THE NETHERLANDS
Supreme Court ruling: Active euthanasia for dementia patients permissible in principle

Guest comment by Frank van der Hoek*

On April 21, 2020, the criminal chamber of the Supreme Court of the Netherlands delivered an interesting judgment about voluntary euthanasia on a demented woman. The Supreme Court ruled that the physician had acted with due care and provided instructions on questions surrounding voluntary euthanasia in dementia.

The “Termination of Life on Request and Assisted Suicide (Review Procedures) Act”, also known as the “Euthanasia Act”, has been in force in the Netherlands since 2002. The law codifies previous court rulings on euthanasia. Transposing the case-law on euthanasia into legislation was useful and necessary for democratic legitimacy.

The law, in short, stipulates that the physician performing euthanasia does not commit a criminal offence if he:

a. was satisfied that the patient’s request for euthanasia was voluntary and well-considered,

b. was satisfied that the patient’s suffering was unbearable and with no prospect of improvement,

c. informed the patient about his or her situation and further prognosis,

d. discussed the situation with the patient and came to the joint conclusion that there was no other reasonable solution,

e. consulted at least one physician with no connection to the case who then saw the patient and stated in writing that the attending physician had satisfied the due care criteria listed in the four points above; and

f. exercised due medical care and attention in terminating the patient’s life or assisting in his/her suicide.

Every case of euthanasia is assessed afterwards by a special national review committee, divided into regional committees. The committees are multidisciplinary comprising a physician, an ethicist, and a lawyer as chairman, assisted by a secretary. If a committee finds that the physician has acted with due diligence, in accordance with legal standards, the case will be closed. If the physician has acted negligently, the committee will discuss this thoroughly after hearing the physician. The matter is then forwarded to the Health and Youth Care Inspectorate and to the Public Prosecution Service. The Inspectorate and the Prosecutor may prosecute the physician, but they can also dismiss the case, possibly under conditions.

Practice

The current law works well in practice. Physicians, patients and family know where they stand. In 2018 – according to the most recent statistical publication – there were 6,126 cases of voluntary euthanasia, which corresponds to four percent of all registered deaths; this is a decrease compared to 2017, when there were 6,585 cases. In less than one percent of these cases, the committee was of the opinion that the physician acted negligently. It can thus be concluded that the legal standards are known and properly applied. Criminal prosecution has taken place just once since 2003. The committee publishes the most relevant statements in a register and maintains a so-called Euthanasia Code with guidelines for practical use.

Still, it is not surprising that sometimes the limits of the application of the law are explored, mainly in cases of voluntary euthanasia for psychiatric patients and dementia. In absolute terms, this concerns only a few dozen cases per year, but they often spark discussions between pro and contra groups. On the one hand, people's right to self-determination is advocated, on the other hand, reasoning is based on a certain belief or philosophy of life; or there are concerns regarding the (im)possibility of further treatment, legal (in)capacity and careless decision-making, for example under influence of family members or caregivers.

The case

The patient was a woman who was 74 years old when she died. In a written statement from 2012, confirmed in 2015, she had included, among other things: “I want to make use of the legal right to apply euthanasia to me when I think the time is right for it. I definitely do not want to be admitted to an institution for elderly people with dementia. I want to say goodbye to my dear neighbours in a timely and dignified manner”. The patient was admitted to a nursing home in December 2015 due to advanced Alzheimer's. The medical record includes the following: “The majority of the day the patient shows signs of agitation, restlessness, stress, anxiety, sadness, anger and panic. She cries a lot, often says that she hates it and that it is unbearable and almost daily (for up to 20 times a day) she says that she wants to die. Her day / night rhythm is disturbed and she wanders the corridors almost every day, even at night. She is banging on the windows and doors until her hands hurt. She arbitrarily accosts other patients in the belief that they are acquaintances. This regularly leads to physical conflicts with other patients. There is also loss of physical decorum, due to great dependence and incontinence ”.

However, the patient also made varying statements in the nursing home: sometimes she said that she wanted to die, sometimes that she did not want to. In April 2016, the physician at the nursing home applied euthanasia to the patient. She had discussed this extensively with her family and physicians, but not with the patient herself because the disease made it impossible. The physician had put a sleeping aid in the patient's coffee prior to performing euthanasia. During the euthanasia, the patient woke up, making defensive gestures, and the family held her.

In 2016, the review committee ruled that the termination of the life of the patient by the physician had been careless. In summary, the committee argued that the patient's written advance directive was not unambiguous and not beyond doubt. Furthermore, the physician should not have given a sleeping aid secretly and should have submitted to the patient's resistance. There was a lot of discussion about this ruling within the regional committees. The Prosecutor subsequently decided to charge the physician with murder. This was the first time since the Euthanasia Law came into force, causing a great deal of upheaval among physicians, in the media and in society.

In September 2019, the Lower Court ruled that strictly speaking there was murder according to criminal law, but that the physician was not to be punished because she had complied with the requirements of due diligence prescribed in the Euthanasia Law. Based on the findings of the general practitioner, the geriatrician, the two independent physicians, the husband, the daughter and her own findings, it was considered that the physician could conclude that the patient was mentally competent when drawing up the euthanasia request and the dementia clauses therein. Furthermore, it was considered that the patient's written statements could be interpreted as meaning that the patient wanted to have her life terminated upon admission to a nursing home due to advanced dementia. After the verdict, the case was brought directly to the Supreme Court via a shortened procedure.

The Supreme Court judgment

The Supreme Court has formulated general considerations as well as specific ones about the case. In the first place, the Supreme Court considers that a patient's will may be determined by means of a written request for termination of life drawn up earlier, if the patient is no longer able to express his or her will orally due to dementia. That request must specifically state that it refers to the case of dementia. The request must not only be interpreted based on its wording, but also based on other circumstances from which the patient's intentions can be derived, thus leaving room to interpret the written request. Despite a written request, euthanasia may not be appropriate if it is to be concluded from the patient's behaviour or words that he or she no longer wants euthanasia after all. Special attention is to be given to the legal requirement that the patient’s suffering is unbearable. When performing termination of life, the physician will have to take into account the patient's possibly irrational or unpredictable behaviour. This may prompt the physician to administer sedative medication in advance.

Analysis

The Supreme Court has provided clear answers to questions surrounding voluntary euthanasia in dementia. The basic principle is that euthanasia in dementia is permitted also for patients who have become mentally incompetent. A patient’s will to be euthanized can be determined on the basis of a previous written request from a point in time when he or she was still mentally capable to formulate his or her will clearly. It is necessary that the written request (also) states the will of the patient to have his or her life ended in case of dementia. Dementia has many manifestations and its development is unpredictable. The patient is often unable to determine this in advance. Moreover, not everyone is skilled enough to put his will exactly on paper. Furthermore, it is a well-known phenomenon that people's views on life and death shift as the end of life approaches. The Supreme Court therefore rightly considers that subsequent interpretation of the written request is possible and necessary. The patient's biography and other expressions of will may then play a role. Whether the physical and mental suffering is unbearable must also be thoroughly assessed: not every demented patient (still) suffers from his or her situation. The Supreme Court also considers that it is prudent to consult two independent physicians on these difficult issues, although this is not a legal requirement. Finally, it is confirmed that the physician is allowed to administer sedative medications to the patient prior to the termination of life. This is not considered a part of the euthanasia procedure, but part of the preparation of the medical treatment, as is also the case with other medical procedures.

The ruling of the Supreme Court has been positively received by physicians and other parties involved in the issues around voluntary euthanasia: it provides guidance for these emotionally complex cases. The physician in question has now retired and has been reinstated in her professional honour.

*Frank van der Hoek is a former judge, lawyer and former chairman of a regional review committee on euthanasia in the Netherlands

Newsletter 2020-2-2-e