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Is the current Dutch Euthanasia Act unethical?

Article 293 of the Dutch Criminal Code instructs the doctor to apply due care requirements when granting an Euthanasia request. These requirements are laid down in the Wtl: the Act on Testing the Termination of Life on Request and Assisted Suicide. The Wtl contains an unethical instruction from the legislator to the doctor, because the doctor cannot be adequately trained to apply and is not even capable of executing some of those requirements.

The doctor has no criteria to determine the (unbearable) degree of suffering of another person, the non-medical hopelessness of the suffering and the reasonableness of another solution than euthanasia. Certainly not the SCEN-doctor[1]: he does not know the patient and has one conversation with the patient. Of course, there are situations in which a decision to grant euthanasia is not a problem, such as with a terminal patient. In any case, the decision to grant or refuse euthanasia is subjective. If the government continues to adhere to the Wtl and the Royal Dutch Society of Medicine to her ‘Directive on the Implementation of Euthanasia and Assisted Suicide’, this is not ethical, maybe even unlawful. Someone’s action or omission is unlawful if it constitutes an infringement of a right (here: the right to self-determination), is contrary to a legal obligation (here: to act only in a competent manner) or is contrary to unwritten law in society (here: to act merciful in an ethical way). If a doctor, in compliance with the unethical Dutch Euthanasia Act, rejects an Euthanasia request on the basis that the suffering is not unbearable and/or not hopeless or the solution is not unreasonable, then the doctor causes harm to the patient and to his loved ones. Criminal law is based on the harm principle and, strictly speaking, the doctor is punishable.

Doctors can do a lot, want to do the right thing and do so, but they are not capable to do everything. Doctors themselves indicate this in my interviews. See The doctor and Euthanasia. In general, the interviewees felt that it would be better if the doctor did not have to be involved in the decision-making process about euthanasia. The patient’s experience should be central to every condition. With regard to medical training, they say that little to no psychological insights and certainly no criteria have been provided for determining the degree of suffering (physical and/or psychiatric and/or psychological and/or for a completed life) or for determining whether there is a non-medical hopelessness. This also applies to reasonableness. The interviewees consider it subjective to determine the patient’s unbearable suffering by someone else (e.g. the doctor). Suffering in itself is a subjective experience: the pain thresholds of patients and doctors are too different. So the doctor cannot objectively determine the degree of pain in the patient. Hans van der Linde (GP) breaks the taboo by openly admitting this in Medisch Contact 14-15, dated April 6, 2023 (Journal medical profession). He lists bottlenecks regarding euthanasia legislation. The most important are the prosecution policy of the Public Prosecution Service, the burdensome hearing at the Regional Euthanasia Review Committee (RTE), the diverting to terminal palliative sedation (not always in accordance with the patient’s wishes) and the inability to properly and only subjectively define the boundaries between unbearable, hopeless, voluntary, deliberate and competent.This subjectivity with regard to unbearable suffering is also evident from an opinion of a Regional Euthanasia Review Committee on euthanasia by a doctor. According to the RTE, this was done carelessly, because the doctor should not have concluded that the patient suffered unbearably (Volkskrant 13-11-2020; Dutch paper). It is crazy that the RTE apparently thought it could deduce that judgement from the file. The Public Prosecution Service however did not adopt the RTE’s opinion. The opposing opinions about the proper use of euthanasia were: doctor yes; RTE no; and Public Prosecutor yes. This case in itself proves the subjectivity of a judgment about unbearable suffering.Hopelessness has two sides. A doctor can indicate medical hopelessness. Once the patient has completed all possible treatments, the doctor can only give an estimate of the survival time. Non-medical hopelessness exists in the sense of not having sufficient meaning in the rest of life. A statement about this meaningless can only be made by the person concerned and no one else. It is his life and suffering.Changes with regard to End-of-Life Management are necessary. The Proposal End-of-Life Management Act largely gives citizens self-determination and prevents unethical assessment of an End-of-Life request with the aforementioned due care requirements. The Act is a good alternative to the current Euthanasia Act, provided that this is done carefully.

Wim van Dijk, psychologist, April 2022 Den Bosch.

Note 1. In the case of psychiatric or psychological (chronic) disorders, it is not easy for the doctor to predict the development of the disorder.

Note 2. The voluntary and well-considered nature of an End-of-Life Wish can be clearly determined if an advance directive has been made in a timely manner. This must clearly state the circumstances in which the applicant wishes to die. It is wise to timely discuss these circumstances with the GP and request that the advance directive be included in the medical file. For many people it is difficult or sometimes taboo to discuss an End-of-Life wish with their children and family or they do not go to their GP. They keep their End-of-Life wish to themselves and therefore it may seem as if the End-of-Life wish is relatively recent. Avoid ambiguities, write an advance directive in a timely manner (do it NOW) and discuss it with your GP. If you become incapacitated due to an accident or illness, it will be too late.

Note 3. Being well informed about one’s own situation and treatment options is evident from the medical and/or psychotherapeutic file.

[1] The SCEN-doctor is a second doctor who checks whether all conditions for euthanasia have been met. He has had a short additional training of three days and a number of hours of self-study.