undeveloped palliative care. What do you think? I also mentioned the fact that 
there are only a few hospices in the Netherlands. 

Many interviewees agreed with the statement. Almost all of those agreeing with it said 
that only during the late 1990s were people beginning to admit that there was a need to 
improve palliative care. Today there are pain specialists in nursing homes and hospitals. 
Despite the increased investment in palliative care on the part of the government, the 
interviewees argued that still more attention should be paid to it, especially in medical 
schools and hospitals. Visser, Schroten, van Delden, Koerselman and van der Arend insist 
that doctors first need to explore other options for helping the patient prior to choosing 
euthanasia. Some interviewees said that the situation in the Netherlands on this sphere is no 
different than the situation in other countries. 

In van der Arend’ s terms, there is a balance between cases of euthanasia and the quality 
of palliative care. If there is poor palliative care, then the number of euthanasia cases will 
increase, and vice versa. Van der Arend suggests including in the Guidelines a requirement 
to provide good palliative care before considering euthanasia. He maintains that the quality 
of palliative care in the Netherlands is not high enough and that physicians are lacking the 
information on how to give palliative care because it is not part of medical education. There 
is also a need to increase the number of hospices in the country. 



Herbert Hendin, “Euthanasia Consultants or Facilitators?” MJA, Vol. 170 (1999), pp. 351-352. URL: 
http://www.mja.com.au/public/issues/aprl9/hendin/hendin.html 

^ Zbigniew Zylicz, “Euthanasia,” Lancet, Vol. 338 (1991), p. 1150; idem, “Palliative Care: Dutch Hospice and 
Euthanasia,” in David C. Thomasma, Thomasine Kimbrough-Kushner, Gerrit K. Kimsma, and Chris Ciesielski- 
Carlucci (eds.), Asking to Die (Dordrecht: Kluwer Academic Publishers, 1998), p. 196. See also H. Matthews, 
“Better Palliative Care Could Cut Euthanasia,” BMJ, Vol. 317 (1998), p. 1613; Bert Broeckaert and Rien 
Janssens, "Palliative Care and Euthanasia: Belgian and Dutch Perspectives," Ethical Perspectives, Issue 9/2 
(June 2002): 156-176; T. S. Jost and D. Mendelson, "A Comparative Study of the Law of Palliative Care and 
End-of-Life Treatment," J. of Law, Medicine and Ethics, Vol. 31 (2003): 130-143. 

^ Arie van der Arend, Govert den Hartogh, Ruud ter Meulen, G.F. Koerselman, Henk Jochemsen, Evert van 
Leeuwen, Egbert Schroten, James Kennedy and Chris Rutenfrans. 



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The most vocal critic of euthanasia, G.F. Koerselman, contends that with adequate 
palliative care, euthanasia becomes unnecessary. Good palliative care enables people to 
continue living and coping with suffering without opting for euthanasia. Koerselman stated, 
“palliative care is absolutely under-developed. None of our medical faculties has a professor 
of palliative care.” 

Henk Jochemsen notes that only the Catholic University of Nijmegen has a professor for 
pain relief"' Jochemsen also sees this as an indication of the place of palliative care in the 
Netherlands. He argues that when the discussion on euthanasia evolved during the 1970s and 
1980s, the field of palliative care was developed in many parts of the world. In the 
Netherlands, there was no room for both concepts to develop simultaneously and as 
euthanasia became an accepted practice, palliative care was pushed aside. Jochemsen 
maintained that the Guidelines are not precise enough, explaining that the KNMG statement 
depicts the performance of euthanasia only as a last resort. If we follow this statement seriously, 
then it means that the GP performing euthanasia needs to consult a palliative care expert prior to 
the mercy killing. However, GPs are not equipped to decide on the various alternatives designed 
to alleviate suffering. Furthermore, if the patient is suffering mentally, then the GP has to consult 
a psychiatrist. Jochemsen thinks that the government and the KNMG have recently put more 
emphasis on palliative care. 

Ruud ter Meulen argues that the criticisms are correct: Euthanasia is practiced too 
quickly because palliative care is not a real option. The acceptance of euthanasia has led to 
the undermining of palliative care. Hospitals, though somewhat more advanced in this sphere 
than nursing homes, still have a long way to go. In comparison, Belgium, for instance, boasts 
a far better practice of palliative care. 

Evert van Leeuwen and Egbert Schroten explained that until the 1980s, it was argued that 
specialists in palliative care were not needed. Consequently, new developments in the field 
were not adopted, and the issue was left quite neglected. During the 1990s, the idea of using 
palliative care experts became increasingly accepted, but there remains much to do in this 
area. James Kennedy, an historian who studies the origins of the euthanasia policy, clarified 
that there are very few hospices in the Netherlands because home care is the prevalent 
phenomenon and the role of the GP in providing care is conceived to be sufficient. It should 
be noted that van der Maas contests this view. He wrote in his comments that the low 
number of hospices in the Netherlands is attributable not to the specific role of the GP, but to 
the fact that many nursing homes have specialized departments for end-of-life care.^ 

Likewise, Ron Berghmans argued that palliative care is well developed in nursing homes, 
where care for spiritual and psychological needs is provided in addition to care for physical 
needs. In contrast, palliative care is less developed in the practice of individual GPs. 
Berghmans did not believe that palliative care would eliminate euthanasia. At most, it might 
decrease the number of requests. He also doubted whether the policy and practice of 
euthanasia had actually frustrated the development of palliative care. Berghmans confirmed 
that recently the government had stimulated the development of palliative care by making 
available large amounts of money for universities to develop units and expertise in the field. 



“ In his comments, Arko Oderwald wrote that this is not true. The Free University of Amsterdam also has such a 
professor, and maybe there are more pain relief professors. Oderwald added that there are eertainly more 
specialized pain eenters in university clinics and other hospitals. Personal communication on August 28, 2000. 

’ Personal communication on September 18, 2000. 




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It is intended that these trained experts will provide consultation to GPs who deal with 
terminal patients. 

Johannes van Delden said that the fact that the Netherlands does not have many hospices 
should not be taken as an indication that “we don’t have palliative care.” Rather, “we 
organize things differently.”^ Van Delden asserted that doctors know how to deal with pain. 
GPs do receive adequate education and training in this sphere, and, in any event, palliative 
care involves more than just ameliorating pain. It also involves providing psychological 
support for the patient. While acknowledging that there is room for improvement in this area, 
van Delden argued that euthanasia has actually paved the way for calling more attention to 
palliative care. He emphasized that euthanasia does not exclude palliative care, but the 
reverse, and adamantly objected to the accusation that lack of palliative care has resulted in 
greater acceptance of euthanasia. Van Delden noted the problem that sometimes patients 
refuse to receive palliative care and expressed his uncertainty about whether doctors should 
comply with euthanasia requests under such circumstances. 

George Beusmans substantiated van Delden’ s arguments, testifying that he received 
medical education on palliative care and contending that this aspect does not present a major 
problem. He considered himself to be qualified in evaluating suffering and in providing 
proper medication and palliative care. However, pain is not the primary issue in question. 
People that request euthanasia suffer not only from physical pain, but also from anguish, 
dependence on others, and anxiety regarding the unknown. They ask for help because they 
have lost the sense of purpose in waiting and see no good reason for prolonging their 
situation. 

Bert Keizer is in agreement with Beusmans and disagrees with Koerselman's statement 
about the reverse connection between adequate palliative care and the number of euthanasia 
requests. Keizer testifies that in twenty years of practice he treated between 900-1000 dying 
patients. He has a lot of experience, also with providing palliative care. Interestingly, Keizer 
himself did not take any palliative care courses. He does not think he needs such courses. 
Keizer believes the practice of palliative care in Dutch nursing homes is fine, and that the 
quality of palliation in hospitals is improving. Keizer objects to the thought that improving 
palliative care may reduce the number of euthanasia requests. He explains that people who 
initiate euthanasia requests are desperate. They ask for death not because they are in pain, but 
because they lost hope. Keizer attributes the improvement in palliative care to the 
international critique. Now there are advanced courses on palliative care, the issue is on 
students' curricula, medical staff discusses the limits of medicine. 

Govert den Hartogh provided the most extensive answer, claiming that the flip side of the 
fact that GPs are involved in euthanasia is that they may not be fully aware of all palliative 
care options themselves and hence have to rely on expert advice and assistance. While 
acknowledging that palliative care cannot serve as a complete substitute for euthanasia, den 
Hartogh insists that euthanasia should be used only as the last resort. The doctor should first 
try to alleviate suffering by other means and resort to euthanasia only when all those other 
means have failed. At the same time, den Hartogh does not think that Dutch doctors are less 
knowledgeable about palliative care than doctors in other countries. Furthermore, den 



Ms. Els Borst-Eilers gave a similar explanation. Cf. Proceedings of Euthanasia and Assisted Suicide in the 
Netherlands and in Europe, Maastricht, June 10-11, 1994 (Luxembourg: Office for Official Publications of the 
European Communities, 1996), pp. 64—65. 




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Hartogh holds that while palliative care is available to patients in hospitals, many patients 
still choose to leave the hospital and return home to die by requesting euthanasia. This can be 
seen as an indication that euthanasia is in fact performed on many occasions after palliative 
care has been tried. 

In his comments on the first draft of this study, den Hartogh elaborated on his answer, 
arguing that it is wrong to think that palliative care can provide a viable alternative to 
euthanasia in all cases. There are many instances, in which no pain relief can be given, 
except by sedating the patient into unconsciousness. Furthermore, we need to take into 
account the many other forms of suffering besides pain, which can be part of the process of 
dying, and for which relief may be unavailable or insufficient. Den Hartogh rejects the 
suggestion that palliative care is neglected because the Netherlands has euthanasia as an 
alternative. It is essential in this respect to see palliative care as an integral part of medical 
care for the dying, whether it is given in an institutional setting or (as the Dutch generally 
prefer) at home. It is nowadays a normal practice for a GP who is responsible for the 
treatment of cancer patients to act in constant consultation with a hospital’s pain-relief team. 
Of course, there is more to palliative care than pain relief.^ 

It seems to me that the developed practice of euthanasia came at the expense of 
developing adequate palliative care. Only during the last few years, the Netherlands has 
started to invest in this sphere. This is a very positive development. Many times patients may 
contemplate ending their lives because they are unable to cope with their pain. Once good 
palliative care is developed we may expect that the number of euthanasia requests will be 
reduced; this is provided that general practitioners will offer this option first and not 
euthanasia, and that they are able to provide good palliative care to their patients, or at least 
refer them to palliative care experts. The entire euthanasia practice could be transformed for 
the better once nursing-home doctors, specialists, and especially general practitioners will be 
aware of the positive consequences of good palliative care at the end of life. 

CULTURE OF DEATH 

The next question was framed as follows: Daniel Callahan argues that there is a “culture of 
death” in the Netherlands.* What do you think? I intentionally refrained from explaining the 
term “culture of death.” I wanted to see whether the interviewees have different ideas on 
what would constitute such a culture. 

This question came late in the interviews. Sometimes I did not ask it for fear that the 
interviewee might be offended. Indeed, the question did upset some of the interviewees. 

The majority of interviewees rejected Callahan’s statement tout court. A small minority 
that objects to the euthanasia policy and practice agreed with the statement. Henk Leenen 
was surprised by my question. He said: “We do not have a ‘culture of death.’ We strive to 
prevent the slippery slope. In the 1960s, the same criticism was voiced in regard to the 
legalization of abortion. Presently, the Netherlands, with its liberal policy on abortion, has the 
lowest rate of abortion in the world, in proportion to its size. There was no slippery slope as a 



’ Personal communication on August 27, 2000. For further discussion, see R.J.P.A. Janssens and H.A.M.J. ten 
Have, "The Concept of Palliative Care in the Netherlands," Palliative Medicine, Vol. 15 (November 2001): 
481^86. 

* Discussions with Dan Callahan at the Hastings Center, New York (January-February 1994, March 1999). 




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result of the liberal abortion law.” Leenen is certain that the Netherlands does not have more 
euthanasia cases than other countries. The problem is that there is no way to prove this because 
little amount of data is available in regard to what is taking place in other parts of the world.^ 
Leenen concluded his answer by saying that Callahan is speculating without any hard data. On a 
personal level, it seems to Leenen that Callahan does not trust human intentions. After all, most 
people have respect for other people, and most physicians are not criminals. Physicians act in a 
bona fide manner to fulfill the wishes of their patients. 

Rob Houtepen argued that there is no general climate of death and that there are no 
shortcuts to performing euthanasia, as Callahan alleges. He acknowledges that there is a need 
to be on guard, but “there is no room for alarm.” At the present time, Houtepen admits, the 
Guidelines are insufficiently followed, but the 1990 and 1995 reports do not indicate a 
slippery slope. 

Interestingly, later in the interview, Houtepen suggested that hospital physicians thrive on 
action. In their quest to cure, they always seek something else to do, something to explore. 
This is their culture. Consequently, euthanasia is not a popular practice in hospitals, and there 
is no need to worry about physicians’ conduct. “Relatively speaking,” Houtepen elucidated, 
“the weak point are the GPs.” In hospitals and nursing homes, there are mechanisms of social 



^ An estimated 37,000 euthanasia deaths occur each year in Australia as a result of doctors intentionally 
accelerating a patient’s death, according to a confidential new survey of 3,000 Australian doctors. The survey 
defined euthanasia as any death “intentionally accelerated by a doctor.” It included deaths caused by a doctor 
withholding or withdrawing treatment. This is quite a broad definition, well beyond the contemporary Dutch 
narrow definition of euthanasia. The survey suggests that almost a third of deaths occur after doctors 
intentionally hasten their patients’ deaths. It found that the rate of doctor-assisted death in Australia was double 
that of the Netherlands, and that Australian doctors were far less likely to discuss their decision to hasten a 
patient’s death with the target patients or even seek their consent. Incidents of non-voluntary euthanasia were 
five times higher in Australia than in the Netherlands. Cf. Helga Kuhse, Peter Singer, Peter Baume, Malcolm 
Clark and Maurice Rickard, “End-of-life Decisions in Australian Medical Practice,” Medical J. of Australia, 
Vol. 166 (1997): 191-196. See also Gary Spink, “Euthanasia More Common in Australia than Netherlands,” 
Montage, Vol. 8, No. 1 (April 1997). I have mentioned another study that compared attitudes and practices 
concerning end-of-life decisions between physicians in Oregon and in the Netherlands, showing that American 
physicians found euthanasia acceptable less frequently than the Dutch and have been involved in these practices 
less frequently than the Dutch. Cf. Dick L. Willems, Elisabeth R. Daniels, Gerrit van der Wal et al, “Attitudes 
and Practices Concerning the End of Life: A Comparison Between Physicians from the United States and from 
the Netherlands,” Arch Intern Med., Vol. 160 (2000): 63-68. A third study showed that substantial proportion 
of physicians in the United States in the specialties surveyed reported that they received requests for PAS and 
euthanasia, and about 6 percent have complied with such requests at least once. Cf Diane E. Meier, Carol-Ann 
Emmons, Sylvan Wallenstein, Timothy Quill, R. Sean Morrison and Christine K. Cassel, “A National Survey of 
Physician-Assisted Suicide and Euthanasia in the United States,” New Eng. J. of Med., Vol. 338, No. 17 (April 
23, 1998): 1 193-1201. In Belgium, surveys conducted in 1985, 1987 and 1988 showed that 34%, 40% and 52% 
of physicians in the respective studies admitted practicing euthanasia. Proceedings of Euthanasia and Assisted 
Suicide in the Netherlands and in Europe, Maastricht, June 10-11, 1994 (Luxembourg: Office for Official 
Publications of the European Communities, 1996), pp. 23-24. A recent study showed that end-of-life decisions 
(ELDs) are prominent in medical practice in Flanders. The frequency of deaths preceded by an ELD is similar 
to that in the Netherlands. Cf Luc Deliens, Freddy Mortier, Johan Bilsen, Marc Cosyns, Robert Vander 
Stichele, Johan Vanoverloop and Koen Ingels, “End-of-life Decisions in Medical Practice in Flanders, Belgium: 
A Nationwide Survey”, Lancet, Vol. 356 (November 25, 2000): 1806-11. In Denmark, a 1996 study among 
physicians showed that 30% of respondents said that they had received a request for euthanasia and that 5% had 
participated in the practice. In Norway, a 1997 study among physicians showed that 6% of respondents 
indicated that they had performed actions intended to hasten a patient’s death. Cf Martien T. Muller, Gerrit K. 
Kimsma and Gerrit van der Wal, “Euthanasia and Assisted Suicide: Facts, Figures and Fancies with Special 
Regard to Old Age,” Drugs & Aging, Vol. 13, No. 3 (September 1998), p. 188. 




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control. The nursing staff works in teams, and there are usually people around, whereas GPs 
act more or less alone. It is worth noting that, as the data show, most of the euthanasia cases 
are performed by GPs.*° 

In his answer, Ron Berghmans countered the “culture of death” notion by pointing out 
that there are many cases in which euthanasia was requested but not performed.*’ In general, 
the spirit of medicine and health eare is to help people and not to kill them. Berghmans 
explained that the Dutch climate is different from other countries insofar as patients feel that 
they have the right to request a quick death, to determine the moment of death, and to receive 
full compliance by their doctors. Consequently, patients can put a lot of pressure on doctors 
to comply with euthanasia requests. There is no insistenee on continuing life by all means, 
and the emphasis is put on the meaning and quality of life. Furthermore, there are open 
discussions about what constitutes useful treatment. Euthanasia, PAS and painkillers are all 
considered legitimate mechanisms to prevent unnecessary suffering. 

A. van Dantzig and Egbert Schroten dismissed the question. Schroten said that the notion 
of a culture of death is an exaggeration, claiming that it is much more difficult to control 
passive euthanasia. Sometimes doctors switch off machines sooner than required, “but this 
happens all over the world.” Schroten added that he is not convineed that the way in which 
“we treat euthanasia makes passive euthanasia a greater problem. Our open discussions 
sharpened the awareness on the subject. We are more alert.” Thus, it is “ridiculous” to speak 
of “culture of death.” 

Heleen Dupuis was puzzled and surprised by the question and like Schroten dismissed it 
as “ridiculous.” Dupuis said succinctly and conclusively: “We don’t have a ‘culture of 
death.’” She reiterated that ‘“Angels of death’ never happened in Holland. They happen in 
countries that do not discuss euthanasia in the open, like Austria, but not here.” Dupuis 
maintained that people normally want to live. Elderly people that are suffering are the ones 
who usually make requests for euthanasia. She asserted that she is much more afraid of a 
society that denies the euthanasia option, and emphasized that doctors do not perform 
euthanasia on patients if they are presently unable to express their will, even if the request for 
euthanasia was previously made in a living will. Doctors might cease treatment, but they will 
not perform euthanasia under these circumstances. The patient needs to be competent in 
order to exercise euthanasia as an option. 



P.J. van der Maas, J.J.M. van Delden, and L. Pijnenborg, Euthanasia and other Medical Decisions Concerning 
the End of Life, Health Policy Monographs (Amsterdam: Elsevier, 1 992), p. 40; Paul J. van der Maas, Gerrit van 
der Wal, llinka Haverkate et al, “Euthanasia, Physician-Assisted Suicide, and Other Medical Practices 
Involving the End of Life in the Netherlands, 1990-1995,” New Eng. J. Med., Vol. 335, No. 22 (November 28, 
1996), pp. 1701-1702; B.D. Onwuteaka-Philipsen, A. van der Heide, D. Koper, 1. Keij-Deerenberg, J.A.C. 
Rietjens, M.L. Rurup, A.M. Vrakking, J.J. Georges, M.T. Muller, G. van der Wal, P.J. van der Maas, 
"Euthanasia and Other End-of-life Decisions in the Netherlands in 1990, 1995, and 2001," Lancet, Vol. 362 
(August 2, 2003): 395-399. 

' ' About 37% of all serious and persistent requests will lead to euthanasia and PAS. Nearly half of the requests are 

refused because alternatives are still available, the request was not thoroughly considered, the patient does not 
have a proper understanding of the disease, or the physician has objections. Cf Paul van der Maas and Linda L. 
Emanuel, “Factual Findings,” in L.L. Emanuel (ed.). Regulating How We Die (Cambridge, Mass.: Harvard 
University Press, 1998), p. 158. Note that van der Maas and Emanuel entitle those requests “serious,” 
apparently not cognizant of the inherent contradiction between the term “serious” and the reasons for not 
honoring those requests. 




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Bert Keizer laughed when he heard the question. Then he said that the term "culture of 
death" is awfully vague and that, on the contrary, the Netherlands has a culture of life. This 
term, "culture of life", Keizer explicates, is as vague as saying that "we have a culture of 
death." "What kind of crap is this?," Keizer asks, maintaining that 99.9 per cent of Dutch 
people have health insurance. This is not the case in the United States, where 40 percent of 
the people are not insured at all. Their situation is appalling. They have the worse hospitals, 
the worse treatments. This culture Keizer calls "a culture of death" or “a culture of gross 
neglect.” Implicitly Keizer was saying that Daniel Callahan should criticize his own culture 
before addressing the Dutch culture. 

By contrast, Koerselman, Jochemsen and Rutenfrans, complained about the atmosphere 
surrounding the policy and practice of euthanasia, and voiced their dissent against the 
institutional mechanisms that are used to de-legitimize them and undermine their position. 
Koerselman said that advocates of euthanasia dismissed him as a Catholic fundamentalist. In 
fact, he is not a Catholic at all. He was brought up without any religious background, but his 
critics find it difficult to believe that a secular person would object to euthanasia with so 
much passion.*^ He also testified that he often felt treated like a clown. The media invited 
him to debates on euthanasia issues only because they needed to depict “the other side,” not 
because they were really interested in exploring the anti-euthanasia arguments. Koerselman 
declared that he was fed up with this treatment and with the dismissive attitude that he 
received from scholars and colleagues. 

Koerselman is worried about the general atmosphere in the Netherlands. He agrees with 
Callahan that a “culture of death” has developed, with autonomy and the prevention of 
suffering as the prime concerns. He feels that the Netherlands is becoming a narcissistic 
society, a place only for happy and healthy people. And if one is not happy and healthy, one 
has a right to die and to have a nice funeral, with the doctor being obliged to help. 
Koerselman does not know where this approach will lead. The debate, he argues, started with 
the assumption that it is possible to shorten life when the patient is suffering and life 
expectancy is very short. Hence, euthanasia would only shorten life by a few hours or days. 
The next stage broadened the framework so that the time one is expected to live is not 
important; only the suffering is important. Then the discussion evolved to speaking not only 
of physical suffering, but also of mental suffering. Koerselman asks rhetorically: What 
constitutes suffering? Living with a serious handicap entails suffering. Does it mean that all 
handicapped patients should be put to death? Parents with children who suffer from Down’s 
syndrome are asked: Why did you allow this to happen? How can you see your child living 
like this? 

According to Koerselman, living wills for euthanasia that are signed by competent patients 
who become demented are now legally accepted.’^ The next stage might be killing these 
patients without satisfying the requirement of a written document. A guardian would be 
appointed for such patients, who would say that “this is a case of unbearable loss of dignity” 
and that “euthanasia is the answer.” The principle of avoiding suffering thus overrides the 
principle of autonomy. The climate assumes that these patients are suffering and would 
probably opt to die if they were able to express their will. 



Rutenfrans noted that in the Netherlands, people with a religious eommitment, how liberal this religious 
commitment may be, “are seen as completely out of their mind.” Personal communication on August 22, 2001. 
Cf. “Euthanasiewens demente geldig,” de Volkskrant (July 16, 1999), p. 1. See also p. 7. 




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One important factor in generating this culture, in Koerselman’s opinion, is the Dutch 
Voluntary Euthanasia Society, which has more than 100,000 members. He thinks that this 
strong movement is very successful in making euthanasia an integral part of the Dutch 
medical establishment. The Society places considerable emphasis on the concept of 
“dignity,” suggesting to people that they prepare a document stating that if their dignity were 
to be lost, they would prefer not to be treated. Then Koerselman added the following chilling 
statement: “If I’ll be involved in a car accident and will be brought to hospital, I am not sure 
that all will be done to save my life. The climate is in this direction.” 

In my 2002 interview Koerselman mentioned an organization named Binder (Horizon) 
whose aim is to help people commit suicide. Binder provides detailed instructions and 
assistance to needy people. The Euthanasia Society recently wished to join Binder in this 
regard, and to train lay people so they could assist patients who wish to die.’"* 

The concept that justifies physicians’ decisions in such cases is quality of life. James 
Kermedy explains that there is a “collective consensus” about what constitutes quality of life. 
When the quality of a given life deteriorates, it is unclear whether treatment will be 
adequately provided until death. Treatment might be stopped prematurely at an early stage, 
when the patient is conceived to be leading a “pointless life” or when he “suffers a great 
deal.” In such cases, passive euthanasia and double effect are the mechanisms used for 
ceasing treatment. Sometimes it is euthanasia. 

Marina Dackman, a nurse who worked in an oncology department at a hospital in 
Amstelveen, told me the story of a patient who suffered severe pains and arrived for 
extensive medical checkups. The examinations confirmed that the patient suffered from 
progressive and incurable bone cancer. The doctors revealed this information to the man 
who, for the first time, was diagnosed as a cancer patient. Obviously he was very upset. He 
was full of anxieties, in addition to pain, and was digesting this piece of information without 
much help from family or friends. The patient, in his mid forties, had a family but the 
relationships with them were not good. His wife and children were clearly estranged from 
him and did not offer much support. On the following morning after the discovery he 
initiated a talk with the doctors, telling them that he was afraid and confused, and that he 
would not like to suffer and to continue living in such a condition. The medical stuff was 
quick to react. The same evening the doctors ordered to administer him with considerable 
doses of medication cocktail consisted of morphine, insulin and potassium designed to kill 
him. Within a further 30 hours the patient was dead. Instead of providing counselling, 
comforting him, relieving his anxieties and fears the doctors opted for the easy solution of 
termination of life. The nurse thought that the patient had a few months to live, and that with 
adequate palliative care he could have continued living. She thought the doctors' conduct was 
both unethical and illegal and refused to be the one who administered the injections. This 
incident was a catalyst for her to leave the hospital after a few months. She lost her trust in 
and appreciation for the medical system. 



For information about Binder, contact De.Einder@freeler.nl; 
http://www.kuleuven.ac.be/thomas/actualiteit/indekijker/19/impulsen7.htm 

For discussion on the quality of life concept in bioethics, see R. Cohen- Almagor and Merav Shmueli, “Can Life 
Be Evaluated? The Jewish Flalachic Approach vs. the Quality of Life Approach in Medical Ethics: A Critical 
View”, Theoretical Medicine and Bioethics, Vol. 21, No. 2 (August 2000): 1 17-137. 



15 




ON PALLIATIVE CARE AND THE DUTCH CULTURE 



I3I 



Chris Rutenfrans expressed concern that the Netherlands allows doctors to be above the 
law in killing other people. This is very dangerous, especially when the necessary control 
mechanisms are lacking. He testified that he is not principally opposed to euthanasia, but 
rather to the simple generalization and legitimization of euthanasia, expanding the 
acknowledgement of its necessity in a few cases to many more unjustified cases. 

Rutenfrans said that 95 per cent of all newspapers and magazines in the Netherlands are 
in favor of euthanasia; only some very small religious papers are against it. Nationwide, 
seven newspapers and many regional papers support the euthanasia campaign. Together, SO- 
TO papers express a positive stance on the issue. Most newspapers reported the positive 
points covered in the 1990 and 1995 reports. The problem is that they hide the negative 
points, and the court cases are reported with a bias towards physicians who practice 
euthanasia. There is no sincere attempt to tackle the issue fairly, showing both sides of the 
debate. Rutenfrans maintained that it is bad for one’s reputation to be against euthanasia 
because it gives the appearance of being conservative, and it is not good to be conservative in 
the Netherlands. This is why Rutenfrans wants to disassociate himself from the subject and is 
inclined to write on other issues. In his view, the country is not very liberal, but rather is 
conformist in its liberalism. Its people do not want to hear ideas that clash with their liberal 
values. 

Rutenfrans recounted that in 1986 he had co-authored a booklet against euthanasia, 
entitled May the Doctor Kill, with Caterina I. Dessaur, a novelist known under the pen name 
Andreas Bumier. This was a highly polemic, very controversial book. Rutenfrans maintained 
that Dessaur had been quite a famous novelist before publishing this book. After publication, 
Dessaur’ s consecutive novels were criticized more harshly than before, depicting her as a 
conservative reactionary. In effect, she was cast out of the country’s literary circles.*^ 

Govert den Hartogh does not agree with Rutenfrans on many issues, including this one. 
In his comments, he wrote that Dessaur’s literary star had fallen in popularity simply because 
her later books were not as good as her early ones; her position on euthanasia had nothing to 
do with it. This is confirmed by the excessive popularity of the author Willem Jan Otten, 
who is as fervently opposed to euthanasia as Dessaur ever was.’’ Otten joined Koerselman 
and others in writing a pamphlet on the Chabot case, which was widely reported, discussed 
and also acclaimed in the Dutch press.’* 

Henk Jochemsen indicated that during the past 20 years, the general atmosphere has been 
in favor of euthanasia.’^ The mentality now is to stop treatment at an early stage when the 
patient is suffering. Quality of life has become the major principle at the expense of respect 
for life. Jochemsen claimed that physicians had told him about the difficulties they would 
face in finding a job in some institutions if they declared themselves to be opposed to 
euthanasia. The establishment view is pro-euthanasia, and one might be harmed if one takes 
a contrary view. 



For further deliberation, see Herbert Hendin, Seduced by Death, op. cit., pp. 105-107. 

Koerselman wrote in his comments that the status of Otten as a writer and a poet ""has steeply fallen down 
since he publicly confessed having become a Catholic." Personal communication on February 20, 2002. 

Personal communication on August 27, 2000. 

A poll in 1996 showed that 84% of the population is in favor of euthanasia if a fellow human being is in an 
unacceptable and futureless situation. Cf. http://www.ves.org.uk 




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I asked Evert van Leeuwen if he thinks it would be possible to elect an anti-euthanasia 
professor to the Chair in medical ethics in major universities. His candid answer was 
“probably not” because the Chair serves as a consultant in euthanasia cases referred to him or 
her by hospitals affiliated with the respective universities. If it is known that the professor 
objects to euthanasia, then there would be no point in consulting with him or her on this issue 
at a time when euthanasia does take place in hospitals. Hence, it is necessary to fill important 
posts with like-minded people who will maintain the positive climate towards euthanasia. 

In his comments on the first draft of this study, van Leeuwen noted that Henk ten Have, 
who opposes the practice of euthanasia, chairs the department of Ethics, Philosophy and 
History of Medicine in the Catholic University of Nijmegen.^” In this university, it would 
indeed be highly surprising to appoint a supporter of euthanasia for that position. 

In his counter arguments to the text, Govert den Hartogh made the same observation, 
doubting whether a euthanasia supporter would be welcome in Nijmegen. The Free 
University in Amsterdam is a religious institute, so it traditionally makes some requirements 
concerning people’s opinions in selecting personnel. But the medical director of the 
academic hospital of the University of Amsterdam is a member of an orthodox Protestant 
church, and never made a secret of his opposition to euthanasia under any conditions.^’ 



Personal communication on August 30, 2000. 

Govert den Hartogh's personal communication on August 27, 2000. 




CHAPTER 1 1 



ON LEGISLATION AND THE C/C450TCASE 



LEGISLATION 

At the time of the interviews in 1999, the Netherlands appeared to be on the verge of 
legislating euthanasia. Indeed, sixteen months later the Dutch Lower House of parliament 
voted in favor of enacting the euthanasia law. I wondered at the time what the interviewees 
thought about the legalization motion. Thus, my next question was: Would it be preferable to 
legislate euthanasia? Why yes or why not?* 

The interviewees exhibited split views on the issue. Some were in favor of legislation for 
instrumental and symbolic reasons. Others utilized different instrumental and symbolic 
reasons to argue against legislation. Three interviewees preferred to wait for some 
years before changing the law. Among the arguments for legislation were the following: 
explicit law would clarify what doctors should and should not do and would eliminate 
misunderstanding. It would exert effective public control on physicians’ conduct and, at the 
same time, provide physicians with legal support. Legislation might also improve the 
reporting rate. In addition, interviewees said that the ambiguous legal situation diminished 
respect for the law and that public opinion supported legislation. 

Those opposing legislation but who were still supportive of the euthanasia policy thought 
that the Guidelines were working just fine. They did not think that formal societal control 
through law was the answer because physicians disliked legal intervention, and they 
disagreed that the level of reporting would increase due to the legal change. Euthanasia 
should remain in the realm of medical practice. The minority opposed to euthanasia 
throughout the interviews was obviously against conferring legitimacy and legal status to this 
conduct thinking that legalization would move the Netherlands further in the wrong 
direction. 

H.J.J. Leenen was against the existing ambiguous situation. He had pushed for the 
legalization of euthanasia for many years, and it was he who had drafted the new law. 
Leenen argued that euthanasia could no longer be regarded as an exception in the sense of 
Article 40 of the Penal Code. More than 3000 euthanasia cases in a year did not constitute an 
“exception.” He saw the need for an explicit law to address and clarify what doctors should 
and should not do. Sjef Gevers also preferred legislation. He did not want euthanasia to be 
governed by medical practice. He believed that euthanasia decisions should be separated 
from other medical decisions at the end of life. Likewise, Bert Thijs and Gerrit van der Wal 
thought that it was preferable to legalize euthanasia so as to exert public control on doctors’ 
conduct. Van der Wal was hoping that the Netherlands would then have the lowest rate of 
euthanasia in the world. 



The law had passed after Phase I of the interviews. Still, it is interesting to note what leading authorities thought 
of the pending law. 



133 




134 



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Rob Houtepen was also in favor of explicit legislation because it would provide legal 
support for physicians to take what they believed was the proper action. By enacting explicit 
legislation, the Dutch would be expressing the view that self-chosen death is optional. 
Houtepen noted that legislation would also have a symbolic function insofar as euthanasia 
would cease to be a criminal act. 

Henri Wijsbek explained that there was and is Article 293, which forbids the taking of the 
life of anyone at that person's explicit request; but in jurisprudence a justification for 
euthanasia based on Article 40 (which is also part of the formal law) was accepted by the 
Supreme Court since the mid eighties. This situation created confusion. Since most people 
believed that euthanasia was formally forbidden but tolerated nonetheless, explicit 
recognition of its lawfulness in a formal statute is preferable for the sake of clarity.^ 

Govert den Hartogh was in favor of legislation because the existing situation was unclear 
for both physicians and patients. He claimed that even Dutch medical ethicists did not 
understand the situation properly, often drawing an analogy between the Netherlands’ 
treatment of soft drug use and its treatment of euthanasia, without realizing the significant 
difference between the two. Indeed, euthanasia was permissible if done according to the 
Guidelines and was not a criminal offence if carried out properly. Drug use, on the other 
hand, was a criminal offence, although a tolerable one. Den Hartogh thought that the new 
law should codify the existing situation, nothing more and nothing less. Doctors did not 
understand the legal situation, and an explicit law would clarify matters and eliminate further 
misunderstanding. At the same time, den Hartogh reiterated the need for continued social 
control. He speculated that legalization might contribute to improved reporting, but might 
also cause doctors to think that euthanasia is no longer a crime and is considered a “normal” 
medical practice, thus not worth reporting. 

Like den Hartogh, Ron Berghmans expressed his desire to change the existing situation 
and to have the law clarify the conditions under which euthanasia is acceptable. Berghmans 
was struggling with the issue, feeling confident that effective external control is necessary 
but unsure as to how willing doctors would be to cooperate with external bodies. 

In contrast, George Beusmans and Gerrit Kimsma were quite happy with the ambiguous 
Dutch policy on euthanasia. Kimsma contended that the ambivalence reflected the theoretical 
and practical paradoxes and provided mediation between proponents and opponents of 
euthanasia.^ Beusmans argued that doctors knew about the Guidelines and that they were 
working just fine. 



^ Later in his comments, Wijsbek wrote that he prefers that euthanasia should fall under the same ruling as other 
medical interventions, and hence under the medical exception. The attitude to the violation of the practice 
depends on which part of the Guidelines a doctor does not abide by, whether he should be charged with murder 
or not. If he has only neglected to consult a colleague, he should not be charged with murder; if he kills a patient 
who is not suffering unbearably and has not requested euthanasia, he should be charged with murder. 
Comments made on February 11, 2002. 

’ In his comments, Kimsma clarified that he was not “quite happy” with the ambiguous Dutch policy on 
euthanasia. Flowever, he considered it a policy that for the time being needed no change, because of its 
reflection of the theoretical and practical paradoxes. These paradoxes are: the need to self-report a crime, the 
lack of clarity on whether euthanasia is a medical or a legal act, or both; the stressing of autonomy as a 
condition, as expressed in the euthanasia request, while showing compassion in alleviating pain and hastening 
death in patients without adequate communication is a medical-ethical value that works in the mind of 
physicians but is not recognized as an important value. Personal communication on September 9, 2000. 




ON LEGISLATION AND THE CHABOT CASE 



135 



Johannes van der Delden and Arie van der Arend thought that euthanasia should remain 
in the Penal Code as a matter of strategy and that prosecution should continue to be a 
background consideration for any case of euthanasia. They believed that euthanasia should 
remain an exception in the medical setting. Van der Delden recognized that the existing 
situation might be unfair to physicians. If the system condones the practice under certain 
circumstances, then why not make it legal? On the other hand, keeping euthanasia in the 
Penal Code conveys a clear message to physicians that it is an exceptional practice. Because 
van der Delden did not conceive of legalization as a solution, and doctors do not like lawyers 
“looking over their shoulders,” he was ultimately in favor of leaving the situation as is. Both 
van der Delden and van der Arend were unsure about whether the new law would change 
anything in actual practice. 

Likewise, Frank Koerselman argued that euthanasia should remain in the Penal Code. He 
believed that the Guidelines were much too tolerant and hence would not like them to 
become part of the law. As a doctor, Koerselman said, he did not want to become obligated 
professionally or morally to commit euthanasia. 

Henk Jochemsen and Chris Rutenfrans felt it was absolutely necessary to prohibit 
euthanasia under the Penal Code. Jochemsen explained that, at the time, the burden was on 
the physician to prove that he had fulfdled the requirements. If euthanasia were to become 
permissible by law, then the burden would shift to the prosecutor to prove that the physician 
had breached the Guidelines. This would be very difficult to prove, given that the physician 
provides all the data. He believed that changing the existing legal circumstances would make 
euthanasia a more accepted practice and would move the Netherlands further in the wrong 
direction. 

Egbert Schroten’s opinion was quite grim. He maintained that there would always be 
doctors who fail to report. He believed that the public wants to have the option of euthanasia; 
hence, the practice would continue even if the Netherlands were to ban it - it would simply 
go underground. If the law were to change, then the fear of prosecution may be reduced and 
the level of reporting might increase. Still, Schroten was not in favor of changing the law. 
While maintaining that euthanasia should be forbidden in principle, he granted that 
exceptions should be allowed under certain conditions. He was not familiar with the new law 
proposal prepared by Leenen."' 

Van Dantzig held that euthanasia should remain in the realm of medical practice, not 
criminal law. Unlike Keizer, he believed physicians “find it a pain” to fill out forms and go 
through procedures. He believed that the regional committees represented an improvement 
over the Penal Code and viewed the new law as a technique to address an existing practical 
problem. While euthanasia could be authorized by the law, this was considered to be a 
secondary issue for van Dantzig, as well as for Dupuis, who felt it was more important to 
maintain a tolerant attitude toward euthanasia in order to address a pressing moral issue. In 
his comments on the first draft of this study, van Dantzig wished to clarify that the forms 
were not what constituted the main objection, but having to endure months of uncertainty 
before a doctor knew whether or not he would be prosecuted.^ 



“ Cf. H.J.J. Leenen, “Bill on Euthanasia and Assisting Suicide in the Netherlands,” European J. of Health Law, 
Vol. 5 (1998): 299-324. 

’ Personal communication on July 6, 2000. 




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Three of the interviewees'’ suggest that there was no need to rush the process and 
recommended waiting for a period of time before writing a new law (Kimsma said ten years; 
van Leeuwen two years), while evaluating the work conducted by the newly established 
regional committees. After collecting more information about the process, the Netherlands 
could then decide how to pursue the matter, keeping the data in mind. Van Leeuwen warned 
against politicizing the issue. He felt that politicians were exploiting it for their partisan 
interests, cynically presenting themselves as proponents of humanistic values, while in 
practice lacking the necessary knowledge to actually draft a new law. Kimsma explained that 
such a law would not only reflect the situation but would also influence the situation, which 
in the Netherlands had already gone far enough. In turn, Jaap Visser thought that euthanasia 
should remain in the Penal Code to remind physicians that they must follow the Guidelines 
for careful conduct or else they would be prosecuted.^ 

My own feeling was that the situation at the time of the interview was problematic and 
unhealthy. It had resulted from the natural Dutch inclination to reach a compromise. But you 
cannot have your cake and eat it too. Evidently, creating such grey legal areas was baffling 
and confusing to all parties. The appeal to force majeure had been developed in criminal law 
for exceptional situations, but euthanasia was conducted hundreds of times each year on a 
regular basis. Furthermore, the situation did injustice to both the physician and the patient. 
Although physicians should not be afraid to report cases of euthanasia if they followed all the 
Guidelines, the reality showed that given the confusing situation, many physicians were still 
unsure of themselves and opted for the safer way of not reporting. Therefore, my feeling was 
that the confusion should have been cleared and the Guidelines should have been anchored in 
law. The law should be very detailed, explicitly stating the conditions for the performance of 
voluntary euthanasia and physician-assisted suicide (see Conclusions of this study). 



CHABOT 



A question related to the former question on legislation was: What do you think of the 
Chabot case? 

The Chabot precedent, described in PART A, has generated debates and heated 
discussions in the Netherlands as well as in other parts of the world. It concerns an issue that 
was rarely discussed up to that point: physician-assisted suicide and euthanasia in psychiatric 
practice. Subsequent to the Supreme Court ruling, the Dutch Ministers of Health and Justice 
commissioned research to study the phenomenon. In March 1996, a one-page questionnaire 
was sent to a sample of 673 psychiatrists. Of the 552 respondents, 205 (37%) had at least 
once received an explicit and persistent request for physician-assisted suicide from a patient. 
Twelve (2%) had at least once assisted in suicide. An additional 345 respondents (64%) 
thought physician-assisted suicide for psychiatric patients could be acceptable; of those, 241 
said they could conceive of a situation in which they would be willing to assist in suicide. 



^ Jaap Visser, Gerrit Kimsma and Evert van Leeuwen. 

’ For a critical discussion of the law, see I.G. Finlay and B. van Dijk, "Euthanasia: The Dutch Experience and 
What It Entails in Practice," Lancet Oncology, Vol. 3 (March 2002): 135-136. 




ON LEGISLATION AND THE CHABOT CASE 



137 



Detailed information was obtained from 202 respondents about their most recent requests, 
with 43 of them (21%) reporting that they contemplated granting the patients’ requests for 
PAS. Of those, 40 consulted one or more colleagues each.* 

Nearly all respondents said that one or more psychiatrists should be consulted on such a 
matter. The main reasons for consultation were to assess whether the phenomena of 
transference and counter-transference (the patient’s unconscious feelings and attitudes 
toward the therapist and vice versa) might have influenced the decision-making process 
(50%), whether the request was well-considered (58%), and whether there were still 
remaining treatment options (58%). Of 537 respondents, 438 (82%) thought that the 
psychiatrist consultant should always examine the patient; 93 (17%) thought this was 
necessary in some but not all cases, and 6 (1%) thought it unnecessary.^ 

Let me proceed by providing an account of my communications with Dr. Chabot. As said 
before, he was the only person who explicitly declined my invitation for an interview. 
Chabot referred me to three writings on his court case,'” saying that Hendin’s account of his 
case was not authorized by him, and in fact gave a tendentious account of his discussion of 
the case with him." Chabot ended his personal communication by saying that neither before 
the Boomsma case in 1991 nor since the Supreme Court verdict in 1994 “have I ever assisted 
someone again in his/her suicide. Of course, many depressed patients have asked my help to 
commit suicide. But contrary to the impression some have given about my professional 
stance I know how to give adequate treatment for that request.”'^ 

After a careful reading of the suggested writings I wrote to Dr. Chabot again, asking him 
to consider seven queries pertinent to his case as summarized in Chapter 2. Below are 
presented word for word the questions and the answers.** 

Ql. Is it a common practice within psychiatrists ’ circles to rely on transcripts as a substitute 
to meeting with patients? 

Al. Yes, it definitely is. In fact it is very exceptional for a consultant psychiatrist to see a 
patient himself after reading transcripts of sessions. A reason for doing so might be that the 
transcripts don’t make sense or that he/she has good reason for not trusting the content of the 
transcripts. In previous verdicts by the Dutch Supreme Court, no obligation for a consulted 
doctor to see the patient himself had ever been formulated before my case. I can certainly 
understand the requirement now and I wish one of the consulted physicians had asked me to 



* Johanna H. Groenewoud, Paul J. van der Maas, Gerrit van der Wal et al, “Physician-assisted Death in 
Psychiatric Practice in the Netherlands,” New Eng. J. of Med.., Vol. 336, No. 25 (June 19, 1997): 1796-1800. 

’ Ibid. 

J. Griffiths, A. Bood and H. Weyers, Euthanasia and Law in the Netherlands (Amsterdam: Amsterdam 
University Press, 1998); B. Sneiderman and M. Verhoef, “Patient Autonomy and the Defence of Medical 
Necessity: Five Dutch Euthanasia Cases,” Alberta Law Review, Vol. XXXIV, No. 2 (1996); A.J. Klotzko, 
“Arlene Judith Klotzko and dr. Boudewijn Chabot Discuss Assisted Suicide in the Absence of Somatic Illness,” 
Cambridge Quarterly of Healthcare Ethics, Vol. 4 (1995): 239-249. 

" Chabot maintained: “It may be useful for you to know that four other interviewee’s by dr. Hendin in Holland 
(prof, van der Maas, prof. Schudel, dr. Cohen and dr. Dillmann) have objected in writing to the editor of that 
Journal [Issues in Law and Medicine] to express their criticism of the skewed presentation of their words by dr. 
Hendin.” Personal communication on June 5, 1999. 

Personal communication on June 5, 1999. 

Personal communication on August 8, 1999. 




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see my patient. But there was no way to know any obligation existed to do so at the time, in 
1991. 

Q2. Had you asked the lone dissenter, who thought that you should persist in treating Mrs. 
Hilly Bosscher, to meet with her? If yes, what was his reaction? Did they meet? If not, why 
didn ’tyou ask the dissenter to meet with her? 

A2. No. He was definite in his view and showed no interest in either testing or strengthening 
his view by seeing my patient. 

Q3. At the stage when you met with Dr. V., had you already decided to comply with Mrs. 
Bosscher ’s request? 

A3. Yes. 

Q4. Why didn 'tyou ask Dr. V. to examine Mrs. Bosscher? 

A4. Dr. V. was not consulted by me to give his agreement with my decision. The suggestion 
in Dr. Sneiderman’s paper that Dr. V. was consulted by me to test once more my views on 
Mrs. B. is not correct. Yes, I did discuss her wish to die with him but more as a good friend 
as well as experienced family doctor than in a formal professional way as I had done with the 
others. I decided to ask him to join me to be present as a professional observer who could 
possibly testify (if need be) later in court whether or not I behaved in a professional and 
responsible way. Don’t forget that I had never dealt before with physician assisted suicide. 
What if, against all odds, she failed to die? I felt more comfortable to have a doctor-witness 
present apart from the witness-friend of Mrs. B. 

Q5. Dr. V. attended Mrs. Bosscher 's home on the day of her death. Was it the first time that 
he met her? Why then? 

A5. Yes, it was the very first time. He knew me as a conscientious psychiatrist and he 
accepted my need for a doctor-witness. So he didn’t feel any need to check on my decision. 
He was definitely not present in the role of a consulted doctor. 

Q6. How many doctors, who met with Mrs. Bosscher, shared your view that her situation 
was hopeless? 

A6. Only her own family doctor met her between May 1991 and her death. He opposed 
assisted suicide on principle (being of a Christian denomination). She knew this and 
therefore she did not seriously enter discussions with him about her motivation to die. This 
family doctor was later questioned about his views on her by the Medical Disciplinary 
Board. He expressed himself critical of her death wish saying that “in his experience after 
heavy weather there always was bound to follow sunshine.” But the Board did not use his 
views in their judgment. I guess this was so because they felt his negative views on Mrs. B.’s 
death wish were more determined by his general worldview than by professional 
considerations. 

Q7. Was there the possibility for pressing the option of anti-depressant therapy more 
vigorously? 

A7. I don’t know how I could have pressed that option further given that she said (after 
stressing the importance of trying them several times): “Even if antidepressants will make 




ON LEGISLATION AND THE CHABOT CASE 



139 



life more bearable I still want to die because by mourning and by growing over my losses I 
will become a different person than I was when I was a mother and happy. I don’t want to 
become that different person. It would feel for me like becoming disloyal to my two sons.” I 
(and so did others later) think this is a well-considered refusal: loyalty to her sons was the 
prime value of her life. By being treated and forgetting about them she felt she would 
become disloyal to her ‘core-self’ I urged her to enter mourning therapy, preferably with 
antidepressants, arguing that after the war people came back from the German extermination 
camps with less than she had still now and that some of them had grown over their losses and 
meant a great deal to the next generation; so why couldn’t she become a ‘different person’ 
and help others overcome their losses? She thought it over and then refused saying: “that is 
them, I am a different person. My life is over. If you continue insisting on treatment it is 
better our ways part now and I will not bother you further with my request.” It was then that 
I stopped pressing for antidepressants. 

As expected, the interviewees exhibited contradictory views on the Chabot case. Some 
supported what Dr. Chabot did and consequently objected to the Supreme Court decision. 
Others had mixed views about the case.'^ The majority of interviewees thought that Dr. 
Chabot had acted unprofessionally and in haste and therefore considered the court decision to 
be proper and justified.*^ That six experts condoned what Chabot did and saw no room for 
alarm will no doubt evoke concern among euthanasia critics. 

The two psychiatrists, A. van Dantzig and Frank Koerselman, exhibited the two polar 
views. Their professional assessments of the case coincide with their general views on 
euthanasia. I will outline the different views on a scale from the whole-hearted support to the 
passionate opposition. The strongest supporter of Chabot among the interviewees was van 
Dantzig, who said that euthanasia prevents people from dying alone. This was the first time 
that he had been consulted about a euthanasia case. Van Dantzig was certain, as was his 
colleague Chabot, that Mrs. Bosscher would have committed suicide anyway. She was not 
going to accept any further treatment or therapy. Chabot had the choice of helping her to die 
with her relatives present or to let her commit suicide alone. Mrs. Bosscher refused to take 
antidepressants. Van Dantzig did not think she was depressed; it was a natural reaction to the 
death of her two sons. If van Dantzig had felt that pills could help, he would have ordered 
that Mrs. Bosscher be institutionalized and forced to take the pills. But this was not the case 
here. There was no cure for her. Suffering from depression is not different from suffering 
caused by cancer. Suffering is suffering. Van Dantzig maintained that in the current 
environment, it is needed that another expert sees the patient. At that time, however, this was 
not the case. 

In his comments on the first draft of this essay, van Dantzig added that he did not see the 
patient because he was asked by Chabot to examine the procedure and to assess if it was 
complete. That van Dantzig did find to be the case. Chabot had correctly diagnosed his 
patient as suffering unbearable pain from losing both her sons. His patient was firmly 
resolved to try to commit suicide again if euthanasia was denied (she had made a serious 



A. van Dantzig, Heleen Dupuis, Henri Wijsbek, Henk Leenen, Govert den Hartogh and Rob Houtepen. 

John Griffiths, J.K. Gevers, Ron Berghmans and Arie van der Arend. 

Gerrit van der Wal, Jaap Visser, Egbert Schroten, Evert van Leeuwen, Gerrit Kimsma, Johannes van Delden, 
Bert Keizer, Ruud ter Meulen, Chris Rutenfrans, Henk Jochemsen and Frank Koerselman. 



16 




140 



CHAPTER 1 1 



suicide attempt before, but failed, and now wanted to be sure of dying). For these reasons, 
van Dantzig could concur with Chabot’s conclusion and still does. If Chabot had come to 
him now with this request, van Dantzig would want to see the patient. In that respect, 
concluded van Dantzig, times have changed.'’ 

Heleen Dupuis agreed with Chabot that Mrs. Bosscher qualified for assisted suicide. She 
was not depressed in the psychiatric way that may be conducive to treatment. Dupuis 
reiterated that people should be allowed to choose the moment of dying, maintaining that if 
people wanted to die, “whaf s wrong with providing them the pills?” Doctors are the only 
people who have access to those drugs. It is far more humane than to force patients to jump 
from bridges or buildings. If people feel that death is a good solution, why not help them? 
Dupuis acknowledged that most people, however, do not share her view. They feel that it is 
not morally acceptable to provide the pills. Doctors are reluctant to help incompetent patients 
to die because they are unsure of the will of the patient in the present condition. They would 
be willing to withhold or withdraw treatment. Morally speaking, Dupuis thinks that end-of- 
life decisions are about tolerance. Dying is a private matter, and it should be kept as a private 
choice. Society should provide safeguard mechanisms, but should allow euthanasia and PAS 
as options. Dupuis seemed to have a very good experience with doctors, trusting them 
whole-heartedly without reservations. 

Henri Wijsbek published a prize-winning essay in which he defended Chabof s decision 
to assist in the suicide of Mrs. Bosscher on the grounds that she had a right to protect the 
narrative unity or authenticity of her life. He called it unusual that the Supreme Court 
convicted Chabot and did not refer the case to a lower court. As for the facts of the case, 
Chabot complied with all existing rules. Mrs. Bosscher did try other forms of therapy when 
her first son committed suicide, but it did not help her. It is impossible to impose treatment 
against the patient’s will. Her suffering was unbearable, and she could not go on living. 
Furthermore, Chabot asked one of his colleagues to see her, but he said that there was no 
point, having learned everything he wanted to know from Chabof s transcripts. 

H.J.J Leenen considered it unclear as to whether the patient’s psychological suffering was a 
reason for euthanasia. Mrs. Bosscher was not a psychiatric patient, according to the accepted 
creteria. On the one hand, Leenen thinks that psychiatric patients should be seen by a consultant. 
On the other hand, Leenen felt a lot of sympathy with Chabot insofar as the patient was suffering 
and could not be cured. Only one of the seven consultants indicated that there was potential 
therapy for her. As a result of this case, the Supreme Court introduced the new requirement that 
a psychiatrist needs to consult another expert, who must see the patient before euthanasia or 
assisted suicide is performed. However, this requirement did not exist at that time. Like Wijsbek 
he wondered: “how could you blame someone for failing to do something that was not required 
at that time?” For this reason, Leenen thinks that the decision of the disciplinary court to 
reprimand Chabot was unfair. The court was too hard on him, and Leenen feels that it was not a 
fair trial. The court ignored that the majority of consultants sided with Chabot. 

Govert den Hartogh seemed to be influenced by Wijsbek’s reasoning. He argued that 
Chabot acted in a very careful way. He did not act upon an impulse, but rather thought about 
what he was doing. Maybe he should have invested more time, but the disciplinary court 
wrongly condemned him. Mrs. Bosscher was competent to make her choice. There was no 

Personal communication on July 6, 2000. For further discussion condoning Chabot, see Peter Singer, "Voluntary 

Euthanasia: A Utilitarian Perspective," Bioethics, Vol. 17, Nos. 5-6 (2003):533-535. 




ON LEGISLATION AND THE CHABOT CASE 



141 



real available form of treatment. Chabot tried to find an alternative solution to help her and 
concluded that no treatment was available. At the same time, den Hartogh admitted that he 
was unsure about whether a doctor should have cooperated with Mrs. Bosscher to kill her, 
and that Chabot should have insisted on a consultant seeing her. This aspect is important in 
order to maintain control. 

The response of Rob Houtepen was fascinating in its contradictions. He seemed to 
condone what Chabot did although recognizing that his conduct was faulty. Houtepen said 
that there were two problems in the case: not securing adequate consultation and not 
exploring alternatives for treatment. At the same time, Houtepen said that there was “no 
reason” to worry about the case. It might be defensible to assist in the suicide of patients in 
depression, who have a history of depression. Chabot’s conduct was not defensible, but if the 
procedures are properly followed, then euthanasia should be considered an option for 
depressed patients. Houtepen apparently assumes that after the Chabot precedent, all of the 
intricate questions concerning depressed people will be resolved and psychiatrists will be 
bound to follow the procedures. 

Four interviewees had mixed feelings about the case. John Griffiths seemed the least 
concerned among the four about the case, probably because he could not agree with the 
Supreme Court verdict on a matter of law. Griffiths said that he disagreed with some aspects 
of what Chabot did, in particular in relation to consultation. He thinks that, in retrospect, 
Chabot himself would agree with this. However, like Wijsbek and Leenen, Griffiths thinks it 
highly objectionable to apply what in effect was a new rule - consultation in person - 
retroactively.** 

Gevers acknowledged that suffering might be terrible for non-somatic patients. At the 
same time, he agreed with the Supreme Court decision that there should be consultation in 
person and that the therapy should not include discussions on euthanasia. Non-somatic 
patients do not have the freedom to reject medical alternatives. It was not enough that Mrs. 
Bosscher rejected therapy to make Chabot opt for euthanasia. In turn, Berghmans and van der 
Arend held that there are some psychiatric cases in which euthanasia or PAS can be accepted. 
Both practices should be considered as options only after exhausting all other alternatives. In 
this case, it is unclear whether Mrs. Bosscher could have found meaning in her life. Van der 
Arend said, like his colleague Houtepen, that the Chabot case is an extreme case that almost 
surely will never happen again. He agreed with the Supreme Court on the legal point (which 
Wijsbek, Leenen and Griffiths think was flawed), but ethically he was in agreement with 
Chabot. It is almost inescapable to help such a patient with euthanasia. Independent 
consultants, however, should see the patient and should evaluate the communication between 
the patient and the doctor. 



18 



See Griffiths’ analysis in “Assisted Suicide in the Netherlands: The Chabot Case,” Modern L. Rev., Vol. 58 (March 
1995): 239-248. 




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In his comments on the first draft of this study, Berghmans wrote that a central concern in 
Chabot and other similar cases is the availability of possible alternatives to PAS. In Mrs. 
Bosscher’s case, the issue was whether or not she might have found meaning in continuing 
her life after having tried antidepressant medication. While Berghmans certainly would not 
deem coercive treatment acceptable, he thinks that a refusal of treatment may block PAS. 
However, he would not automatically jump to the conclusion that Chabot ought to have 
denied PAS. Much depends on the particular circumstances, the aspects of a specific 
treatment option (e.g., the prospects, what kind of “benefits” and what kinds of risks and 
burdens, the time frame, and earlier experiences of the patient).'^ 

The third group of interviewees objected to Chabot’ s conduct mainly, but not only, 
because of lack of consultation in person. They also mentioned Chabof s unprofessional 
conduct, his failure to exhaust all alternatives for treatment, and his inability to resist Mrs. 
Bosscher’s request. 

Chris Rutenfrans and Henk Jochemsen clearly objected to Chabof s conduct. Rutenfrans is 
worried that the Supreme Court opened the door in Chabot for psychiatrists to euthanize their 
patients. Although Chabot was found guilty, the court acknowledged that upon satisfying 
certain requirements, it is possible to provide euthanasia to psychiatric patients. Rutenfrans 
also disliked the conduct of the media in their coverage of the case. The newspapers gave a 
very supportive view of Chabot, at first even depicting him as a hero. Later, when the 
Supreme Court found him guilty, Chabot ceased to be a hero, but the media still cast a 
positive eye on the crossing of another border - allowing the performance of euthanasia in 
psychiatric cases. 

Henk Jochemsen contended that even if you accept the need for euthanasia on some 
occasions (which Jochemsen does not), Chabot did not try enough, did not explore all 
possible alternatives for treatment, and behaved unprofessionally by becoming too close to his 
patient. Jochemsen further noted that very few psychiatrists would present themselves to the 
Dutch Voluntary Euthanasia Society as people who would be willing to consider euthanasia, 
as Chabot did. This was quite unusual.^® After the case was published, Chabot became a hero 
in the pro-euthanasia circles. 

Gerrit van der Wal, Jaap Visser, Egbert Schroten, and Evert van Leeuwen did not side 
with Chabot for the same reasons that Houtepen mentioned. Unlike Houtepen, they seemed 
more worried about the case. They thought that a consultant should see the patient, and that in 
this case there were other treatment options for the patient, which Chabot should have insisted 
on exploring. Schroten said that he respected the autonomy of the patient, but how can we 
speak of autonomy in times of depression? Schroten said that Chabot should have refused the 
euthanasia request, and that if Mrs. Bosscher did not accept his decision, she was always free 
to go to another psychiatrist. Van Leeuwen said that there are psychiatric reasons for 
euthanasia, but not in this case. 

Three of the physicians, Gerrit Kimsma, Johannes van Delden and Bert Keizer also 
objected to Chabof s conduct. Kimsma explained that all of his euthanasia patients were 
terminal. He would not do what Chabot had done. Moreover, like van Leeuwen, Kimsma 
thought that Mrs. Bosscher was not a patient in the psychiatric sense. She was shopping 



Personal communication on August 22, 2000. 

Cf. Herbert Hendin, Seduced by Death, op. cit, p. 61. 




ON LEGISLATION AND THE CHABOT CASE 



143 



around for someone to help her. She was a client, not a patient. Furthermore, there was the 
development of a friendship beyond the doctor-patient relationship and problems of 
transference and counter-transference. Koerselman, infra, elaborated on this issue. Similarly, 
van Delden and Keizer concurred that they would not have acted in the way Chabot did. Van 
Delden criticized Chabot for relying too heavily on the autonomy factor, indicating that there 
must also be present unbearable suffering. It is not the role of the doctor to assist in the 
suicide of his patients when life gets tough. In turn, Keizer doubted whether he himself would 
have complied with the patient's request. He would not wish this to be his responsibility. 
Keizer would not have provided the patient with the lethal medication because he would be 
reluctant to take responsibility for her life, and death. The patient made Chabot feel that her 
problem is his problem. But it is not for the doctor to decide whether she should continue with 
her life. The patient was physically able and he does not see her mental state as a sufficient 
reason to cease living. Generally speaking, Keizer thinks psychiatric patients constitute a 
different category and should not be viewed as somatic patients. He can understand 
euthanasia requests initiated by somatic patients and would see such requests by psychiatric 
patients as justified only when they are also terminal patients. 

Ruud ter Meulen noted that the Chabot case sheds further light on the difficulties 
involved in the understanding of the concept of suffering. While it was possible to reach an 
agreement on euthanasia for cancer patients, it is far more problematic to agree on euthanasia 
in relieving psychological suffering. Ter Meulen thought that Chabot was rightly 
condemned. Like Kimsma, he felt that Chabot was too involved in his relations with Mrs. 
Bosscher and failed to maintain sufficient distance.^* 

The most vehement opposition to Chabot’ s conduct was expressed, unsurprisingly, by 
G.F. Koerselman. Evidently, he was deeply disturbed by the conduct of his colleague, and 
rightly so. He was worried when he first heard about the case and became even more so after 
reading Chabot’s book^^ about his patient. It appeared that Chabot was unable to diagnose 
Mrs. Bosscher. She suffered from depression, something that is quite normal in her 
condition. Koerselman’s view was that Mrs. Bosscher also had a personality disorder. She 
focused totally on her sons. There were pathological relations between her and the older son, 
as evidenced by her involvement in the son’s relationship with his girlfriend. 

Like Kimsma, Koerselman expressed a compelling argument about the counter- 
transference problem that existed in this case. Chabot had personal feelings for Mrs. 
Bosscher. Yet, he did not realize his growing emotional involvement in the treatment. Many 
doctors try to relieve guilt feelings that stem from their personal past in their treatment of 
patients. The problem in this case was that Mrs. Bosscher made everyone feel guilty and was 
very aggressive. Many people, including Chabot, felt guilty for their inability to help her. 
Furthermore, the entire process took only two months. This is an extremely short time for 
therapy. 



One of the interviewees who wished to be withdrawn from the book was “extremely shocked” by Chabot’s 
eonduet. Evidently, Mrs. Bosscher was unhappy. It was a pity that the Supreme Court ruled that she suffered 
from a psyehiatric disorder. Chabot himself said that she was not a psychiatric patient. Doctors should not 
provide euthanasia to unhappy people. They should restriet their eonduet to helping medical or psychiatric 
patients, not to solving unhappiness. For this interviewee, this was a step taken too far. If euthanasia should be 
allowed for psychiatric patients, then the procedure should be extra careful and not be conducted in Chabot’s 
way. 

Boudewijn Chabot, Zelf Beschikt (Chosen Faith) (Amsterdam: Balans, 1 993). 




144 



CHAPTER 1 1 



Koerselman regarded Chabot’s conduct in the case as extremely unprofessional. He 
explained that psychiatrists should not talk for hours with a patient in one session so as not to 
become over-involved. Chabot asked Mrs. Bosscher to take a room in a hotel near his work 
place because he wanted to spend more time with her. Subsequently, Chabot even allowed her 
to sleep in his house. In his book, he appeared even to be proud of it.^'* He lost all 
professional guidelines. Like Jochemsen and Rutenfrans, Koerselman was upset by the fact 
that Chabot became a hero for helping a woman in distress. Her autonomous right to end her 
life was denied by her GP and others, and he was applauded for freeing her from her 
miserable life. 

Koerselman did see one positive aspect in Chabot’s behavior: that he talked about the case 
in the open. Koerselman testified that he was unaware of what was accepted conduct in 
psychiatrist circles prior to that time. He said: “I don’t know what was the common practice. 
I, myself, would always want to see the patient. I was amazed that leading psychiatrists were 
willing to comment on the patient without seeing her in person. 

I asked Koerselman whether the Amsterdam medical tribunal’s penalty of berisping, or 
reprimand, was serious. His answer was that receiving a reprimand is a rather serious 
punishment. It is more serious than a warning. Next on the scale is a payment penalty, and the 
most serious penalty is revoking of the doctor’s license. The latter has been done only rarely, 
when, for instance, a doctor sleeps with his patient. In the Netherlands, Koerselman said 
cynically, “you can kill your patient but you should not sleep with her.”^^ 



Chabot categorically denies this allegation, saying this is “obvious slander,” completely untrue and as such well 
known to others, most relevant to the police and the judges that investigated his case. Personal communication 
on July 17, 2000. 

Chabot regards this statement as another example of slander: “Anybody who can read Dutch can confirm that 
there is no such sentence [expressing pride] in any of my writings.” Personal communication on July 1 7, 2000. 
For further deliberation, see Herbert Hendin, Seduced by Death, op. cit., pp. 101-102. 

Chabot didn’t like this statement. In his remarks he wrote that this quote of Koerselman “discredits to any 
serious reader not so much the Chabot case (that was investigated by so many courts) but rather your 
presentation of the discussion in the Netherlands.” Personal communication on July 17, 2000. 




PHASE II: INTERVIEWEES' GENERAL COMMENTS 



A. PRELIMINARIES 

As previously mentioned, I sent the first draft of this study to the interviewees in July 2000, 
kindly requesting them to submit their comments by September. Most of the interviewees 
complied with my request. The following discussion outlines their general comments on the 
study and my reactions to the interviewees’ critique. Their specific comments were 
delineated in the previous analysis. 

B. GENERAL COMMENTS 

Rob Houtepen was quick to respond. Houtepen states that there is a broad paradigm 
difference between my thinking and his. Simply put, so Houtepen claims, he is conferred 
with the Dutch trait of pragmatism. He explains: 

This does not preclude moral debate, but it does imply a negative heuristic concerning the absolute 
nature of such debate and a positive heuristic concerning the subject [euthanasia], scope and 
procedure of such debate. In my view most Anglo Saxon ethics, and indeed Anglo-Saxon 
(specifically American) culture as a whole, is characterized by a dichotomous right-or-wrong 
approach to moral issues. I would like to see moral deliberation performed in a practical rather 
than foundational mode. To me, the word practical also refers to the Aristotelian tradition of virtue 
ethics: the moral art is to strike the right balance between competing claims, whilst acknowledging 
that such a balance may differ from person to person and from situation to situation. Against this 
background, it may no longer be as illogical as you make it appear, to acknowledge that there are 
many unresolved issues and to contend at the same time that there is no need for great worry.* 

Shortly afterwards Professor van Dantzig sent me a detailed response. His specific 
comments were incorporated into the text. He ended his communication with the following 
sketch of his views on euthanasia: 

I think that the primary task of a physician is to alleviate or end suffering. If this is not possible but 
by death, this option should be reluctantly taken - as amputating a leg is. When a person does not 
suffer, death should not be considered... A request for euthanasia I consider to be a proposition of 
the patient for a certain treatment for a problem. A doctor would never blindly follow such a 
proposal in other cases, for example an operation, and should not do so in cases of euthanasia. He 
should actively seek other, less extreme solutions, and my experience is that that is often a 
possibility. I do not think that euthanasia should be given by one doctor without consultation, and I 
am in favor of regulating this consultation so that all necessary expertise has been consulted. But, 
and it is a great but, this should be taken out of criminal law. This obligatory consultation should 
not be installed to prevent abuse, but to enhance quality. This would be a good thing for other 
important medical decisions also, and in this way euthanasia would have the benefit of lagging 
behind as an acknowledged medical procedure. In short, make euthanasia part of the medical 
practice of the highest quality. 



Personal communication on July 3, 2000. 



145 




146 



PHASE II: INTERVIEWEES' GENERAL COMMENTS 



Van Dantzig thought that I have too gloomy a picture of the situation in the Netherlands. 
He testified that he had never seen cases of euthanasia without consent. In his opinion, 
regulations will not prevent erime: “We trust doctors not to remove our breasts or legs 
without very good reason, and the same should go for euthanasia.” In order to ensure that 
their reasons are good, maintained van Dantzig, we install professional eontrol, thereby 
setting an example for the rest of medicine. 

Van Dantzig felt that these views are not eorrectly represented in this study. He explained 
that he had gone into this matter so thoroughly because “I deeply appreciate your effort, am 
convinced of your good faith, and want to help you to make the result as good as possible.” 
He suggested that I should not look at euthanasia as if the main problem is preventing abuse. 
Instead, the main problem is assuring good quality of practice - “as we would want for the 
whole of medicine.”^ 

Govert den Hartogh provided the most extensive comments, some of which were 
reported supra. Den Hartogh wrote that at several points, I suggested the existence of a 
slippery slope. Indeed, it seems to me that the Dutch have shifted the emphasis from 
autonomy to mercy, from requiring a competent request to mercy killings without such a 
request. In den Hartogh’ s view, this is turning things upside down. Euthanasia on newborns 
happens about fifteen times a year; on psychiatric patients five times a year, with half of 
those cases involving severe somatic illnesses as well; on PVS patients never or almost never 
(beeause the easy alternative is to limit care and let them die); on Alzheimer patients also 
never. There is no evidence of any substantial increase in any of these forms of life-ending 
decisions. The worrisome Remmelink data about the 1000 patients, as discussed, constitute a 
completely different matter, though the evidence does not point to any increase here either. 

Den Hartogh added that recent evidence seems to prove that giving higher doses of 
morphine, even much higher ones, to patients who already are using some morphine, does 
not shorten their lives; it may actually rather have the opposite effect. This means on the one 
hand that in most cases in which doctors report giving morphine with the intention of 
shortening the patient's life, their action does not have the intended effect. It also means that 
of the "1000 of Remmelink" in up to 70% of the cases the death of the patient was not really 
the result of the doctor's intervention. 

If there is anything worrisome about the Dutch practice, argued den Hartogh, it is rather 
that many patients believe in their right to euthanasia on request and that many doctors do 
not firmly insist on being personally convinced of unbearable suffering for which there is no 
alternative. So what we need in order to prevent “slippery slopes” is to combat the idea that 
an autonomous request is enough; hence, a strong insistence on the principle of mercy. To 
illustrate this further: Euthanasia in PVS and dementia cases cannot be justified by mercy at 
all, but may be justified by respect for autonomy, if we take advance directives to represent 
the will of the patient. This is the main point of discussion concerning the new law.^ 

For my part, I am not altogether convinced that the Dutch have a fully informed 
perspective on "mercy killing" performed on newborns and babies. Den Hartogh says that 
there are 15 euthanasia cases of newborns each year. He has no qualms using the term 
"euthanasia" in this context, although surely the newborns did not give their consent. Den 
Hartogh also does not discuss babies. Because many births take place at home, and this issue 



^ Personal communication on July 6, 2000. 

’ Personal communication on August 27, 2000. 




PHASE II: INTERVIEWEES' GENERAL COMMENTS 



147 



may be considered as a private matter between medical professionals and families, it might 
be the case that the scope of killing is much larger. Not enough research has been conducted 
on premature death of babies, especially those who were afflicted by diseases like Down 
Syndrome. 

Considering the overall atmosphere in the Netherlands of condoning “euthanasia,” even 
when not all the conditions for the practice are fulfilled, and with the emphasis on relieving 
suffering (of the patient and sometimes, implicitly, of his/her surroundings), there is room to 
think that patients might not receive all the care that they deserve, and on occasion their lives 
might be shortened by an active measure. The fact that all of the Guidelines have been 
breached and yet very few amendments have been made in recent years, and that the 
majority of the Dutch leaders in the field accept the practice and defend it despite all the 
pitfalls is worrying. 

As for the issue of advance directives: if patients make advance directives in the form of 
a living will, DNR order, a letter, etc., that they wish to continue living, no matter what, and 
we have no reason to believe that they have had a change of mind, then we should respect 
that wish.'* 

There may be cases when a patient has prepared an advance directive explicitly stating 
that all treatment be terminated upon reaching the last stage of an incurable disease, but the 
patient’s present wishes cannot be fully ascertained. This may be the case, for instance, if the 
patient is in Post-Coma Unawareness, a condition that is termed PVS, and the attending 
physicians have diagnosed the condition as irreversible. In such an event, we should respect 
the advance directives and let the patient die. For such persons who have prepared advance 
directives, asking to die upon reaching a certain condition, death is not seen as the worst 
possible situation when compared to being on the verge of death and then being stabilized 
without hope of ever really getting better. 

Den Hartogh maintained that basically, with the recent exception of Belgium, in no other 
country in the world but the Netherlands has there been any attempt to assemble the actual 
facts about medical decisions at the end of life. Referring to my scrutiny of the unwelcoming 
Dutch attitude toward critique, “Until Israel has a Van der Maas-report, I feel you hardly 
have any standing to make this kind of reproach.”^ 

I admit that this argument puzzles me for several reasons. The Dutch tend to justify the 
practice in their country by comparing it to other countries. Many euthanasia activists say 
that the Netherlands is doing well in comparison to other countries. However, this logic 
avoids the main issue. The argument that the situation in other parts of the world is worse 
doesn’t justify wrongdoing in their own country. Patients who are put to death without their 
consent (or, more accurately, the consent of their loved ones) will find little encouragement, 
if any, knowing that a similar phenomenon takes place in other countries. 

Israel, like most countries around the world, does not allow the practice of euthanasia. 
Many Dutch scientists suggest that physicians in many countries are secretly doing what 



“ For further deliberation, see Lawrence J. Schneiderman and Nancy S. decker, Wrong Medicine (Baltimore and 
London: Johns Hopkins University Press, 1995): 63—64; Editorial, “How Living Wills Can Help Doctors and 
Patients Talk about Dying,” BMJ, Vol. 320 (June 17, 2000): 1618—1619. 

’ Personal communication on August 27, 2000. 




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PHASE II: INTERVIEWEES' GENERAL COMMENTS 



Dutch physicians are doing openly.^ However, this suggestion is dubious. There are not 
enough data to either support or refute this suggestion. 

Furthermore, the van der Maas reports lack constructive criticism of their findings. When 
asked why the first report did not include recommendations, for instance, that doetors discuss 
their plans with competent patients, van der Maas answered that it was understood that the 
report was not a policy document and hence would eontain as few recommendations as 
possible. This was neeessary to seeure and retain the cooperation of the KNMG and the 
participating doctors.’ Hendin rightly commented that in the interest of maintaining 
harmony, virtually all of the explanations of the physicians appear to have been aeeepted at 
face value, even when follow-up questions seemed necessary.** Critical analysis is clearly 
missing. 

Moreover, the apologetic tone runs through the many writings of van der Maas and van 
der Wal. In one study, van der Maas and colleagues seemed to justify the 1000 cases of 
involuntary euthanasia.^ They said that almost all cases involved patients with only a few 
hours or days left to live. Referring to a well-known article in JAMA, in which the 
anonymous author deseribed the mercy killing of one of his/her patients, Debbie,’*’ van der 
Maas and eolleagues contended that the case could be defined as LAWER (life-terminating 
act without the explieit request of the patient). They do qualify this statement as follows: 
“One important difference between this case and most cases in our study is that ‘Debbie’s’ 
physician saw her for the first time on the day that her life was eut short, while in our study 
the physieian had usually known his patient for months or even years.”” The study to which 
they refer was sponsored (like many of van der Maas’ and van der Wal’s studies) by the 
Duteh Ministry of Welfare, Health and Cultural Affairs and the Ministry of Justice. One 
must ask to what extent scientists are free to voice their opinions on intricate practices when 
their research is directly funded by the government that is responsible for these practices. 
This is an open, much debated, question. 

Paul van der Maas obviously noticed my critical tone of science sponsored by the state. 
In his reflections on the first draft, he wrote: 

I consider myself an independent researcher, with a primary responsibility in collecting reliable 
data and basing impartial estimates and interpretations on that empirical information. I see no 
position for myself in a pro versus contra euthanasia debate and I think such a debate is entirely 
unproductive. As a researcher I think my responsibility is to find out what people do and how that 
might fit in high quality end of life medicine. During the last years part of our study has been 
replicated in Australia and Belgium and we have obtained funding from the European Union for an 
international collaborative study in order to establish empirical comparisons between countries.*^ 

Den Hartogh wrote that his own attitude concerning opponents of euthanasia is the 
following: 

^ L. Pijnenborg, “The Dutch Euthanasia Debate in International Perspective,” in End-of-Life Decisions in Dutch 
Medical Practice (Rotterdam, 1995), Thesis, esp. at 119-131. 

^ Herbert Hendin, Seduced by Death, op. cit., p. 77. 

^ Ibid, ibid. 

^ Loes Pijnenborg, Paul J. van der Maas, J.J.M. van Delden and Caspar W.N. Looman, “Life-terminating Acts 
without Explicit Request of Patient,” Lancet, Vol. 341 (May 8, 1993): 1 196-1 199, esp. at 1 198. 

Anonymous, “Its Over Debbie: A Piece of My Mind,” JAMA, Vol. 259, No. 2 (January 8, 1988), p. 272. 

Loes Pijnenborg, Paul J. van der Maas, J.J.M. van Delden and Caspar W.N. Looman, “Life-terminating Acts 
without Explicit Request of Patient,” op. cit., p. 1198. 

Personal communication on September 18, 2000. 




PHASE II: INTERVIEWEES’ GENERAL COMMENTS 



149 



I fully respect the opponents (in the Netherlands, for example, the theologians Beemer and 
Rothuizen; in the USA philosophers like Arras and Bok) who are prepared to grant that there is at 
least a problem of severe suffering at the end of life. (Similarly the proponents should take 
seriously the possibilities of abuse and concede that there is no possible form of regulation that has 
no undesirable side effects.) I welcome any opportunity to argue with people like Koerselman 
who, however one-sided in their views, make points that are worthwhile of consideration (e.g. the 
dangers of ‘collusion’ between patient and physician). But I don’t feel obligated to acknowledge 
any form of opposition. So I will never make any reference to people like Rutenfrans or Fenigsen 
who have publicly compared Dutch euthanasia to the Nazi-practice, and who present ‘data’ that 
they know to be untrue. If they feel ostracized, they have themselves to blame. And if you think 
this is a form of censure by silence, I plead guilty. I was puzzled how you could make such a 
statement, while your own reporting shows such a great diversity of opinion. The explanation may 
be that the spectrum of the positions taken in the Dutch discussion is very different from the 
spectrum of positions taken in the USA or in Israel, so the plurality of voices is not the plurality 
you are used to. But why should it be? My own position is, let’s say, right-of-center in the 
Netherlands and would be pretty radical in Germany, and in the Dutch discussion Koerselman and 
Jochemsen represent minority views while in most other European countries they would be 
standard ones. We quarrel, often in un-Dutch, almost Israeli polemical style, about mercy and 
autonomy, about the precise specification of the guidelines, about assisting suicides of psychiatric 
patients, euthanasia of Alzheimer patients, whether children should have the option of requesting 
euthanasia, etc. But not even Koerselman opposes euthanasia under all circumstances. The focus 
of our discussion is no longer legalization or not, because a full and effective legal prohibition is 
by now not an open political option at all. If only for that reason, it is nonsense to talk about a 
“euthanasia campaign” in the press: if any such campaign ever took place, it has been won years 
ago. As a matter of fact almost everything that is published these days is critical of some details of 
the existing rules, practices or attitudes, one way or the other, and so contributes to controversy. 

Your own proposals are all fully within the scope of those debates. 

This response reveals one prevailing attitude about the boundaries of legitimate debate in 
the Netherlands regarding euthanasia. The Dutch have pushed the boundaries of legitimate 
discussion far and beyond most countries in the world to include psychiatric and demented 
patients as well as children. People who warn against conferring legitimacy on such 
problematic issues are often written off During my interviews I heard time and again 
dismissive attitudes regarding Koerselman, ten Have, Rutenfrans and Jochemsen, describing 
them as “religious fundamentalists,” “biased,” “not rational,” and “unable to construct a 
logical argument.” These dismissive remarks led me to believe, quite mistakenly, that 
Jochemsen is a Catholic, whereas in fact he is, according to his testimony, “a reformed, or 
Calvinist, bioethicist.” I should note that Leenen told me that he wanted to debate with 
Fenigsen but he never attended any meeting with him. I should add that Leenen had never 
initiated an invitation to Fenigsen for debate. 

John Griffiths was one of the first interviewees to respond. Let me quote at some length 
the opening paragraphs of his communication:^^ 



In response, Rutnenfrans wrote: “Den Hartogh probably refers to the comparison I have made between the 
pleadings to liberalize euthanasia in the Netherlands after the Second World War and similar pleadings to 
accept euthanasia by social Darwinists like Binding and Hoche in the nineteen-twenties in Germany. Of course 
the writings of Binding and Hoche influenced the nazi-ideology in this respect. This comparison was published 
as ‘Volg het spoor terug’ ('Follow the trace back') in Intermediair, 5 december 1986... Besides, the only ‘data’ I 
ever presented were the results of valid researches.” Personal communication on August 22, 200 1 . 

Personal communication on August 27, 2000. 

Private conversation with Leenen in Helsinki on August 8, 2000; Leenen’s letter dated February 2, 2001. 
Personal communication on July 10, 2000. 




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PHASE II: INTERVIEWEES' GENERAL COMMENTS 



In general, what you write certainly includes some interesting observations, but is so patently 
tendentious that I cannot regard it as an interesting contribution to the literature. You claim in the 
introduction to have “thoroughly” read the “vast literature,” whereas in fact you obviously have 
read only the rather limited literature available in English. And how you imagine that in a month 
of interviewing you are in a position to pontificate to people who have been working on these 
problems for years and know a great deal more than you do, is a wonder to me. You leave me with 
about as much respect for your views as you would have for someone who, knowing no Hebrew, 
interviewed a number of people in Israel (some of whose English is limited) over for example the 
Palestinian problem and then wrote an article on the subject in which he rather unashamedly 
devoted as much attention to a small and highly emotional group of religiously-motivated people 
as he did to serious supporters (some of them rather critical) of Israeli policy (actually, the degree 
to which the opponents of Dutch policy are closet Catholics is one subject on which your paper 
opened my eyes). 

This country consists of sensible, levelheaded, decent people, on the whole, who have thought 
seriously about these matters, and have reached a very high degree of societal consensus. They 
seem to me to be unlikely to be as far wrong as you imagine. And it seems to me remarkably 
arrogant on your part to imagine you see far more deeply into the problems than they do. 

As you know, I am one of the most severe and consistent critics of Dutch policy, although I do 
not share the ideological objections of the critics you choose to rely on. But you seem either not to 
have read, or not to have understood, what we write in chapters 1 .4 and 7 [of Euthanasia and Law 
in the Netherlands']. Namely, despite all the criticism one can have of the inadequacy of Dutch 
control, the situation here is much better than it is elsewhere, where people like you think 
everything is just fine so long as there is a blanket prohibition [I should note that I never supported 
blanket prohibition. RCA]. Did you read recently of the doctor who killed some 140 women in 
London? Have you read about the practice of ‘terminal sedation’ (no control, no request from the 
patient required) in the US? In short, a criticism of the effectiveness of regulation in the 
Netherlands, especially when made by an outsider, is necessarily a comparative matter. I did not 
come across a single sentence of comparison in your paper. 

In a similar vein, Heleen Dupuis concluded her response by saying:*^ 

My reaction to your book is, in summary, that you are of course entitled to your and your 
country’s own moral views, on which I do not want to comment. But the question remains, why 
you are so eager to comment on ours? I feel here a kind of moral imperialism, which I really do 
regret. I can live in a world that rejects euthanasia, and I expect others to be equally tolerant! 

Let me say the following in response. When Margaret Battin published her The Least 
Worst Death in 1994 Griffiths, Dupuis and the majority of the Dutch scholars did not attack 
her for her lack of understanding the Dutch language and culture. Instead, the Dutch 
euthanasia establishment embraced her views that, on the whole, justify and condone the 
policy and practice of euthanasia in the Netherlands, and they often quote her writings. On 
the other hand, Carlos Gomez, who wrote a thoughtful critique of the Dutch policy and 
practice of euthanasia, was subject to considerable criticism. Griffiths described Gomez’s 
book. Regulating Death, based on a one-month research in the Netherlands, as “scientifically 
irresponsible.” To the reader who might dismiss this criticism as exaggerated, Griffiths 
advised that he would do well to ask himself the following: 

...how much confidence he would have in the conclusions of - say - a Japanese doctor who 
studied some controversial medical procedure in the United States by interviewing a handful of 
American doctors with whom he happened to come in contact about a small number of cases these 
doctors had been involved in several years earlier... Not speaking any English, our hypothetical 
Japanese researcher conducted the interviews through an interpreter. Based on the interviews (and 
without being able to read the American literature on the subject) the Japanese researcher felt able 



17 



Personal communication on July 25, 2000. 




PHASE II: INTERVIEWEES' GENERAL COMMENTS 



151 



to make vigorous assertions not only about what American doctors generally do in such cases but 
also about what influence this has on the patient involved.** 

Interestingly, when Griffiths (who was born and raised in the United States) related to 
Keown’s penetrating criticisms of the Dutch policy and practice of euthanasia, he said that 
Keown’s argument could be considered painful for the Dutch, but is otherwise a solid one.’^ 
Griffiths acknowledged that the Dutch simply tend to ignore foreign criticisms, and that this 
dismissive attitude is “unfortunate.”^® 

It is a vexing question to what extent people from one culture are able to evaluate another 
culture. I have never claimed my expertise or knowledge about the subject matter of this 
book to surpass that of any of the interviewees. Although I studied the Dutch euthanasia 
policy and practice for twelve years now I humbly acknowledge that they are far more 
qualified to comment on the conduct of euthanasia in the Netherlands. I think that their 
reflections are fascinating and should be of interest to people who are involved in the area, 
whether they are Dutch or wish to institute euthanasia in their own respective countries. 

The line of criticism adopted by Griffiths and Dupuis is not strange to me. A few years 
ago, when I embarked on the study of questionable cultural practices in Israel, I was attacked 
on similar grounds. Some of my Palestinian colleagues objected to my studying the practices 
of female circumcision and murder for family honor in the Bedouin and Palestinian 
communities,^* claiming that I do not understand these communities and that I should restrict 
my studies to Jewish practices. Likewise, when I studied the practice of halizah among the 
Jewish communities in Israel, some orthodox rabbis did not take well to the idea of a secular 
person addressing this issue.^^ One prominent scholar in Jewish law, now Justice of the 
Supreme Court, suggested that I should let the rabbis struggle with the issue. 

In short, there are many sensitive toes and many interested parties who do not like 
“outsiders” treading on them. If we are to follow those “friendly” suggestions, then scholars 
will restrict themselves to studying only theoretical matters and lofty ideas, while leaving 
consideration of the more concrete issues solely to those who are heavily involved in them. 
“Outsiders,” however, can bring refreshing modes of thought, offer intelligible critiques and 
highlight concerns that “insiders” overlook, underestimate, or are reluctant to address. You 
don’t have to be a woman to denounce chauvinism. You don’t have to be a Palestinian to 
condemn the murder of women who “sinned” by merely talking to a man who is not a 
member of her family. You don’t have to be a Hindu to condemn widow burning. You don’t 
have to be African-American to denounce the era of slavery as a terrible chapter in the 
history of the United States. You don’t have to be either German or Jewish to study the 
Holocaust. You need not be from the United Kingdom to scrutinize the Northern Ireland 
conflict, or a Chinese citizen to research Mao's "cultural revolution." Many scholars around 



** J. Griffiths et al, Euthanasia and Law in the Netherlands, op. cit., p. 25. 

*'* Ibid, at 26. 

“ Ibid, pp. 28-29. 

^* Cf. R. Cohen-Almagor, “Female Circumcision and Murder for Family Flonour among Minorities in Israel,” in 
Kirsten Schulze, Martin Stokes and Colm Campbell (eds.), Nationalism, Minorities and Diasporas: Identities 
and Rights in the Middle East (London: LB. Tauris, 1996): 171-187. 

Halizah is a Jewish ceremony in which a Jewish widow who has no children releases her brother-in-law from 
his religious obligation to marry her. Cf. R. Cohen-Almagor, “Israeli Democracy, Religion and the Practice of 
Halizah in Jewish Law,” UCLA Women's Law Journal, Vol. 1 1, No. 1 (Fall/Winter 2000): 45—65. 




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the world examine the American First Amendment, and sociologists and anthropologists 
from different countries travel to study cultural rituals of other nations. Substantial studies in 
the fields of history, sociology, anthropology, political science, law and international 
relations (this is not an exhaustive list) would have been dismissed if people were to adopt 
Griffiths' reasoning. There were, and there are, many scholars who have enriched the world 
with their perceptive thinking, despite deficiencies of language. It may even be argued that 
sometimes remoteness from the subject-matter is a virtue, not an obstacle. This study is not 
designed to destroy an established movement, but rather to provide constructive criticism. 
Hopefully, the euthanasia movement in the Netherlands and in the world might benefit and 
learn from it. 




PHASE III: UPDA TES 



A. PRELIMINARIES 

On April 10, 2001 the Dutch Upper House of parliament voted to legalize euthanasia. It was 
appropriate to address this issue again and ask the interviewees to reflect on the new act and 
to give their initial appraisal. It was, of course, too early to judge the impact of the act but I 
wanted to have preliminary observations of the interviewees and to see to what extent they 
retained, or changed their views since our last communication two years ago. 

I also inquired about their assessment of the work of the regional committees. The 
interviewees brought to my attention some issues that they saw as troublesome. Most of them 
expressed an opinion regarding two court cases - Brongersma and Van Oijen - that were on 
appeal during my second visit to the Netherlands in June 2001. Some mentioned 
improvements in palliative care and in consultation. 

In April 2002 the euthanasia legalization process came to conclusion when the law was 
approved by the Senate, making the Netherlands the first and - at that time - only country in 
the world to permit mercy killing. I returned to the Netherlands for the third time, this time 
conducting ten further interviews. This update summarizes the concerns voiced by the 
interviewees in June 2001 and in April 2002. 

B. ON THE NEW ACT 

The first question was: What do you think about the new act? What are the positive aspects 
of this act, if any? What are the negative aspects of this act, if any?* 

Henk Jochemsen and Frank Koerselman were the first to respond to my query via 
electronic mail. As expected, their view of the act was negative. Jochemsen referred me to a 
recent article in which he voiced several objections to the act. First, the decriminalisation of 
intentional killing by physicians constitutes, in itself, a serious violation of the legal 
protection of the life of all citizens. Moreover, whenever the committee rules favorably on a 
case by deeming an act of killing legal, the Public Prosecutor’s ability to monitor physician 
conduct will be compromised because the Prosecutor will not even see the report of the 
physician involved in the case. Furthermore, it is likely that cases in which the legal 
requirements have not been fulfilled will go unreported, as is the case now. Adequate control 
will continue to be impossible. Chris Rutenfrans expressed a similar objection to the 
committees, arguing that this institution is too soft and that the public prosecutor should 
inspect directly the euthanasia reports without any mitigating buffers.^ 



Personal communication sent to interviewees on May 15, 2001. 

^ Evert van Leeuwen who is a member of one of the regional committees said in his interview (June 20, 2001) 
that doctors do not have the wrong intent. There is no reason to suspect that doctors kill patients for nothing. 
Henceforth the committees are lenient and tolerant with regard to physicians’ conduct. Gerrit Kimsma said 
(interview on June 21, 2001) that the committees’ underlying assumption is that physicians are acting in good 
faith. 



153 




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Second, Jochemsen argues that patients afflicted with terminal illness or unbearable 
suffering will now have to justify not asking for euthanasia. At the same time, legalization 
will tend to undermine the efforts and creativity of those committed to providing palliative 
care to terminal patients. Such unintended outcomes seem to Jochemsen inevitable in a 
healthcare system characterized by increasing costs and rationing. 

Third, the new law will lead to a broader acceptance and increased practice of euthanasia, 
which will change the nature of the physician-patient relationship as well as the character of 
terminal palliative care. Because the physician’s role and the extent of her competence is 
regulated by law, such a fundamental change in the physician’s competence concerns society 
as a whole and cannot be considered a private matter for patients and physicians. 

Fourth, accepting euthanasia of 12 year-old youngsters and older seriously overvalue 
their ability to make such gruelling decisions.^ Furthermore, legalizing advance directives is 
likely to foster a broadening of the requirement of “unbearable suffering” to “loss of dignity” 
as well as pressure on the physician to terminate a patient’s life when a patient has become 
severely demented, especially when the patient’s family insists on doing so. Such a practice 
might lead to a blurring of the distinction between voluntary and involuntary euthanasia. It is 
no wonder that the Dutch Association of Nursing Care Physicians had voiced their 
unhappiness with this part of the proposal. The Association said that its members would not 
see ADs for demented patients as binding."* 

Jochemsen concludes that although the responsible ministers have admitted during the 
debate in parliament that a physician who does not want to perform euthanasia for a patient 
insisting on having it is not obliged to formally refer the patient to a colleague who may be 
willing to do so, in practice physicians will feel pressured to either perform euthanasia 
themselves or refer patients to a colleague. If they refuse both they may run into trouble 
unless they have indicated in an early stage of the terminal phase of the disease that they 
object to performing euthanasia. Furthermore, healthcare professionals who reject euthanasia 
will likely find it difficult to obtain jobs in certain areas of the healthcare system.^ Chris 
Rutenfrans made a similar point, arguing that when the law says that physicians may provide 
euthanasia, the consequences are that physicians who object to euthanasia can base their 
objection only on conscience; they cannot base their objection on law. Their position is 
attenuated. 

In turn, Koerselman wrote in a similar fashion that the most devastating aspect of the new 
law is the fact that the purely subjective feeling of “unbearable suffering” and the mostly 
subjective notion of impossibility to treat or help is enough to accept the killing of people in 
all phases of their lives in (alleged) illness.*’ In the April 2002 interview, Koerselman 
specifically related to the issue of advance directives, saying that he objects to abide by 
advance directives of demented patients. It is possible to provide psychological help to such 

’ Henk Jochemsen, “Update: The Legalization of Euthanasia in The Netherlands,” Ethics & Medicine, Vol. 17, 
No. 1 (2001): 7-12. 

“ Ron Berghmans, Arko Oderwald, Evert van Leeuwen, Ruud ter Meulen, Gerrit Kimsma and Sjef Gevers also 
emphasized this. 

’ Ibid. 

‘ Koerselman’s personal communieation on May 16, 2001. Gevers notes that a problematic issue that the law 
does not resolve eoncems patients who approach their physicians early during the course of the disease from 
whieh they suffer, asking for euthanasia because they are fed up with life. Many physicians would be reluctant 
to provide euthanasia under such circumstances because this would mean significantly extending the 
understanding of “unbearable suffering.” 




PHASE III: UPDATES 



155 



patients. Proper care should be provided to alleviate suffering. Koeselman testifies that his 
father in law was demented. He was hospitalized in an institution that does not provide 
euthanasia. Koerselman was struck by the tolerant atmosphere and the high quality of care 
until the end. At the same time, Koerselman says that when the concern lies with patients in 
the last stage of Alzheimer, doctors should avoid providing treatment that is aimed at 
postponing natural causes of death and thus unnecessarily prolongs suffering. 

Koerselman provided a further insight by testifying about his own experience. He was 
consulted about a sixty-five year old patient, in early stage of Alzheimer, who had no 
supportive family. The patient received a stroke. The medical team provided him with 
treatment and the patient was able to function independently. However, then the patient 
entered into a state of delirium and stopped eating and drinking. The medical team then 
decided not to treat him anymore, and the patient died. The decision not to treat was made 
because the medical team wanted to spare him the agony of advanced Alzheimer. 
Koerselman testified that he was, and am upset by that decision. He thinks that the patient 
should have been treated further, that the medical team should have provided him with more 
medical care, not to give up on him. 

James Kennedy, Gerrit Kimsma and Ruud ter Meulen added another objection to the law. 
They said that the law gives the impression that patients can now demand to die in a certain 
way and that physicians are bound to follow the patients’ requests. People think that now 
there is a euthanasia law, therefore they have a right to it. This is the prevailing atmosphere, 
but this view is wrong. Euthanasia is still a criminal act but a physician will not be 
prosecuted if s/he follows the Guidelines. The regional committee’s role is to decide whether 
the Guidelines were observed and to press charges if they were not. The pubic, however, 
does not understand this. Kennedy and Kimsma think that there might be more euthanasia 
requests, conceiving the practice as a normal medical procedure. The growing demand will 
be voiced not only by patients but also by their family members. Kennedy, however, does 
not expect a dramatic rise in the number of euthanasia cases. Most patients want to continue 
living, and most physicians strive to keep patients alive, but there may be more requests. 
Kimsma thinks that there might be more demand for euthanasia and widening its scope from 
patients whose suffering is unbearable to patients who feel that their lives are meaningless. 

Koerselman and Kennedy do not feel that the new law would make much of a difference. 
The situation, which in Koerselman’s view is most worrisome, will continue to be so. 
Kennedy thinks it is better to have a law, but he is far from convinced that the 2001 law is an 
improvement. This law does not add much clarity to the existing situation and does not 
resolve the complexities mentioned above. Griffiths also feels that the new law will not 
change much. However, his view of the existing situation is far more positive. He wrote that 
the law changes nothing significant as far as the substantive requirements are concerned. The 
only change concerns written advance requests, “but they are probably legal already, and will 
never be of any great practical importance.” As far as enforcement is concerned, the main 
change is the stronger position of the regional assessment committees (definitive judgment 
instead of an “advice” to the prosecutors - “but since that ‘advice’ in practice was always 
followed, this change, too, is largely symbolic”). Griffiths hopes that the committees and the 
prosecutors “will be more sensible (dealing with ‘violations’ in a casuistic way) than the 
legislator.”’ 



’ Personal communication on May 29, 2001. 




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Arie van der Arend does not think that the new law will make much of a difference 
either. He argues that with this new Act, end-of-life practices will be unchanged; in fact, 
common practices will now have a basis in law and certain practices (regarding living wills 
and rights of young people - 12-16 years of age) have been made more explicit. A 14 year- 
old can ask for euthanasia and receive it even if his parents object, provided of course that 
the medical staff agrees to perform euthanasia. Ending the life of patients/clients - whether 
on request or not - is still included in the Penal Code as a crime.* 

A similar response came from van der Arend’s colleague, Ron Berghmans though the 
latter is worried about one aspect of the law, ADs, which Jochemsen also pointed out. Like 
some interviewees,^ Berghmans thinks that in many respects this law encodes what already 
was accepted practice: It is only about euthanasia and assisted suicide as specifically defined 
in the Netherlands, about the criteria for careful practice, and about the review by the 
regional committees. The most troublesome part in Berghman’s view concerns the legal 
status attributed to advance directives requesting active termination of life. Unlike Griffiths 
who thinks that advance directives will never be of any great practical importance, 
Berghmans thinks it is too early to legislate this issue, as it is controversial and much 
debated, particularly regarding so-called dementia advance directives. However, 
developments in practice (particularly in nursing home care) must show what significance 
this part of the law will have and what problems are brought about.*'’ 

In April 2002 Ron Berghmans told me of a new report of the Health Council (advisory 
board on healthcare) on demented patients, saying that ADs should be taken into account 
together with other considerations like the medical prognosis and family's opinion. ADs are 
not the decisive consideration. Explicit and clear AD refusing treatment should be respected. 
But it is very difficult to apply an advance directive on euthanasia. This is because the 
precondition of unbearable suffering is questionable. 

In a similar fashion, Bert Keizer argued that ADs for demented patients are completely 
unworkable in practice. Patients cannot expect doctors to kill them upon becoming 
demented. A doctor can never act upon such an advance directive because dementia is not an 
acute condition with a clear start. ADs could help if, in addition to dementia, the patient 
suffers from a malignant disease. Then the doctor who knows about the AD may decide not 
to treat the developing disease. But, of course, abstention of treatment is not killing. Keizer 
never performed euthanasia on demented patients. All the 21-22 euthanasia cases that he 
was involved in were somatic patients: cancer, stroke, and neurodegenerative diseases like 
Steele Richardson (slow Parkinson without any medication available to ease the medical 
condition). 

Rob Houtepen was a member of an ethics committee of a nursing home. Nursing home 
physicians are reluctant to cease life of demented patients even if they have advance 
directives to that effect. There is also a position paper of nursing home physicians to that 



Personal communication on May 2 1 , 200 1 . Interview on April 2, 2002. 

’ John Griffiths, Evert van Leeuwen, Arko Oderwald, James Kennedy, A. van Dantzig and Sjef Gevers. 

Personal communication on May 28, 2001. For further discussion, see Richard Schulz, Aaron B. Mendelsohn, 
William E. Haley et al., "End-of-Life Care and the Effects of Bereavement on Family Caregivers of Persons 
with Dementia," New Eng. J. Med., Vol. 349, No. 20 (November 13, 2003). 




PHASE III: UPDATES 



157 



effect. Dementia does not qualify as unbearable suffering." Houtepen provided the following 
response, which I quote in full: 

My answer to your question concerning the new euthanasia law is inspired by certain ideas from 
the field of sociology and philosophy of law. We should not think of a law as a definitive 
collection of rights and duties. A law is a step in a process. What concerns me is the quality of the 
process, the communicative and deliberative nature of the euthanasia practice. As far as I’m 
concerned we are all together on a path without a definitive goal and without clear-cut boundaries. 

This makes it essential that all information and all points of view are communicated among all 
participants in the process. No secrets, no dogmas. So my criterion is whether the law facilitates 
this process. Generally speaking, I think it will. To me it is important that euthanasia will not be a 
simple right. This means there is always communication and deliberation involved to get the 
physician(s) to perform the desired act. I also hope that the law puts more pressure on physicians 
to report all cases. We should continue to give mild sentences in dubious cases (such as 
Brongersma), as we rely on such cases to have a productive societal debate. Thirdly, the law 
mostly codifies standing practice, so that’s all for the better. Finally, I share Ron Berghman’s 
doubts about the role of advance directives. On the other hand, I would not like to rule out all such 
cases. Therefore, in conjunction with point one and the lucky fact that nursing home physicians are 
reluctant, I hope that the new law actually stimulates societal debate about such cases. 

Evert van Leeuwen, like some of his colleagues, thinks that all that the law does is to 
legitimize the existing procedure. He does not think that the law would change much in 
practice. Those doctors who reported in the past will continue to report. The law will not 
sway those who failed to report. The law has more to do with the possibility for doctors to 
perform euthanasia than with morality. 

Van Leeuwen and Ruud ter Meulen further explained the status of and the rationale for 
the new law in the broad legal perspective. The law had to be in accordance with other 
existing laws and therefore it includes unrealistic provisions, such as ADs. Many physicians 
would not accept advance directives from demented patients. They would regard honoring 
such a document as breaching their professional convictions. But from a purely legalistic 
point of view this provision needed to be included in the law because of the Patient 
Determination Act (WGBO, Wet Geneeskunde Behandelovereenkomst), which holds that a 
patient can give AD on futile treatment. Once euthanasia is allowed under certain provisions, 
patients should have the ability to issue ADs. The discussion still goes on and van Leeuwen 
and ter Meulen call to exclude the possibility of euthanasia for demented patients. They are 
principally opposed to ADs for such patients, arguing that physicians should never be forced 
to accept them. Ter Meulen points out that many people completed ADs in which they asked 
for euthanasia but when they become ill only a small number of people still ask for 
euthanasia. He is worried that euthanasia might become a sort of an escape route for 
physicians. Instead of investing in more care, physicians would prefer to carry out 
euthanasia. 

Ter Meulen maintained that there are two other weak points in the law. The first concerns 
the lack of definition of suffering that adds obscurity and opens room for contrasting 



Cf. "Euthanasia in the Nursing Home: 'We Had a Problem Not to Let the Other Patients Know What Was 
Happening?,"' in David C. Thomasma, Thomasine Kimbrough-Kushner, Gerrit K. Kimsma, and Chris 
Ciesielski-Carlucci (eds.). Asking to Die, where the author says that nursing home physicians are a little more 
conservative than the general practitioners "and we tend to protect our patients more because they are weaker. 
The general practitioner ascribes enormous responsibility to the patient's own health behavior. As nursing home 
physicians, we are much more protective" (p. 351). 

Personal communication on May 29, 2001. 




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interpretations. The second concerns the role assigned to the regional committees. Because 
they assume a legal role, physicians might not trust them and will not co-operate with them. 
Indeed, an open question is whether the level of reporting will be improved. 

In turn, Gerrit Kimsma is worried about the potential implications of the law that might 
worsen the existing situation. He would prefer to see the regional committees working for 
two years before rushing to legislation (in the 1999 interview he spoke of ten years, see 
Chapter 11), arguing that the Netherlands does not need the law. There was a political need. 
It was the politicians who were pressing for legislation. Kimsma, it seems, would prefer to 
continue working in the shadowy area that allowed wide latitude for doctor’s discretion. 

Kimsma maintains that people underestimate the implications of the law that in his 
opinion its wording is far more liberal than what Minister of Health, Welfare and Sport, Els 
Borst, intended. In essence, the involvement of politicians increased the polarization of the 
issue. The provision of ADs is introduced in wording that makes it possible to commit 
euthanasia of demented people. Presently, there is a grey area. GPs do not end patients’ lives 
if there is no communication between the parties. Now the law, with its recognition of ADs, 
makes euthanasia possible under these circumstances.’^ 

Kimsma foresees more legal cases as a result of this provision. Appeals might be brought 
to the courts by dissenting family members complaining about the ending of life of their 
demented love ones. They may claim that the precondition of unbearable suffering was not 
fulfilled. He explains that a physician may appeal to ADs when no communication with the 
patient is possible. But this should not be seen as substitute for “unbearable suffering.” 
Furthermore, the work of the regional committees would become more complicated because 
when there is an AD and it is impossible to communicate with the patient, there is no need to 
satisfy the consultancy requirement. The consultant cannot affirm the patient’s wishes. 

However, in response it can be argued that, generally speaking, it is better to legalize than 
to leave the matter unclear. The euthanasia procedure is stricter and clearer than before. 
Before the law the Guidelines spoke of patient’s hopelessness, but there was no requirement 
to explore treatment alternatives. Now, according to the law, alternatives for treatment 
should be explored prior to euthanasia. Second, the Guidelines did not explicitly require 
physicians to discuss the disease diagnosis. Now physicians are required to provide patients 
with clear information about the medical situation and prognosis, what symptoms are 
expected and what the prospects are. Third, the Guidelines now specify that euthanasia 
should be performed in a medically appropriate way. There are also clear specifications as to 
what medication should be used in mercy killing. And fourth, the assessment of euthanasia 
has shifted to the regional committees. Theoretically this is an improvement because the 
policy distanced the prosecution from the physicians. 

Jaap Visser of the Health Ministry testified that the government was happy that the 
parliament approved the law. He voiced hope that physicians will trust the new law. At the 
same time Visser acknowledged that it was impossible to answer all the questions. Thus, for 
instance, the relationship between euthanasia and palliative care will be examined in a new 
study. 

Kimsma would like more restrictive ADs. Like all colleagues who expressed an opinion on this issue he argues 
that it is not a solution to end the life of a happy, demented person. ADs should be coneemed with ceasing of 
treatment, but not with euthanasia. The problem is that for the purpose of euthanasia, the patient being in the 
terminal phase of the disease was never a eondition, and if you cannot assess “unbearable suffering” then you 
might end up ending the life of a demented person. 




PHASE III: UPDATES 



159 



I asked him about the provision regarding children, and Visser had no reservations. He 
explained that the provision is in place and correct. Between the ages 12 and 16, parents have 
to agree to euthanasia for their children. These incidents rarely occur. In practice, Visser 
explained, these incidents will always be decided through consensus between the patient in 
question, his/her parents and the attending physicians. 

A. van Dantzig contends that although he believes euthanasia is a medical matter, not a 
criminal one, he does not object to the law. He thinks it is a progress but he would prefer 
another system of decision-making. He reiterated what he had said in the 1999 interview, 
that euthanasia should be conceived as a medical act, like any other medical act, subjected to 
quality control. To his mind, criminalizing of euthanasia is secularizing of a sin. Then he 
added that the law does not mean too much. Only 50 percent of cases are reported. In 
practice, the law did not change much. 

H.J.J. Leenen had chosen to reflect on the rationale of and the need for such a law rather 
than on the content of the law. He assumed that, on the whole, the euthanasia practice was 
working just fine, hence there was no need to revise the existing practice but only to anchor 
it in law. He explained that the more euthanasia became generally accepted, the more 
legislation to change the existing prohibition in the law (Article 293 of the Penal Code) was 
necessary. Recourse to necessity was only intended for exceptional cases and was no longer 
appropriate given the number of requests. Leenen maintained: “Moreover, it undermines the 
authority of the law when the population is no longer behind it and practice is no longer in 
agreement with the law. Because moral convictions had changed, the existing prohibition of 
euthanasia had become outdated.”’"* I agree with this. I also think that the grey line between 
what was legal and what was not obscured the issue and did not serve the patients and the 
somewhat confused doctors. Issues concerning life and death should be discussed in the open 
light, not in the shadowy area of the law. 

Leenen went on to write that the new law bridged the gap between the moral convictions 
of the population and the old law. “In a democratic society it is not a priori dogma but the 
will of the people” that has to determine what is permitted and what not. He reiterated, and I 
agree, “Decision-making by the parliament is the only adequate instrument to regulate a 
social phenomenon like euthanasia.” Without adequate legal regulation such protection is 
lacking “as can be seen in several other countries.”’^ 

Leenen thinks that the law protects the rights of patients and doctors, but I beg to differ. 
Leenen writes that the law “establishes a mechanism of review and control”’^ and I would 
argue that the law establishes an insufficient mechanism of review and control. Leenen 
argues that “the Dutch law is an example of a clear regulation to steer euthanasia in the right 
direction”’^ and I would say that it is only one step in the right direction. The law anchors the 
existing practice and confers it legitimacy, but the euthanasia practice suffers from many 
flaws that the new law is not likely to amend. The Netherlands requires far more extensive 
and specified legal regulations to remedy the practice. 

To conclude, many interviewees do not think that the new law will make much of a 
difference. Many of them are quite rightly worried about the legalization of advance 



Letter dated May 29,2001. 
Ibid. 

“■ Ibid. 

Ibid. 



17 




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directives (ADs), especially when demented patients are concerned. I wrote elsewhere** that 
ADs are often made without the opportunities for full informed consent. On what basis did 
the patient make the decision that she would not want to be treated? The decision not to 
receive treatment should be based on a clear understanding of the situation. It is essential that 
the patient really understands the disorder, the available alternatives, and her chances and 
risks. This can be rather complicated when the physicians themselves do not have a clear 
picture about the condition and cannot provide a reliable prognosis. 

Furthermore, there are valid concerns about the patient’s opportunity to change her mind, 
the potential for scientific developments, and the clarity of the advance directive. In a patient 
who is mentally alert and who makes a decision not to receive treatment, there is always the 
opportunity for the clinician to consider with the patient the reason for the decision in light of 
the particular clinical features. The clinician also has the opportunity to discuss with the 
patient why she does not want treatment. Is it fear of pain, loss of dignity, concern for others, 
etc.? In these circumstances, the clinician is in a better position to ensure that the patient has 
thought out the decision carefully. This possibility is removed when faced with an AD and 
an incompetent patient.*** 

As for the potential for scientific progress, competent patients have the advantage of 
making their decision based on up-to-date knowledge. Advance directives may be made 
many years prior to the time of their implementation, a period during which new treatment or 
changes in quality of life opportunities may have occurred. In addition, ADs are not always 
clear about the patient’s intentions. Keith Andrews testifies that he saw an AD stating that if 
the person developed severe brain damage she would not want to continue living. There was 
no statement as to whether this decision was to be made on the first day or after a period of 
several days/weeks/months to give the patient opportunity of recovery. The general 
statement about severe brain damage gives wide latitude for widely differing views, even 
among clinicians experienced in the management of brain damage.^** 

The procedure of advance directives reflects competent values and interests in 
circumstances where they might no longer be applicable. If the patient is incompetent at the 
time the procedure becomes effective, withdrawal or withholding of medical treatment 
constitutes a form of imputed consent. The situation of the incompetent patient is viewed 
through the lens of her prior competent self rather than her current state. It is usually 
assumed that the justification for giving the competent person power over decisions when 
she is incompetent is that the competent person is best situated to identify what those future 
interests will be. The problem, however, is that the patient’s interests when incompetent are 
no longer informed by the interests and values she had when competent. The values and 
interests of the competent person are no longer relevant to someone who has lost the rational 
structure on which those values and interests rested. Although still the same person, the 
patient’s interests change radically when she becomes incompetent. Thus there is a possible 
conflict between past competent and current incompetent interests.^* 



R. Cohen-Almagor, The Right to Die with Dignity: An Argument in Ethics, Medicine, and Law (Piscataway, NJ: 
Rutgers University Press, 2001), chap. 5. 

Keith Andrews, “Euthanasia in Chronic Severe Disablement,” British Medical Bulletin, Vol. 52, No. 2 (1996), 
p. 287. 

“ Ibid, p. 287. 

John A. Robertson, “Second Thoughts on Living Wills,” Hastings Center Report, Vol. 21, No. 6 (November- 
December 1991): 6-9, at 7. 




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161 



To resolve the conflict between past competent and current incompetent interests, it is 
suggested that instead of simply enforcing all prior directives, doctors, families, and other 
people involved in the care of incompetent patients should be able to examine whether the 
patient’s interests would best be served by actions contrary to the AD, in situations in which 
the incompetent patient appears to have an interest in further treatment and life?^ 

Summing up the considerations that are important in decisions on death with dignity, I 
would say the following: if the patient makes advance directives in the form of a living will, 
DNR order, a letter, etc., that she would wish to continue living, no matter what, and we have 
no reason to believe that the patient changed her mind, then we should respect that wish. 

In the event the patient prepared an AD saying that she would prefer that all treatment be 
terminated upon reaching the last stage of their incurable disease, and we are uncertain about 
the patient’s present wishes because, for instance, she is incompetent and the attending 
physicians think that the situation is irreversible, then we should respect the AD and let the 
patient die. For persons who prepared ADs asking to die upon reaching a certain situation, 
death is not the worst situation one can be in when compared to being on the verge of death 
and then stabilized without hope of ever really getting better. Patients who suffer from 
incurable diseases (like cancer) may feel that their lives become transient and that the 
thought of death brings them more comfort than alarm. They may feel that their dignity, their 
autonomy, their humanity are better served by letting them die. The patient’s wish must be 
respected. This is especially true if the patient has emphasized beforehand that her dignity 
cannot be separated from consideration of her loved people. For some patients, knowledge of 
the anguish their condition imposes on their families is such a heavy burden that they prefer 
to die and not be remembered in their diminished condition. This, of course, is not the sole 
consideration but a significant additional consideration that needs to be taken into account. 

If no ADs are available, we should ask the advice of the patient’s beloved people who 
should know the patient better than anyone else. If the patient’s loved ones believe the 
patient would want to be kept alive, then we should respect their decision, even if the 
attending physicians disagree. In the event that the patient’s beloved people wish to withhold 
treatment and the attending physicians think there is still a hope of recovery, then we have to 
respect the physicians’ decision. The patient’s best interests require erring on the side of life. 

In the event that the patient’s beloved people and the attending physicians believe the 
patient’s condition will only deteriorate, and that that condition negates her dignity, the best 
interests of the patient require allowing the patient to die. I repeat: the best interests of the 
patient, not those of the family or other beloved people, the physician, or the hospital or the 
society at large. 



C. ON THE WORK OF THE REGIONAL COMMITTEES 

Next I asked about the regional committees. In 1999 the committees just started to work. I 
inquired what the interviewees think about their work now that they had more time to reflect 
on their conduct. This is of special significance due to the important role they play in the 
policy and practice of euthanasia nowadays. 



22 



Ibid., p. 8. 




162 



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According to the committees’ official report, during the year 2000 the five regional 
committees reviewed 2,123 cases. Of these, 1,801 cases were performed by GPs, 278 by 
medical specialists in hospitals and 44 by physicians in nursing homes. There were 1,893 
cancer patients, 10 had AIDS, 28 suffered from heart diseases and damaged blood vessels, 51 
had mental illnesses, 45 had lung diseases, and 96 suffered from other illnesses.^^ 

Several interviewees argue that committees are doing good, serious and important work, 
expressing satisfaction with their conduct. Their feeling is that the assessment process has 
been improved. At the same time they noted that the expectation of a higher level of 
reporting was not fulfilled. They hope that the new law will help increase the level of 
reporting.^'^ There is scope to think that physicians do not notify the committees because they 
probably do not fulfill all the requirements. Possibly they do not fill the paperwork 
adequately. Some physicians think that euthanasia is a private matter between them and their 
patients, and that no outsiders should inspect their work. If at all, so they think, inspection 
should be done by the medical profession, but certainly not by lawyers. Furthermore, the 
regional committees are seen by many physicians as bodies that were constructed by the 
government. One might suspect that as soon as the government will become unpopular, 
physicians might be less willing to cooperate with the committees because they identify them 
with the government. 

Evert van Leeuwen provides an interesting hypothesis contesting the data that the level of 
reporting did not improve. He argues that the level of reporting is actually higher than fifty 
percent. His guess is that eighty percent, maybe even a higher percentage of euthanasia 
cases, are reported by GPs. This is because no information on unreported cases is revealed by 
other sources, like patients’ relatives or pharmacists. This suggests, argues van Leeuwen, 
either a plot between all the concerned parties to hide cases of euthanasia, or problems in the 
research methodology. To further examine this hypothesis, van Leeuwen suggests including 
more questions in the coming survey (for instance, how many times do you administer 
muscle relaxation?) to double-check the physicians’ conduct and to inspect their behavior 
and decision making process. 

On the other hand, James Kennedy thinks that the committees have been a 
disappointment, a failure. One of the main aims, arguably the chief reason, in establishing 
them was to increase the number of reported cases of euthanasia. In practice, the number of 
reports has decreased slightly but significantly.^* One interpretation of this statistic is that the 
number of requests went down. Another interpretation is that the committees did not calm 
physicians’ fears of prosecution but quite the opposite. Physicians might be more afraid of 
the regional committees than of the public prosecution because they are specialists. It is 
difficult to trick or mislead them. They are trained in the area of mercy killings, know the 
subject matter arguably better than the physicians, hence physicians do not want to face their 
tough interrogation and do not report. Kennedy maintains that there are good people on the 
regional committees. They are not there to hang doctors. They take their business seriously 



Ministerie van Volksgezondheid, Welzijn and Sport, Regionale toetsingscommissies euthanasie. Den Haag, 
Jaarverslag 2000 (in Dutch). 

This was the view of Jaap Visser, Sjef Gevers, Arko Oderwald as well as of committees’ members Gerrit 
Kimsma and Evert van Leeuwen. Bert Keizer said that he had a very limited involvement with their work. He 
reported one case to the regional committee and received a note saying that his conduct was fine. 

Chris Rutenfrans wrote that in 1999 there were 2216 reports of euthanasia whereas in 2000 the number of 
reports was 2123. Personal communication on August 22, 2001. 




PHASE III: UPDATES 



163 



and approach the issue in the most humane and professional way; but the question remains of 
the extent to which euthanasia can be regulated given the low level of reporting. 

Gerrit Kimsma would like to expand the mandate of the committees to include pedagogy. 
He argues that the regional committees are currently concentrating on examination of 
procedures. Kimsma thinks that the pedagogic function on the process is sorely missed. 
Potentially, the committees could have provided excellent feedback to physicians about their 
conduct. Unlike the courts that are asked to assess the legality of the conduct, the committees 
also could have provided feedback to physicians, helping them to improve the decision- 
making process. Unfortunately, argues Kimsma, this is not the case. 

Kimsma sits in his regional committee seven months a year and reviews some 50 cases of 
euthanasia each month. He recalls three incidents in which the committee recommended 
prosecution. In an additional 2 or 3 cases, the committee advised opening an investigation 
because it did not have a clear picture of the physicians’ conduct. The prosecution decided to 
drop the charges in two cases. The third case was under consideration. Kimsma does not 
agree with the prosecution on those two cases, thinking that a legal procedure is needed to 
clarify the limits of the euthanasia practice. He thinks that there is still a long way to go 
before the Netherlands should be satisfied with the practice of euthanasia. 

I asked about the number of cases that were brought to the courts upon the 
recommendation of the committees. Jaap Visser argued that until April 2002 there have not 
been any court cases. During 2001-2002 there were three incidents in which the committees 
voiced concerns regarding the conduct of doctors, but the public prosecutor decided not to 
press charges in any of those occasions. 

Visser's impression was that physicians do not like the regional committees and are 
reluctant to report to them. This is because many of them feel that the people on the 
committee are more judgmental than the public prosecutor. Visser thinks that doctors are 
more aware of the importance of a careful decision making process. They know the criteria 
for careful conduct, and what is required of them to do. At the same time, Visser testifies that 
the government holds a very positive view of the work of the regional committees. Also, the 
Dutch Medical Association has a very positive view of their work. 

There is a delicate tension in the work of the committees. If the committees return to 
doctors performing euthanasia and ask questions, then they might be perceived as too tough 
on doctors, and then doctors will be reluctant to report. Now the committees are at the stage 
when they try to build trust between them and the doctors. So the general climate is to 
encourage physicians' cooperation. The committees may ask questions but they try not to 
step on doctors' toes. Due to the work of the committees, doctors have more information 
about the Guidelines: how they should perform euthanasia, encourage careful practice, 
making doctors think about their own reasoning. 

As said before, the main function of the committee is to increase the level of reporting. I 
raised the issue of reporting also during my third round of interviews in April 2002. Three 
interviewees estimated that the level of reporting is around fifty per cent.^® Jaap Visser said 
that in 2000 the number of euthanasia cases reported to the regional committees was 2200. In 
2001 there were less than 2100 reported euthanasia cases. Visser did not have a sufficient 
explanation for this reduction of cases, whether there were less euthanasia cases, or fewer 



26 



Arie van der Arend, Henk Jochemsen, and Ron Berghmans. 




164 



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cases were reported. He estimated that the number of reported cases is now around sixty 
percent.^’ 



D. FURTHER CONCERNS 

Some of the interviewees with whom I spoke during my second visit to the Netherlands 
initiated discussion of the two court cases that were on appeal at that time. Those were the 
Brongersma and the Van Oijen cases. 

In 2000, a court in Haarlem considered the case of Edward Brongersma, an 86-year-old 
man who had first made a written euthanasia declaration in 1984. He had expressed his wish 
to die to his GP, Dr. Philip Sutorius, on at least eight occasions. A month before his suicide 
in April 1998 he said that death had “forgotten” him, his friends and relatives were dead, and 
he experienced “a pointless and empty existence.”^* A second medical opinion confirmed 
that he was suffering hopelessly, and a psychiatrist said he had no treatable psychiatric 
illness. However, the public prosecution had called for the GP to be given a three month 
suspended prison sentence. The prosecution recognized that Dr. Sutorius fulfilled all the 
legal criteria but one: “hopeless and unbearable suffering.” Therefore, the patient’s request 
should have been refused. The court did not penalize Dr. Sutorius, saying that the patient was 
obsessed with his “physical decline” and “hopeless existence” and therefore was suffering 
“hopelessly and unbearably”. A spokesman for the Royal Duteh Medical Association reacted 
to the court judgment by saying that the definition of “unbearable suffering” had been 
stretehed too far and that “what is new is that it goes beyond physical or psychiatric illness to 
include social decline.” Justice Minister Benk Korthals had said that being “tired of life” is 
not sufficient reason for euthanasia.^^ 

That was also the prevailing view among those interviewees who raised this court case 
for discussion.^” They rightly contended that it is medically wrong to prescribe euthanasia on 
the grounds that the patient is fed up with life. Chris Rutenfrans noted that Brongersma was 
not ill, did not suffer but still his GP performed euthanasia on him. The Guidelines speak of 
unbearable suffering and here it was not fulfilled. At least, Brongersma did not suffer 
physically. Rutenfrans rightly argues that Chabot was the precedent that enables this 
development. Now everyone can claim mental suffering and ask for the doctor’s assistance. 

In a similar fashion, Ruud ter Meulen said that many doctors were shocked by this case. 
Doctors think that people who are tired of life should not be their concern. Physicians 



In 2001 the five regional euthanasia assessment committees received 2054 reports, compared with 2216 in 
1999. The Ministry of Health says the reasons for the current decline in reported cases are unclear, and it awaits 
the results of the next study, by Gerrit van der Wal and Paul van der Maas, in 2003. The chairwoman of the 
assessment committees, Reina de Valk, argued that the decline in reporting could be due to doctors' increasing 
knowledge of palliative care, promoted by the Ministry of Health since 1997. She also argued that a recently 
completed national advisory network of 465 doctors belonging to Support and Consultation over Euthanasia in 
the Netherlands (SCEN) could have led to a decline in euthanasia. Cf Tony Sheldon, "Reported Euthanasia 
Cases in Holland Fall For Second Year," BMJ, Vol. 324 (June 8, 2002): 1354. 

Tony Sheldon, “Dutch GP Cleared after Helping to End Man’s ‘Hopeless Existence’,” British Medical Journal, 
Vol. 321 (November 1 1, 2000), 1174. 

Ibid. 

Evert van Leeuwen, Gerrit Kimsma, Rob Houtepen, Ruud ter Meulen, Chris Rutenfrans, Henk Jochemsen and 
Arko Oderwald. 




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165 



protested against Sutorius's conduct. The questions revolve around the issue of suffering: 
What is suffering? Who determines suffering? What are the criteria for suffering? 

Frank Koerselman thought Brongresma was a clear case of a treatable psychiatric 
condition. Brongresma was depressed. His neighbors terrorized him because of his past as a 
pedophile. People threw stones at his windows. People shouted at him and insulted him. All 
this made Brongresma very depressed. A psychiatrist was consulted and said that 
Brongresma was not depressed and that he made the euthanasia request with a clear mind. 
However, Koerselman begs to differ. He believes that Brongresma could have been treated 
and helped. Were Koerselman the consultant, his advice would have been to provide him 
care and treatment, and try to solve the problems in his neighborhood. 

Arko Oderwald thinks that Sutorius’s conduct in the Brongersma case was absolutely 
wrong. Brongersma talked to Sutorius for hours on this but Sutorius should have refused. 
Brongersma had no terminal disease. Sutorius should have said to his patient that he has his 
full sympathy but he should not request his physician to kill him. No physician has the right 
to conduct euthanasia simply because the patient asks for it. Oderwald is not convinced by 
the argument that Brongersma was mentally suffering. After all, Brongersma himself did not 
try to commit suicide. 

Gerrit Kimsma said that the patient wanted to die but he did not suffer unbearably. 
Nevertheless nobody would wish to convict and penalise Sutorius. Kimsma explained, “we 
have a very liberal abortion law allowing abortion to any woman for any reason. We now 
progress with euthanasia in the same direction, conceiving this as a civil rights issue.” This is 
the result of autonomy that rules supreme. 

I asked Paul van der Maas about this and the Van Oijen case. Van der Maas wrote: “To 
be frank, I have not yet formed my opinion about these specific cases. I think the issue of 
assisted suicide in the absence of severe suffering is however very important, and deserves 
public debate. We will include the issue in our next nation-wide study.”^' 

In turn, Gevers, Berghmans and den Hartogh have mixed views about the Brongersma 
case. Gevers explains that the Appeal Court asks further expert opinions before deciding the 
issue. True, the patient had no somatic illness but he did have a number of somatic 
complaints associated with his age. His suffering was psychological. He lost all his friends, 
found no meaning in life. Some argued that he was therefore suffering unbearably. Gevers 
thinks that the Haarlem Court’s decision contained some good reasoning. However, he also 
shares the public policy concerns. Gevers thinks that the medical profession should address 
this issue more rigidly. Indeed, the Dutch Medical Association had decided to set up a 
committee to investigate this issue, and Gevers is curious what the committee will say. 

Ron Berghmans is unsure about the case. On the one hand, it is difficult to argue that 
being tired of life constitutes unbearable suffering, and it is questionable whether the doctor 
has a role to act in such cases. Berghmans agrees with the two expert opinions that the doctor 
does not have a place here because his assistance is not intended to alleviate medical 
suffering. On the other hand, Berghmans could imagine some cases in which old, lonely 
patients might claim that they are tired of life and their condition might be considered as 
unbearable suffering. But there need be more than expression of "tired of life". For instance, 
inability to cope with daily activities, dependency on others, no friends. 



31 



Personal communication on August 20, 200 1 . 




166 



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Den Hartogh elucidates that there are two relevant questions in the Brongersma case: (1) 
Was it a case of unbearable and hopeless suffering? Not all the relevant details are public 
knowledge, so he cannot make a definitive judgment. But the answer might be yes. (2) Is it 
necessary for the suffering to be caused by either somatic or mental illness? Den Hartogh 
thinks it is difficult to delineate those cases clearly. In the Boomsma case, Chabot claimed 
that she was not mentally ill, still in his view a psychiatrist can be properly involved with 
such a person because he can offer her assistance in overcoming the effects of severe 
traumatic experience. The disciplinary court did not share his view but considered her a 
"psychiatric patient". The position of the High Court on this is not fully clear. In the 
Brongersma case, it is obvious that the effects of old age essentially contributed to his 
suffering, and it is also normal that a person of that age and condition is under regular 
medical supervision and to this extent is a “patient.” But it is also clear that the relationships 
between Brongersma and Sutorius were largely defined by Brongersma’s death wish, rather 
than by his condition. Should assisted suicide be an option for people who are not patients or 
are only marginally so? Den Hartogh testifies that he had not decided that question. On the 
one hand, if the basic reason to grant someone’s request for assistance is the fact that the 
person is suffering unbearably and hopelessly, then the cause of suffering seems irrelevant. 
On the other hand, “it is not uncommon in law (if not in ethics) to insist on criteria which are 
irrelevant in themselves, in order to protect the relevant criteria from being undermined. The 
notion of unbearable and hopeless suffering is inherently a rather vague one.” It would be 
very difficult, almost impossible, for an assessment committee to judge whether the criteria 
are satisfied, if the symptoms cannot be interpreted in the context of a medical condition. 
Den Hartogh argues that if the court decides to condemn Sutorius, he would feel sorry for 
people like Brongersma “who maybe suffering more severely than many cancer patients 
whose request for euthanasia is granted” without asking too many questions. But, den 
Hartogh maintains, he would also be relieved that “no more ground is lost to the people who 
want to grant each person his request as long as it is competently made. The second feeling is 
at least as strong as the first one.”^^ 

The most supportive views of Sutorius' conduct were expressed by Jaap Visser and Bert 
Keizer who felt that Sutorius did his job with conscience. Visser talked with Brongersma 
many times and realized that there was no more help for him. But this is not a case for 
euthanasia under the law. "We don't have an answer for such patients whose condition does 
not fall under the euthanasia Guidelines. In turn, Keizer finds the physician's behavior 
justified, saying that he himself probably would have gone along with the patient's request. 
Keizer sees age as a very important factor in euthanasia requests. Brongersma was 86 year 
old. You cannot say to him: You will grow out of this. Keizer says that he would have stated 
on paper that Brongersma’s physical situation was such that he could not live independently 
any longer, that he was in complete social isolation. Keizer said he would probably have 
described the situation as hopeless and by this turn the case into an acceptable case of 
euthanasia. Old people who are completely dependent on other people, who conceive their 
own life as hell are entitled to ask for euthanasia, and the doctor is entitled to provide 
assistance. 



Personal communication on August 6, 200 1 . 

Interview on April 3, 2002. For further discussion condoning Sutorius, see Peter Singer, "Voluntary Euthanasia: 
A Utilitarian Perspective," Bioethics, Vol. 17, Nos. 5-6 (2003):535-536. 




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167 



Keizer went on to relate the last case of euthanasia (PAS actually, but he doesn’t feel the 
distinction to be very important) he was involved in. An old lady who led a very active life 
and then suffered a stroke. As a result, she became half paralyzed. She had a hemianopsia 
(half-sided loss of visual field) that prevented her from reading and watching television. 
Then, after 6 months striving for rehabilitation, she also broke her hip and subsequently 
asked to die. After the stroke she did not lose hope and fought but after the broken hip she 
gave up on life. Keizer testifies that she could have lived like this for years but she asked for 
euthanasia and he agreed. Keizer agreed because he thought her situation was hopeless. 
Dependency was too much for her. She was not in pain but emotionally she was suffering. 
She could not get up, or walk, or get into bed, or visit the toilet without help, or eat alone. All 
that she could do was to speak, sit and lie down. 

Back to Brongersma, in December 2001 the Amsterdam Appeal Court accepted the 
prosecution’s petition and reversed the lower court’s ruling. Although the court found Philip 
Sutorius guilty, it still refrained from giving him a jail sentence. Sutorius was found guilty 
because he did not act for medical reasons, but rather because the patient was tired of life. 
The court did not sentence Sutorius because he acted out of compassion for his patient and 
because the court viewed this as a test case by the prosecutor.^"^ The lack of sentencing 
conveys a dubious message to physicians who might find themselves in a similar position. 

A year later, in December 2002, the Dutch Supreme Court upheld the conviction of 
Sutorius. The court said it was clear Dutch euthanasia rules were never intended to cover 
such cases. The ruling by the nation's highest court insisted that the medical Guidelines for 
mercy killing should be strictly observed.^^ 

The second case. Van Oijen, involved an 84-year-old patient in a nursing home who 
unquestionably experienced unbearable suffering, but there was no request for euthanasia on 
the part of the patient. The patient had had heart problems and osteoporosis for a long time, 
and during the last year was increasingly bedridden. Her physician was Wilfred van Oijen 
who - you may recall - was the physician who appeared on the film. Death on Request (see 
chapter 9). Chris Rutenfrans elaborated on this case, saying that according to the reports van 
Oijen came to visit his patient and saw her unconscious and lying in her dirt. The patient’s 
daughters stood next to their mother and said to van Oijen, who had been the patient’s GP for 
17 years: “Even a dog you shouldn’t let die in this way.” Then van Oijen gave her a lethal 
injection and she died. The patient never asked for euthanasia, and van Oijen failed to 
consult a colleague and also reported the death of his patient as a natural death.^*’ However, 
his conduct was brought to the attention of the legal authorities and the case came before the 
court. The Amsterdam Court said that Dr. van Oijen had made “an error of judgment” but 
had acted “honorably and according to his conscience,” showing compassion in what he 
considered the interests of his patient. Thus, although van Oijen was convicted of murder he 
was given only a suspended sentence of 5000 guilders for breaching the Guidelines. The 



“Dutch Doctor Is Convicted in Suicide Case,” New York Times (December 9, 2001). 

’’ "Dutch Court Upholds Euthanasia Conviction," The Associated Press (December 24, 2002). For further 
deliberation, see B. Rosenfeld, "Assisted Suicide, Depression, and the Right to Die," Psychology Public Policy 
and Law, Vol. 6 (June 2000): 467^88. 

Govert den Hartogh commented: “My knowledge of the details of the Van Oijen case is insufficient to comment 
on it. It is clear that he failed to report and such failures are less and less excusable, because one can no longer 
say that the criteria are unclear. (Maybe van Oijen was fully aware that he did not satisfy them.)” Personal 
communication on August 6,2001. 




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Royal Dutch Medical Association (KNMG) has defended van Oijen’s action as having 
“complete integrity,” claiming a “huge emotional gulf’ between it and the offence of 
murder.^’ Legally, what van Oijen did was murder, but it is argued that he conducted the 
murder with good intentions. 

The interviewees expressed mixed views on the Van Oijen case. While Ron Berghmans 
had no clear opinion on the case, others condoned van Oijen's action while still others 
condemned him. The foremost support was voieed by Rob Houtepen who said that the 
patient's condition was terrible. She could not control her bodily functions, suffered from 
severe wounds; her suffering was unbearable and insolvable. Her prognosis was that she 
would live for one or two days before she dies. In these circumstances, the humane thing to 
do was to terminate life, even regardless of having a euthanasia request. Euthanasia should 
always be a measure of last resort, and here it was a measure of last resort. Houtepen 
maintained that van Oijen's mistakes were insuffieiently explaining to the patient the 
consequences of her policy treatment. She refused to take morphine. Consequently, full 
palliative care treatment was not provided. Van Oijen should be blamed for not providing the 
patient adequate information about her disease and treatment choices, that her condition 
might become unbearable without adequate palliative care. He failed also to be clear with the 
patient's family about his plan of conduct, his intentions regarding treatment. His pattern of 
previous judgments shows that van Oijen was very liberal with euthanasia. 

Jaap Visser thinks van Oijen took the right decision. The patient was suffering. The 
nurses did a bad job, left the patient to herself Therefore, he should be acquitted. His fault 
was that the patient did not ask for euthanasia, but medically he had done the right thing, 
what was required of him as a medical doctor. Jochemsen thinks this is a very difficult case. 
The patient suffered from open wounds and was lying in her dirt. Van Oijen had the feeling 
that he must act in order to free the patient from her dehumanizing situation. Jochemsen 
condemns the action as murder but maintains that if society accepts euthanasia, then he could 
sympathize with van Oijen's conduet. When euthanasia is allowed, providing death can be 
expected. 

On the other hand, Arko Oderwald, Frank Koerselman and Bert Keizer opined that van 
Oijen practised bad medieine. The patient had no advanee directive or living will requesting 
euthanasia. Still, van Oijen assumed the responsibility. Oderwald thinks van Oijen’s license 
should be revoked. Oderwald testified he does not trust doctors who think they know best. 

Koerselman also thought that van Oijen had done a very bad job as a doctor. He violated 
all the Guidelines for careful conduct. The patient did not ask for euthanasia. Van Oijen did 
not consult anyone. In addition, he did not follow the Guidelines regarding the drugs to be 
administered. He injected the patient a muscle relaxant drug, taken from a bottle he used 
earlier to euthanize another patient. Koerselman was very unhappy that van Oijen was 
glorified as a hero by the media, portraying him as a humane doctor who did the right thing 
to relieve suffering. Van Oijen even received a special praise by the Editor of Medisch 
Contact, the official journal of the Royal Medical Association. 

Cf. Tony Sheldon, “Dutch GP Found Guilty of Murder Faces no Penalty,” BMJ, Vol. 322 (March 3, 2001), p. 
509. 

In an early communication, Frank Koerselman commented on the two cases, Brongersma and Van Oijen, by 
saying: “Both of them are, in my view, quite bizarre. Of course I only know these cases from the media. But as 
far as these [commentaries] are reliable, both seem to be examples of very serious medical malpractice. On the 
other hand, the official journal of the Royal Dutch Medical Association is treating both doctors as if they were 




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169 



Bert Keizer found van Oijen's conduct to be completely wrong. Van Oijen succumbed to 
family pressures. Keizer said that there are various ways to cope with such pressures. The 
answer to such pressure is not killing of the patient. The patient was unconscious, therefore 
she was not suffering. Why, then, kill her? Keizer knows van Oijen personally, thinks that he 
is a good man, but here he made a mistake. 

The two cases show that it is possible to compromise either of the absolutely important 
preconditions of patient’s voluntary decision or of unbearable suffering and still the 
physicians would not be punished. So long as the Dutch think that there was a reasonably 
good justification to infringe on a certain Guideline, they show sympathy for the physician’s 
conduct even when it involves the killing of a patient. My view of those two cases is highly 
critical. Instead of investing efforts to improve the patient’s living conditions physicians opt 
to perform euthanasia. In the first case, Sutorius should have refused to discuss the issue of 
euthanasia with his patient, by this showing Brongersma that this is not an issue to ponder. 
Undoubtedly the case is the result of a very permissive culture of euthanasia. I never heard of 
a similar case in Israel, England, the United States or in any other country for that matter. 
Physicians should not fulfill all patients’ requests. Sometimes they must withstand their 
patients’ pressure and explain in an unequivocal manner that they must remain loyal, first 
and foremost, to their conscience. I myself think that physician-assisted suicide is justified 
under certain conditions, which should be satisfied. These conditions are explained in the 
Conclusions. The conditions were not satisfied in the two cases discussed here. 

The second case is also highly disturbing. Instead of investing more time and effort to 
improve his patient’s quality of life, van Oijen simply killed her. Dying patients deserve 
more care, not a syringe full of poison. No healthcare system should allow physicians to 
walk into medical departments with a ready-to-inject syringe and finish off patients, even if 
they are in great suffering. Just imagine that each of the hundreds medical personnel will kill 
only one patient deemed to be suffering and/or in inhumane conditions. If my opinion were 
to be heard, I would recommend van Oijen and the Dutch medical profession to declare a 
mutual divorce. 

Chris Rutenfrans further reflected that after the parliament had passed the euthanasia law, 
on April 14, 2001 Minister of Health Borst declared that she would welcome discussion on 
introducing a suicide pill for elderly people. Some ten years ago, a judge by the name Drion 
wrote an article in favor of a suicide pill. Then the suggestion evoked intense discussions and 
now Minister Borst reintroduced it on public agenda. The idea is to provide a pill for healthy 
people who are tired of life. By introducing this subject Minister Borst showed her support 
for Sutorius. 

Minister Borst was severely criticized for her suggestion, not only by political parties that 
are opposed to the government but also by the liberals and social-democrats who form part of 
the government. In the face of the heated debate, Borst withdrew her proposition. She 
understood that politically it was not the right moment to pursue the issue. Arko Oderwald 
explained that the reaction to Minister Borst’s proposal on the suicide pill was negative 
because the Dutch are studying the recent developments in the euthanasia sphere and do not 
wish to rush further. 



holy victims of the Dutch legal system, just because they are prosecuted (until now they have not been 
sentenced, as far as I know).” Personal communication on July 27, 2001. 




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Evert van Leeuwen and James Kennedy noted two positive developments that have taken 
place since 1999. The first concerns palliative care. The government has put a lot of money 
into developing this field of expertise. Courses in this area are provided to physicians and 
more research is performed. A lot was done to improve palliative care in hospitals and in 
medical care at large. 

On the other hand, Ruud ter Meulen argues that palliative care is indeed improving in the 
Netherlands but it is still not integrated well into the nursing care system. It is still 
underdeveloped. Ter Meulen suggests (and I fully agree) that the Guidelines include a 
provision for palliative care before considering euthanasia. This would prevent administering 
euthanasia too quickly. James Kennedy remarks in this context that there is some indication 
that some physicians perform euthanasia simply because they do not know what else to do. 
With the growing attention to palliative care, physicians may recognize new vistas that are 
open to them and not rush to perform mercy killing. 

The Ministry of Health, Welfare and Sport announced that the government has set aside 
NLG 7 million a year for a period of five years to improve palliative care. Some of this 
money is used for research and some of it to find ways of increasing the scope for its use in 
the closing stages of life. Six teaching hospitals have set up centers for the development of 
palliative care. Some of these centers have expert teams of consultants who can answer 
questions from GPs, nurses and home care providers about patient care.^^ 

Henk Jochemsen argued that in the cities, where the attitude to euthanasia is permissive 
you see a kind of retreat on the part of some physicians because now they have better 
possibilities to alleviate suffering. In the countryside, where the euthanasia practice did not 
develop to the same extent as in the cities, palliative care is less developed and the practice 
of euthanasia seems to expand gradually and the palliative care infrastructure is still 
insufficient. There is less awareness regarding the importance of palliative care. 

In this context I express hope that now that the euthanasia law has passed, the discussion 
about euthanasia will calm down a bit and leave room for other concerns, no less important. 
There is a need to improve the care provided to dying patients and to conduct more research 
on the withholding and withdrawing of treatment. After all, only a small percentage of 
patients ask for euthanasia. 

The second positive development concerns the systematic consultation that is now in 
place (for discussion on the SCEN project, see chapter 9). Leenen and Kennedy argue that 
the SCEN project is working quite efficiently in most places. In the past, physicians used to 
consult colleagues when the issue was already decided, a fait accompli. The role of the 
consultant was, accordingly, very limited. SCEN tries to make consultations at earlier points 
in time and to explore other options, such as palliative care. SCEN consultants are 
increasingly becoming more qualified in palliative care. They explore other treatment 
options and verify that euthanasia is, indeed, the only option left. Kennedy maintains that 
more and more physicians regard consultation with SCEN doctors in a positive light and 
consult them. 

Bert Keizer also has a very positive view of the SCEN project. He thinks SCEN doctors 
have a broader range of experience, can provide broad understanding of medical conditions, 
and can point to more comprehensive reasons whether to approve, or disapprove of a request 
for euthanasia. Keizer testifies from his own experience that he consulted SCEN doctors 



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171 



twice, and on both occasions the consultants helped him strengthen his own position 
regarding the patients' requests. On both occasions, the patients asked for euthanasia, Keizer 
did not agree and the consultants supported his position. 

Ruud ter Meulen serves as a substitute member of the regional committee in his region. 
He testifies that if the consultant is a SCEN member then he is confident that the judgment is 
independent, that the consultant accurately evaluated the patient's medical condition. SCEN 
doctors are also more experienced, more knowledgeable than GPs who are not members of 
the SCEN program. 

Jaap Visser said that the plan is to have a comprehensive network of SCEN eonsultants 
all over the 23 regions of the Netherlands. In April 2002 SCEN was available in 16 of them. 
Physicians are not obliged to consult with SCEN doctors but many approach them. The 
regional committees said in their annual report that the quality of SCEN consultation is 
higher than the consultation with a non-SCEN physician. SCEN doctors have special 
qualifications. They undergo three day course on issues concerning end of life: palliative 
care, juridical procedure, pharmacology, role playing of patients, their families and the 
medical staff. They leam how to deal with family pressures. SCEN physicians tend to 
emphasize palliative care before reeommending euthanasia. 

Visser further explained that any GP can be on the SCEN list of eonsultants if he/she asks 
so. Then they will have to do the course. Some physicians said after the course they did not 
want to be on the SCEN list beeause they rather not be involved in euthanasia decisions. 
SCEN doctors may perform euthanasia and not only serve as consultants. Visser elucidated 
that the consultant sees the patient and the GP in charge. The process from the first phone 
call of the GP to the consultant, through the visitation of the patient, talking to the GP, till the 
writing of the report takes 4 to 5 hours. The consultant spends between 30 to 60 minutes with 
the patient. Sometimes the consultant asks to see the patient for the second time. 

Henk Jochemsen said that some SCEN doetors stated they are now more reluctant to 
administer euthanasia or recommend euthanasia because they discovered that patients and 
families sometimes request euthanasia in early stage of the disease, and also that palliative 
care may alleviate suffering, which is often the motivation for initiating euthanasia requests. 
In turn, Frank Koerselman spoke of an interview with some SCEN doctors who said that 
they were disappointed by the communieations of patients and families. Patients and families 
spoke of their right to euthanasia. Patients focus so much on euthanasia that they are not 
willing to diseuss treatment options. SCEN doctors also expressed remorse about their past 
conduct, now realizing after acquiring knowledge about the benefits of palliative care, that 
they had euthanized patients prematurely. Some of the patients whom they killed could have 
been helped with the administration of palliative care. Koerselman maintained that the SCEN 
program is working well and is expanding throughout the country. More and more GPs are 
approaching SCEN doctors for consultation. 




Part C 



CONCLUSION 




CONCLUSION 



175 



A. PRELIMINARIES 

I came to the Netherlands with mixed feelings and left the same way, but with greater 
anxiety. This study shows that there is cause for coneem. The Dutch culture does not 
welcome a critical plurality of opinions regarding the legitimacy of euthanasia. Critics are 
regarded quite unfavorably.' Before I arrived, my review of the contrasting literature led me 
to think that the Netherlands is neither “promise for the world” or “heaven” nor “hell.” My 
research shows that there is room for eoneem. Obviously, there is scope for more researeh, 
for deeper discussion, and for increased awareness of the pitfalls in the practice of 
euthanasia. 

It was strange for me to discuss the issue of euthanasia in the Netherlands. Views that are 
extremely unpopular in other countries regarding euthanasia’s place in society rule supreme in 
the Netherlands. The discussions I had with the Dutch experts were almost a mirror image of 
discussions I had had in Israel, the United States, Britain, Canada and Australia.^ What was 
striking in my discussions was the prevailing acceptance of the euthanasia procedure. There 
were only a few dissenters who were willing to go against the euthanasia policy and practice. 
My first fourteen interviewees were, on the whole, in favor of the policy, and I felt a growing 
unease in encountering such unanimity of opinion. This conformity worried me. Plurality and 
diversity of opinion are good for society, leading to a more comprehensive understanding of the 
issues, as well as a higher level of truth, as John Stuart Mill used to say.^ 

I found it troublesome that scholars and decision-makers would support a system that 
suffers from serious flaws when the stakes are very high; after all, we are dealing with life 
and death."* There were various opinions regarding specific questions and issues, but only a 
minority questioned the system as such. Many of the experts depicted a society in which it is 
the role of doctors to help patients. They did not question the doetors’ motives and saw no 
reason why doetors would perform euthanasia without eompelling reasons. They argued that, 
of course, eriminals exist in every society, in every sphere of life, but policy is not built 
around this small number of criminals. They believed that there is a need to install control 
mechanisms against the possibility of abuse, but that the system’s rationale is good - to help 



In his comments on the first draft of this study, van Dantzig wrote that this assertion is fundamentally incorrect: 
“The whole of Dutch society is based on the cohabitation of people who fundamentally disagree on everything. 
The sometimes very creative solutions (soft drugs may not be bought by coffee shops, but their sale is not 
punished within certain limits) have given rise to the word "poldermodel," which expressly means living by 
compromise, or as I have once put it, the fair division of discontent. I write to you because such a fundamental 
misunderstanding may harm the quality of your paper.” Personal communication on July 14, 2000. 

^ The outcome of this extensive nine-year research project is The Right to Die with Dignity: An Argument in 
Ethics, Medicine and Law (Piscataway, NJ.: Rutgers University Press, 2001). 

^ J. S. Mill, Utilitarianism, Liberty, and Representative Government (London: J. M. Dent, 1948), Everyman’s 
edition. For further discussion, see R. Cohen-Almagor, The Boundaries of Liberty and Tolerance (Gainesville, 
FL: The University Press of Florida, 1994); idem, “Why Tolerate? Reflections on the Millian Truth Principle,” 
Philosophia, Vol. 25, Nos. 1—4 (1997): 131—152; idem, “Ends and Means in J.S. Mill’s Utilitarian Theory,” The 
Anglo-American Law Review, Vol. 26, No. 2 (1997): 141—174. 

'' In his comments on the first draft of this essay, Griffiths reacted to this statement by writing: “Nowhere do you 
suggest that there is a better system anywhere else. The Dutch know about the system’s defects and are working 
to improve it. Can you tell me about another country where that is true?” Personal communication on July 10, 
2000. Griffiths, it seems, finds a lot of comfort in comparative studies to the point of blurring his own careful 
thinking about the happenings in his country. 




176 



CONCLUSION 



people in their time of need. They emphasized that the two major reports of 1990 and 1995 
do not demonstrate a slippery slope, yet ignored the fact that there is already too much abuse. 

In this context, James Kennedy made an interesting observation. He said that it is wrong 
to speak of the euthanasia “system.” The word “system” suggests a kind of logical coherence 
that Kennedy does not think that Dutch euthanasia has. The Dutch use the word “beleid,” 
meaning policy. They are proud of fuzziness. They believe that rules and guidelines should 
not be set in stone. They do take the Guidelines seriously, but if the physician has a good 
reason for not fulfilling a certain Guideline, then that is fine. It is hard to know how much 
weight the Dutch really put on their Guidelines. The Guidelines are important but not 
absolutely important. They carry a certain weight but don’t have absolute gravity. Kennedy 
thinks that the new act of April 2001 added a bit more weight to the Guidelines, but only a 
little bit.^ 

Many of the interviewees failed to recognize that the policy does not work because all of 
the Guidelines, without exception, are broken time and time again.® It is not always the 
patient who makes the request for euthanasia or physician-assisted suicide. Often the doctor 
proposes euthanasia to the patient. Sometimes the family initiates the request. The 
requirement that the request be voluntary is thus compromised. On occasion, the patient’s 
request is not well considered. As we have seen, there have been cases in which no request 
was made and patients were put to death. Furthermore, the patient’s request is not always 
durable and persistent as required. 

The Guidelines speak of “unbearable suffering,” a term that evokes criticism because it is 
open to interpretation.^ Are dementia patients, for instance, suffering unbearably? Were Mrs. 
Bosscher and Mr. Brongersma in an unbearable state of suffering? The Guidelines instruct 
that a doctor must perform the euthanasia. Yet, there are cases in which nurses have 
administered the procedure. It is estimated that 10% of the nursing home physicians let the 
nurse or even the patient’s family members administer the euthanasia drug.* Another key 
Guideline requires that before the doctor assists the patient, a second doctor must be 
consulted. This Guideline has been breached many times. It is instructed that the patient’s 
GP performs euthanasia, yet on occasion the consultant conducted the final act. The doctor 
must keep a full written record of every case and report it to the prosecutorial authorities as a 
case of euthanasia or physician-assisted suicide, and not as a case of death by natural causes. 
This Guideline has also been violated frequently.^ Notwithstanding, many interviewees were 
quite content with the Guidelines. One cannot expect a policy that would work 100 percent 
of the time, but given the many frequent breaches of all the Guidelines, the Dutch should 
invest effort to find remedies and to prevent abuse and lawlessness. 



’ Interview with James Kennedy on June 24, 2001 (Amsterdam). 

‘ In his remarks on the first draft of this study, Griffiths wrote that this assertion is “of course pretty silly.” He 
asked: “Do you know of a single legal policy that ‘works’ 100%? The fact that the Guidelines are not yet 
effective enough does not mean they are having no effect at all. I would argue that the situation in the 
Netherlands is much better than elsewhere, that the difference is that here we know the extent to which control is 
not yet adequate.” Personal communication on 10 July 2000. 

’ For deliberation on the range of what “unbearable suffering” means, see Carlos F. Gomez, Regulating Death 
(New York: The Free Press, 1991): 99-104. 

* Martien Tom Muller, Death on Request (Amsterdam: Vrije Universiteit, 1996), Thesis, p. 52. 

’ For deliberation, see Jacqueline M. Cuperus-Bosma, Gerrit van der Wal and Paul J. van der Maas, “Physician- 

assisted Death: Policy-making by the Assembly of Prosecutors General in the Netherlands,” European J. of 
Health Law, Vol. 4 (1997): 225-238. 




CONCLUSION 



177 



Upon analyzing the interviewees’ answers, we may group them accordingly: 

1 . Some are avowed advocates of the policy and practice of euthanasia no matter what. 
They believe that the euthanasia option should be available for patients and are not willing to 
analyze the situation critically. This group includes A. van Dantzig'“ and Heleen Dupuis. 

2. The majority of interviewees defend the practice despite its major flows. One cannot 
escape noticing that some of them work together in the same institutions and it seems that the 
working relationships shaped the thinking in certain similar patterns. Some of the 
interviewees in this group work for government agencies (most notably Visser of the Health 
Ministry, Leenen who was most instrumental in the legalization of euthanasia, and van der 
Maas, van der Wal and van Delden who have had major research projects together) and 
identify with the policy. When the government commissions science, there is always a risk 
that the scientist will identify with the governmental policy to the point of compromising his 
or her critical capacity for impartial reflection." Other interviewees in this group are more 
critically open and think that some accommodations are needed, but that the policy and 
practice of euthanasia, on the whole, function well. They think that euthanasia should be an 
option for patients in a liberal society and that, in any event, the Netherlands cannot go back. 
The public largely supports the policy and wishes it to be continued." This large group 
consists of Gerrit van der Wal who works at the Free University of Amsterdam; Egbert 
Schroten and Johannes van Delden who cooperate closely at the Center for Bioethics and 
Health Law, Utrecht University; Rob Houtepen, Ron Berghmans and George Beusmans from 
Maastricht; Henk Leenen, emeritus law professor from the University of Amsterdam and 
J.K. (Sjef) Gevers who succeeded him as the Professor of Health Law at that same 
university; Jaap Visser of the Ministry of Health; Bert Thijs, a senior physician who heads 
the VU Hospital Intensive Care Unit"; Paul van der Maas and Henri Wijsbek from Erasmus 
University;" Gerrit Kimsma" and Bert Keizer who practice euthanasia in the Amsterdam 
area. 



In his comments on the first draft, van Dantzig wrote: “Please remove this, this is far from true!” Personal 
communication on July 8, 2000. 

" In his comments van der Maas reacted to this assertion by saying that he takes it as “very insinuating.” Personal 
communication on September 18, 2000. Leenen wrote in his letter of February 2, 2001 that this comment “is 
below any level of decent discussion” and that I am going “too far.” Leenen maintained that he had not 
expected me to enter “this type of debate” and that as far as he is concerned “I never did any legislation-work 
for the government. I have written my law for three parties in the Parliament. The government has taken it 
over.” 

The number of citizens who approve of euthanasia at the patient’s explicit request grew from 40% in 1966 to 
over 60% (in some polls almost 80%) in 1993. Likewise the number of opponents decreased steadily (21% in 
1986, 17% in 1989, 12% in 1994. Cf. loop van Holsteyn and Margo Trappenburg, “Citizens’ Opinions on New 
Forms of Euthanasia. A Report from the Netherlands,” Patient Education and Counseling, Vol. 35 (1998), p. 
64. A 1998 poll indicated that 92% of the population supports the practice of euthanasia. Cf “Dutch Might 
Legalize Euthanasia,” Associated Press (July 12, 1999). 

Unlike most interviewees. Professor Thijs did not receive any special training in medical ethics. I asked him: 
Do senior physicians in your position, i.e., heads of hospital departments, receive any special training in 
medical ethics? Did you receive any such training? His answer was: “I do not think senior physicians receive 
special training in medical ethics.” Personal communication on December 20, 2000. 

I asked Paul van der Maas whether he has close working relationships with Henri Wijsbek. His answer was: “I 
know Dr Wijsbek but we don’t have a working relationship.” Personal communication on December 19, 2000. 

In his comments, Kimsma expressed uneasiness about including him in this group. He wrote that the present 
system is the best or better than any other system. This is the result of deliberations between legal and medical 




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CONCLUSION 



3. There is a smaller group who recognize the flaws and would like to introduce 
changes, some of which are quite substantial: John Griffiths, Evert van Leeuwen, Govert den 
Hartogh, and Arie van der Arend. Like the two former groups, these people still support the 
practice. 

4. The critics of euthanasia, who would like to prohibit the practice entirely, are Frank 
Koerselman, Chris Rutenfrans and Henk Jochemsen.*^ Jochemsen has strong religious 
convictions. Chris Rutenfrans is a Roman Catholic who declares that his opposition to 
euthanasia does not stem from his religion but from practical reasoning. 

5. Others recognize that the policy suffers from several serious flaws, some of which 
may not be correctable. They are struggling with the issue and have ambivalent views about 
the practice. This group includes Arko Oderwald, Ruud ter Meulen and James Kennedy. Ter 
Meulen*^ and Kennedy** have strong religious convictions. 

I was surprised during some of the discussions to hear the rosy pictures that were painted. I 
asked myself whether I was too cynical and suspicious, or my counterparts too optimistic; after 
all, they knew the situation in the Netherlands far better than I did. But the unanimity of opinion 
might suggest that there is not enough reflective thinking about this issue, that the practice of 
euthanasia is taken for granted;’^ therefore, there might be greater room for abuse in such an 
environment of tmst and lack of critical questioning. Even issues that are acknowledged as 



participants of the process over the past 25 years. But it has serious flaws. One of them is the lack of 
consultation prior to any decision to end a life, where the medical situation and chances for improvement are 
subject to serious professional deliberations. Kimsma thinks that more medical consultations are necessary 
before a request for an end to life should be granted, and that “there is a deep confusion about the proper 
procedures and the proper and overriding frames of thinking that must dictate the procedures. The struggle 
between law and medicine instead of cooperation has made its victims.” Yet, in other countries Kimsma learned 
from private conversations with physicians that they “had been there” but they didn’t talk openly about their 
practice and didn’t consult colleagues. Kimsma concluded that the situation in the Netherlands where “we 
discuss and practice these issues is the strong part of the present procedure,” but much still needs improvement. 
Other countries need even more improvement. Personal communication on September 9, 2000. I should note 
that Kimsma and van Leeuwen work very closely together. I assume that the differences of opinion are because 
Kimsma is a physician who practices euthanasia and van Leeuwen is an ethicist and philosopher. 

In his comments on the first draft, Jochemsen asked me to add that he does realize that in the present situation a 
simple reiteration of the prohibition would not improve the practice straight away. This would require a whole 
package of measures. Personal communication on July 5, 2000. 

Ruud ter Meulen is the Director of the Institute of Bioethics, and , Maastricht University professor on behalf of 
the Radboud Foundation, a Catholic organization that sponsors special professorships at non-religious 
universities. This may explain why his views are so different from the views expressed by his colleagues whose 
offices are situated next to his at the same university corridor. 

Kennedy had recently published a book about euthanasia and wished, to the extent he could, to avoid easy 
prejudice of his own critique of Dutch euthanasia practice. In a personal communication he wrote: “Many 
Dutch find the religious beliefs of critics as the basis for not considering further what they may have to say. I 
do intend to refer to my religious faith in my book, but in a way which I hope will enhance, not undermine, the 
force of my observations. If there is any way in which you can accommodate my concern in your own work, I 
would appreciate it, though obviously it’s your work, and your judgment call.” Personal communication dated 
December 16, 2000. 

In his comments, Arie van der Arend contested my argument that there is not enough reflective thinking about 
euthanasia, arguing that (a) I cannot expect extensive and balanced reflective thinking during interviews that 
were taken from people who were busy with totally different tasks at that moment; (b) my study does not cover 
the extensive Dutch literature on the subject; (c) I did not interview one of the best “reflective thinkers,” Theo 
Beemer, Professor of Moral Theology and Health Care Ethics at the Catholic University of Nijmegen, and (d) 
that such a value judgment could have been justified only after comparing the Dutch practice to the situation in 
other countries. Personal communication on July 3, 2000. 




CONCLUSION 



179 



problems are not conceived to be serious enough to press. The Dutch tend to aeeept highly 
troublesome contentions and to consider and allow euthanasia in cases where the Guidelines are 
severly breaehed and to condone killing when patients did not ask to end their lives. The culture 
aroimd euthanasia makes the practiee accessible within the eonfmes of what is permissible. This 
culture, however, has a chilling effect upon open, critical debate.^** In other parts of the world, 
under similar circumstances and in light of the justified critique, euthanasia would not be 
considered an option. 



B. SUGGESTIONS FOR IMPROVEMENT 

Some troubling questions have arisen as a result of this study. The high number of 
unreported cases of euthanasia is alarming. The fact that some patients have been put to 
death without prior consent is extremely worrisome. Society has to ensure that no abuse 
takes place and that the existing legal procedure does not open a window for abuse or 
provide a way to get rid of “unwanted” patients. More research should be done on what is 
termed outside of the Netherlands “passive euthanasia”, that is, the withholding or 
withdrawal of treatment. Special attention should be given to demented patients, newborns 
and children. The Guidelines need to be clarified in detail, closing the door to possible 
misinterpretation that could lead to abuse. 

I agree with most of the experts who contend that euthanasia should not be regarded as an 
integral part of normal medical care. The fact that many physicians do not wish to be 
bothered with the procedures is alarming. It shows that they have not internalized the concept 
that euthanasia is an exceptional medical procedure and, as such, requires social control. It is 
possible that the moral ambiguity that surrounded the issue — allowing the practice while it 
was still prohibited under the Penal Code - made doctors feel that they had better conduct 
euthanasia in private, keeping it only between the patients, their families and themselves. 
Wherever euthanasia is practiced, it should be subject to constructive criticism. It is 
preferable to draft a better legal framework than the one that used to govern the practice in 
the Netherlands prior to the enactment of the new law, which was ambiguous and presented 
an illegal-yet-tolerated model. In the event that we see that the new euthanasia policy opens 
the way to abuse, then yet again we should pursue a public debate in which different sectors 
of society can take part. The understanding of euthanasia and its importance should be 
changed for it to work properly without abusing the rules of caution. 

I also think that physicians should not suggest euthanasia to their patients as an option. 
By now, the Dutch people are fully aware that euthanasia is available. If patients wish, they 
can raise the issue themselves. Most of the euthanasia cases involve cancer patients, and at 
some time during the progressive course of their illness, they can take the initiative and 
discuss it with their physicians if they are so inclined. If they do not initiate such a 
discussion, then the physician can assume that the patient does not wish to move in this 
direction. 

I believe that the medical profession should not turn its back on patients who clearly 
request to shorten their lives. However, this issue should be open to a constant public debate. 
It is necessary to devise a better working framework to help patients in need. At the same 
time, respect for human life is and should remain the prime concern. Ending a human life 

Hendin reached a similar conclusion. Cf. Herbert Hendin, Seduced by Death, op. cit., p. 100. 




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CONCLUSION 



without acquiring the patient’s consent might be motivated by mercy - or, alternatively, the 
motivation may be quite different. The ending of a patient’s life should be conducted in the 
light and subject to scrutiny. 

As said in Chapter 3, before coming to the Netherlands, I supported euthanasia and 
published some articles ealling to recognize the need for euthanasia (in the active sense that 
it is practiced in the Netherlands). The study in the Netherlands caused me to change my 
views not on the ethics of euthanasia but rather on the praetieality of its implementation. The 
Duteh study showed that moving from the individual level to the policy level is tricky and 
complicated. I no longer support euthanasia. Now I restrict my plea to helping patients in 
need with physician-assisted suicide. This is in order to give patients better control over life 
and death, until the very last moment, and to provide a further mechanism against abuse. At 
the same time, I am willing to concede the need for euthanasia in two circumstances: (1) the 
patient requesting euthanasia is totally paralyzed, from head to toe, and unable to move any 
muscles that could facilitate assisted suicide; and (2) the patient took oral medication and has 
been in the process of dying for prolonged hours (see Guideline 1 1 infra). 

The majority of Dutch scholars do not share my view. They lump euthanasia and 
physician-assisted suicide together and even invented an acronym for this purpose: EAS. It 
should be noted, however, that in August 1995, in an effort to improve the control 
mechanisms guiding these procedures, the KNMG refined its Guidelines to recommend that 
assisted suicide, rather than euthanasia, be performed whenever possible.^* 

I believe that the right to die with dignity includes the right to live with dignity until the 
last minute and the right to part from life in a dignified manner. There are competent, adult 
patients who feel that the preferable way for them to part from life is through physician- 
assisted suicide. I propose a eircumscribed plea for voluntary physician-assisted suicide on 
their behalf The following considerations are pertinent: 

Guideline 1. The physician should not suggest assisted suicide to the patient. Instead, it is the 
patient who should have the option to ask for such assistance. Initiation by the physician 
might undermine the trust between the patient and the physician, conveying to patients that 
the doctor is giving up on them and values their lives only to the extent of offering assistance 
to die. Such an offer might undermine the will to live and to explore further avenues for 
treatment. Many Dutch physicians do not see this issue as a significant one. Some of them 
consider it important to raise the issue when it seems that patients do not dare to initiate it on 
their own. Undoubtedly, however, all people in the Netherlands are aware of the availability 
of euthanasia and physician-assisted suicide. Any reluctance shown by patients in regard to 
this issue should be honored and respected. 

Guideline 2. The request for physician-assisted suicide of an adult,^^ competent patient who 
suffers from an intraetable, incurable and irreversible disease must be voluntary.^^ The 
decision is that of the patient who asks to die without pressure, because life appears to be the 



Ibid, p. 122. 

Most bill proposals to legislate PAS in the United States specify that the age of the consenting patient must be 
18 or older to qualify for the procedure. Russell Korobkin, “Physician-assisted Suicide Legislation: Issues and 
Preliminary Responses,” Notre Dame J. of Law, Ethics & Public Policy, Vol. 12, No. 2 (1998), p. 454. 

See the Dutch requirements of careful practice, in John Griffiths, Alex Rood and Heleen Weyers, Euthanasia 
and Law in the Netherlands, op. cit., p. 66. See also Chap. II. Article 3 of the Belgian Euthanasia Law adopted 
by the House of Representatives on May 16, 2002. 




CONCLUSION 



181 



worst alternative in the current situation. The patient should state this wish repeatedly over a 
period of time.^"* We must verify that the request for physician-assisted suicide does not stem 
from a momentary urge, an impulse, a product of passing depression. This emphasis of 
enduring request was one of the requirements of the abolished Northern Territory law in 
Australia,^^ and is one of the requirements of the Oregon Death with Dignity Act^^ as well as 
of the Dutch Guidelines. We must also verify that the request is not the result of external 
influences. It should be ascertained with a signed document that the patient is ready to die 
now, rather than depending solely upon directives from the past. Section 2 of the Oregon Act 
requires that the written request for medication to end one’s life be signed and dated by the 
patient and witnessed by at least two individuals who, in the presence of the patient, attest to 
the best of their knowledge and belief that the patient is capable, is acting voluntarily, and is 
not being coerced to sign the request.^* 

Individuals may express general attitudes regarding euthanasia in an informal discussion 
made in a social setting, possibly saying that they would not want to live if they were unable 
to function alone and had to depend on the mercy of others. However, such hypothetical 
observations do not constitute reliable evidence of a patient’s current desires once an actual 
illness is in progress. This is especially true if the wish was stated when young and healthy. 
The younger people are and the further they are from serious disease, the more inclined they 
are to claim that in a hypothetical state of pain, degradation and hopelessness, they would 
prefer to end their lives. On the other hand, there is a tendency to come to terms with 
suffering, to compromise with physical disabilities, and to struggle to sustain life. This 
tendency grows as the body weakens. Many people change their minds when they confront 
the unattractive alternatives, preferring to remain in what others term the “cruel” world, and 
continue the Sisyphean struggle for their lives. 

Guideline 3. At times, the patient’s decision might be influenced by severe pain.^^ In this 
context, the role of palliative care can be crucial. Ganzini and colleagues report that as a 
result of palliative care, some patients in Oregon changed their minds about assisted 



Many bill proposals to legislate PAS in the United States require a waiting period of 14 or 15 days. Cf Russell 
Korobkin, “Physician-assisted Suicide Legislation: Issues and Preliminary Responses,” op. cit., p. 468. 

Section 7, Rights of the Terminally III Act (1995) (NT). 

In Australia, the law required a “cooling off’ period of nine days. In Oregon, the Aet requires a waiting period 
of fifteen days. I do not wish to suggest an arbitrary time period of waiting, saying instead that the patient 
should state her wish several times “over a period of time.” I coneur with Miller and colleagues who think that a 
fifteen days waiting period may be highly burdensome for patients who are suffering intolerably and may 
preclude aecess to assisted death for those who request it at the point when they are imminently dying. Franklin 
G. Miller, Floward Brody and Timothy E. Quill, “Can Physician-Assisted Suicide Be Regulated Effectively?,” 
J. of Law. Medicine & Ethics, Vol. 24 ( 1 996), p. 226. See also Oregon Death with Dignity Act, Oregon Revised 
Statutes, Vol. 8 (1998 Supplement), at 982. 

John Griffiths et al.. Euthanasia and Law in the Netherlands, op. cit., p. 66. 

Oregon Death with Dignity Act, Oregon Revised Statutes, Vol. 8 (1 998 Supplement), at 980. 

On the different conceptions of pain that physicians and patients have, see William Ruddick, “Do Doctors 
Undertreat Pain?” Bioethics, Vol. 11, Nos. 3^ (1997): 246-255. It is argued that pain control represents an 
often neglected need of nursing home residents, and that nursing home staff underestimate the true pain burden 
experienced by residents. See Joan M. Teno, Sherry Weitzen, Terrie Wetle and Vincent Mor, “Persistent Pain in 
Nursing Home Residents,” JAMA, Vol. 285, No. 16 (April 25, 2001): 2081. 




182 



CONCLUSION 



suicide.^'' The World Health Organization defines palliative care as the “active, total care of 
patients whose disease is not responsive to curative treatment,” maintaining that control of 
pain, of other symptoms, and of psychological, social, and spiritual problems, is 
paramount.^* The medical staff must examine whether it is possible to prevent or to ease the 
pain by means of medication and palliative care.^^ The Oregon Death with Dignity Act 
requires the attending physician to inform the patient of all feasible alternatives, including 
comfort care, hospice care and pain control. A recent study designed to examine Oregon 
physicians’ attitudes toward and practices regarding care of dying patients since the passage 
of the Act shows that 30 percent of the 791 respondents reported that they had increased 
referrals to hospice. Of the 2094 respondents who cared for patients termed “terminally ill,” 
76 percent reported that they made efforts to improve their knowledge of the use of pain 
medications.^"' Bill proposals to legislate PAS in Illinois, Hawaii, Maine, Michigan, 
Vermont, Washington and Wisconsin explicitly require the attending physician to review 
options for palliative care with the patient, including hospice and/or pain control options. If 
it is possible to prevent or to ease the patient’s pain, then the patient’s request for assisted 
suicide should not be fulfdled; instead, the necessary treatment should be prescribed. This is 
provided that the educated patient (i.e., a patient who was advised by the medical staff about 
the available palliative care options) does not refuse to take the painkillers, and that when the 
pain subsides so does the motive (or one of the main motives) for assisted suicide. If the 
patient insists on denying all medication, then doctors must first try to find the reasons for 
this insistence before they comply with the request.^^ 

Linda Ganzini, Heidi D. Nelson, Terri A. Schmidt, Dale F. Kraemer, Molly A. Delorit, Melinda A. Lee, 
“Physicians’ Experiences with the Oregon Death with Dignity Act,” New Eng. J. of Med., Vol. 342, No. 8 
(February 24, 2000), p. 563. 

World Health Organization, Cancer Pain Relief and Palliative Care: Report of a WHO Expert Committee 
(Geneva, Switzerland: World Health Organization, 1990), at 1 1. 

Directive 7 in The General Manager Circular, Israel Ministry of Health, no. 2/96 (January 31, 1996) holds: 
“Doctors must concentrate their efforts on easing the pain, torment, and suffering of the patient, a subject of 
highest priority in medical treatment, especially when terminal patients are concerned,” p. 12 (Hebrew). For 
further deliberation on pain control mechanisms and their importance, see Timothy E. Quill, Bernard Lo, and 
Dan W. Brock, “Palliative Options of Last Resort,” X4M4, Vol. 278, No. 23 (December 17, 1997): 2099-2104; 
P. D. Doyle, G. W. Hanks and N. MacDonald (eds.). Textbook of Palliative Medicine (New York: Oxford 
University Press, 1998); Christine K. Cassel and Kathleen M. Foley, “Principles for Care of Patients at the End 
of Life: An Emerging Consensus Among the Specialties of Medicine,” Milbank Memorial Fund Report (New 
York, 1999), reported by Vida Foubister, “Medical experts agree on guide for end-of-life care,” American 
Medical News (February 7, 2000, http://www.ama-assn.org/amednews/2000/02/07/prsa0207.htm; Timothy E. 
Quill, Barbara Coombs-Lee and Sally Nunn, “Palliative Treatments of Last Resort: Choosing the Least Harmful 
Alternative,” Annals of Internal Medicine, Vol. 132 (March 21, 2000): 488^93. For further discussion on 
making palliative care decisions for incompetent patients, see Jason H.T. Karlawish, Timothy Quill and Diane 
E. Meier, “A Consensus-Based Approach to Providing Palliative Care to Patients Who Lack Decision-Making 
Capacity,” A««a/s of Internal Medicine, Vol. 130 (May 18, 1999): 835-840. 

13 Or. Rev. Stat. § 3.01 (1998). 

Linda Ganzini, Heidi D. Nelson, Melinda A. Lee, Dale F. Kraemer, Terri A. Schmidt and Molly A. Delorit, 
“Oregon Physicians’ Attitudes About and Experiences With End-of-Life Care Since Passage of the Oregon 
Death with Dignity Act,” JAMA, Vol. 285 (2001): 2363-2369. 

Russell Korobkin, “Physician-assisted Suicide Legislation: Issues and Preliminary Responses,” op. cit., p. 469. 

J. V. Lavery, Joseph Boyle, Bernard M. Dickens, Heath Maclean and Peter A. Singer, “Origins of the Desire for 
Euthanasia and Assisted Suicide in People with HIV-1 or AIDS: A Qualitative Study,” Lancet, Vol. 358, No. 
9279 (August 4, 2001): 362-367. See also Anthony L. Back and Robert A. Pearlman, “Commentary: Desire for 
Physician-assisted Suicide: Request for a Better Death?,” Lancet, Vol. 358, No. 9279 (August 4, 2001): 344— 
345. 




CONCLUSION 



183 



At times, coping with pain and suffering can drain all of the patient’s emotional strength, 
exhausting the ability to deal with other issues. In cases of competent patients, the 
assumption is that the patient understands the meaning of the decision. A psychiatrist’s 
assessment can confirm whether the patient is able to make a decision of such ultimate 
significance to the patient’s life and whether the decision is truly that of the patient, 
expressed consistently and of his/her own free will. The Northern Territory Rights of 
Terminally III Act required that the patient meet with a qualified psychiatrist to confirm that 
the patient was not clinically depressed.^’ It is worthwhile to hold several such conversations, 
separated by a few days. The patient’s loved ones and the attending physician should be 
included in at least one of the conversations. 

In study findings published in The Lancet, Marjolein Bannink and colleagues report on 
22 patients (twelve female and ten male) who had psychiatric consultations after requesting 
immediate euthanasia because of terminal cancer. Ten had the requests granted because 
psychiatrists determined that they had no psychiatric symptoms and that the desire to die was 
not a snap decision. Three of them died naturally before their requests could be fulfilled. 
Twelve other patients were denied euthanasia, either because of significant psychiatric 
symptoms or because they changed their mind during the evaluation process. In six of the 
twelve patients, all women with no psychiatric disorders, consultation with a psychiatrist 
established that the request for euthanasia had not been considered fully. They seemed to 
regard euthanasia, or having the option of euthanasia, as a way to control their feelings of 
despair, pain and helplessness. Their appeals were mainly aimed at discussing their situation 
explicitly with the attending physician, to reduce anxiety and insecurity. Five patients were 
denied euthanasia because of psychiatric problems. They had cognitive or depressive 
disorders, which decreased their competence in decision-making. One patient was granted 
the euthanasia request despite minor psychiatric symptoms. Bannink and colleagues stressed 
that many cancer specialists may underestimate the psychiatric effects of terminal illness, 
especially in cases of cancer that has spread to the brain. They urged specialists to consider a 
psychiatric evaluation if they are not sure.^* 

Guideline 4. The patient must be informed of the situation and the prognosis for recovery or 
escalation of the disease, with the suffering that it may involve. There must be an exchange 



’’ Section 7, Rights of the Terminally III Act (1995) (NT). 

But despite the fact that over half the euthanasia requests were denied or withdrawn after a psychiatrist’s 
evaluation, Bannink and colleagues stopped short of recommending that psychiatrists always be called in on 
such cases, saying that to do so would inappropriately install them as the moral “gatekeepers” of end-of-life 
care. Cf. Marjolein Bannink, Arthur R. van Gool, Agnes van der Heide and Paul van der Maas, “Psychiatric 
Consultation and Quality of Decision Making in Euthanasia,” The Lancet, Vol. 356 (December 16, 2000), 
2067-2068. 




184 



CONCLUSION 



of information between doctors and patients.^^ Bearing this in mind, we should be careful to 
use neutral terms and to refrain from terms that might offend patients and their loved ones."*® 

Guideline 5. It must be ensured that the patient’s decision is not a result of familial and 
environmental pressures. At times, patients may feel that they constitute a burden on their 
loved ones. It is the task of social workers to examine patients’ motives and to see to what 
extent they are affected by various external pressures (as opposed to a truly free will to die). 
A situation could exist in which the patient is under no such pressure, but still does not wish 
to be a burden on others. Obviously, we cannot say that the feelings of patients toward their 
loved ones are not relevant to the decision-making process. 

Guideline 6. The decision-making process should include a second opinion in order to verify 
the diagnosis and minimize the chances of misdiagnosis, as well as to allow the discovery of 
other medical options. A specialist, who is not dependent on the first doctor, either 
professionally or otherwise, should provide the second opinion.^’ The patient’s attending 
physician, who supposedly knows the patient’s case better than any other expert, must be 
consulted, and all reasonable alternative treatments must be explored. The Oregon Death 
with Dignity Act requires that a consulting physician shall examine the patient and his/her 
relevant medical records and subsequently confirm, in writing, the attending physician’s 
diagnosis that “the patient is suffering from a terminal disease.” Furthermore, the consulting 
physician must verify that the patient is capable, is acting voluntarily, and has made an 
informed decision.'^^ The Dutch Guidelines require that the physician consult a colleague.''^ 
The Northern Territory Rights of Terminally III Act required that a physician who specialized 
in treating terminal illness examine the patient."'"' 



’’ On this issue, see Oregon Death with Dignity Act, Section 3, Attending physician responsibiiities. Many biii 
proposais to iegisiate PAS in the United States specify certain information that must be communicated by the 
physician to the patient before honoring her request. Cf. Russeii Korobkin, “Physician-assisted Suicide 
Legisiation: Issues and Preliminary Responses,” op. cit, p. 468. See also See also Chap. II, Article 3 of the 
Belgian Euthanasia Law, and Section D: Consent to Medical Treatment of The Israel Patients’ Rights Law, 
1992, Law Proposal 2132 (March 16, \992y,Ths Patients’ Rights Law, \99€, Israel Book of Laws, 1591 (May 
12, 1996), at 329-331; and The General Manager Circular, The Ministry of Health, no. 2/96 (January 31, 
1996), at 10-11 (Hebrew). 

R. Cohen-Almagor, “Language and Reality at the End of Life”, Journal of Law, Medicine and Ethics, Vol. 28, 
No. 3 (Fall 2000): 267-278. 

Most bill proposals to legislate PAS in the United States required that the treating physician refer the patient to 
a second consulting physician to verify the terminal nature of the disease. The Massachusetts bill required a 
third confirming opinion. Cf. Russell Korobkin, “Physician-assisted Suicide Legislation: Issues and Preliminary 
Responses,” op. ciY., p. 453. See also Chap. II, Article 3 of the Belgian Euthanasia Law. 

Oregon Death with Dignity Act, Oregon Revised Statutes, Vol. 8 (1998 Supplement), at 981-982. The American 
Medical Association’s council on ethical and judicial affairs suggests the participation of consultants to 
facilitate discussions that would help the parties reach a course of action. AMA strongly objects to PAS. See 
Fred Charatan, “AMA Issues Guidelines on End of Life Care,” BMJ, Vol. 318 (March 13, 1999): 690. 

John Griffiths et al.. Euthanasia and Law in the Netherlands, op. cit., pp. 66, 104. The Dutch Guidelines require 
the doctor to consult an independent colleague, not in order to advise the first doctor on medical treatment, but 
in order to verify whether the criteria of the Guidelines have been satisfied. The consultation is about the 
patient’s condition and life expectancy, the available alternatives and the adequacy of the request. Medical 
consultation in an earlier stage is part of normal practice. For instance, cancer patients who request euthanasia 
have invariably been treated in hospitals up to the point at which the doctors and the patient together decided to 
stop treatment. 

Section 7, Rights of the Terminally III Act (1995) (NT). 




CONCLUSION 



185 



Guideline 7. It is advisable for the identity of the consultant to be determined by a small 
committee of specialists (like SCEN), who will review the requests for physician-assisted 
suicide. This is in order to avoid the possibility of arranging deals between doctors (“you will 
consult for me regarding Mr. Jones, approving my decision, and I will consult for you 
regarding Ms. Smith, approving your decision”). 

Guideline 8. Some time prior to the performance of physician-assisted suicide, a doctor and a 
psychiatrist are required to visit and examine the patient so as to verify that this is the 
genuine wish of a person of sound mind who is not being coerced or influenced by a third 
party. The conversation between the doctors and the patient should be held without the 
presence of family members in the room in order to avoid familial pressure. A date for the 
procedure is then agreed upon.'^^ The patient’s loved ones will be notified so that they can be 
present right until the performance of the act, making the day an intimate, family occasion. 

Guideline 9. The patient can rescind at any time and in any manner. This provision was 
granted under the Australian Northern Territory Act"*^ and under the Oregon Death with 
Dignity Act.*’’ Chapter III, Article 4 of the Belgian Euthanasia Law says that patients can 
withdraw or adjust their euthanasia declaration at any time."'* 

Guideline 10. Physician-assisted suicide may be performed only by a doctor and in the 
presence of another doctor. The decision-making team should include at least two doctors 
and a lawyer, who will examine the legal aspects involved. Insisting on this protocol would 
serve as a safety valve against possible abuse. Perhaps a public representative should also be 
present during the entire procedure, including the decision-making process and the 
performance of the act. This extra caution should ensure that the right to die with dignity 
does not become a duty. The doctor performing the assisted suicide should be the one who 
knows the patient best, having been involved in the patient’s treatment, taken part in the 
consultations, and verified through the help of social workers, nurses and psychologists that 
euthanasia is the true wish of the patient. 

Guideline 11. Physician-assisted suicide may be conducted in one of three ways, all of them 
discussed openly and decided upon by the physician and the patient together: (1) oral 
medication; (2) self-administered, lethal intravenous infusion; (3) self-administered lethal 
injection. Oral medication may be difficult or impossible for many patients to ingest because 
of nausea or other side effects of their illnesses. In the event that oral medication is provided 



Proposals to legislate PAS in Illinois, Massachusetts and Maine required that a patient seeking PAS obtain a 
consultation with a mental health professional in order to insure that the patient can pass the “impaired 
judgment” standard. Cf. Russell Korobkin, “Physician-assisted Suicide Legislation: Issues and Preliminary 
Responses,” op. cit, p. 456. This Guideline is somewhat similar to the guidelines of the Swiss EXIT protocol. 
See South Australian Voluntary Euthanasia Society, DID YOU KNOW? Assisted Suicide in Switzerland — 
SAVES Fact Sheet No. 20, issued February 1997. Correspondence with: Hon. Secretary, SAVES, PO Box 
2151, Kent Town, SA 5071, Australia — Fax + 61 8 8265 2287. URL: http://www.fmalexit.org/ 

Andrew L. Plattner, “Australia’s Northern Territory: The First Jurisdiction to Legislate Voluntary Euthanasia, 
and the First to Repeal It,” DePaulJ. of Health Care Law, Vol. 1 (spring 1997), p. 648. 

13 Or. Rev. Stat. § 3.07 (1998). 

Chamber of the Representatives of Belgium, Government Bill Related to Euthanasia (November 5, 2001), Doc 
5014488/001, project transmitted by the Senate. 




186 



CONCLUSION 



and the dying process is lingering on for long hours, the physician is allowed to administer a 
lethal injection/^ 

Guideline 12. Doctors may not demand a special fee for the performance of assisted suicide. 
The motive for physician-assisted suicide is humane, so there must be no financial incentive 
and no special payment that might cause commercialization and promotion of such 
procedures. 

Guideline 13. There must be extensive documentation in the patient’s medical file, including 
the following: diagnosis and prognosis of the disease by the attending and the consulting 
physicians; attempted treatments; the patient’s reasons for seeking physician-assisted suicide; 
the patient’s request in writing or documented on a video recording; documentation of 
conversations with the patient; the physician’s offer to the patient to rescind her request; 
documentation of discussions with the patient’s loved ones; and a psychological report 
confirming the patient’s condition. This meticulous documentation is meant to prevent 
exploitation of any kind — personal, medical, or institutional.^** Each report should be 
examined by a coroner following completion of the physician-assisted suicide.^’ 

Guideline 14. Pharmacists should also be required to report all prescriptions for lethal 
medication, thus providing a further check on physicians’ reporting. 

Guideline 15. Doctors must not be coerced into taking actions that contradict their 
conscience or their understanding of their role. This was provided under the Northern 
Territory Act.^^ 

Guideline 16. The local medical association should establish a committee, whose role will be 
not only to investigate the underlying facts that were reported but also to investigate whether 
there are “mercy” cases that were not reported and/or that did not comply with the 
Guidelines. 

Guideline 17. Licensing sanctions will be taken to punish those health care professionals 
who violated the Guidelines, failed to consult or to file reports, engaged in involuntary 



Cf. Johanna H. Groenewoud, Agnes van der Heide, Bregje D. Onwuteaka-Philipsen et al, “Clinical Problems 
with the Performance of Euthanasia and Physician-assisted Suicide in the Netherlands,” N. Eng. J. Med., Vol. 
342, No. 8 (2000): 551-556. 

For further deliberation, see the Dutch Guidelines in John Griffiths et al., Euthanasia and Law in the 
Netherlands, op. cit., p. 66; Chap. II, Article 3 of the Belgian Euthanasia Law; Oregon Death with Dignity Act, 
Oregon Revised Statutes, Vol. 8 (1998 Supplement), Section 3, at 983. Rebecca Cook pointed out in her 
comments that such a bureaucratic procedure might discriminate against minorities who will not find it easy to 
cope with the described demands. However, the demand for detailed documentation is meant to prevent abuse. 
We should be sensitive to cultural differences and strive to meet special needs that arise from cultural norms but 
not at the expense of opening the door wide for ‘eliminating’ unwanted people. 

Directive 6 in The General Manager Circular, Israel Ministry of Health, no. 2/96 (January 31, 1996) states: 
“The decision to respect a patient’s objection to a life prolonging treatment shall be documented in the medical 
statutes, expressing maximum reasons for the decision and the discussions with the patient,” p. 12 (Hebrew). 
See also Israel Patients ’ Rights Law (1996), 1591, Chapter E: medical documentation and medical information, 
p. 331. 

Andrew L. Plattner, “Australia’s Northern Territory: The First Jurisdiction to Legislate Voluntary Euthanasia, 
and the First to Repeal It,” op. eit., p. 648. The Illinois proposed bill to legislate PAS included a “Provider’s 
Freedom of Conscience” clause, which explicitly said that physicians who object to the practice may not be 
required to participate or aid in PAS. Cf Russell Korobkin, “Physician-assisted Suicide Legislation: Issues and 
Preliminary Responses,” op. cit., p. 464. 




CONCLUSION 



187 



euthanasia without the patient’s consent or with patients lacking proper decision-making 
capacity. Physicians who failed to comply with the above Guidelines will be charged and 
procedures to sanction them will be brought by the Disciplinary Tribunal of the Medical 
Association. The maximum penalty for violation of the Guidelines will be the revoking of 
the physician’s medical license. In the event that this penalty proves insufficient in deterring 
potential abusers, there will be room to consider further penalties, including heavy fines and 
prison sentences.’^ 

What is presented here is a circumscribed reasoning for physician-assisted suicide to help 
a designated group of patients that require and deserve help from the medical profession in 
departing from life. With human life at stake, detailed procedures are required in order to 
prevent abuse. I suggest that this reasoning be adopted for a trial period of one year, at which 
time the consequences will be examined to determine whether further implementation of the 
policy for a lengthy period of time is justified. During this one-year trial period, feedback 
between physicians, ethicists and the public at large in reviewing the policy and practice of 
physician-assisted suicide should be welcomed and encouraged. If the proposal fails (for 
instance, if physicians do not adequately report incidents of physician-assisted suicide), then 
all the data should be brought before a review committee to closely study the policy and 
practice. Members of the committee will issue a report recommending whether they wish to 
continue the practice, to amend the Guidelines, or to abolish physician-assisted suicide 
entirely. Preferably, the final decision should be made through active participation of all 
those involved. 



For further deliberation, see Arthur L. Caplan, Lois Snyder and Kathy Faber-Langendoen, “The Role of 
Guidelines in the Practice of Physician-Assisted Suicide,” Annals of Internal Medicine. Vol. 132 (March 21, 2000): 
476^81; S. Frileux, C. Lelievre, M. T. Munoz Sastre, E. Mullet, and P. C. Sorum, "When Is Physician Assisted 
Suicide or Euthanasia Acceptable?," Journal of Medical Ethics, Vol. 29, Issue 6 (December 1, 2003): 330-336. 




APPENDIX I: 



INTERVIEWS IN THE NETHEREANDS (SUMMER 1999) 



Professor John Griffiths, Department of Legal Theory, Faculty of Law, University of 
Groningen (Groningen, July 16, 1999). 

Professor J.K. Gevers, Professor of Health Law, University of Amsterdam (Amsterdam, July 
19, 1999). 

Professor Evert van Leeuwen, Department of Metamedicine, Free University of Amsterdam 
(Amsterdam, July 19, 1999; Haarlem, July 28, 1999). 

Professor Bert Thijs, Medical Intensive Care Unit, VU Hospital, Amsterdam (Amsterdam, 
July 20, 1999). 

Professor A. van Dantzig, retired expert in psychiatry (Amsterdam, July 20, 1999). 

Professor H.J.J. Leenen, formerly professor of social medicine and health law, Medical 
Faculty and Faculty of Law, University of Amsterdam (Amsterdam, July 21, 1999). 

Professor Gerrit van der Wal, Institute for Research in Extramural Medicine, Department of 
Social Medicine, Free University of Amsterdam (Amsterdam, July 21, 1999). 

Dr. Jaap J.F. Visser, Ministry of Health, Department of Medical Ethics, The Hague 
(Amsterdam, July 21, 1999). 

Professor Heleen Dupuis, Department of Metamedicine, University of Leiden (Leiden, July 
22, 1999). 

Dr. Henri Wijsbek, Department of Medical Ethics, Erasmus University of Rotterdam 
(Rotterdam, July 23, 1999). 

Dr. Arie J.G. van der Arend, Health Ethics and Philosophy, Maastricht University 
(Maastricht, July 26, 1999). 

Dr. George Beusmans, Maastricht Hospital (Maastricht, July 26, 1999). 

Professor G.F. Koerselman, Sint Lucas Andreas Hospital, Amsterdam (Amsterdam, July 27, 
1999). 

Professor Henk Jochemsen, Professor Lindeboom Institute (Ede Waginingen, July 27, 1999). 

Dr. Gerrit K. Kimsma, Department of Metamedicine, Free University of Amsterdam (Koog 
aan de Zaan, July 28, 1999). 

Dr. James Kennedy, Department of History, Hope College, Michigan. Visiting Research 
Fellow at the Institute for Social Research, Amsterdam (Amsterdam, July 29, 1999). 

Professor Paul van der Maas, Director, Department of Public Health, Faculty of Medicine, 
Erasmus University, Rotterdam (Amsterdam, July 29, 1999). 

Dr. Chris Rutenfrans, Trouw (Amsterdam, July 30, 1999). 

Dr. Arko Oderwald, Department of Metamedicine, Free University of Amsterdam 
(Amsterdam, July 30, 1999; August 8, 1999). 

Ms. B. de B. and her three children (Amsterdam, August 2, 1999). 

Professor Egbert Schroten, Center for Bioethics and Health Law, Utrecht University 
(Utrecht, August 5, 1999). 

Professor Govert den Hartogh, Faculty of Philosophy, University of Amsterdam 
(Amsterdam, August 10, 1999). 



189 




1 90 APPENDIX I: INTERVIEWS IN THE NETHERLANDS (SUMMER 1 999) 



Dr. Johannes JM van Delden, Senior Researcher, Center for Bioethics and Health Law, 
Utrecht University (Utrecht, August 10, 1999). 

Dr. Rob Houtepen, Health Ethics and Philosophy, Maastricht University (Maastricht, August 
11, 1999). 

Dr. Ron Berghmans, Institute for Bioethics, Maastricht University (Maastricht, August II, 
1999). 

Professor Ruud ter Meulen, Director, Institute for Bioethics and Professor at the University 
of Maastricht (Maastricht, August II, 1999). 




APPENDIX II 



INTERVIEWS AND TEEEPHONE CONVERSATIONS IN THE 
NETHEREANDS (SUMMER 2001)* 



Dr. Jaap J.F. Visser, Ministry of Health, Department of Medical Ethics, The Hague (phone 
conversation on June 20, 2001). 

Professor Evert van Leeuwen, Department of Metamedicine, Free University of Amsterdam 
(Amsterdam, June 20, 2001). 

Professor A. van Dantzig, retired expert in psychiatry (phone conversation on June 21, 

2001). 

Dr. Gerrit K. Kimsma, Department of Metamedicine, Free University of Amsterdam 
(Amsterdam, June 21, 2001). 

Professor Ruud ter Meulen, Director, Institute for Bioethics and Professor at the University 
of Maastricht (phone conversation on June 22, 2001). 

Dr. Chris Rutenfrans, Trouw (Amsterdam, June 22, 2001). 

Dr. James Kennedy, Department of History, Hope College, Michigan (Amsterdam, June 24, 

2001). 

Professor J.K. Gevers, Professor of Health Law, University of Amsterdam (phone 
conversation on June 25, 2001). 

Dr. Arko Oderwald, Department of Metamedicine, Free University of Amsterdam 
(Amsterdam, June 25, 2001). 



Seven interviewees answered my queries by writing: Frank Koerselman, John Griffiths, H.J.J. Leenen, Arie J.G. 
van der Arend, Henk Jochemsen, Rob Houtepen and Ron Berghmans. In addition, Govert den Hartogh and Paul 
van der Maas provided a partial response. 



191 




APPENDIX III 



INTERVIEWS IN THE NETHEREANDS (APRIE 2002) 

Dr. Arie J.G. van der Arend, Health Ethics and Philosophy, Maastricht University 
(Maastricht, April 2, 2002). 

Dr. Rob Houtepen, Health Ethics and Philosophy, Maastricht University (Maastricht, April 

2 , 2002 ). 

Professor Ruud ter Meulen, Director, Institute for Bioethics and Professor at the University 
of Maastricht (Maastricht, April 2, 2002). 

Dr. Ron Berghmans, Institute for Bioethics, Maastricht University (Maastricht, April 2, 

2002). 

Dr. Jaap J.F. Visser, Ministry of Health, Department of Medical Ethics (The Hague, April 3, 

2002). 

Dr. Arko Oderwald, Department of Metamedicine, Free University of Amsterdam 
(Amsterdam, April 3, 2002). 

Dr. Bert Keizer, Vreugdehof Nursing Home (Amsterdam, April 3, 2002). 

Professor Henk Jochemsen, Free University (Amsterdam, April 4, 2002). 

Professor G.F. Koerselman, Sint Lucas Andreas Hospital, Amsterdam (Amsterdam, April 4, 

2002). 

Professor Evert van Leeuwen, Department of Metamedicine, Free University of Amsterdam 
(Amsterdam, April 8, 2002). 



193 




INDEX - GENERAL 



Abortion, 54n. 6, 57, 59, 61, 126, 165 
abuse, xii, xiii, 8, 13, 62, 65, 78, 1 14, 118, 
145, 146, 149, 175, 176, 178-180, 

185, 186n. 50, 187 
academic freedom, 55 
Admiraal, Pieter, 42, 91 
advance directive (AD), 72, 78, 1 19, 146, 
147, 154, 156-161, 168. See also 
living will 

AIDS patients. See patients, AIDS 
Alaska Supreme Court, 7n. 39 
Alkmaar Euthanasia Protocol, 99 
Alzheimer’s disease, 38, 155. See also 
patients, Alzheimer; dementia; 
patients, demented 
American Medical Association, 12 
Amsterdam Medical Disciplinary Court, 
49 

amyotrophic lateral sclerosis (ALS), 19. 

See also patients, ALS 
Andrews, Keith, 1 60 
"angles of death", 89, 128 
Ashcroft, John, 10 
Asking to Die, 100 

Assisted Suicide Consensus Panel, lOOn. 
33 

Association pour le Droit de Mourir dans 
la Dignite, 18n.l03, 

autonomy: 28, 29, 58, 61, 62, 66, 72, 75, 
77, 79, 97, 129, 134n. 3, 143, 146, 

149, 161, 165; loss of, 68; and the 
Remmelink statement, 86; respect for, 
28, 71, 92, 142; secondary 
consideration, 78. See also self- 
determination 

B. Nancy, 18, 19 
Bannink, Marjolein, 183 
Barendregt, Maria, 40-41 
Battin, Margaret, 30, 150 
Beemer, Theo, 178n. 19 



Belgian Euthanasia Law, 13-14, 180n. 23, 
184n. 39, 185 

beneficence, 17, 29, 75, 77, 97, 99 
Berghmans, Ron, 55, 177, 190, 191, 193; 
on advance directives, 78, 119, 154n. 
4, 157; on BMA memorandum, 88; on 
Brongersma, 165; on Chabot, 139n. 
15, 141-142; on consultation over the 
phone, 106; on culture of death, 128; 
on Dutch people, 6 In. 12; on family 
pressures, 83; on the Guidelines, 

1 18n. 42; on legislation, 134; on the 
new law, 156; on non-voluntary 
euthanasia, 72; on palliative care, 124; 
positive aspects of euthanasia, 71; on 
the Remmelink statement, 86n. 3; on 
reporting, 115n. 35, 163n. 26; on 
suggesting euthanasia, 93n.l2; on Van 
Oijen, 168 

Beusmans, George: 55, 177, 189; on 
consultation, 107; on euthanasia 
practice, 81; on the Guidelines, 1 18n. 
42; on legislation, 134; on palliative 
care, 125; personal experience, 94, 98; 
on regional committees, 117; on 
reporting, 1 16; on suggesting 
euthanasia, 93-95 
Bland, Anthony, 1 5 
Borst-Eilers, Els, 125n. 6, 158, 169 
Bosscher, Hilly, 45-49, 138-144, 176 
British House of Lords Select Committee 
on Medical Ethics, 87 
British Medical Association (BMA), 32, 
87 

Brongersma, Edward, 164-166, 169, 176 
Bumier, Andreas, 131. See also Dessaur, 
Caterina I. 



195 




196 



INDEX -GENERAL 



California Death with Dignity Act, 4n. 1 8 
Callahan, Daniel, 32, 126-127, 129 
Calvert-Smith, David, 16 
Calvinism, 59, 76 
Canadian Charter of Rights and 
Freedoms, 19 
care, inadequate, 82 
"categorical request", 110 
Chabot, Boudewijn, 46-49, 53, 55, 137, 
139-144, 166 

Cohen, Hebert, 45n. 41, 71, 80, 92, 137n. 
11 

Commonwealth Euthanasia Laws Bill 
1996, 4 

compassion, 11, 18, 29, 78, 134n. 3, 167 
compromise, 57, 60, 61, 136, 175n. 1 
confidentiality, 67 
conformity, 175 
consent, imputed, 160 
consultancy, 88, 90, 158. See also 
consultation 

consultation: 27, 30, 32, 42, 44, 70, 76, 

89, 90, 96, 103-109, 111-113, 117, 

118, 120, 125, 126, 137, 141, 142, 

145, 153, 164n. 27, 170, 171, 178n. 

15, 183, 185; and Chabot, 49; by 
EXIT, 12; independent, 14, 25, 32, 41, 
42, 103-108, 110-113, 120, 141, 171, 
184n. 43; "real", 106; reasons for, 

137. See also consultancy; SCEN 
contraception, 59 

control mechanisms: xii, 40, 44, 63, 72, 
79, 88,93, 109, 113, 114, 116, 118, 
120, 127-128, 131, 133, 134, 141, 

150, 153, 159, 175, 176n. 6, 179, 180; 
effective, 36, 67, 1 14; system, 66, 93 
Controlled Substances Act, 10 
Cook, Rebecca, 186n. 50 
Cory, Justice Peter, 19 
counter-transference, 66, 106, 107, 137, 
143. See also transference 
"cowboy doctors", 118 
"cultural revolution", 151 
Cuperus-Bosma, Jacqueline M., 104-105 

Dackman, Marina, 130 



De B. family, 53, 94n. 14, 107-108, 189 
Death on Request, 70, 103, 167 
dementia, 69, 72, 78, 119n. 44, 146, 156, 
157, 176. See also Alzheimer’s 
disease; patients, demented 
den Hartogh, Govert: 55, 60, 61n.l4, 81, 
132, 146-147, 178, 189, 191;onBMA 
memorandum, 89; on Brongersma, 
165-166; on Chabot, 139n. 14, MO- 
141; on consultation, 112; on Dessaur, 
131; on Dutch healthcare, 62n. 17; on 
euthanasia opponents, 148-149; on 
euthanasia policy, 65n. 2, 66-67; on 
fears of elderly, 82; on the Guidelines, 
120; on legislation, 134; on need to 
examine patients, 1 12n. 28; on 
palliative care, 123n. 3, 125-126; on 
regional committees, 1 09- 1 1 1 ; on the 
Remmelink statement, 86; on 
reporting and religion, 1 16; on SCEA, 
108n. 19; on suggesting euthanasia, 
95-98; on why the Netherlands, 58n. 

5; on Van Oijen, 167n. 36; on 
worrisome data, 75n. 2, 78 
dependency, 42, 165, 167 
depression, 35, 43, 46, 47, 49, 84, 100, 
101, 139, 141, 142, 143, 181 
Dessaur, Caterinal., 80n. 14, 131 
de Valk, Reina, 164n. 27 
Devlin, Lord Patrick, 14 
Dignitas, 12, 13 

dignity: 1, 8, 161, 180; concept of, 130; 
loss of, 129, 154, 160; preservation of, 
2 

Dillmann, Robert, 29, 1 19n. 44, 137n. 11 
DNR (Do Not Resuscitate) order, 79-80, 
147, 161 

documentation, 186 
Donaldson, Lord, 15 

double effect doctrine, 23, 71, 76, 79, 85, 
130 

Down's syndrome, 129, 147 
Drion, Judge, 169 
Drug Enforcement Administration 
(DEA), 10 

drugs, soft. See soft, drugs 
Dufour, Justice, 19 




INDEX - GENERAL 



197 



Duintjer, Dr., 43 

Dupuis, Heleen: 54n. 6, 55, 150, 151, 

177, 189; on BMA memorandum, 89; 
on Chabot, 139n. 14, 140; on 
consultation, 113; on culture of death, 
128; on Dutch healthcare, 62n. 17; on 
euthanasia policy, 65, 69; on fears of 
elderly, 80; on the Guidelines, 1 18; on 
legislation, 135; on the Remmelink 
statement, 85; on reporting, 1 18; on 
suggesting euthanasia, 96; trusts 
doctors, 1 18; on why the Netherlands, 
58n. 5; on worrisome data, 75n. 2, 76 
Dutch Alzheimer Foundation, 1 19n. 44 
Dutch Association of Nursing Care 
Physicians, 154 

Dutch culture, 57, 58, 87, 121, 126-130, 
150-151, 169, 175, 179 
Dutch health care, 29, 62, 70 
Dutch Medical Association (KNMG), 2, 
24, 32,36,37,38, 40, 60, 105, 113, 
116, 117, 163, 165, 168, 180 
Dutch Medical Association Executive 
Board, 24n. 5 

Dutch Medical Disciplinary Tribunal 
(Board), 39, 138 

Dutch Penal Code: 2, 40, 48, 61, 1 15, 

116, 135, 136, 156, 179; Article 40, 
36, 41, 133, 156, 179; Article 293, 2, 
36-37, 39, 40, 42, 44, 159; Article 
294, 2, 36-37, 43, 45, 48 
Dutch Voluntary Euthanasia Society, 42, 
46, 60, 69, 95, 107, 117, 130, 142 

EAS (Euthanasia and Assisted Suicide), 
116, 180 

economic considerations, 79 
Kinder, 130 

elderly people, 31, 80-84 
Emanuel, Ezekiel J., 68, 100 
eugenic movement, 62 
European Convention on Human Rights, 
15-17 

euthanasia: active, 1,2,17, 18, 23; in 
Australia, 127n. 9; in Belgium, 78, 
127n. 9; critics, 71, 175, 178; in 
Denmark, 127n. 9; indirect, 11, 23; in 



France, 116; in Oregon, 127n. 9; 
involuntary, xii, 24, 32, 72, 87, 88, 89, 

148, 154, 186-187; last resort, 41; 
legalization of, 13, 25, 37, 133-135, 

149, 153, 154, 177; for minors, 38; 
non-voluntary, xii, 72, 89, 127n. 9; in 
Norway, 127n. 9; v. palliative care, 
126; on polls, 59n. 1 1; v. PAS, 94n. 

15; passive, 1, 11, 14, 17, 18, 23,79, 
128, 130, 179; private matter, 54n. 6; 
procedural requirements, 25; requests 
for, 70; substantive requirements, 24; 
suggesting, 91-100, 179; in the United 
Kingdom, 1 16; in the United States, 
116; without consent, 3 1 

EXIT. See Swiss Society for Human 
Dying 

Exit A.D.M.D Suisse Romande, 12, 13 
Exit International, 12 

Family pressure, 81-83, 169, 171 

female circumcision, 151 

Fenigsen, Richard, 32n. 42, 54n. 7, 80n. 

15, 84, 89n. 9, 149 
Ferrard, Edouard, 17 
financial: affairs, 83; incentives, 82 
Flanders, 78, 127n. 9 
force majeure, 2, 36, 37, 136. See also 
overmacht 

Fourteen Amendment to the Constitution, 
7-9 

freewill, 43, 111, 183-184 
French Penal Code, 17 
Freud, Sigmund, 106n. 15 
futile treatment, 15, 23, 40, 157 
fuzziness, 176 

Ganzini, Linda, 49, 68, 181 
gay marriage, 61 
German euthanasia program, 62 
Gevers, Sjef J.K. 177, 189, 191: on 
advance directives, 154n. 4; on 
Brongersma, 165; on Chabot, 139n. 
15, 141; on consultation, 105; on 
Dutch healthcare, 62n. 17; on Dutch 
people, 61n. 12; on euthanasia policy. 




198 



INDEX -GENERAL 



65; on fears of elderly, 82; on the 
Guidelines, 119; on legislation, 133, 
154n. 6; on need to examine patients, 

1 12n. 28; on the new law, 156n. 9; on 
regional committees, 162n. 24; on the 
Remmelink statement, 87; on 
reporting, 115n. 35, 37; on SCEA, 
108n. 19 
Goff, Lord, 15 

Gomez, Carlos F., xi, 54, 150 
Gonthier, Justice, 19 
Gordijn, Bert, 57 

Griffiths, John: 36, 55, 60, 61n. 14, 1 12n. 
29, 149-152, 175n. 4, 176n. 6, 178, 
189, 191; on advance directives, 156; 
on BMA memorandum, 88n. 6; on 
Chabot, 139n. 15, 141; on 
consultation, 104-105; on control, 

1 14; on Dutch people, 61n. 12; on 
family pressures, 83; on the 
Guidelines, 120; lessons of WWII, 

6 In. 15; on need to examine patients, 

1 12n. 28; on the new law, 155, 156; 
on "normal medical practice", 87; on 
reporting, 66, 71; on SCEA, 108n. 19; 
on suggesting euthanasia, 92-93; on 
why the Netherlands, 57; on 
worrisome data, 75n. 2, 76n. 4 
Guillain-Barre syndrome (disease), 1 8 

Hale, Lady Justice, 16 
halizah, 151 
Havers, Philip, 16 
hemianopsia, 167 

Hendin, Herbert, xii, 30, 31, 32, 47-48, 

54, 89n. 9, 93, 123, 137, 148, 179n. 20 
Hippocratic Oath, 2 
homosexuality, 61 
hospice, 6, 77, 123-125, 182 
Houtepen, Rob: 55, 78, 177, 190, 191, 
193; on BMA memorandum, 88; on 
Brongersma, 164n. 30; on Chabot, 
139n. 14, 141, 142; on consultation, 
106n. 14; on culture of death, 127; on 
Dutch healthcare, 62n. 17; on 
euthanasia policy, 65-66; on family 
pressures, 83; on the Guidelines, 118; 



on legislation, 134; on need to 
examine patients, 1 12n. 28; on the 
new law, 157; on nursing homes, 156; 
on pragmatism, 145; on the 
Remmelink statement, 86n. 3; on 
reporting, 115n. 35; on suggesting 
euthanasia, 96; on Van Oijen, 168; on 
worrisome data, 77 
Human Rights Act 15, 16, 17 

Humphry, Derek, 13n. 73 

lacobbuci. Justice Frank, 19 

informed consent, 1 60 

Intensive Care Unit (ICU), function, 86 

"interpretive model", 97 

intimacy, 63, 116 

Israel General Manager Circular, 1 86n. 5 1 
Israel Ministry of Health, General 
Manager Circular, 182n. 32 
l&vaeX Patients' Rights Law, 184n. 39 

Jochemsen, Henk: 55, 69, 149, 153, 178, 
189, 191, 193; on BMA 
memorandum, 88; on Brongersma, 
164n. 30; on Calvinism, 59; on 
Chabot, 139n. 16, 142, 144; on cities 
V. countryside, 170; on consultation, 
106n. 14; on culture of death, 129; on 
Death on Request, 103n. 5; on Dutch 
healthcare, 62n. 17; on euthanasia 
policy, 67; on fears of elderly, 84; on 
general atmosphere, 1 3 1 ; on the 
Guidelines, 120n. 46; on lack of 
control, 79; on legislation, 135, 154; 
on need to examine patients, 1 12n. 28; 
on negative aspects of euthanasia, 72; 
on the new law, 156; on palliative 
care, 123n. 3, 124; on regional 
committees, 1 15; on the Remmelink 
statement, 86; on reporting, 163n. 26; 
on resenting euthanasia critics, 71; on 
SCEA, 108n. 19; on SCEN, 171; on 
social climate, 61; on suggesting 
euthanasia, 96; on Van Oijen, 168; on 
why the Netherlands, 58n. 5 
Jones, Judge Robert, 10 




INDEX - GENERAL 



199 



Keizer, Bert: 53, 56, 177, 193; on 
advanee directives, 156; on BMA 
memorandum, 88; on British hospice, 
77; on Brongersma, 166; on Chabot, 
139n. 16, 142-143; on culture of 
death, 129; on Death on Request, 71; 
on Dutch society, 61; on euthanasia 
policy, 65, 70; on family pressures, 

83; on fears of elderly, 80-82; on 
legislation, 135; on palliative care, 

125; personal experience, 108, 167; 
on regional committees, 162n. 24; 
regrets one euthanasia case, 1 17; on 
the Remmelink statement, 86; on 
reporting, 118; on SCEN, 170-171; on 
suggesting euthanasia, 96; on Van 
Oijen, 168-169 

Kennedy, James: 55, 60, 178, 189, 191; 
on euthanasia practice, 7 1 ; on the 
Guidelines, 1 19; on the new law, 155, 
156n. 9; on quality of life, 130; on 
palliative care, 123n. 3, 124, 170; on 
policy V. system, 176; on regional 
committees, 162; on SCEN, 170; on 
van der Berg, 59; on why the 
Netherlands, 58n. 5 
Keown, John, 54, 80, 103, 151 
Kevorkian, Jack, 9, 10 
Kimsma, Gerrit K.: 35n.4, 55, 120n. 48, 
153n. 2, 177, 189, 1 9 1 ; on advance 
directives, 154n. 4; on Brongersma, 
164n. 30, 165; on Chabot, 139n. 16, 
142, 143; on consultation, 107-108, 
178n. 15; on euthanasia practice, 66; 
on legislation, 134, 136; on the new 
law, 155, 158; personal experience, 

81, 94, 97; on regional committees, 
109, 117, 162n. 24, 163; on reporting, 
117; onSCEA, 108n. 19; on 
suggesting euthanasia, 93-95, 98 
Klotzko, Arlene, 47 

Koerselman, G. Frank: 60, 69, 149, 153, 
178, 189, 191, 193; on Alzheimer 
patients, 155; on BMA memorandum, 
88; on Brongersma, 165, 168n. 38; on 
Chabot, 139, 143-144; on 
consultation, 106; on culture of death, 



129; on DNR, 79-80; on doctors' 
prime obligation, 89n. 10; on Dutch 
Voluntary Euthanasia Society, 130; on 
euthanasia policy, 67; on fears of 
elderly, 84; on the Guidelines, 120; on 
legislation, 135, 154; on negative 
aspects of euthanasia, 72; on Otten, 
131; on palliative care, 123-124; 
personal experience, 155; on regional 
committees, 1 15; on the Remmelink 
statement, 85; on resenting euthanasia 
critics, 71; on SCEN, 171; on 
suffering, 61; on suggesting 
euthanasia, 96; on Van Oijen, 168 
Kors, Dr., 44-45 
Korthals, Benk, 39, 164 
Kouchner, Bernard, 1 8 

L. Karin, 42 
La Forest, Justice, 19 
Lamer, Justice, 19 
Latimer, Robert, 19n. Ill 
Leenen, H.J.J. (Henk): 28n. 26, 32n. 42, 
55,60,81, lOOn. 32, 177, 189, 191; 
on autonomy, 62n. 18; on better 
control, 72n. 27; on BMA 
memorandum, 89; on Chabot, 139n. 
14, 140, 141; on consultation, 113; on 
criticism, 54n. 7; on culture of death, 
126-127; on fears of elderly, 82; and 
Fenigsen, 149; on the Guidelines, 71n. 
24, 118n. 42; on legislation, 133; on 
lenient courts, 104n. 10; on the new 
law, 159; no slippery slope, 66; on 
Postma, 59; on the Remmelink 
statement, 86; on reporting, 115-116; 
on SCEA, 108n. 19; on SCEN, 170; 
on van der Berg, 59; on worrisome 
data, 75 

legal ambiguity, 36, 61, 118, 119 
legitimacy, 133, 149, 159, 175 
L'Heureaux-Dube, Justice, 19 
living will, 38, 76, 81, 83, 1 19n. 43, 128, 
129, 147, 156, 161, 168. See also 
advance directive 




200 



INDEX -GENERAL 



Major, Justice, 19 
McLachlin, Justice, 19 
Medecins sans Frontieres (MSF), 18 
media, 142 

medical decisions concerning the end of 
life (MDEL), 25-26 
Medisch Contact, 59, 168 
mercy killing, 1, 5, 9, 14, 20, 29, 55, 56, 
72, 87, 99,108,110,124,146,148, 
153, 158, 162, 167, 170 
Mill, John Stuart, xii, 175 
Miller, Franklin G., 181n. 26 
Minutes of the Assembly of Prosecutors 
General, 105 
Mones, Marc, 13, 14 
moral imperialism, 150 
morphine, 39, 66, 68, 76, 77, 79, 87, 94n. 

16, 123, 130, 146, 168 
multiple sclerosis, 42, 44 
murder for family honor, 151 
muscle relaxation, 1 62 
Mustill, Lord, 15 
Myers, Hardy, 10 

N. Martha, 43 
narcissistic society, 129 
newborns, 26n. 15, 45n. 40, 75, 76n.4, 
146, 179 

Nitschke, Philip, 3, 4 
Noonan, Judge, 7 
normal medical practice, 28, 85-87 
Northern Territory Rights of the 

Terminally III Act {1995), 3-4, 181, 
183-186 

notification procedure, 30, 37, 78, 88, 103 
nurses, role of, 73, 80, 83, 105, 106, 

107n. 16, 176, 185 

nursing home, 27, 29, 35, 39, 42, 56, 80, 
82, 83,84, 96, 106, 118, 123-127, 

156, 157, 162, 167, 176, 181n. 29 

Oderwald, Arko: 55, 124n. 4, 178, 189, 
191, 193; on advance directives, 154n. 
4; on BMA memorandum, 88; on 
Brongersma, 164n. 30, 165; on 
doctors' conduct, 89n. 10; on Dutch 



healthcare, 62n. 17; on the new law, 
156n. 9; on regional committees, 

162n. 24; on suicide pill, 169; on Van 
Oijen, 168 

Onwuteaka-Philipsen, Bregje Dorien, 
104n. 7 

openness, 30, 36, 61, 69, 71 
Oregon Death with Dignity Act, 4-7, 181, 
182, 184, 185 
Oregon Health division, 6 
Oregon: and Ashcroft, 10; pain control, 
67; palliative care, 68; physicians' 
views on euthanasia and PAS, 94n. 

15, 127n. 9 
osteoporosis, 167 
Otten, Willem Jan, 131 
overmacht, 37, 48. See also force majeure 

Palliative care: 3, 16, 18, 27, 66, 69n. 18, 
86, 99, no, 120, 123-126, 130, 153, 
154, 158, 164n. 27, 168, 170, 171, 

181, 182; in Belgium, 124; definition, 
182; in Oregon, 68 
paternalism, 17 

Patient Determination Act (WGBO), 157 
patients: AIDS, 65, 162; ALS, 71, 103; 
Alzheimer, 146, 149; cancer, 62, 65, 
68, 71, 72, 75, 76, 77n. 6, 94, 95, 107, 
108, no, 113, 120, 126, 130, 139, 

143, 161, 162, 166, 179, 183, 184n. 

43; coma (comatose), 76, 85, 89n. 9, 
94n. 16, 96; demented, 72, 77n. 6. 80, 
119, 129, 149, 154-158, 160, 176, 

179; incompetent, xii, 29, 31, 38, 43, 
76, 77n. 6, 78, 79, 80, 83, 140, 160, 
161, 182n. 32; oncology patients, 100; 
psychiatric, 31, 43, 45, 67, 72, 105, 
113, 136, 140, 142, 143, 146, 149, 166 
permissiveness, 61 

persistent request, 25-26, 35, 43, 75, 103, 
104, 128n. 11, 136 

Persistent Vegetative State (PVS), 15, 16, 
75, 146, 147. See also Post-Coma 
Unawareness (PCU) 

Physician- Assisted Suicide (PAS): xii, 1, 
4, 5, 7-11, 18-20, 24-27, 39, 45, 56, 

59, 65, 67, 68, 87, 94, 98, 100, 101, 




INDEX - GENERAL 



201 



109, 136, 169, 176; Guidelines, ISO- 
187 

physician-patient communication, 68, 

100, 107, 114, 141, 157, 158 
physician (doctor)-patient relationship: 

35, 58, 62, 92, 96-98, 106, 115, 143, 
154; in France, 17 

physician's responsibility, 76, 97, 108, 
143, 157n. 11, 168 
physicians as healers, 97 
Pijnenborg, Loes, 58, 85 
"poldermodel", 175n. 1 
polls: in France, 18; in the Netherlands, 

36, 59n. 11, 81, 82, 131n. 19, 177n. 12 
pornography, 61 

Post-Coma Unawareness (PCU), 15n. 90, 
147. See also Persistent Vegetative 
State (PVS) 

Postma, Dr., 39 

post-Zionists, See Zionists, post 
pragmatism, 145 
Pretty, Brian, 17 
Pretty, Diane, 16, 17 
privacy, 67, 88, 106 
prostitution, 61 

psychiatric: disorder, 25, 45, 143n. 21, 
183; illness, 46, 103, 164; practice, 
136. See also patients, psychiatric 
psychological: distress, 100, 101; help, 
154; needs, 124; pressure, 82; support, 
125 

public opinion, 59, 133 

Quality of life, 16, 79, 92n. 9, 128, 130, 
131, 160, 169 
Quill, Timothy E., 9 

Radboud Foundation, 178n. 17 
rationing, 154 

recordkeeping, 35, 36n. 8, 114 
reflective thinking, 178 
regional (review) committees, xii, 25, 29, 
38, 56, 65,95, 104, 105, 109-112, 
114-118, 135, 136, 153, 155, 156, 

158, 161-163, 164n. 27, 171 



regulation: 72, 146, 149, 150, 159; 

effective, 83; normative, 57 
Rehnquist, Chief Justice William, 8, 9 
Reinhardt, Judge, 8 

Remmelink Commission report, 28, 30, 
36,37, 54, 55n. 11,71,85, 146 
Remmelink, Jan, 25 

Remmelink contention (statement), 85-87 
Reno, Janet, 10 

reporting, 28, 32, 36, 65, 66, 71, 72, 88, 

89, 109-112, 114-118, 120, 133-137, 
158, 162, 163, 164n. 27, 186 
Rodriguez, Sue, 19 
"role reversal", 105 
Rothstein, Chief Judge, 7 
Royal Dutch Medical Association. See 
Dutch Medical Association 
Rutenfrans, Chris: 55, 69, 149, 153, 162n. 
25, 178, 189, 191; on abuse, 62; on 
BMA memorandum, 88n. 6; on 
Brongersma, 164; on Chabot, 139n. 

16, 142, 144; on culture of death, 129; 
onDessaur, 80n. 14, 131; on Dutch 
newspapers, 131; on euthanasia 
policy, 67; on lack of control, 79; on 
legislation, 135, 154; on negative 
aspects of euthanasia, 72; on palliative 
care, 123n. 3; on regional committees, 

1 15; on resenting euthanasia critics, 

71; on suggesting euthanasia, 96; on 
suicide pill, 169; on Van Oijen, 167 

SCEN. See Support and Consultation 
over Euthanasia in the Netherlands 
Schat, Sippe, 1 12 
Schepens, Ph., 31, 32n. 42 
Schoonheim, Dr., 41 
Schroten, Egbert: 6 In. 14, 177, 189; on 
BMA memorandum, 88; on Chabot, 
139n. 16, 142; on consultation, 113; on 
culture of death, 128; on euthanasia 
policy, 65n. 2, 71; on fears of elderly, 
82; on legislation, 135; on palliative 
care, 123-124; on the Remmelink 
statement, 85; on reporting, 1 15n. 35, 
37; on suggesting euthanasia, 95, 97; 
trusts doctors, 1 18; on van der Berg, 59; 




202 



INDEX -GENERAL 



on why the Netherlands, 57; on 
worrisome data, 79 
scientific independence: 55n. 1 1 
secularization, 57, 60 
Segers, J.H., 32n.42, 81,84 
self-determination, 17, 40, 62, 67. See 
also autonomy 
sex education, 61 
sexual revolution, 57 
Sicard, Didier, 18 
Silber, Mr Justice, 16 
slippery slope (syndrome), xiii, 30, 3 1 , 

66, 70, 72, 75, 120, 126, 127, 146, 176 
Sneiderman, Barney, 47-48, 138 
soft drugs, 57, 60, 134, 175n. 1 
Sopinka, Justice, 19 
South Australian Voluntary Euthanasia 
Society, 30 
squatters, 60 
Steele Richardson, 156 
student revolution, 58 
suffering: 1, 19, 23, 27, 39, 59, 61, 67, 68, 
75-79, 87, 95, 98, 107, 109, 1 10, 1 1 1, 
112, 119, 128, 131, 141, 145, 147, 

155, 167, 181, 183, 184; babies, 27; 
consideration in Belgium, 14; Canada, 
18; Dutch court cases, 40, 41, 43-46; 
from depression, 139; England, 15-16; 
France, 18; as justification for 
involuntary termination of life, 28; 
mental, 14, 40, 129, 164; Northern 
Territory, 3; Oregon, 4-5; and 
palliative care, 124-126; and patient's 
family, 84; prevention of, 129; prime 
consideration, 89n. 10; psychic, 48; 
Swiss law, 11-12; unbearable, 2, 24, 
29, 37, 66, 70, 71, 72, 80-81, 86, 88, 
96, 111, 140, 143, 154, 156, 157, 158, 
164-169, 176 
suicide pill, 169 

Support and Consultation of Euthanasia 
in Amsterdam (SCEA), 108, 113, 115 
Support and Consultation over Euthanasia 
in the Netherlands (SCEN), project, 

82, 108, 111, 164n. 27, 170, 171, 185. 
See also consultation 
Sutorius, Philip, 164-167, 169 



Swiss Academy of Medical Sciences, 12 
Swiss Penal Code, 1 1 
Swiss Society for Human Dying (EXIT), 
12 

Ten Have, Henk, 28, 132, 149 
terMeulen, Ruud: 55, 59n. 7, 178, 190, 
191, 193; on advance directives, 154n. 
4; on BMA memorandum, 88; on 
Brongersma, 164; on Chabot, 139n. 
16, 143; on consultation, 106n. 14; on 
Dutch people, 61n. 12; on fears of 
elderly, 84; on the Guidelines, 1 19; 
negative aspects of euthanasia, 72; on 
the new law, 155, 157; on palliative 
care, 123n. 3, 124, 170; positive 
aspects, 71; on the Remmelink 
statement, 86n. 3; on reporting, 1 15n. 
35; on SCEN, 171; on suggesting 
euthanasia, 93n.l2; on worrisome 
data, 79 

terminal sedation, 150 
Termination of Life on Request and 
Assistance with Suicide Act, 37 
Thijs, Bert, 55, 59n. 6, 177, 189; on 
consultation, 106n. 14; on Dutch 
people, 6 In. 12; on the Guidelines, 

1 18n. 42; on legislation, 133; on need 
to examine patients, 1 12n. 28; 
recommends training, 76; on the 
Remmelink statement, 86; on 
reporting, 1 14; on worrisome data, 
75n. 2 

Tijdschrift voor Geneeskunde, 59 
tolerance: 60, 140; mutual, 61; pragmatic, 
57 

"totalitarian humanism", 60 
transference, 66, 106, 107, 137, 143. See 
also counter-transference 
Tuckey, Lord Justice, 16 

Ubel, Peter A., 98 

V. Dr., 48, 138 

vanDantzig, A.: 55, 145-146, 177, 189, 
191; on BMA memorandum, 89; on 




INDEX - GENERAL 



203 



Chabot, 139-140; on compromise, 
175n. 1; on consultation, 106; on 
culture of death, 128; on euthanasia 
policy, 65n. 3, 69; on fears of elderly, 
80; on the Guidelines, 1 18n. 42; on 
legislation, 135; on the new law, 

156n. 9, 159; on the Remmelink 
statement, 86; on reporting, 1 18; on 
soft drugs, 60; trusts doctors, 70; on 
why the Netherlands, 58n. 5; on 
worrisome data, 75n. 2 
van Delden, Johannes: 55, 177, 190; on 
BMA memorandum, 88; on Chabot, 
139n. 16, 142-143; on Dutch citizens, 
61; on euthanasia policy, 65; on 
family pressures, 83; on the 
Guidelines, 71, 119; on legislation, 
135; on need to examine patients, 

1 12n. 28; on palliative care, 120n. 47, 
123, 125; on regional committees, 

109, 1 12; on the Remmelink 
statement, 85; on SCEA, 108n. 19; on 
suggesting euthanasia, 96; on 
worrisome data, 76n. 4, 77 
van den Berg, Jan Hendrik, 59 
van der Arend, Arie J.G.: 29n. 32, 55, 60, 
178, 189, 191, 193; on BMA 
memorandum, 88; on Chabot, 139n. 
15, 141; on consultation, 106n. 14, 
107; on Dutch people, 61n. 12; on 
family pressures, 83; on the 
Guidelines, 120; on legislation, 135; 
on need to examine patients, 1 12n. 28; 
on the new law, 1 56; on palliative 
care, 123; on regional committees, 

1 16; on the Remmelink statement, 86; 
on reporting, 66, 163n. 26; on role of 
nurses, 73; on suggesting euthanasia, 
93; on worrisome data, 75n. 2, 77 
van der Maas, Paul: 26n. 15, 27, 30, 32, 
55,60, 70,91, 105, 137n. 11, 177, 

189, 191; on Brongersma and Van 
Oijen, 165; on consultation, 106; on 
the Guidelines, 119; on hospices, 124; 
on life-shortening, 77n. 7; on need to 
examine patients, 1 12n. 28; on pain, 
67n. 9; on Postma, 59; on reporting. 



1 15n. 36; on Rutenfrans, 72n. 28; on 
SCEA, 108n. 19; on science 
sponsored by the state, 148; on 
suggesting euthanasia, 93; on who 
perform euthanasia, 73n.29; on 
worrisome data, 76n. 4 
van der Maas, reports, 148, 176 
van der Wal, Gerrit: 29, 35, 59n. 6, 91, 
148, 177, 189; on Chabot, 139n. 16, 
142; on consultation, 108; on 
consultation over the phone, 90; on 
Dutch citizens, 61; on Dutch 
healthcare, 62n. 17; on family 
pressures, 82; on fears of elderly, 81; 
on the Guidelines, 1 1 8n. 42; on 
legislation, 133; lessons of WWII, 

61n. 15; on life-shortening, 77n. 7; on 
the Remmelink statement, 86; on 
SCEA, 108n. 19; on suggesting 
euthanasia, 93; on worrisome data, 76 
van Leeuwen, Evert: 55, 59n. 6, 83n. 27, 
132, 153n. 2, 178, 189, 191, 193; on 
advance directives, 154n. 4; on BMA 
memorandum, 88; on Brongersma, 
164n. 30; on Chabot, 139n. 16, 142; 
on consultation, 107n. 17; on fears of 
elderly, 82; on the Guidelines, 120; on 
inadequate care, 82; on legislation, 
136; lessons of WWII, 61n. 15; on 
need to examine patients, 1 12n. 28; on 
the new law, 156n. 9, 157; on 
palliative care, 123n. 3, 124, 170; 
recommends training, 76; on regional 
committees, 109-1 1 1, 162n. 24; on the 
Remmelink statement, 85; on 
reporting, 66, 71, 115n. 37, 162; on 
SCEA, 108n. 19; on worrisome data, 
75n. 2 

van Oijen, Wilfred, 103, 167-169 
van Ree, Frank, 47-48 
Verhoef, Marja, 47-48 
Versluis, Mia, 39 

Visser, Jaap: 59n. 6, 61n.l4, 177, 189, 
191, 193; on Brongersma, 166; on 
Chabot, 139n. 16, 142; on 
consultation, 106n. 14; on Dutch 
healthcare, 62n. 17; on euthanasia for 




204 



INDEX -GENERAL 



minors, 159; on legislation, 136; on 
need to examine patients, 1 12n. 28; on 
the new law, 158; on palliative eare, 
120n. 47, 123; on regional 
committees, 162n. 24, 163; on 
reporting, 115, 163; on SCEA, 108n. 
19; on SCEN, 171; on Van Oijen, 168; 
on worrisome data, 76n. 4 

Wertheim, Ms., 40 

widow burning, 151 

Wijsbek, Henri: 177, 189; on BMA 
memorandum, 88n. 6; on Chabot, 
139n. 14, 140-141; on euthanasia 
policy, 65n. 3, 70; on fears of elderly, 
82; on the Guidelines, 1 18n. 42; on 
legislation, 134; on lenient courts, 
104n. 10; on the Remmelink 
statement, 86; on reporting, 115n. 
37;on suggesting euthanasia, 96; on 
worrisome data, 75n. 2, 77 

Willems, Dick, 31 

withdrawing treatment, 1, 4, 7, 8, 15-17, 
19, 23,25,30, 40,71, 127n. 9, 140, 
160, 170, 179 

withholding treatment, 4, 15, 17, 25, 30, 
40,71,86, 127n. 9, 140, 160, 161, 

170, 179 

written request, 5, 6, 14, 35, 81, 99, 114, 
164, 181 

Youk, Thomas, 9 

Zionists, post, 54 

Zylicz, Zbigniew, 123 




INDEX - COURT CASES 



205 



INDEX - COURT CASES 



Canada 

Nancy B. v. Hotel-Dieu de Quebec et al. 

(1992), 19n. 106 

Rodriguez v. British Columbia (Attorney 
General), [1993] 3 S.C.R. 519, 19 



England 

Airedale NHS Trust v. Bland, 15 
R. V. Adams, 14 
R. V. Cox, 14 
Red, 15 



The Netherlands 

Admiraal, 42 

Brongersma, 153, 157, 164-167 
Chabot, 25, 45-49, 55, 106, 131, 136-144, 
164 

Dr. K, 44 
Duintjer, 43 
Kadijk, 45n. 40 
Kors, 44-45 
Pols, 42 

Postma, 39-40, 44, 59 

Prins, 45n. 40 

Schoonheim, 40-41, 42 

Van Oijen, 153, 164-165, 167-168 



U.S.A. 

Vacco V. Quill, 9 
Washington v. Glucksberg, 9-10