Why Physicians? Reflections on the Netherlands' New Euthanasia Law. (Perspective)
Welie, Jos V. M., The Hastings Center Report
Finally, euthanasia is legal in The Netherlands. The bill that was passed by the Lower House of Parliament on 28 November 2000, and confirmed by the Upper House on 10 April 2001, becomes a matter of law in February 2002. (1) Advocates and opponents of legalized euthanasia will debate the merits and dangers of the new law. I am an opponent, and am increasingly anxious about the developments in my native country. Nevertheless, I am somewhat relieved that there is finally clarity. What had been denied for years by Dutch advocates of euthanasia as well as by the government and the courts, all the way to the Dutch Supreme Court, now is beyond denial: Euthanasia by a physician is lawful.
During the past two decades, the legal situation had been rather murky indeed. Even though euthanasia and assisted suicide were illegal, cases against euthanizing physicians were dismissed by prosecutors and judges alike because of article 40 of the Dutch penal code. Article 40 waives the liability to punishment for anyone who commits a crime while compelled to do so by force majeure, that is, by a psychological or moral force so strong that the perpetrator could not resist it. Physicians typically argued that they were compelled to commit euthanasia on moral grounds. They were caught in a conflict of duties: a duty not to violate the criminal law versus a professional-medical duty to do "everything possible" to relieve the patient's unbearable suffering (District Court of 's Hertogenbosch, 31 July 1997). (2)
The big question has always been whether a physician can argue that the latter duty exists. Is the physician morally obligated to relieve patients' suffering, even if it means ending their lives? Why is it that only physicians, and no one else, no other health care providers, not even spouses or siblings, can claim such a duty? Does the duty really apply to the physician qua physician? (3) Can physicians claim that when a patient's suffering has become unbearable, they are morally obligated to end the patient's life by virtue of being a physician, and that they therefore should be immune from prosecution?
Under Dutch law, physicians can invoke the so-called "medical exception" for many of the things they do as physicians. Only physicians can prescribe narcotic drugs. Only physicians can cut someone with a knife and not be prosecuted. These interventions are part and parcel of the domain of medical practice, and in fact, the physician not only is allowed to do them; the physician is obligated to do them. An anesthesiologist cannot refuse to administer narcotics; a surgeon cannot refuse to remove an inflamed appendix. But can a physician likewise claim that committing euthanasia or even murder was motivated by a professional-medical duty? (4)
One can easily see why the courts have always been troubled by the appeal to the medical exception in euthanasia cases. As early as 1986, the Dutch Supreme court rejected medical exception as grounds for waiving punishment for euthanasia. (5) Medical exception can only be invoked when the interventions are medically indicated. Such interventions are not only permissible; they are obligatory. But few advocates of euthanasia are willing to argue that euthanasia is normal medical practice, such that physicians can be obligated to perform it. Indeed, the "Explanatory Note" to the new law emphasizes that euthanasia is not normal medical practice. (6) While there may be a medically sound method of ending a patient's life it's not much different from execution by lethal injection, and it, too, can be done in a medically proper manner or be botched up--neither execution nor euthanasia are ever medically indicated, such that the physician qua physician is obligated to perform them.
But if medical exception cannot justify an appeal to article 40, what can? How else can physicians argue that they are compelled to commit euthanasia in their role as physician? A careful assessment of the major Dutch court decisions reveals that there is, indeed, no clear answer to this question. …