By Jonathan A Hughes.

The first doctor to have been prosecuted under the Dutch euthanasia law since it came into force in 2002 was recently acquitted by that country’s criminal court. Disturbing features of the case, in which a woman was euthanised on the basis of an advance euthanasia directive (AED), were reported and discussed in a series of JME articles. These included a lack of clarity in the advance directive, doubts about the woman’s competence at the time it was written, uncertainty about the extent of her suffering when the euthanasia was carried out, and the fact that she was covertly sedated and then restrained by her family after sitting up during the euthanasia procedure. Concerns about the lack of clarity in the directive and lack of assent at the time of its execution were also registered by the regional review committee and medical tribunal which reviewed the case and referred it to the criminal court.

Writing in a recent issue of the JME, Asscher and van de Vathorst welcome the acquittal as a confirmation and clarification of the law permitting euthanasia to be carried out on the basis AED, but worry that the fact that the prosecution happened at all will deter doctors from providing euthanasia ‘even in more straightforward cases’, and advocate dropping the requirement that the patient is currently suffering from the criteria for lawful euthanasia in cases involving advance directives. My analysis of the case supports different conclusions.

Objections to particular forms or instances of euthanasia (for example those involving minors or people lacking capacity, or done for reasons other than the avoidance of intolerable physical pain) are often advanced as elements in a broader campaign against legalised euthanasia, for example to suggest that the more circumscribed forms of euthanasia proposed for legalisation in jurisdictions that have not yet taken that step would set them on a slippery slope. However, supporters of legalisation also need to think clearly about what the limits of permissible euthanasia should be. Amongst other things this is necessary in order to decide which of the alleged problem cases may be defended as ethically acceptable and in which cases the appropriate response is to provide satisfactory legal and procedural safeguards.

One reason Asscher and van de Vathorst welcome the court’s decision to acquit the doctor is that it permits an AED that lacks clarity to be interpreted ‘contextually’ (i.e. taking account of a patient’s conversations with doctors or family at the time the AED was written), allowing a patient’s wishes to be acted on even if they are not clearly expressed. However, it is an unreliable means of doing this as there can be no certainty that sufficient contextual information will be available at the time it is required. Moreover, doctors’ or families’ testimony may be affected by inaccurate recollection or conflicts of interests, giving rise to misinterpretations of the patient’s intentions and leading not only to the possibility of a patient’s wishes being set aside in circumstances where they would want them carried out, but also of the patient being euthanised in circumstances that they did not intend. A better solution may be to encourage or require the use of expert assistance in drawing up an AED, even if this requires the state to bear some of the costs.

The patient in this case was described by a doctor as being cheerful at times, especially during her husband’s visits, raising the question of how to weigh the current interests of a non-competent patient against the wishes they expressed when they had capacity. Asscher and van de Vathorst draw on Dworkin’s distinction between critical and experiential interests to argue that, contrary to current Dutch law, the earlier, capacitous interests should hold sway even if the patient ‘is not noticeably suffering’. However, there is nothing either in the case itself or in their analysis that answers existing criticisms of Dworkin’s position, that it exaggerates the clarity and for many people the importance of the distinction between critical and experiential interests and ignores plausible doubts about the extent to which someone who has not yet experienced the impact or severe dementia can reflect authoritatively on how it may affect their quality of life.

The worry that a prosecution of this kind will deter doctors from offering euthanasia even in more straightforward cases seems also to lack foundation. For one thing, this was the first prosecution in seventeen years of the Dutch euthanasia law and ended in acquittal. Secondly, notwithstanding the court’s ultimate verdict, this is a case that pushes against the boundaries of the legal criteria for lawful euthanasia and therefore should not cause doctors to worry about being prosecuted for cases that fall well within those boundaries. And thirdly, even for supporters of legalised euthanasia it is hardly a cause for dismay that doctors should be motivated to hesitate and seek advice in cases where they are not sure that the legal requirements apply.

Paper title: Advance euthanasia directives and the Dutch prosecution

Author: Jonathan A Hughes

Affiliation: Senior Lecturer in Ethics, School of Law, Keele University.

Competing interests: None declared