On June 1, 1994 a new law regulating voluntary and nonvoluntary euthanasia went into effect in the Netherlands. By amending the law on the disposal of the dead, the statute now requires physicians to accurately report death in cases of euthanasia, assisted suicide and life-terminating actions where assistance occurred without an explicit request by the patient.(1) This procedure requires a physician who has terminated a patient's life to inform the local medical examiner, who inspects the body externally and takes from the attending physician a statement which contains the relevant data (the patient's history, request, possible alternatives, consultation with a second physician, treatment, etc.). This statement and the report of the local medical examiner are checked by the Public Prosecutor who considers if the termination of the patient's life was contrary to the Penal Code as interpreted by the courts. Since 1984 the courts have allowed the defense of necessity to a physician who has performed euthanasia in certain circumstances (Penal Code art. 40). These circumstances are essentially: a free, well-considered request, unacceptable suffering, and consultation by the physician with a colleague.(2) The appeal to the defense of necessity (or force majeure) in these cases implies that in cases of an objectively established `conflict of duties' an infringement of a law can be justified by the judge. In cases of euthanasia this conflict concerns on one hand the duty to obey the law that forbids euthanasia and assisted suicide (Penal Code art. 293, 294), and on the other hand to alleviate suffering.
In Parliament the new regulation was criticised for including nonvoluntary euthanasia as well as voluntary euthanasia.(3) The Cabinet responded that a survey of Van der Maas et al. demonstrated that each year about one thousand patients had their lives terminated without an explicit request and that according to the Association of Paediatricians nonvoluntary euthanasia of severely handicapped babies is defensible in certain circumstances and occurs in practice.(4) According to the Cabinet, the obligation to report these cases of nonvoluntary euthanasia in a similar way as cases of voluntary euthanasia was the best way to develop an insight into that aspect of euthanasia practice. As there were no court decisions condoning nonvoluntary euthanasia,(5) each case reported would be prosecuted to enable the courts to decide whether a physician who performed nonvoluntary euthanasia could successfully appeal to the defense of necessity.
In 1995 two physicians, who separately reported having terminated the lives of infants who were severely ill and disabled, were prosecuted and brought before the court of appeals. The importance of these decisions goes beyond these individual cases. First, these court decisions determined the circumstances in which the Public Prosecutor will not prosecute a physician who has terminated a baby's life.(6) Second, they demonstrate the courts' acceptance of nonvoluntary euthanasia in addition to voluntary euthanasia. This holding could also have an impact on other groups of incompetent patients. Because of their importance these decisions merit a close examination and critical discussion.
Since a correct interpretation of these decisions is only possible against the background of the developments of Dutch euthanasia practice and jurisprudence, these developments will be presented first.
In 1996 the results were published of a second major survey on euthanasia practice in 1995.(7) Between 1990 and 1995 the total number of all deaths in the Netherlands had increased from 129,000 to 135,500; the number of requests for euthanasia had increased from 8,900 (7%) to 9,700 (7.1%) and the number of cases of (voluntary) euthanasia from 2,300 (1.8%) to 3,200 (2.4%). The number of cases of assisted suicide had remained constant at 400 (0.3%), whereas the number of cases of life-terminating actions without a specific request decreased slightly from 1000 to 900. …