Step by Firm Step ... Euthanasia in the Netherlands
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.
During World War II, the Netherlands was occupied by the Germans for nearly five years. Nazi leaders ordered Dutch physicians to help them carry out their policies of sterilization of Jews, euthanasia of the handicapped, and deportation of Jews and "undesirables" to labor camps. Alone of all the occupied countries, the Dutch medical profession as a group refused to cooperate. The Nazis removed their licenses to practice medicine, but the doctors merely stopped signing birth and death certificates and continued treating patients. Next, the Nazis arrested a sample one hundred physicians and deported them to concentration camps in Germany. Still, the Dutch held firm: no cooperation in any illegal, barbarous policies. Eventually the Nazis gave up. In the end it was the Third Reich's commander, Arthur Seyss-Inquart, known as the "butcher of Holland," who died -- hanged after trial at Nuremburg.
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
II. REQUEST FOR EUTHANASIA
III. SECOND OPINION
Guidelines for the pathologist when euthanasia is reported by an attending physician in the Netherlands.
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.