Voluntary euthanasia and assisted dying. end-of-life decisions and criminal law:
the position in the Netherlands.
Cambridge, January 2015
P.A.M. Mevis
Professor of Criminal Law and Criminal Procedure
Erasmus University Rotterdam
mevis@law.eur.nl
I. Introduction
First of all would like to thank the foundation and the faculty for having me here
this afternoon. I am very glad and honoured to stand here in the tradition of my
fellow Dutchman Baron Cornelius Ver Heyden de Lancey. Born in 1889, he
studied medicine at Leiden University in the Netherlands before he got his
medical degree in England during the first World War. I couldn’t find whether
he served at the front. If he had, he would have been confronted with questions
on euthanasia there.
I hope to provide an overview of some headlines of the state of affairs regarding
euthanasia and assisted suicide under Dutch law, especially in relation to
criminal law. I hope to address topics: I hope to outline the law as it stands and
explain it a bit as a result of Dutch legal developments and discussions in society
in the second half 20th century. I will try to illuminate a bit the discussions
about the actual legal provisions in practice to illuminate that the current state of
affairs is itself a subject of discussion. Finally I will address a specific call to
amend the existing law for the future.
II. Regarding 1: Understanding the actual legal situation: three reference
points
The current legal situation concerning euthanasia and assisting suicide in the
Netherlands can best be described by reference to three key historical moments,
in the development of the law:
- Eighteen eighty-six (1886): the introduction of the Dutch Penal Code
- The twenty-seventh of November nineteen-eighty-four (27 November
1984), Dutch Law Reports (NJ) 1985, 106: the Schoonheim decision of
the criminal division of the Dutch Supreme Court
- The first of April two thousand two (1 April 2002): the entry into force of
the Termination of Life on Request and Assisted Suicide (Review
Procedures) Act, which I will refer to in the following as the ‘Review
Procedures Act’
II.1. Penal Code 1886
The 1886 Penal Code is still in force, and of course very important in the Civil
Law tradition of the Netherlands. I have given you the 1886 text as well as the
current text, and you can see that, to a certain extent, the structure still the same.
Let me make a very few remarks to enable you to understand the actual situation
better.
- As you can see: Euthanasia is made a separate crime, it is not under
manslaughter or murder; it is, because of the request of the victim, a
special crime; the maximum of the sanction is – a little bit – less: not 15
but 12 years of imprisonment maximum. The fact that there is a request
from the victim was important, already in 1886.
- As we turn to section 94: Suicide as such is not a criminal act, ever since
1886
- Assisting suicide is a crime, as euthanasia is. In the view of the legislator
then and now, the underlying purpose of both penal provisions and the
interest that they protect, are the same interest, that is ‘respect for the life
of another person’ - this being the interest to be protected by criminal law.
In spite of the fact that both crimes concern an act performed at the
express and earnest request of the person who wishes to die.
- So, there is no distinction between these two offences in this respect. That
still in the case in the criminal code. And even under the Review
procedures act there still is no distinction between the two crimes. This is
reflected in the actual Penal Code in that Section two hundred ninety-four
(294), subsection two simply states that the provisions of Section two
hundred ninety-three (293), subsection two shall apply mutatis mutandis.
It will become clear, however, that current debate is to an extent also
about whether or not a much sharper legal distinction should be made
between cases of euthanasia and cases of assisted suicide.
- Being both a criminal offence, there is on the other hand a huge difference
in sanction: the maximum penalty for assisted suicide is three years
imprisonment. That means: not even pre-trial detention is possible.
- Last but not least, there is one remarkable element in section 294.
Providing assistance in committing suicide is not automatically
punishable and neither is it punishable from the moment at which such
assistance is provided. The description of the offence set out in Section
two hundred ninety-four (294) of the Penal Code makes clear that
providing assistance is only punishable ‘if suicide follows’. That part of
the description of the offence is referred to as an additional condition for
punishability. That the suicide should have followed as a result of the
perpetrator’s assistance is not a necessary ingredient in the offence.
However, as long as (the) suicide is not committed, the assistance
provided, for instance in the form of providing the drugs required, is not
punishable. This means, for example, that a doctor who is convinced that
a patient can be reassured by the provision of such drugs to the patient,
and who knows that it is precisely the availability of these drugs that will
prevent the patient from actually using them, this doctor may provide the
appropriate medicine to the patient.
This concludes a first explanation of the legal situation in the Netherlands
regarding euthanasia and assisted suicide.
II.2. SCHOONHEIM
Let us turn to the second key-moment in history in 1984.
Based on the very extensive and comprehensive debate being conducted in
literature, the media and politics, it can be concluded that, somewhere in the late
nineteen seventies and eighties (1970s/1980s), there was a certain consensus in
the Netherlands about the desirability of decriminalising euthanasia and assisted
suicide in certain cases of exceptional medical suffering. The subject was
debated by a variety of interest groups and professional groups. In terms of legal
developments, particularly with respect to criminal law, it was of major
importance that some leading and highly regarded legal experts of the time made
an explicit case in favour of decriminalising euthanasia and assisted suicide in
certain circumstances.
Precisely because of the extensive and comprehensive nature of the debate,
however, there was very little agreement about the cases or situations to which
decriminalisation should apply, the way in which this decriminalisation should
be provided for by law, and who should have the authority to decide on or carry
out euthanasia and assisted suicide.
And although there was certainly support in society for an exemption from
criminal liability with respect to euthanasia and assisted suicide, there was for a
long time no parliamentary majority for a change in the law. The ‘inevitable’
presence of the Christian Democrats in Dutch coalition-governments from the
end of the Second World War until the nineteen nineties (1990s) prevented the
introduction of proper legal provisions. There was a political impasse regarding
an important issue in respect of which society wanted change in terms of the law
and the legal position.
Although the Dutch system is based on the relatively strict Civil Law approach,
it is in the Dutch tradition not uncommon for the criminal division of the
Supreme Court to ‘reshape’ substantive criminal law so that the outcomes of
proceedings are more in keeping with opinions that have changed or that are
evolving in society.
Given the political impasse, it was not surprising that the Supreme Court looked
for ways within the existing system of codified criminal law and criminal
proceedings in which it could end the punishability of euthanasia and assisted
suicide in certain cases.
The ruling passed by the Supreme Court on the twenty-seventh of November
nineteen eighty-four (27 November 1984) (Dutch Law Reports 1985, 106) is the
case in which the Court provided scope for non-punishable euthanasia and
assisted suicide. Its formulation of the exception is based on the written, general
ground for exemption in (Section 40 of the Dutch Penal Code).
Any person who commits an offence under the compulsion of an irresistible
force shall not be criminally liable.
This provision is interpreted as including the justification defense of necessity.
Being a situation in which a person has to choose between conflicting
duties.And the Court ruled that, if the person in such a situation obeys the most
important one and violates by doing so the criminal law his act is justified”,,
according to the Supreme Court. In this formulation, the principles of
subsidiarity and proportionality are applied.
In euthanasia-cases that means that, in the view of the court, that the breach of
section 293 of the criminal code may be justified by the duty of the doctor,
based on and in accordance with principles of medical ethics and standards of
medical profession, to prevent his patient from further, unbearable suffering,
The court found that a medical doctor, and only a medical doctor, acting in such
a conflict of duty situation and based on an objective medical opinion and
medical ethical principles, may justifiably opt for euthanasia if there is a conflict
of duties between, on the one hand, the duty to comply with the law and refrain
from performing acts that end the life of another person and, on the other, the
duty to prevent, in accordance with medical ethics and based on a doctor’s
objective medical opinion, unbearable medical suffering, both current and
predicted, on the part of the patient. Euthanasia or assisted suicide - that is,
setting aside the respect for the life of another person required by the criminal
statutes by not ending that other person’s life - can be a justifiable act in the case
of unbearable suffering according to an objective medical opinion and medical
ethics.
This is the ground the Court found for exemption from criminal liability for
euthanasia: the context of a situation where conflicting duties make a defence
available to a medical doctor for an act that in itself remains a criminal offence.
It was broadly accepted in society and carefully elaborated by the Supreme and
lower courts in there jurisprudence.
Do allow me not to go into the details of the Supreme Court’s case law
regarding the further definition of ‘conflict of interest’- situation’ and necessity
as ground for justification prior to the Review Procedures Act, since the
approach that it took was, with the exception of one point, adopted by the
legislature as the template for the Act.
So, we can now turn to the third reference point, the entry into force of the Act
referred to.
II.3. Termination of Life on Request and Assisted Suicide (Review Procedures)
Act (the ‘Review Procedures Act’): structure, design and content of the Act.
Further recognition of impunity with respect to euthanasia and assisted suicide
was given shape in the Termination of Life on Request and Assisted Suicide
(Review Procedures) Act, which entered into force on the first of April two
thousand two (1 April 2002). This law amended the articles 293 and 294 of the
Criminal Code also.
Section 293 par 2 Penal Code
2.
The offence referred to in subsection (1) shall not be punishable, if it is committed by a medical
doctor who meets the requirements of due care referred to in section 2 of the Termination of Life on
Request and Assisted Suicide (Review Procedures) Act [Wet Toetsing Levensbeëindiging op Verzoek en
Hulp bij Zelfdoding] and who informs the municipal forensic pathologist in accordance with section 7(2) of
the Burial and Cremation Act [Wet op de Lijkbezorging].
Termination of Life on Request and Assisted Suicide (Review Procedures) Act
Article 2
1. The requirements of due care referred to in Article 293, paragraph two of the Dutch Penal Code,
mean that the physician:
a. holds the conviction that the request by the patient was voluntary and well-considered,
b. holds the conviction that the patient’s suffering was lasting and unbearable,
c. has informed the patient about the situation he was in and about his prospects,
d. has concluded together with the patient that there was no other reasonable solution for the
situation he was in,
e. has consulted at least one other, independent physician who has seen the patient and has
given his written opinion on the requirements of due care, referred to in parts a - d, and
f. has terminated the life or assisted in the suicide with due medical care and attention.
This impunity is structured as follows.
1. Under the new Sections two hundred ninety-three (293) and two hundred
ninety-four (294) of the Penal Code, euthanasia and assisted suicide
remain, in general, criminal offences. The Review Procedures Act did not
alter this classification and did not alter the potential sentences carried by
the offences. Euthanasia and assisted suicide were not made a part of
‘normal medical practice’ to which only medical standards, if necessary
assessed in the first instance by a disciplinary court, apply.
2. Nevertheless, a special ground for exemption from criminal liability is
formulated in the Criminal Code and elaborated in the Review Procedures
Act. The approach of the Supreme Court was therefore followed in so far
that euthanasia and assisted suicide remain punishable. In each individual
case, non-punishability only applies if and because the doctor concerned
has met the requirements of the ground for exemption. Unlike the
Supreme Court, however, the legislature formulated a special ground for
exemption from criminal liability for these two crimes. The legislature
abandoned the approach based on necessity as a general justification
defence.
3. The formulation of the ground for exemption from criminal liability in the
Penal Code includes three distinct conditions:
a. Only a doctor may invoke this special ground for exemption from
criminal liability, because the justification is based on medical
norms and ethics in cases of unbearable suffering.
b. In addition, the Penal Code makes clear that if a doctor wishes to
successfully invoke the ground for exemption from criminal
liability, he must report his act of euthanasia or assisted suicide to
the municipal forensic pathologist in accordance with the Burial
and Cremation Act.
c. Thirdly, the doctor must meet the requirements of due care set out
in the Review Procedures Act.
Well, a criminal lawyer may ask a few questions about these conditions in the
Penal Code but I leave that for further discussion maybe later.
What are the requirements of due care under the Review Procedures Act to
which the Penal Code refers? They are actually obvious. The requirements of
due care referred to in Section two hundred ninety-three (293), subsection two
(2) of the Penal Code mean that the doctor that the physician:
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a. reached the firm conclusion that the patient had made a
voluntary and well-considered request,
b. reached the firm conclusion that the patient was
experiencing unbearable suffering and there was no prospect
of improvement in the situation,
c. informed the patient about the situation which the patient
was in and about the patient’s prospects,
d. together with the patient, reached the firm conclusion that,
given the situation which the patient was in, there was no
other reasonable solution,
e. consulted at least one other, independent doctor who saw
the patient and gave a written opinion about the requirements
of due care referred to in a up to and including d, and
f. carried out the euthanasia or assisted in the suicide with
due medical care and attention.
4. At least as important as the criteria is the way in which the Review
Procedures Act provides for assessment of the doctor’s actions if the
doctor has reported these actions with respect to a patient as constituting
euthanasia or the provision of assistance in committing suicide. In the
Supreme Court’s approach, criminal proceedings first had to be instituted
against the doctor. In the context of those proceedings, the doctor could
claim the justification of necessity. The doctor had to be prosecuted and
charged as a suspect and tried in public, however.
5. The Review Procedures Act provides for a different approach. The Dutch
Public Prosecution Service is not obliged to institute criminal
proceedings, even if it has reason to believe that a criminal offence has
been committed. This is shown most clearly by Section one hundred
sixty-seven (167) of the Penal Code. In the context of public
administration in the Netherlands, classifying certain behaviour as
punishable and precisely for this reason, based on a pragmatic prosecution
policy and for the purpose of controlling certain social behaviour,
refraining from always instituting criminal proceedings is an option that is
frequently used. The famous Dutch policy on cannabis “coffee shops” is a
practical example of this option. To a high extent, this point characterises
the Dutch system on euthanasia as based on typical Dutch elements in
criminal law.
In this same vein of pragmatism, a ‘pre-assessment’ takes place in the
context of the Review Procedures Act to determine whether nonpunishability applies. This assessment is carried out by one of the five
Regional Euthanasia Review Committee (RTE), composed as set out in
section 3 paragraph two: at least a lawyer, a physician and an expert in
medical ethics. If, following its assessment, this committee finds with respect
to a specific case that the doctor’s actions remained within the limits of the
Review Procedures Act, it classifies those actions as having been performed
with ‘due care’. It is therefore established that the doctor is not liable to
punishment in the specific case. This ‘due care’ opinion is not reported to the
Public Prosecution Service, which to a certain extent is bound by the opinion.
6. The RTE may conclude that the doctor did not act in accordance with the
criteria of due care, that the doctor did not meet the requirements of due
care in a specific case. This conclusion must be reported to the Healthcare
Inspectorate and the Public Prosecution Service. Both agencies then
decide whether or not to take disciplinary measures or institute criminal
proceedings against the doctor concerned. Only the Public Prosecution
Service may decide to institute criminal proceedings. The RTE does not
give an opinion about the desirability of prosecution or disciplinary action
if it concludes that the doctor acted not in accordance with the criteria.
III. Does it work?
In a way, In a way it does. There is some research on this and the latest figures
concern the year 2010..
In 2010, RTEs received three thousand one hundred thirty-six (3,136) reports of
such cases from the doctors concerned. This means that the reporting rate, the
Achilles heel of the Review Procedures Act, was seventy-seven percent (77%)
in 2010. This is more or less equal to the 2005 percentage (eighty percent
(80%)).
1. If we may assume that such a more or less stable percentage, on average,
occurs each year, it could be said that the Review Procedures Act is a success in
this specific respect. Evidently, a mechanism has been found and criteria have
been laid down in the Act that give doctors a sufficient degree of confidence to
report cases of euthanasia or assisted suicide that they have been involved in, an
act by which they expose their actions to assessment under criminal law.
There is a hidden danger, however. Doctors will only report their actions if they
recognise and acknowledge their actions as carrying out euthanasia or assisted
suicide. If, in their opinion, palliative sedation applies, the aim of which is not
the termination of life, they will classify the case as one of ‘normal medical
practice’ and therefore not report it as one of euthanasia or assisted suicide.
Doctors can therefore avoid assessment of their actions by stating in the death
certificate that it was a natural death - that is, that it was a case of palliative
sedation within the framework of normal medical practice. Although the
drawing up of a false death certificate by a doctor is punishable as a separate,
serious offence, there have hardly been any prosecutions, the last one possibly
having occurred in 1999.
Research shows that around two point six percent (2.6%) of deaths occur in the
legal twilight area between euthanasia and palliative sedation. With respect to
approximately 550 deaths per year, it is probable that symptoms are intensively
combated (pain management) by administering a higher dose, mainly of
morphine, to the patient than is actually required to mitigate the symptoms, as a
result of which death occurs sooner than would otherwise have been the case.
(The doctrine of double effect). Such cases in the grey area between palliative
sedation and euthanasia are more likely to be seen by the doctor as being ones of
palliative sedation rather than euthanasia, whereas there is an element of
euthanasia in that there is a causal link in terms of an, accelerated, final phase of
life, even though death is not the intention as such.
Where this distinction is decisive in terms of defining normal and abnormal
medical practice, in terms of defining punishable actions that must be reported
and assessed, the legal system in my view requires greater clarity. The grey area
is too large not to be seen as a problem.
3. Results and grounds?
In the period from 2007 to 2011, out of the total of thirteen thousand nine
hundred eighteen (13, 918) cases, RTEs reported thirty-six (36) to the Public
Prosecution Service and the Healthcare Inspectorate as ones in which they
concluded that the criteria were not met. None of these cases resulted in
prosecution or disciplinary proceedings. A few cases led to an interview with the
doctor or a conditional decision not to prosecute. What should we make of this?
Most cases identified have less to do with the substantive criteria of voluntary
request (two cases), suffering (three cases) or no other reasonable solution (two
cases) and have more to do with the actual carrying out of euthanasia or an
assisted suicide. It is understandable that a violation of the requirements of due
care is less likely to be a reason for criminal prosecution in this respect.
According to the relevant guideline of the Public Prosecution Service, this also
applies if the doctor has not consulted a second doctor but it can nevertheless be
established that the substantive requirements, particularly the one pertaining to
suffering, were met. I again find this to be a less self-evident exception, even if
the second doctor’s views are no more than advice to the attending physician.
The fact that not a single case prompted criminal proceedings and very few were
classified as not acceptable because of the violation of the material due care
criteria is somewhat worrying. Are doctors that careful? Or do they only report
the substantively ‘evident’ cases? Are the RTEs strict enough in their
assessments? These aspects are being debated in the Netherlands at this time.
A last point is that the as such positive observations about the Review
Procedures Act relate first and foremost to the ‘standard case’: the adult citizen
who has a disease from which he will die in the near future and which is causing
him such unbearable pain that it is understandable, also in legal terms, that
medical practice focuses on preventing further unnecessary suffering. In
addition, this citizen in this standard case is mentally fully capable of
understanding his situation and properly discussing matters with his doctor, also
in terms of his request for an early termination of his life. The figures presented
confirm this description. Most cases of euthanasia concern patients who are
suffering from cancer and have a short life expectancy, in most cases less then
one month.
This is a very positive result and picture as such.
Nevertheless: with the observation that the Review Procedures Act works well
and provides an adequate framework, first and foremost with respect to the
standard case described, the current debate must focus on which cases of
suffering already fall within the scope of the Review Procedures Act and which
do not, and which cases should be brought within this scope in the future. This is
at the time the major debate and will be the major debate in the coming years
with respect to Dutch legislation in this field.
Outside the ‘standard case’ we have categories that are, some more, some less,
discussed in the Netherlands at the time. Within the Review Procedures Act you
can imagine the complications if you read section two, paragraph two about the
‘advanced directive’. The request and will of minors can lead to discussion too.
Others then a medical doctor
And the scope of the Review Procedures Act is limited by the Penal Code and
the Act itself to a set of legal provisions concerning a possible ground for
exemption from criminal liability in the case of euthanasia or assisted suicide
carried out by a doctor at the request of a patient. How about the ’non doctor’?
We had a case in which a son assisted his mother in her wish to end her life by
suicide. Being prosecuted, the court ruled: that is punishable, but there is no
need to apply whatever criminal sanction in this case. Here is something for
discussion, obviously.
But I leave that aside. I would like to address two categories of cases. One is
within the scope of the Review Procedures Act. The other one is beyond that,
but exactly in going beyond the scope, it might be illustrative for actual Dutch
discussion and position.
Within the scope the Act.
A current, socially relevant question is that of the status of patients suffering
from dementia, and possibly other disorders affecting the mental faculties, under
the Review Procedures Act.
This question firstly concerns the interpretation of ‘lasting and unbearable
suffering’ as referred to in Section two (2), subsection one (1) under b of the
Review Procedures Act. This is a term with a wide range of aspects. It is an
open criterion. The criterion states that, though important, the patient's
subjective experience is not the decisive factor. The unbearableness of the
suffering must also be (in a way ‘understood’) palpable to the doctor. The
requirements of due care stipulated in the Review Procedures Act focus on and
apply to the doctor: the doctor’s actions are the subject of examination and the
criteria provided by the law apply to the doctor’s actions and not to the exercise
and interpretation of the patient’s right to the termination of life/right to selfdetermination and, consequently, legally legitimised euthanasia or assisted
suicide by the doctor. The patient’s suffering is considered lasting and
unremitting if there are no further treatments for easing or eliminating the
patient’s suffering. The concept of suffering is more than experiencing pain; it
also encompasses general degradation. Loss of dignity and dependency on
others can be interpreted as constituting suffering. If it is established that the
suffering will be real and that there are no alternatives for eliminating the
suffering, the criterion can be satisfied before the suffering actually begins. The
prospect of (continued) deterioration in a case of established dementia can also
constitute ‘suffering’.
As such, it is clear that the application of the Review Procedures Act does not
necessarily require the onset of the dying phase of the patient. At the same time,
the Act requires that the patient experiences the suffering, which is not the case,
for example, with comatose patients who no longer respond to pain stimulus.
However degrading such cases may be for those involved (the doctor, the
family), euthanasia in these situations (assisted suicide does not apply here) is
not permitted under the Review Procedures Act. Refusals of treatment and
similar documents drawn up by the patient in advance could be the answer in
such situations.
With regard to the Dutch situation before the Review Procedures Act, the
Supreme Court has already acknowledged that unacceptable and unremitting
psychological suffering can result in ‘unbearable suffering’. This therefore also
applies to dementia. It was never the intention for the definition of suffering
used in the Act to vary from that applied previously by the Supreme Court.
There is no requirement of a single somatic condition which causes the
suffering. Under the Review Procedures Act, therefore, psychological suffering
can also lead to ‘suffering’ in the sense of the Act. There were two cases
annually in the years up to 2011 and forty two (42) requests in 2013 alone.
This is reflected in the more general description of suffering used by the RTEs.
There must be a medical dimension to the suffering. The suffering must
primarily be caused by a medically classifiable disease or condition, either
somatic or psychological. There need not be a single medical condition which,
as such, must form a serious, life-threatening medical condition. An
accumulation of, for example, geriatric complaints (including medical
complaints) can constitute sufficient cause of unremitting and unbearable
suffering in the sense of the Review Procedures Act.
At the same time, as evidenced in case law from before the Review Procedures
Act, special caution from both the doctor (with respect to the euthanasia) and the
Public Prosecution Service is appropriate in questions of unbearable and
unremitting suffering associated with psychological conditions in order to
ensure that the suffering is not caused by a treatable disease or condition and
that the patient is indeed sufficiently capable of making decisions and has
submitted a well-considered and voluntary request.
The foregoing can lead to the conclusion that the definition of the term is open
to interpretation. Consequently, this open character allows for a certain
expansion of the scope of the Review Procedures Act through the interpretation
of the definition of suffering in the precedents of the RTEs (and to the extent the
other requirements of due care have been met), provided such scope falls within
the boundaries accepted in the public debate. And you can imagine what the
shape of debate is: some say the Act doesn’t go far enough, others warn that
‘we’ go to far.
That brings us at the last part of my lecture: the discussion beyond the existing
limits of the Review Procedures Act: the case of – what can be called ‘the
completed life’.
A completed life
The definition of suffering in the Review Procedures Act discussed above also
has a strict limitation: it must be suffering that is at least partly due to medical
reasons. That requirement makes it possible to base the entire system of the
Criminal Code and the Review Procedures Act, on the decision, which is to be
regulated and subsequently assessed, to perform euthanasia and provide
assistance in suicide as an act of a medical doctor and to that extent on a medical
decision, even though euthanasia and assisted suicide are primarily regulated in
criminal law.
This principle, this limitation is also currently a subject of debate in the
Netherlands. It is argued that euthanasia and assisted suicide should also
possibly be with impunity in cases of a ‘completed life’, which, from the
perspective of the Review Procedures Act, can simply and clearly be defined as
the situation in which the patient’s wish to die is based on a non-medical
assessment regarding the completion of the patient’s life and the ensuing desire
to put an end to that life.
This new category, which features prominently in the current Dutch public
debate, has a number of different aspects. Research has become available
showing that only a very limited category of people have an acute death wish
that is based on a completed life and which is without medical reasons. Some of
these people suffer from less serious medical conditions that result in suffering
within the meaning of the Review Procedures Act, combined with geriatric
complaints. This group will grow in the future, as will the call of this group for
ways to end their lives in dignity and to call in the assistance of others in
achieving this aim where necessary.
The possibilities and fundamental questions that this situation presents are clear
enough. In the actual Dutch discussion there is an important difference of
approach to the issue as represented by the legal provisions on the one hand and
the public debate on the other. While the legal provisions operate on the basis of
a doctor’s decisions and actions being legally regulated, certain sections of
society are arguing increasingly forcibly from the perspective that, in certain
cases, the legal provisions for impunity in cases of - at least!! assisted suicide
(and here is the point to begin discussing the difference between the two
crimes!!) should and can be developed as an interpretation of a right of selfdetermination due to a citizen/patient, also with respect to how that person ends
his life. The principle and structure of impunity of the help and actions of others
would then be determined by the character of their legitimate compliance with
the patient’s right of self-determination, recognized by law.
It could be said that the current division of opinion and approach in law and a
the call for more possibilities in society on this point, resemble the situation
before the 1984-decision of the Supreme Court and the Review Procedures Act
2002. On the other hand: although the ‘completed life’ option is seriously
discussed, there is not such a consensus as there was before the Supreme Court’s
decision and the 2002 Act.
Nevertheless: entirely as would be expected, such an equally difficult and
topical theme, which is also both socially and politically sensitive, guarantees
the traditional political reaction: the establishment of an advisory committee.
Such a committee was indeed set up in the spring of 2014. The committee’s
official remit is as follows:
‘The committee will carry out the aforementioned study into legal possibilities
with respect to assisting an individual who considers his or her life to have run
its course in committing suicide, and will also analyse the social dilemmas in
this context. The study’s core focus will be on how the wish of a growing group
of people in the Netherlands to have a greater right of self-determination in
terms of the assistance to be received when they have made an end-of-life
decision can be met in practice. At the same time, it is of paramount importance
that abuse is prevented and that people feel safe.
‘The outcomes of this study have not been determined in advance. The study
may therefore lead to proposals for new regulations or result in a reconfirmation
of existing legal limits. A careful approach is the starting point in this regard. In
addition, we ask the committee about what can be done to prevent individuals
from reaching the conclusion that their respective lives are effectively over.’
This demonstrates that it is possible that this committee may also arrive at the
conclusion that nothing - or nothing yet - in the existing statutory provisions
requires amendment, or that an amendment, given the interests at stake, is not
desirable. The answer to the question as to whether an extension of the
possibilities for assisted suicide (alone and or for euthanasia too) with impunity
is desirable will in part depend on the scope of the current Review Procedures
Act, in particular the scope of the definition of suffering and the possibilities for
a doctor, as a professional physician, to make a decision in this regard. In this
context, doctors are apparently currently required to make decisions that go
beyond just the medical suffering of their patients. The committee, of which I
am a member, is expected to present its report and recommendations to the
Dutch government in the second half of this year. There will be at least a
summary in English language.
V. Conclusion
To conclude: The Review Procedures Act was introduced in 2002. It is partly
the result of typical Dutch circumstances and typical Dutch criminal law
provisions. The Act is a success for the standard case, but it is debated and in
flux for other cases. Now, some 12 years after it came into force, this act
‘provoked’ a certain public debate on the legal provisions, a debate which has
since advanced and is now calling the limits of the Review Procedures Act, and
therefore those of criminal liability/impunity, into question. The debate concerns
both the question as to whether the application of the Review Procedures Act
goes too far (for instance with respect to psychological suffering) and the
question as to whether it does not go far enough (for instance with respect to a
‘completed life’ case).
A key question is whether the legal provisions regarding criminal
liability/impunity should remain based on the current principle that everyone,
with certain exceptions for medical doctors only, is obliged to respect the life of
others. We may see a switch to the principle of people’s right to
self-determination with respect to their own lives, and to the possibility of
ending it, a possibility which is not prohibited under Dutch law since 1886. That
right to self-determination, which as such is not provided for in Dutch law in the
context of euthanasia or assisting suicide, would then become the legal and
legitimising principle for the contributory actions of third parties performed with
impunity resulting from a decision to terminate the patient’s life. The outcome
of this discussion may not be the same for euthanasia as for assisted suicide.
The debate relates not only to the principle of impunity, but also to the question
as to what systems of control and law enforcement are possible and necessary to
be able to distinguish, with sufficient clarity, between cases of termination of
life that can be accepted on a basis of human dignity and carried out with
impunity and those that constitute a crime. The Review Procedures Act has
elements of a political compromise in the debate for the standard case: the real
debate has only just begun in the Netherlands.