Procurator General of the Supreme Court brings appeal in cassation in the interest of the law in euthanasia case

17 december 2019

Today, the Procurator General (PG) of the Supreme Court of the Netherlands, Jos Silvis, brought two appeals in cassation in the interest of the law in a euthanasia case. These concern both the criminal case and the disciplinary case against a nursing home physician who carried out euthanasia, upon a competently written advance request, on a patient unbearably suffering from dementia with no prospect of improvement. The patient had recorded in writing her wish to die in case of severe dementia at a stage where institutional nursing care would be inevitable. The PG’s appeals are intended to allow the Supreme Court to steer the development of the law on euthanasia.

Purpose of the appeals

This is the first time the Supreme Court will be able to express its opinion on the interpretation of the Dutch Euthanasia Act, officially the Termination of Life on Request and Assisted Suicide (Review Procedures) Act (Wet toetsing levensbeëindiging op verzoek en hulp bij zelfdoding), since its implementation in 2002. Because the act stipulates that the mandatory reports of physicians who have carried out euthanasia are always first reviewed by Regional Euthanasia Review Committees, the case cannot be brought before a criminal by the public prosecutor or before a disciplinary court by the inspectorate of public health unless such a committee determines that a physician has not sufficiently complied with the statutory due care requirements. This is the first case since 2002 to be prosecuted before both a criminal and a disciplinary court following a review by a  Regional Euthanasia Review Committee. The Dutch  Euthanasia Act is based on the foundations of the protection of life, personal autonomy, compassion for suffering and protection of human dignity. The protection of life is not understood as making life last as long as possible. Personal autonomy, including the right to self-determination, implies that competent people can make a written request to apply euthanasia in case they later suffer intolerably and hopelessly and would then no longer be capable of a reasonable valuation of the interests at stake.

The appeals raise several questions that the medical practice would like to see clarified. One important question is whether euthanasia can be performed on the basis of a competently written request for euthanasia when the patient can later no longer confirm their wish to die due to advanced dementia. For a long time, the standard in medical practice was that it should still be possible to communicate with the patient to some extent, otherwise no euthanasia.  However, that is not strictly necessary according to the Dutch Euthanasia Act. The fact that the leading opinion on this issue within the medical profession seemed to be more strict than the law, has given rise to uncertainty among medical professionals. That is why the Royal Dutch Medical Association KNMG started the ‘Euthanasia and advanced dementia’ project in 2017. The KNMG expects to come up with a professional view on this issue in the course of 2020. The decisions of the Supreme Court in this case will be considered in the ethical and legal analysis within that project.

Substance of the appeals

The essence of the appeals is as follows. The legislature wanted to prevent patients from ending up in a situation of suffering with no prospect of improvement if, to prevent this, they made a decision competently written advance request for euthanasia. In order to do justice to that, physicians must know the applicable standards and the degree of their discretion in taking decisions on termination of life. One important condition is that the suffering must be unbearable with no prospect of improvement. There must also be a valid request for euthanasia from the patient. The physician is obliged to consult at least one independent other physician that has studied the patients file and has seen the patient. According to the PG, a physician is not in all circumstances obliged to communicate about euthanasia with the patient. If a physician concludes that this would be pointless and unnecessarily burdensome for the patient, the court should, in principle, respect this professional medical opinion. A physician is never obliged to carry out euthanasia, not even if all the statutory due care requirements have been met.

The PG concludes that the District Court’s judgment in the criminal proceedings, namely that the physician sufficiently complied with the due care requirements, was adequately substantiated. In the disciplinary proceedings, he concludes that the Central Disciplinary Committee for the Healthcare Sector should have reviewed the physician’s conduct more independently and should have considered itself less bound by the opinion of the Regional Euthanasia Review Committee.

Supreme Court judgment

The Supreme Court is expected to render judgment in the spring of 2020.

Supreme Court judgments in cassation proceedings in the interest of the law have no legal consequences for the parties involved. The judgment of the lower court continues to apply to the parties.

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