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Euthanasia in the Netherlands: American observations.

At the Maastricht meeting our Dutch hosts opened a window on their society and invited us to take a look at euthanasia practices in the Netherlands. As Maurice de Wachter intimates in his article, the hosts were candid in their descriptions and the guests frank in their evaluations. All the Dutch participants wanted us to understand their brand of euthanasia better, and most of them defended it against what they perceived as outsiders' skepticism or even hostility. Nonetheless, some of the Dutch expressed doubts and misgivings, just us as the British, American, and Canadian visitors were not of one mind.

Not surprisingly, I was struck by the cultural specificity of the Dutch practices, which reminded me in turn of the cultural lenses I wore in viewing those practices. This does not mean, however, that the Dutch experience - or its thoughtful examination in Maastricht - is inapplicable to the United States as proposals to legalize "physician" aid-in-dying" are considered during the next few years. As long as we keep social, economic, and cultural differences in mind in drawing any specific lessons from one situation to the other, there is much to be learned. Moreover, as careful readers of Professor de Wachter's article doubtless perceive, behind the cultural specifics lie not only many similarities among the societies represented at the meeting but common (perhaps inevitable) ethical issues that inhere in any policy about the conditions and methods of dying in any society.

Clarity about the Subject

It is usual in discussions of the topic of active euthanasia to spend a great deal of time not merely defining one's terms but also lamenting the unwillingness or the apparent inability of others - particularly those with whom one does not agree - to make clear how they define the practices in question. I think it fair to say that the Dutch believe they have been much clearer on this subject than we in the United States have been.

In large measure, this criticism seems well taken. In particular, the use of the phrase "physician aid-in-dying" by proponents of active euthanasia seems at best an evasion when what it meant is legalizing physician's taking steps to kill patients directly, swiftly, and painlessly. There are so many things - including simple companionship and love - that one might do to "aid" a dying person, that the phrase "aid-in-dying" cannot help but disguise more than it reveals. In contrast, the Dutch do not mince words: whatever one thinks of its morality or legality, what is done by physicians in Holland is certainly active euthanasia and nothing is gained by euphemisms.

Yet the Dutch frankness turns out to be both adventitious and far from unclouded. The definition did not arise from a modern-day attempt to define acceptable medical practices but from a distinction drawn in the last century between ordinary murder and the less culpable situation in which the termination of a person's life (not necessarily - or even probably - by a physical occurred at his or her request. Thus, when the first case of physician-administered mercy killing arose recently, Dutch jurists, unlike their Anglo-American counterparts, began with a separate category of crime. When the Dutch courts (and medical association) turned that prohibition on its head by making it an acceptable rather than an unacceptable act, they perforce retained the characteristic that made it a separate category - namely, that the dead person had explicitly and seriously requested an end to life.

It happens that this requirement (self-determination) is one of the two factors (the other being relief of suffering) that virtually always arise as justifications for euthanasia. Self-determination is clearly coincident with the importance given to autonomy in contemporary bioethical analysis, besides fitting well with Dutch attitudes about life generally. But it is part of the definition of euthanasia for arbitrary not inherent reasons, akin to the Dutch requirement that a second doctor confirm the decision to perform euthanasia. That is, we can conceive of euthanasia without self-determination; it is not a part of the definition in the way relief of suffering is said to be.

Indeed, the place of self-determination in the definition became more than a matter of chance. Proponents of euthanasia began with a "narrow" definition (limited to voluntary cases) as a strategy for winning acceptance of the general practice, which would then turn to the second factors, relief of suffering, as its justification in cases in which patients are unable to request euthanasia. Dr. de Wachter mentions this point but cannot convey its effect on the meeting. It was an instance, or so it seemed to me, when the candor of our hosts was a little chilling.

Even some of the Dutch participants were taken aback by another example of the odd effects of the narrow definition of euthanasia. A radiotherapist from the Netherlands Cancer Institute had told the group that euthanasia was not a decision of just one physician at her hospital but instead involved the whole team. This burden of a complicated process - along with the fact that most of her patients received adequate palliation - apparently accounted for euthanasia being performed only about ten times a year, despite their patients' generally dire condition.

Later, as an aside, this physician mentioned that in perhaps thirty cases a year, patients' lives were ended after they been placed in a coma through the administration of morphia. When asked about the apparent discrepancy, she replied that the latter cases were not instances of euthanasia because they weren't voluntary; discussing the plan to end the patients' lives would be "rude", she said, particularly as they know they have an incurable condition. Comments from several other physicians made clear that this practice is neither limited to one particular hospital nor of recent vintage. Nevertheless, a number of the Dutch participants were plainly discomfited to find that at least in some situations the number of instances of physicians causing death without consent overshadowed the number that met the Dutch definition of "euthanasia."

Force Majeure and Physician

Freedom

The participants at Maastricht also puzzled over the exact role of the additional factors that the decisions of the courts and the guidelines of the Royal Dutch Medical Society have added to the definition of euthanasia, or at least to the requirements (beside request of the patient) that must be met for a killing to be legally acceptable euthanasia. The moral force behind allowing physicians to end their patients' lives is expressed by the Dutch in legal terms as force majeure - that is , something that compels one to act.

As de Wachter reports, Professor Bernard Dickens correctly noted that applying this defense to an action that a physician felt compelled to take out of the duty to serve a patient's welfare turns on its head a rule the law typically invokes to excuse otherwise wrongful acts that are necessary to save life. But the more troubling aspect of the Dutch courts' reasoning is that is suggests that the course taken by the physician is one that he or she is powerless to resist. This view not only robs the action of its morality - it is no longer a conscientious and autonomous act - but also creates the clear sense that it would be wrong for a physician to refuse to provide euthanasia to serve patients' welfare.

Furthermore, the problematic nature of autonomy as the moral as well as the definitional bedrock of the concept also emerged during the Maastricht meeting. The seemingly restrictive requirement of voluntary request may have the effect of making physicians comfortable with a practice - the active taking of life, such as by a lethal injection - that they would resist if it were presented as something that could be applied to any patient when they deemed it humane to do so. And yet the Dutch are already seriously considering exactly such expansions of euthanasia.

One expansion would be to allow people to execute directives specifying that euthanasia should be performed if they meet other requirements (in terms of incurability and intractable suffering) but are no longer able to request it. In effect, this would make the physician or perhaps a state official the judge of when a person's life is so miserable or pointless that it is not worth living any longer. An even more radical expansion would be to allow euthanasia on the never competent, such as children born with severe impairments, when self-determination is never possible and the entire moral weight falls on the relief of suffering.

It seems to me unlikely that active euthanasia would be adopted in any Western society, including the Netherlands, today if the practice were initially limited to persons who are at present incompetent, much less those who have always been so. Thus, the prospect of the practice's expanding to these categories precisely because it began with voluntary, competent patients show the double edge to patient autonomy in the formulation of policies on euthanasia.

Is Active Euthanasia a

Job for Physicians?

By now it is widely accepted in the United States that physicians ought to withhold or withdraw treatment that is not desired by patients (the autonomy rule); many commentators and courts have extended the same rule to forgoing treatment that is refused by a surrogate decisionmaker on behalf of an incompetent patient (the prior-autonomy and the best-interest rules). In addition, it is recognized that one good reason for patients and surrogates to decline treatment is that it will be ineffective, and many would also hold that physicians are under no obligation to offer treatment that is "medically pointless," as emerged in the recent debate over "futility."[1]

The Dutch apparently regard Americans' willingness to cease incompetent patients' life-sustaining treatment as more morally problematic than their own policy of active euthanasia for competent patients. Their position can certainly be defended ethically, though the ability of the Dutch to raise this argument would probably be negated if they take the next step and introduce active euthanasia based on a third-party decisionmaking.

At the very least, one must recognize the argument, raised in Maastricht (as it always is in discussions of legalizing euthanasia), that since it is acceptable for physicians to forgo life-sustaining treatment under specified circumstances and thereby to allow death to occur, it ought also to be acceptable for physicians to administer a lethal injection to cause death to occur in a way that is quicker and possibly involves less pain and suffering for the patient than would attend merely forgoing treatment. While such a parallel can be drawn on a formal level, the discussions in Maastricht renewed my doubts as to the wisdom of expanding physicians' professional role in this way.

The request of a patient to end treatment or the decision that there is nothing more that medicine can do to to benefit a patient are both to acknowledgments of the limited power (and wisdom) of health car professionals; the decision to perform active euthanasia is one that proclaims the omnipotence (and omniscience) of health care professionals. The power of the latter is already great; increasing the imbalance with patients seems uncalled for. Moreover, the risks inherent in this imbalance (to say nothing of actual overreaching or abuse by the more powerful party) will extend into all physician-patient interactions. These risks will not be limited to interactions in which a patient initiates a discussion of euthanasia, but will also be present when the possibility of physician killing is brought up by the physician or even when it hangs unspoken in the air.

Furthermore, the analogy with respect to autonomy between forgoing treatment and active euthanasia simply fails. It is not true that since physicians ought to accept patients' determinations of when treatment should be forgone they must also accept patients' requests for active euthanasia. In the former case, the request falls within the traditional realm: medicine has something to offer and the physician and patient together must decide whether its use would probably provide a net benefit if applied in the patient's case, up to and including the decision to forgo treatment because continued life of the type that is possible is not desired by the patient. In the situation of euthanasia, by contrast, the patient's death does not follow from declining a possible life-extending medical intervention but from asking the physician to do something that from Hippocratic times has been forbidden for physicians, namely the giving of a deadly substance to cause death. "Autonomy" only makes sense when patients are making choices within the range of medical treatment.

Suffering and Magic Bullets

Of course, physicians should respond not merely to the pain of their patients but also to their suffering. For a variety of not very good reason, the medical system (at least in the United States) still provides far from adequate palliative care, and it is even more deficient in ensuring that patients have the supports that might relieve their anxiety and otherwise respond to their suffering, including shortness of breath, nausea, incontinence, and other varieties of discomfort.

The difficulties in developing caring and creative means of responding to suffering discourage society as well as health care providers from greater efforts. A policy of active euthanasia can become another means of such avoidance. Indeed, one argument against such a policy is that it would be preferable to continue to force ourselves to try to live up to the highest aspirations of the medical tradition and the best objectives of a just society than to allow euthanasia to be another "magic bullet." I believed the Dutch physicians who told us that it is "never easy" to undertake euthanasia, but I could not rid my mind of the images of care provided in our hard-pressed public hospitals and in many nursing homes, where compassionate professionals could easily regard a swift and painless death as the best alternative for a large number of patients.

Can Killing Be Healing?

The risk that such physicians would be able to convince themselves that they were acting in the finest traditions of the profession was reinforced by an arguments made by Dr. Elise Borst-Eilers chair of the Dutch Health Council. She claimed that "there are situations in which the best way to heal the patient is to help him die peacefully and the doctor who in such situation grants the patient's request acts as the healer par excellence." On the face of it, it is difficult to equate killing the patient with healing, which the Oxford English Dictionary defines as making whole or sound in bodily condition; freeing from disease or ailment; restoring to health or soundness; or curing.

Beyond this, one cannot help but note the use of the word healer in exactly this fashion in the development of the program of eugenics and euthanasia under National Socialism. Let me state clearly that the Dutch are very far from Nazis. There is a glaring difference between an impulse to relieve pain and suffering and a program to purify the "German Volk." Indeed, it may well be the vast differences between the Nazi and the Dutch agendas that render the points of resemblance all the more chilling.

Three points in particular are worth noting. First, the Nazi policies were initially urged by leading academics, physicians, and lawyers. Second, the groups initially affected were the incurably ill and in some proposals, for example, those put forward in 1920 by Professor Karl Binding, a retired jurist from the Universtiy of Leipzig, and Alfred Hoche, professor of psychiatry at the University of Freidburg, included consent. Third, the language use is so similar. The suggestions of these "two distinguished German professors" - whom Robert Jay Lifton called "the prophets of direct medical killing" - were made in very much the same terms as those now applied in the Dutch context. The therapeutic goal of destroying life unworthy of life was "purely a healing treatment" and a "healing work."[2]

As Lifton observes, once the rationale was provided, many things that had earlier been unthinkable became acceptable. Once killing becomes a part of the "healing work," then the usual scientific and "patient-oriented" criteria can take over. Indeed, the Nazis even developed an elaborate explanation of how their programs fulfilled the ideals of Hippocrates. One wonders whether the nascent Dutch program of medicalized euthanasia might, like the Nazi embrace euthanasia might, like the Nazi embrace of Hippocrates, becomes "an ironical joke of world history."[3]

The sense of "healing" and "helping" patients that many of the Dutch participants at the Maastricht meeting associate with their practices seems to me to open the way to an expansion of euthanasia to people who have never made their wishes known but whom one would "objectively" say must be suffering a good deal. Since in these cases autonomy is not the benchmark, pain and suffering become all important, as they are in euthanizing pets.

Of course, proponents always suggest - as did Professor Binding in 1920 - that abuses will be prevented by having a panel or court review physicians' decisions. But this "solution" is not free of the problem of hubris; it simply enlarges it. Furthermore, by directly involving an official body, appointed under state procedures, it would seem to sanction the taking of life, a result that opens the door to abuses by the state and at the very least makes every act of euthanasia a collectively imposed sentence of death on innocent patients, some of whom would never have actually requested euthanasia.

Importing the Dutch Model

The Maastricht meeting was intended to educate those of us from England, Canada and the United States about the "Dutch model" of legally tolerated active euthanasia. Although we certainly gained information, it quickly became apparent that the questions voiced by non-Dutch participants were not the result of our misunderstanding practices in the Netherlands but were duet to philosophical differences and to concerns about further changes in the practices.

Furthermore, the meeting also revealed that the Dutch themselves hold varying views about the contours of their model, its successes and its weaknesses, and whether it would be desirable for other countries to follow their lead. As de Wachter makes clear, the debate was sometimes pointed yet always respectful and open-minded. I had less the sense than he appears to have that the failure of people to change each others' minds resulted from the discussions' being too emotional and not sufficiently rational. The arguments on both sides did not lack for lucidity, but they were largely speculative about the good and bad consequences of policies that are still inadequately evaluated. And even when the specific facts are known about the direct consequences of the policies, it may remain impossible to trace the indirect consequences of one policy or another on the physician-patient relationship, on the sense of personal freedom and security in society at large, and on the respect for persons that one policy or another fosters in people generally and in health care professionals in particular.

References

[1.] See A. M. Capron, "In re Wanglie," Hastings Center Report 21, no. 5 (1991): 26-28. [2.] R. J. Lifton, The Nazi Doctors (New York: Basic Books, 1986), pp. 32-48. [3.] Werner Leibbrandt, Nuremberg Medical Case 2 (27 Jan. 1947): 81.
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Title Annotation:Dying Well? A Colloquy on Euthanasia and Assisted Suicide
Author:Capron, Alexander Morgan
Publication:The Hastings Center Report
Date:Mar 1, 1992
Words:3180
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