Euthanasia in Holland

Introduction	Terminology	Requirements	Notification
Administering	Applicability to other countries	Dates	References
Penal code	Cases	Guidelines	Remmelink report

(Excerpts from the Australian Senate's Euthanasia Laws Bill 1996, section on the Netherlands.)

The Dutch Penal Code
8.21 Article 293 of the Dutch Penal Code makes it an offence, punishable by up to 12 years
imprisonment or a fine, for a person to cause the death of another person at the latter’s
“express and serious request”. This offence therefore applies to active voluntary euthanasia.

8.22 Article 294 of the Code makes it an offence, punishable by three years imprisonment or a
fine, for a person to intentionally incite, assist, or procure the means for another to commit
suicide. This offence therefore applies to physician-assisted suicide.

8.23 Articles 293 and 294 were enacted in the late 19th century, a policy decision having been
made to distinguish euthanasia from murder and assisted suicide and provide for a lesser
penalty than those relating to murder.

8.24 Article 40 of the Penal Code sets out the basis of a “defence of necessity”
(noodtoestand) which prevents the application of Articles 293 or 294 where court-determined
criteria are observed before active voluntary euthanasia or assisted suicide takes place.

8.25 Breaches of the criteria often result in relatively light sentences for doctors involved.
Since 1991, there has been an agreement between the Royal Dutch Medical Association and
the Dutch Ministry of Justice that gives a doctor protection against prosecution if, in relation to
active voluntary euthanasia or assisted suicide, the doctor complies with certain guidelines.

8.26 Strictly, neither euthanasia nor assisted suicide has been “legalised” or “decriminalised”
in Holland. They remain offences, subject to the defence of necessity. However, the way the
defence of necessity has been interpreted and applied has led to the open practice of
euthanasia in Holland.



Court Decisions

8.27 In 1971, Dr Geertruida Postma injected a patient, her mother, with morphine and curare,
resulting in the patient’s death.24 The patient had suffered a brain haemorrhage, was partly
deaf, had difficulty speaking, and had to be tied to a chair to avoid falling. On a number of
occasions she asked her daughter to end her life. Dr Postma was charged under Article 293
of the Dutch Penal Code. In 1973, the Leeuwarden criminal court found Dr Postma guilty but
only ordered a one week suspended sentence and one year’s probation. The court indicated
that it was possible to administer pain-relieving drugs leading to the death of the patient in
certain circumstances provided the goal of treatment was the relief of physical orpsychological
pain arising from an incurable terminal illness. In this case, however, Dr Postma’s primary goal
was to cause the death of the patient.

8.28 In 1973, following the Postma decision, the KNMG (Royal Dutch Medical Association)
issued a statement supporting the retention of Article 293 but arguing that the administration
of pain relieving drugs and the withholding or withdrawal or futile treatment could be justified
even if death resulted.

8.29 The next watershed decision was the 1984 Alkmaar ruling by the Dutch Supreme Court.
The 95 year old patient had been unable to eat or drink and had temporarily lost
consciousness shortly before her death. After regaining consciousness she requested
euthanasia from her doctor. He consulted with another physician who concurred that the
patient was unlikely to regain her health. However, it is material that the patient was suffering
a chronic and not a terminal illness. The doctor was convicted by a lower court and the Court
of Appeals of an offence under Article 293 of the Dutch Penal Code, although no punishment
was imposed. On appeal, the Supreme Court overturned the conviction, holding that the
doctor was entitled to succeed in the defence of necessity under Article 40. The court agreed
with the doctor’s defence that he faced a conflict of responsibilities between preserving the
patient’s life on the one hand and alleviating suffering on the other. The Court decided that this
conflict must be resolved on the basis of the doctor’s responsible medical opinion measured
by the prevailing standards of medical ethics. In this case the doctor was found to have
properly resolved that conflict.

8.30 The criteria relating to the defence of necessity are to be gleaned from a number of
Dutch court decisions, making it difficult to specify precisely what they are. However, the
provisions of the Penal Code, and the defence of necessity, only become relevant issue in the
event of the prosecution of a doctor.

8.31 In June 1994, the Dutch Supreme Court decided the Chabot case, which is regarded as
another watershed decision in relation to the defence of necessity. The suffering of the 50
year old patient, Ms Hilly Boscher, was purely psychological. She had a long history of
suffering depression, a violent marriage and her two sons had died, one by suicide and one of
cancer. Upon the death of the second son she decided to commit suicide and approached the
Dutch Federation for Voluntary Euthanasia that referred her to Dr Chabot. Dr Chabot
diagnosed her as suffering from severe and intractable mental suffering. He came to the view
that Mrs Boscher’s case satisfied the guidelines. He consulted a number of colleagues.
However, none, apart from Dr Chabot, examined Mrs Boscher. In September 1991 Dr Chabot
assisted Mrs Boscher to commit suicide by prescribing a lethal dose of drugs. He reported her
death to the coroner.

8.32 Dr Chabot was prosecuted under Article 294 of the Dutch Penal Code. He sought to
invoke the defence of necessity. Importantly, the Supreme Court held that there was no
reason in principle why the defence of necessity could not apply where a patient’s suffering is
purely psychological. However, the court held that for the defence to apply the patient must be
examined by an independent medical expert. Dr Chabot had sought medical opinions from
seven colleagues but none had actually seen Mrs Boscher. Accordingly, the defence of
necessity failed. Dr Chabot was found guilty of an offence under Article 294. The Supreme
Court declined to impose a penalty, although in February 1995 Dr Chabot received a
reprimand from a Medical Disciplinary Tribunal.

8.33 Two cases determined in November 1995 relating to infants have generated controversy.

8.34 In the Kadijk case (Groningen District Court) a doctor was charged with offences under
the Dutch Penal Code after causing the death of a 25 day old neonate girl by lethal injection at
the “explicit and earnest desire of the parents’. The child was suffering from Trisomy 13
(Pateau Syndrome). The symptoms of this disorder included: cleft lip and palate, skull defects,
overlapping fingers, microphthalmia, serious mental retardation, multiple neurological defects,
convulsions and motor retardation. The child had suffered one cardio-respiratory arrest and
there was evidence of renal failure. One of the scalp defects had become ulcerated and
infected. Upper limb convulsions could not be controlled with analgesia or sedation without
risking kidney failure. There was also evidence that 90 per cent of Trisomy 13 children died
within the first year of life. In the circumstances, the Groningen District Court upheld the
doctor’s defence of necessity. Both parties have appealed.

8.35 The Prins case (November 1995, Amsterdam Court of Appeal) concerned a doctor who
administered a lethal injection to a three day old neonate suffering from Hydrocephalus and
Spina Bifeda. The baby was in severe pain and expected to live no more than six months. The
parents were informed of the condition and prognosis and gave a “considered and earnest
request” for the baby to be killed by lethal injection. As with the Kadijk case, the court upheld a
defence of necessity. This matter has also been appealed.

8.36 In 1995, Royal Dutch Medical Association’s guidelines were revised. First, assisted
suicide is to be preferred to euthanasia where possible. Secondly, the primary doctor’s
consultations should be with an experienced doctor who has no professional or family
relationship with either the primary doctor of the patient. Thirdly, if a doctor is personally
opposed to euthanasia the doctor must make his or her views known to the patient and help
the patient find a doctor who is willing to assist.

8.37 In late January 1997 the Dutch Government announced a proposal to enhance palliative
care services and foreshadowed further regulation, but not the decriminalisation of euthanasia
in Holland. This followed an increase in the incidence of active voluntary euthanasia as
revealed by a study of deaths during 1995.


Guidelines

8.38 Since November 1990, prosecution is unlikely if a doctor complies with the guidelines set
out in the non-prosecution agreement between the Dutch Ministry of Justice and the Royal
Dutch Medical Association. These guidelines are based on the criteria set out in court
decisions relating to when a doctor can successfully invoke the defence of necessity.

8.39 The substantive requirements are as follows:
· the request for active euthanasia or physician-assisted suicide must be made by the patient
and must be voluntary.
· the patient’s request must be well considered.
· the patient’s request must be durable and persistent.
· the patient’s situation must entail unbearable suffering with no prospect of improvement. The
patient need not be terminally ill to satisfy this requirement.
The procedural requirements are as follows:
· the euthanasia must be performed by a doctor.
· before the doctor assists the patient the doctor must consult a second doctor. Since the 1991
case of Chabot, if the patient has a psychiatric disorder the doctor must cause the patient to
be examined by at least two other doctors, one of who must be a psychiatrist.
· the doctor must keep a full written record of the case.
· the death must be reported to the prosecutorial authorities as a case of euthanasia or
physician-assisted suicide, and not as a case of death by natural causes.

8.40 In 1990, the Minister for Justice and the Royal Dutch Medical Association agreed on a
notification procedure. In 1994, the Dutch Parliament confirmed this procedure in legislation,
but it did not repeal Articles 293 and 294. It is notable, however, that most acts of euthanasia
are not reported: official studies suggest that only 18 per cent were reported in 1990 and 41
per cent in 1995. Those not reported are generally attributed to death by natural causes on the
death certificate.



The 1991 and 1995 Studies

8.41 Professor P J van der Maas has conducted an official study of the practice of euthanasia
and other medical decisions relating to the end of life in Holland. This study was conducted in
1991 based on a sample of deaths in 1990 and details of some deaths in early 1991. It is often
referred to as the Remmelink report, named after the Attorney-General of the High Council of
The Netherlands, who headed the study. The follow-up study, was published in 1996 based
on a sample of deaths in 1995 and using a similar methodology.

8.42 Each study gathered data on a range of medical decisions relating to the end of life,
namely:
· “Euthanasia”: The First Study noted: There is a clear definition of euthanasia [in the
Netherlands]: “the purposeful acting to terminate life by someone other than the person
concerned at the request of the latter.”
· Assisted suicide
· Intentional life-terminating acts without explicit request
· Active euthanasia without an explicit request from the patient
· Deaths resulting from the administration of opioids in large doses
Deaths resulting from the withholding or withdrawal of potentially life pro-longing treatment

8.43 Each study also gathered information on a number of related matters such as the extent
of compliance with the non-prosecution guidelines and reporting procedures.

8.44 Many of the arguments for and against euthanasia refer to these studies. Accordingly, it
is convenient to set out below some of the important findings.

Total deaths (all causes) 1990: 128, 786         1995: 135,546

Active voluntary euthanasia 1990: 1.7%          1995: 2.4%
Physician-Assisted suicide 1990: 0.2%          1995: 0.2%
Intentional life-terminating acts without explicit concurrent request 1990: 0.8%   1995: 0.7%
Opioids in large doses 1990: 18.8%    1995: 19.1%
Withdrawing/with-holding potentially life-prolonging treatment 1990: 17.9%    1995: 20.2%
Total of 1 - 5 1990: 39.4%   1995: 42.6%

8.45 In his submission Dr Roger Woodruff drew the Committee’s attention to the increase in
Dutch voluntary euthanasia between 1990 and 1995.

8.46 However, it should be noted that it has been argued that this increase is a natural
consequence of the aging of the population in Holland. Indeed, the authors of the follow-up
study in 1995 have suggested that the increase may be due to a combination of factors:
In the reports of the 1990 study, we foresaw an increased incidence of euthanasia and the
other practices examined, for several reasons - increased mortality rates as a consequence of
the aging of the population, an increase in the proportion of deaths from cancer as a
consequence of a decrease in deaths from ischaemic heart disease, the increasing availability
of life-prolonging techniques, and, possibly, generational and cultural changes in patient’s
attitudes.

Copyright © 1996 Chris Docker The Scottish Voluntary Euthanasia Society

The Dutch euthanasia society can be contacted at:
Nederlandse Vereniging voor Vrijwillige Euthanasie
(Dutch Voluntary Euthanasia Society)
Postbus 75331, Leidsegracht 103, 1070 AH Amsterdam
Dutch v.e. Society

Photo: copyright Chris Docker.

---

---

[EXIT Homepage] [Memberships] [A to Z] [Books] [Feedback & Questions] [Email exit@euthanasia.cc] [FastAccess]