Supreme Court rules on the first prosecution of a Dutch doctor since the euthanasia act

Eva C.A. Asscher and Suzanne van de Vathorst.

On April 21st the Supreme Court passed judgement on the case of the first doctor to be prosecuted since the 2002 Termination of Life on Request and Assisted Suicide (Review Procedures) Act. In September 2019 a Dutch nursing home doctor performing euthanasia on a patient with severe dementia was acquitted of murder charges, which we discussed on the JME blog and in our paper. Subsequently, the case was taken to the Supreme Court for ‘cassation in the interest of the law’. This means that the Supreme Court is asked to clarify the law and judge whether the lower court had been correct but without further consequences for the physician.

The Supreme Court found that the criminal court had been correct in acquitting the physician and it nullified the disciplinary warning that the disciplinary court had handed to the physician. Moreover, the Supreme Court commented on the decision to prosecute and the choice of murder charge. It was emphasised that questions related to medical practice fall under the disciplinary court. The court further noted that even if not all due care criteria had been fulfilled, this would not necessarily lead to a murder charge as there was still the possibility to charge with assisted suicide – a lesser crime. As requested, the Supreme Court clarified aspects of the law systematically for each due care criterion related to the specific circumstance of advanced dementia.

Voluntary and well-considered request

The judgement confirms that an Advanced Euthanasia Directive (AED) can replace a voluntary and well-considered (and actual oral) request for euthanasia, when a person is no longer competent to make that request. Moreover, the Supreme Court confirms that a measure of interpretation is allowable as was found by the lower court. It stipulates that the AED must clearly state that the patient wishes to be granted euthanasia after he or she loses competence through advanced dementia. It must also be clear under what circumstances the patient would make this request, and what the patient deems as unbearable suffering. Furthermore the judgement confirms that a confirmation of a death wish by the incompetent patient is not legally required, and moreover for a patient with advanced dementia it is impossible and unnecessary.

An AED however is not a binding to the patient. The Supreme Court noted that whilst the patient retains competence it should be taken seriously if the patient makes it clear (either orally or otherwise) that he or she no longer wishes to be granted euthanasia after the loss of competence. If a competent person indicates that they have changed their mind, the AED is considered retracted and euthanasia after the loss if competence is not allowed.

The Supreme Court holds that the physician should continue to be aware of indications against the euthanasia, even after the patient is no longer able to form and pronounce his will. An example would be a patient with severe dementia who is acting in a way that indicates a will to live. This patient cannot be granted euthanasia, even though he/she is no longer able to make this decision and thus formally retract or alter the AED.

Unbearable and hopeless suffering

This is related to the due care criterion of suffering unbearably and hopelessly at the time of the euthanasia. The Supreme Court discusses three types of suffering that can be unbearable and hopeless in advanced stages of dementia: physical suffering from another ailment; physical suffering as a result of the advanced dementia; suffering as a result of the state one is in due to the dementia.

The final type of suffering is of particular importance as it is more difficult to assess. In order for such a state to qualify as unbearable there are two important requirements: the patient must have described in the AED what future state would qualify as unbearable for him and the patient must show in behaviour or language that he is indeed suffering. In the case that went to court the suffering was clear, the patient was showing clear signs of distress. This may not always be as straightforward. The 2019 annual report of the Euthanasia Review Committees described two cases of euthanasia granted for patients with severe dementia, and the suffering described for these patients included disorientation, anger, sadness and complete dependence. In the context of their biography and their AED this was considered unbearable and hopeless. This conclusion was based on careful reading of the AED, a lot of observation of the patient during different times of the day, conversations with family and care-personnel, and in one of the cases the use of a scheme to objectify the suffering. Reaching this conclusion was thus complex and time consuming.

In conclusion, the Supreme Court confirms that AEDs are valid and may be interpreted to identify the state the patient indicated as unbearable. Patients who appear content or happy cannot qualify for euthanasia.

 

Authors: Eva C.A. Asscher and Suzanne van de Vathorst

Affiliations: Department of Medical Ethics, Amsterdam UMC location AMC (EA and SvdV) and Department of Medical Ethics and Philosophy of Medicine, ErasmusMC (SvdV)

Competing interests: Both authors receive funding from the NVVE

(Visited 867 times, 1 visits today)