By Derek Humphry

For real progress towards the legalization of medical assistance in dying, we have to look to the Dutch. A progressive yet careful people, they have spent 20 years studying the problems, hammering out the details, and altering -- if not actually the law -- the practice of the law. The Dutch feel that the rule of law exists to serve their purposes and that law must change to suit the times. They have been able to tackle the problems of euthanasia in an open and democratic fashion largely because the Roman Catholic Church in the Netherlands is fairly liberal in its social attitudes. Nor is it the dominant religion.

Dutch people are estimated to be one third Protestant, one third Catholic and one third non-religious. There is something deep in the Dutch character which makes them want to solve the problems with which they are confronted; they are a nation which loves commissions of inquiry, academic surveys, erudite conferences, and inter-personal debates far into the night. Then they act. In February of 1993 the Dutch Parliament approved guidelines for euthanasia stopping just short of full legalization. Some argue that this was de facto legislation.

How the Dutch reached this intelligent position is worthy of study.

Yet in 1973 the Dutch in combination with the medical profession were the first people in the world to start down the road to lawful voluntary euthanasia for the terminally ill. That year Dr. Geertruida Postma, a general practitioner, was accused of murdering her mother by the injection of morphine. The old lady was in a nursing home, had suffered a cerebral hemorrhage, was partly paralyzed, was being treated for pneumonia, was deaf and spoke only with difficulty. She had failed in a suicide attempt and told her daughter, "I want to leave this life. Please help." At her trial Dr. Postma said her chief regret was not to have done it earlier. Found guilty, her penalty was a one-week suspended sentence and one year of probation. The case woke up the nation. Other physicians declared that they had done the same thing; letters poured into the Minister of Justice; and the Dutch Society for Voluntary Euthanasia was born. It grew into the largest such group in the world.

Over the next twenty years a series of court cases against physicians were brought, more out of a desire to develop an answer than to punish. The most crucial of these cases concerned a physician who had helped a very sick and elderly woman to die, at her request. It went all the way to the Dutch Supreme Court, which in 1984 sent it back to the Rotterdam court for a rehearing. This court enunciated what became known as "the Rotterdam criteria" to guide physicians as to when it was appropriate for them to end life.

The same year the Royal Dutch Medical Society announced its approval of justified physician aid-in-dying. Thus the Rotterdam case and blessing of the medical profession brought about a climate for the next nine years in which physicians frequently ended the lives of patients without prosecution. (For a fuller account of the history of Dutch euthanasia, and the Rotterdam criteria, see my book The Right to Die: Understanding Euthanasia). The flaw in this practice was that the physicians were supposed to fill out extensive reports about the circumstances of the death, and be ready to be interviewed at length by an investigator of the Ministry of Justice if the officials had any doubts. Because they were busy men and woman, some physicians took the short route by signing death certificates giving the underlying cause of death -- such as cancer -- and omitting to say that it was hastened with drugs.

At first, only some dozen cases a year were reported to the Ministry. But as familiarity with procedures grew, so did the reporting: In 1991 there were 590 cases reported; in 1992, over 1,300. As subsequent surveys showed -- somewhere between 2,000 and 3,000 patients were being helped to die annually.

The Dutch criminal code said that assisting suicide, or euthanasia, was still a crime. Many people were troubled by the fact that state prosecutors were, in effect, permitting physicians to break the letter of the law. The debate raged on through the late 1980s and early 1990s: should the law be changed or was that step too radical? Would guidelines sanctioned by Parliament suffice? The Royal Dutch Medical Association favored clear legislation in order to protect its members from legal jeopardy. The Dutch Catholic Church, famous for its rejection of many of Rome's dogmas, made no pronouncements for or against, although many individual Catholics protested what they felt was the moral wrongness of what was happening.

By a vote of 91-45 the lower House of Parliament on February 9, 1993, gave immunity to physicians who followed the official guidelines, but declined to strike from the criminal code the penalties for assisted suicide. (Senate and Royal approval followed shortly afterwards. The law takes effect at the beginning of 1994). The reason given for not eliminating the penalties was that if physicians flouted the guidelines then they, like anybody else, would be liable for up to 12 years' imprisonment. Even some Catholic parliamentarians voted for the measure because they felt that this gave the prosecutor a chance to control the practice.

Others, even if they in principle approved of euthanasia, were not happy that the criminal code was not altered. A long-time parliamentary fighter for lawful euthanasia, Jacob Kohnstamm, commented: "This way the legislature is pointing out to doctors how to carefully infringe the law. And the judiciary has to take over the responsibility which the legislature does not want to bear."

My guess, based on watching the way the Dutch operate historically, is that the guidelines, which are given in full here, will be used for about five years, after which point they will have a commission to examine their effectiveness. They will then make any necessary adjustments.

I reprint here the Dutch guidelines in full:

By Order of Parliament

Guidelines for the attending physician in reporting euthanasia to the municipal pathologist in the Netherlands.

The following list of points is intended as a guideline in reporting euthanasia or assistance provided to a patient in taking his or her own life to the municipal pathologist. A full written report supplying motives for your action is required.

I. CASE HISTORY

1. What was the nature of the illness and what was the main diagnosis?


2. How long had the patient been suffering from the illness?


3. What was the nature of the medical treatment provided (medication, curative, surgical, etc.)?


4. Please provide the names, addresses and telephone numbers of the attending physicians. What were their diagnoses?


5. Was the patient's mental and/or physical suffering so great that he or she perceived it, or could have perceived it, to be unbearable?


6. Was the patient in a desperate situation with no prospect or relief and was his/her death inevitable?
   
   
   
   1. Was the situation at the end such that the prognosis was increasing lack of dignity for the patient and/or such as to exacerbate suffering which the patient already experienced as unbearable?
   
   
   2. Was there no longer any prospect of the patient being able to die with dignity?
   
   
   3. When in your opinion would the patient have died if euthanasia had not been performed?


7. What measures, if any, did you consider or use to prevent the patient experiencing his/her suffering as unbearable (was there indeed any possibility of alleviating the suffering) and did you discuss these with the patient?

II. REQUEST FOR EUTHANASIA

1. Did the patient of his/her own free will make a very explicit and deliberate request for euthanasia to be performed:
   1. on the basis of adequate information which you had provided on the course of the illness and the method of terminating life, and
   
   
   2. after discussion of the measures referred to at 1G?


2. If the patient made such a request, when and to whom was it made? Who else was present at the time?


3. Is there a living will? If so, please pass this on to the municipal pathologist.


4. At the time of the request was the patient fully aware of the consequences thereof and of his/her physical and mental condition? What evidence of this can you provide?


5. Did the patient consider options other than euthanasia? If so, which options and if not, why not?


6. Could anyone else have influenced either the patient or yourself in the decision? If so, how did this manifest itself?

III. SECOND OPINION

1. Did you consult another doctor? If so, please supply all the names, addresses and telephone numbers. If you consulted more than one colleague, please supply all the names, addresses and telephone numbers.


2. What conclusions did the other doctor(s) reach, at least with respect to questions 1F and 1G?


3. Did this doctor/these doctors see the patient? If so, on what date? If not, on what were his/her/their conclusions based?

IV. EUTHANASIA

• Who performed the euthanasia and how?


• Did the person concerned obtain information on the method used in advance? If so, where and from whom?


• Was it reasonable to expect that the administration of the euthanasia-inducing agent in question would result in death?


• Who was present when euthanasia was performed? Please supply names, addresses and telephone numbers.

Guidelines for the pathologist when euthanasia is reported by an attending physician in the Netherlands.

1. The basis of the current procedure for reporting euthanasia is that euthanasia, or assisting a patient to take his/her own life, does not constitute a natural death. The attending physician may therefore not sign a death certificate. The procedure is that the physician notifies the municipal pathologist, who prepares a report for the public prosecutor.
   
   See the Medical Inspector for Health bulletin "Guidelines for physicians on the regulations relating to burial and cremation" (reprinted September 1987) and section 29t, subsection of the Burial and Cremation Act.


2. Under the procedure in force, a physician who has performed euthanasia must submit to you a full written report giving the reasons for his or her action. The report should cover all the points listed in the enclosed guidelines of 18 December 1990 for the attending physician in reporting euthanasia to the municipal pathologist (ref SB/90/335).


3. Under the provisions of section 29t, subsection 1 of the Burial and Cremation Act, you are to report cases of euthanasia to the public prosecutor by submitting the form referred to in the above-mentioned section of the Act.


4. The following two/three documents must be provided under the item "additional information" under b* of the above-mentioned form:
   
   
   1. the report drawn up by the attending physician referred to at 2;
   
   
   2. if it exists, the living will as referred to II.3;
   
   
   3. a statement of how you verified the details provided by the attending physician (for example by examining the patient's medical records, inquiring of the doctors consulted).

NB If there are any parts of the attending physician's report which you have been unable to verify, you should make this clear and say why verification was not possible.

EDITORS NOTE: The Dutch Parliament passed a full law in 2002.

The preceding is an excerpted chapter from LAWFUL EXIT: The limits of freedom for help in dying (1993) by Derek Humphry, published by Norris Lane Press. For a complete list of books available from ERGO please consult the ERGO Online Bookstore or else send an inquiry by email.

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