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Euthanasia: normal medical practice?

Since the 1973 Leeuwarden trial of a doctor who killed a patient requesting euthanasia, public debate on euthanasia in the Netherlands has become come more intense. Despite the fact that, legally, active euthanasia is a criminal offense, physicians are quite open about practicing it. For example, in 1983 several general practitioners published case reports in influential Dutch medical journals.[1] However, the overall incidence of active euthanasia in medical practice was unknown; estimates varied between 2,000 and 20,000 cases a year.

In the 1970s and 1980s a pattern of jurisprudence developed that reflected a considerable judicial lenience toward physicians practicing euthanasia under strict conditions.[2] At least three conditions have been repeatedly referred to in court decisions and bills: (1) the patient's voluntary and persistent request; (2) the hopeless situation of the patient; (3) consultation of a colleague.

Early in 1989 two legislative proposals were submitted to Parliament pertaining to the practice of euthanasia but could not be discussed, as shortly afterwards the Cabinet resigned. In November 1989 the government (a coalition of the Christian Democratic Party and the Socialist Party) announced its intention to suspend political debate on legislation in order to obtain an empirical understanding of the frequency and nature of euthanasia in medical practice. In January 1990 a new committee consisting of three lawyers and three physicians was established by the Ministers of Justice and Public Health to investigate medical practices regarding decisions at the end of life. In September 1991 the committee published its report, followed by new legislative proposals issued by the government on 8 November 1991 and scheduled to be discussed in Parliament about May 1992.

These developments suggest that the current debate in the Netherlands has shifted from the level of medical-ethical arguments, justifying or opposing euthanasia within the doctor-patient relationship, to the socioethical and political problem of whatever and how to regulate or legalize the actual practice of euthanasia, given newly accumulated empirical data. Medical-ethical viewpoints regarding euthanasia in clinical practice have been moved to the background.

In this contribution, we will discuss the present state of the debate, first through analysis of research into the practice of euthanasia and then through a moral evaluation of its political and legal implications.

Research into the Practice of

Euthanasia

In the fall of 1991 the results of two empirical studies on euthanasia were published. Van der Wal and his associates reported on the results of an exploratory, descriptive, retrospective study of morbidity, age, and sex of patients whose family doctors helped them to die; the study also tried to assess the level of suffering these patients experienced.[3] More influential was the report of the Committe on the Study of Medical Practice concerning Euthanasia (also called the Remmelink Committee after its president, attorney general of the Supreme Court J. Remmelink). The task of this committee was not to advise the government about legalizing euthanasia, but to investigate the current practice in the Netherlands.[4]

Some 130,000 people die in the Netherlands each year. In some 49,000 of these instances physicians have to decide whether to continue life support, withhold treatment, increase the dose of morphine to provide adequate pain relief, even at a potentially lethal level, assist in suicide, or actually kill the patient. Although the committee was asked to investigate only the medical practice of terminating life, it decided to look into the whole field, that is, "all situations in which physicians make decisions that aim (also) at ending suffering by hastening the end of the patient's life or in which the probability of a hastening of the end of life must be taken into account."[5]

To obtain data concerning such medical practices, the Institute of Public Health and Social Medicine of the Erasmus University of Rotterdam was requested to undertake an empirical research project. The research group decided (1) to initiate a retrospective study by interviewing a random population of some 400 physicians; (2) to verify the true cause of death of a random sample of some 8,500 recent deaths; (3) to undertake a prospective study in which the 400 interviewed physicians were asked to provide information anonymously about the true cause of death of each of their patients dying in the next six months; and (4) to interview a number of physicians with different specialties to eliminate the possibility, left open by the three previous studies, that particular specialties attract a much higher incidence of euthanasia.

It was found that assisted suicide was relatively uncommon, occurring only some 400 times a year. Euthanasia, defined as "any action that intentionally ends the life of someone else, on the request of that person," is practiced some 2,300 times, or in 5 percent of those 49,000 cases. Since every year some 9,000 patients request euthanasia asking that it be performed within a few weeks - primarily patients suffering severely from cancer but virtually all mentally competent - physicians grant such wishes in less than half of the number of cases. Euthanasia has the highest incidence among family physicians/general practitioners, whereas physicians in nursing homes commit euthanasia relatively seldom.

The results of the study by Van der Wal and colleagues provide some insight into the context of euthanasia decisions, although in their publications no distinction is made between euthanasia (defined as the Remmelink Committee defines it) and assisted suicide. Data were gathered through an anonymous questionnaire in a random sample of family practitioners as well as through an analysis of police reports involving family doctors practicing euthanasia in the province of North Holland (in 1986-89). In 85 percent of these cases the patients suffered from malignant neoplasm; a high percentage of patients had AIDS or multiple sclerosis. In approximately 20 percent, a secondary, usually chronic disease had been diagnosed. Among patients under the age of thirty and over eigthy-five euthanasia or assisted suicide were relatively rare.

Van der Wal also examined the nature and extent of the physical and emotional suffering of patients culminating in a request for euthanasia or assisted suicide. Questionnaires were sent to a random sample of family practitioners asking them to rate twenty-four aspects of suffering as well as to assess the life expectancy of the patient they most recently euthanized. According to the respondents, 90 percent of these patients showed severe physical suffering and 71 percent severe emotional suffering. |General weakness or tiredness,' |dependence or being in need of help,' |loss of dignity,' and |pain' were the most frequently identified aspects of suffering. In 63 percent of the cases, life expectancy at the moment of execution of the request was estimated as less than two weeks; in 10 percent it was more than three months.

Interpretation of the Data

In the media, one of the early conclusions drawn from the research reports was the euthanasia apparently was not as frequent as had been assumed by both protagonists and antagonists. This conclusion is not necessarily false, but upon careful consideration of the data presented in the Remmelink Report itself, it turns out to be rather meaningless. Medical decisions aimed at ending human life are more nuanced and heterogeneous than reflected in the definition. Many physicians do not interpret or classify their actions as euthanasia, even when those actions fall strictly under the range of the definition employed in the report (and common in the Netherlands). Consequently, the figure of 2,300 is not at all a specific or representative indicator of medical decisions leading to patient's death. The report clearly shows that other forms of intentional hastening of death are common practice in the Netherlands, yet fully escape professional, judicial, and social scrutiny.

The empirical data reveal that in 6 percent of the total number of 22,500 cases in which pain medication with a possible lethal effect was administered, hastening death was the every purpose of the administration, and in as many as 30 percent it was at least one of the purposes. Including these figures would increase the incidence of euthanasia to some 8,100 cases.

There also seem to be about 1,000 patients whose death was caused or hastened by physicians without any such request at all. These are patients who no longer were competent to make decisions, yet apparently suffered severely. Notice that these cases do not involve withholding or withdrawing medically futile treatments, since such treatment always have to be withdrawn. Nonetheless, the committee felt that these 1,000 cases are not morally troublesome; moreover, they should be considered "providing assistance to the dying." Nonvoluntary euthanasia was justified because the suffering of those patients had become " unbearable" and life must be considered "given up" according to medical standards. Death would have occurred quickly (usually within a week), if the physician had not acted. Elsewhere, the committee adds that actively ending life when "the vital functions have started failing" is "indisputably normal medical practice."[6]

In some 28 percent of these 1,000 cases, patients had previously expressed the wish to be killed if, for example, the pain ever became unbearable or their situation inhuman. These cases, therefore, can be classified as euthanasia in the strict sense. Yet physicians mentioned "previously uttered request of the patient" as their reason to kill in a mere 17 percent of the cases. The researchers explained this discrepancy by arguing that physicians more often are guided by their own impressions of the patient's unspoken but probable wishes than by explicit oral or written requests. One may wonder whether such "impressions" are always correct. At any rate, paradox emerges between this kind of reasoning and the very opposite reasoning of a number of courts and legislators to the effect that suffering is a purely subjective phenomenon and that, consequently, only the patient can decide whether his or her suffering has become unbearable. It seems that advocates of euthanasia use the subjective argument when defending the right of the competent patient opt for euthanasia autonomously, and the impressionist argument when defending the practice of euthanasia on the mentally incompetent patient.

A similar ambiguity is reflected in the research methodology of Van der Wal and colleagues. Diagnoses can best be made by physicians, so there is nothing controversial about classifying diseases of euthanized patients by means of questionnaires mailed to family doctors. However, the assessment of patients' suffering is another matter; it is problematic to ask a physician to assess the depth as well as the nature of his patient's suffering - all the more so in retrospect when the physician has already performed euthanasia on his patient. Quite predictably these physicians claim the condition of 90 percent of the patient was characterized by severe physical suffering. Further-more, dividing suffering into twenty-four "aspect" is highly problematic, since the relationship between suffering and |pain,' |dependence,' |nausea,' |thirst,' |constipation,' |itch' is variable and subjective. The research seem to assume that the individual nature of suffering can be objectified by collecting a multitude of subjective opinions. But even the the data only provide an idea of what doctors think about the nature of suffering in their patients. The conclusion that the majority of euthanized patients experience severe physical and emotional suffering is not warranted. It can merely be concluded that the doctors in retrospect think this about their patients, but it is hardly an unexpected finding that euthanizing physicians justify their actions in precisely such terms.

The Remmelink Committee further-more found that in 45 percent of the 1,000 nonvoluntary euthanasia cases, treatment of pain was no longer adequate to relieve the patient's suffering. However, the impossibility of treating the pain adequately was the reason for killing the patient only 30 percent of the cases. The remaining 70 percent were killed for different reasons, such as: (1) low quality of life; (2) no prospect of improvement; (3) all forms of medical treatment had become futile; (4) all treatment was withdrawn but the patient did not die; or (5) one should not postpone death. In one-third of the cases, the fact that family and friends no longer could bear the situation played a role in the decisionmaking and indeed one respondent even indicated that economic considerations such as shortage of beds played a role. One may wonder how the committee's judgment that from a medical standpoint these patients were correctly "given up" should be understood. Certainly, such actions are not "indisputably" normal medical practice.

Finally, the Remmelink Report mentions one more category that merits attention: the 20,000 cases in which physicians withhold or withdraw treatment neither because the patient so requests, nor because the treatment is futile, but because only limited benefit is to be expected and there are other reasons to withdraw or withhold. Looking at these "other reasons," we find that in 16 percent of the nonvoluntary withholdings or withdrawing, hastening death was the point of the decision and in another 19 percent hastening death was one of the reasons. Again, given the definitions of the committee itself, in which intention is the keyword, the cases, at least those where death is the primary point, must be considered nonvoluntary euthanasia, which would imply an increase from 1,000 to 4,200 or even 8,000 such cases.

Discussion of the Committee's

Conclusions

Although the Remmelink Committee was not asked to advice on the political consequence of the empirical data, it apparently could not resist the temptation. As we have tried to show, the committee's particular interpretation of the data itself reveals a political bias. The committee clearly tried to remove any societal anxieties about the practice of euthanasia. Similar practice are brought under dissimilar practices are brought under dissimilar headings to keep the numbers low. And at crucial places, particularly with the 1,000 nonvoluntary euthanasia cases, the committee uses fallacious rhetoric to emphasize uses fallacious rhetoric to emphasize that there is nothing to worry about. The committee's ideas on the legal status of euthanasia - for example, its views on the nonpunishment of a physician who carries out euthanasia in accordance with the cautionary standards and on the adequacy of the existing procedure for disclosing euthanasia - seem to imply that the committee favors legalization of euthanasia. The committee identifies certain constraints, but under those constraints it does not consider euthanasia an illegal practice.

Legalization, obviously, assumes the context of a particular legal system. A detailed review of the Dutch criminal law cannot be provided within the framework of this article, but few remarks may clarify the context.(7) Since euthanasia is still illegal and, according to the letter of the law, can be penalized with up to twelve years' imprisonment, past jurisprudence has always looked for a "punishment exception." The legislators of the Dutch criminal law in 1886 realized that the letter of the law in certain exceptional circumstances might be unfair and they therefore added a few articles listing possible grounds for nonpunishment. Without further explanation the Remmelink Committee claims that when a physician commits euthanasia in accordance with certain safeguards, there must always be a strong presumption that the physician's obligation to the patient justified trespassing the criminal law. Since such a conflict of duties constitutes one of those punishment exceptions, the physician should not be punished.

The committee simply contends that its interpretation of euthanasia physicians is in accord in accord with past Dutch jurisprudence. It maintains that if the patient's situation is "inhumanly dishonorable," due to "unacceptably severe suffering," the physician is placed in a situation of force majeure that in turn justifies euthanasia.

As a matter of fact, Dutch jurisprudence, including Supreme Court verdicts, is not very clear or consistent at all about the applicability of that particular punishment exclusion. Since by law euthanasia is not a genuine medical intervention but an illegal action, and since the criminal law applies to every Dutch citizen equally - that is, no occupation or profession can claim special exemption - the fact that the person who commits euthanasia is a physician may not be taken into consideration. Consequently, the euthanizing physician has to justify breaking the criminal law on nonmedical grounds that a layman could use just as well. The Supreme Court has underwritten this philosophy by explicitly rejecting the "medical exception." Yet on the other hand, society - the courts included - seems to take it for granted that if anybody should be allowed to practice euthanasia it should be physicians only.

This paradox is not merely a legalistic problem. A legal solution can be provided simply adding a paragraph to the section on murder, manslaughter, and suicide, stating that physicians are allowed to commit such acts. The paradox is rather an ethical problem, for it is still not clear what circumstances can provide a justification. Traditionally, it is argued that an autonomous patient has the right to determine the course of his or her own life as well as the moment of its ending. Empirical research, however, indicates that the lives of many patients are deliberately shortened without any patient request whatsoever. The Remmelink Committee is not at all anxious about the extent of nonvoluntary euthanasia, yet fails to explain what it considers to be the justification of the practice. Indeed, the question about justification is not even asked. It is simply taken for granted that physicians are allowed, perhaps even obligated, intentionally to shorten life on a regular basis. After all, on medical criteria such life must be regarded as "given up."

The Response of the Cabinet

In its response to the Remmelink Report, the current government issued a statement containing a proposal to change the law on the Disposal of the Dead.(8) In writing a proposal, the government's leading consideration has been that the practice of euthanasia must remain open to legal audit. Consequently, the criminal law (particularly Article 293) will not be changed and the practice of euthanasia remains illegal. How, then, is this proposal supposed to resolve the tension of maintaining the criminal prohibition against euthanasia while still assuring that the practice of euthanasia is open to proper legal scrutiny? Some resolution must be offered since the Socialists advocate a more liberal stance toward euthanasia than the Christian Democrats.

The proposal is in many regards very similar to the one presented by the former coalition government of Christian Democrats and Liberals. In the former proposal, as in the current one, the criminal law remained unchanged. But in the Medical Practices Act a paragraph was to be added, listing various procedural safeguards to be followed when a physician decides to perform when a physician decides to perform euthanasia. The Liberals explained that this proposal clearly reflected a liberalization of euthanasia, for judges now could take into account an explicit, legally binding list of criteria when judging a case of euthanasia. The only thing a physician would need to do was to abide by those criteria. The Christian Democrats, however, took the very same proposal as a clear message that euthanasia was still illegal. The criteria in the Medical Practices Act were merely practical suggestion; in and of themselves, they could not provide a justification for breaking the criminal law. In short, it was a fine example of a political compromise that suited both parties, but left public confused and the future open.

A similar political compromise seems to have been struck in the latest proposal of the Christian Democrats and the Socialists. The criminal law remains unchanged, but this time the law on the Disposal of the Dead is amended. This law contains instructions for the attending physician, who is to write up a medical report on the case of the patient's death. Currently, only two possible causes cab be listed: natural or unnatural death. When the latter category is checked, as in cases of manslaughter, suicide, or any other unusual death, a legal mechanism is set into motion, involving the coroner, police, and the prosecution council. Euthanasia, obviously, is not a a natural death, yet most physicians were accustomed to check that category upon committing euthanasia. Consequently, no coroner, police, or prosecution council would become involved (unless it happened that a family member or nurse, knowing about but disagreeing with the event, informed the authorities), and no legal audit could be performed. Both the Christian Democrats and the Socialists agreed that this situation of an undercover euthanasia practice is the worst possible situation. For that reason, as early as November 1990 a new regulation was issued pertaining to the disclosure of euthanasia. The regulation stated that attending physicians no longer should check "natural death" but should check neither alternative. The attending physician should simply hand the case to the coroner, who would inform the prosecution council. The prosecutor then would decide whether to prosecute. This new regulation and the very lenient policy of the prosecution council, however, could not prevent a large majority of physicians from refusing to disclose their act of euthanasia. Unwilling to change the criminal law, making euthanasia legal but unverifiable, the government now has proposed to change the law on the Disposal of the Dead, making the 1990 regulation positive law. Furthermore the government proposed to expand the regulation to encompass nonvoluntary termination of life as well.

Both propositions - the legal formalizing of the regulation and its expansion - could be justified in purely pragmatic terms. Undercover euthanasia is an undesirable situation; undercover nonvoluntary termination of patient lives is even worse; therefore, a formal law pertaining to the disclosure of such practice is necessary even though it is rather unusual and paradoxical to draft a law requiring a transgressor to disclose his or illegal deed. Indeed, the proposal explicitly states that these changes do not imply a pseudo-legalization of euthanasia. On the contrary, it is declared that current Dutch jurisprudence does not support the conclusion of the Remmelink Committee that nonvoluntary termination of life when vital functions have started failing is normal medical practice.

On the other hand, those taking a more liberal stance toward euthanasia could argue that the criteria in the law on the Disposal of the Dead constitute an incentive for the prosecution council to be even more lenient with physicians who have committed euthanasia. In other words, the proposal is open to diametrically opposed interpretations.

But it is problematic in other regards as well. For unlike the 1990 regulation, the proposal extends to nonvoluntary termination of life as well, a practice the Remmelink Committee found to occur in some 1,000 cases per year, but that as we suggested above, we believe occurs in even more instances. The government explains that it is undesirable to allow this practice to escape legal audit. Therefore, it is necessary to mandate that physicians disclose their actions in the same way as they are supposed to do in cases of ordinary euthanasia. Again, this part of the proposal is quite paradoxical in nature, for it requires a physician to assist i his or own arrest, that is, to disclose actions that legally constitute the crime of murder; it furthermore prescribes how to commit such a crime, and it provides physicians with official documents to be used when disclosing this crime.

From a purely pragmatic point of view, this solution may be justifiable. But it goes so far against the system of the law that a quite different interpretation of this proposal presents itself, in spite of explicit remarks by the government to the contrary. The literal text of the proposal may not do so, but the intention clearly reflects a positive attitude toward euthanasia, including nonvoluntary euthanasia. Indeed, the government takes the committee's interpretation of the empirical data for granted, along with the conclusion that physicians almost always exercise the greatest possible caution prior to deciding in favor of euthanasia. A small but relevant detail may further clarify this point. The proposal requires physicians to disclose only euthanasia, physician-assisted suicide, and active medical interventions aimed at hastening the patient's death without the patient's request. In other words, withholding or withdrawing treatment, which traditionally is considered a passive action, does not fall within the range of this proposal, even if it is aimed at hastening the patient's death. The proposal sanctions the 7,000 such decisions that are made annually.

Final Comments

Although the outcome of the current debate is still unclear, the results of the empirical studies raise fundamental questions concerning euthanasia and medical practice. In the 1970s the "euthanasia movement" in the Netherlands began as a protest against the power of contemporary medicine to alienate individuals from their own dying. Instead of counterbalancing that power and enhancing the individual's autonomy and control over his or her own life, it seems that social acceptance of euthanasia is resulting in physicians' acquiring even more power over the life and death of their patients. As the Remmelink Reports shows, in most cases of ending human life, it is the physician who decides that it is appropriate to hasten death. Furthermore, it is quite remarkable how easily the morally most important cautionary standard established by jurisprudence - the patient's voluntary and persistent request - is brushed aside in the report. The motion adopted by the General Assembly of the Dutch Society of Health Law, published in the Hastings Center Report in late 1988, as well as various letters to the editor, repudiate the statement that doctors who terminate the life of patients without request remain unpunished. The latest empirical data prove exactly the opposite.

References

[1.] See E.G.H. Kenter, "Euthanasie in een huisartsenpraktijk" [Euthanasia in a family practice], Medisch Contact 38 (1983): 1179-83; B. Meyboom-De Jong, "Actieve euthanasie" [Active euthanasia], Nederlands Tijdschrift voor Geneeskunde 127 (1983):946-50; B. P. Ponsioen, "Hoe leert de huisarts leven met euthanasie?" [How is the general practitioner learning to cope with euthanasia?], Nederlands Tijdschrift voor Geneeskunde 127 (1983): 961-64. [2.] See, for instance: J.K.M. Gevers, "Legal Developments Concerning Active Euthanasia on Request in the Netherlands," Bioethics 1, no. 2 (1987): 156-62; H.J.J. Leenen, "Euthanasia in the Netherlands," in Medicine, Medical Ethics and the Value of Life, ed. P. Byrne (Chichester: Wiley, 1990), pp. 1-14; M.A.M. de Watcher, "Active Euthanasia in the Netherlands," JAMA 262, no. 23 (1989): 3216-319; Henk ten Have, "Euthanasia in the Netherlands: The Legal Context and the Cases," HEC Forum 1, no. 1 (1989): 41-45. [3.] G. van der Wal, J.T.M. van Eijk, H.J.J. Leenen, and C. Spreeuwenberg, "Euthanasie en hulp bij zelfdoding door artsen in de thuissituatie. I. Diagnosen, leeftijd en geslacht van de patienten," and "II. Lijden van de patienten" [Euthanasia and medically assisted suicide in the home situation. I. Diagnoses, age, and sex of the patients, and II. Suffering of the patients], Nederlands Tijdschrift voor Geneeskunde 135 (1991): 1593-1603. [4.] Commissie Onderzock Medische Praktijk inzake euthanasie, Medische Beslissinge rond het Levenseinde [Medical decisions concerning the end of life] (The Hague: SDU Uitgeverij, 1991); P.J. van der Maas, J.J.M. van Delden, L. Pijnenborg, and C.W.N. Looman, "Euthanasia and Other Medical Decisions Concerning the End of Life," Lancet 338 (1991): 669-74. [5.] Commissie Onderzok Medische Praktijk inzake euthanasie, Medische Beslissingen, p. 11. [6.] Commissie Onderzok Medische Praktijk inzake euthanasie, Medische Beslissingen, p. 32. [7.] For more information on the Dutch criminal law and jurisprudence pertaining to euthanasia, and a detailed discussion of legal-ethical complexities surrounding legalization of euthanasia, see J. Welie, "The Medical Exception: Physician, Euthanasia and the Dutch Criminal Law," Journal of Medicine and Philosophy, Spring 1992 (forthcoming). [8.] Tweede Kamer, "Standpunt van het Kabinet inzake medische beslissingen rond het levenseinde: Concept voorstel wijziging van de Wet op de Lijkbezorging" [Government statement on medical decisions concerning the end of life: proposal to amend the Law on the Disposal of the Dead], Handelingen van de Tweede Kamer 20, no. 14 (1991-92): 383.
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Title Annotation:Dying Well? A Colloquy on Euthanasia and Assisted Suicide
Author:ten Have, Henk A.M.J.; Welie, Jos V.M.
Publication:The Hastings Center Report
Date:Mar 1, 1992
Words:4604
Previous Article:Euthanasia in the Netherlands: American observations.
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