The medical exception: physicians, euthanasia and the Dutch criminal law.

JOSV.M.WELIE

THE MEDICAL EXCEPTION: PHYSICIANS, EUTHANASIA AND THE DUTCH CRIMINAL LAW

Key Words: allowing to die, criminal law, euthanasia, law enforcement, legal aspects, legislation, medical ethics, medical profession, self determination, the Netherlands, voluntary euthanasia, withholding treatment INTRODUCTION

If any statement really upsets Dutch advocates of euthanasia, it is that they support involuntary euthanasia or force eugenics policies upon diseased people.1 The most important and nonnegotiable precondition advocates of euthanasia uphold, is the voluntariness of the requesting patient. Euthanasia only meets the standards of morality if the request reflects the autonomous decision of the patient. Moreover, the very practice of euthanasia is usually justified in reference to the principle of autonomy: people, healthy as well as diseased, have a right to self-determination, which encompasses the right to decide about their own death. This right is to be respected by society, including the medical profession. Respect implies the removal of impediments to the exercising of this right, such as professional or criminal prohibitions. Dutch courts also lean heavily on the principle of autonomy in euthanasia cases. Table 1 shows a number of criteria used by various courts. It is not clear whether compliance with these criteria fulfills the legal requirements of a successful appeal to ].V.M. Welie, M.A.JA-M.S., J.D., Assistant Professor of Medical Ethics, Executive Director International Program in Bioethics Education and Research, Department of Ethics, Philosophy and History of Medicine, Catholic University ofNijmegen, Verlengde Groenestr. 75,6525 EJ Nijmegen, The Netherlands. Tlie Journal of Medicine and Philosophy 17:419-437,1992. © 1992 Kluwer Academic Publishers. Printed in the Netherlands.

Downloaded from http://jmp.oxfordjournals.org/ at University of Rhode Island on April 5, 2015

ABSTRACT. The legalization of euthanasia, both in the Netherlands and in other countries is usually justified in reference to the right to autonomy of patients. Utilizing recent Dutch jurisprudence, this article intends to show that the judicial proceedings on euthanasia in the Netherlands have not so much enhanced the autonomy of patients, as the autonomy of the medical profession.

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Jos Welie TABLE I

Request * by patient himself * only by adult patient * no signal for help hidden * voluntary * deliberate * repeated

Rotterdam

Alkmaar

Groningen

1973

1981

1983

1984

+ +

+ + +

+ -

+

-

-

+ + + + +

+

+ + -

+ -

+

+ + -

+

+

-

Practice

* by physician * after patient counseling * consultation State-MD * consultation independent physician * consultation with some other MD * consultation family * MD logbook of history

+

+

+

-

-

-

-

-

-

-

+ + -

+ -

exemption from punishment. However, lack of compliance, particularly lack of compliance with the most important of these criteria, such as voluntariness and grave suffering, makes a successful appeal highly unlikely. Though the criteria differ in that those issued by the District Court of Leeuwarden only regard palliative treatment and refraining from futile treatment, those issued by the District Court of Rotterdam assisting in suicide and those issued by the District Courts of Alkmaar and Groningen killing on the victim's request, there is a remarkable similarity: only two requirements are mentioned by all four Courts, that is, the request for euthanasia must be made by the patient himself, and, secondly, the patient must suffer unbearably. The former is


Condition of the patient * incurably diseased * long-lasting suffering * unbearable suffering * in the dying phase * hopeless situation * no other solution

Leeuwarden

The Medical Exception

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SOME DEFINITIONS AND FACTS

In the Netherlands, the first case of euthanasia dealt with by a Court took place in 1952.2 In spite of this case, which was reviewed in the Dutch Jurisprudence, publications remained forthcoming. It was only in the beginning of the seventies, that suddenly developments gained momentum. In 1973, the District Court of Leeuwarden explicitly stated that refraining from medical treatment, in cases where prolonging treatment will only prolong suffering, is not a criminal act. Neither is palliative treatment, even if there is a chance that the medication shortens the length of life. About the same time, two societies were established that fought for the legalization of killing on the patient's request or assisting in his suicide.3 In the eighties, the number of cases dealt with by various Dutch courts slowly increased and so did the articles in newspapers, weekly journals, magazines, as well as scientific journals. Books were written, television programs dealt with the subject, the medical societies and the Churches published statements in favor and against euthanasia


nothing other than the principle of autonomy. However, also the latter is ultimately grounded on this principle. The wording seems to indicate a reference to the principle of paternalistic beneficence. In fact, the standard of unbearability is not the physician's opinion or some other heteronomous standard, but once again the opinion of the patient himself. After all, suffering is a subjective phenomenon and who else but the patient can properly evaluate the bearability of such suffering. Respect for the right of autonomy implies respect for the patient's evaluation of his personal suffering. In this article I will argue that the Dutch quest for professional acceptance and legalization of euthanasia under the flag of respect for the patient's right to autonomy, actually has led to a significant and crucial expansion of the autonomy of the physician. As few publications on euthanasia guarantee an objective and accurate account of the situation in the Netherlands regarding euthanasia, my main source of reference will be published Dutch jurisprudence. I will discuss at length the Alkmaar and Groningen cases that went from the level of District Courts to the Dutch Supreme Court and thus represent some of the best records of the current state of affairs.

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and, finally, politicians became involved. A State Committee was formed to investigate the matter4, two bills were proposed5, and if it were not for a fight between the two political parties that formed the coalition cabinet, a fight which led to the fall of the government in 1989, the criminal law might have been changed. However, this did not happen. Euthanasia is still illegal in the Netherlands, despite all kinds of rumors in foreign journals, books and television programs stating that euthanasia is legal in the Netherlands.6 With regard to euthanasia, the Dutch criminal law has not been changed since the date of its origin, that is, since 1886. To underline this fact, I define euthanasia as the killing of a patient at his request or assisting in his suicide. The wording of this definition corresponds close to the language of the criminal code and thus the suggestion is avoided, that euthanasia is not or no longer a criminal act. The Dutch criminal code does not contain the word euthanasia. But two articles in the code, articles 293 and 294, fit this definition.7 In taking both practices - killing on the victim's request and assisting in suicide - together, I am not implying that there is no moral difference between the two. However, in a medical context situations can emerge where the difference no longer is significant. Assisting in suicide by preparing a lethal dose of medicine, handing it over to the patient with a glass of water, or even assisting him in drinking the glass, in my opinion is not much different from injecting the same lethal dose when the patient is no longer able to swallow. The similarity between the criteria issued by the District Court of Rotterdam, which regard assisting in suicide, and those issued by the District Courts of Alkmaar and Groningen, which regard killing on the victim's request (see also Table 1), suggests that my opinion in this regard is not in radical conflict with contemporary Dutch jurisprudence. Prior to the 1991 publication of the Report of the National Committee investigating Medical Practices regarding Euthanasia, also called the Committee Remmelink after its president, Attorney General prof. mr. J. Remmelink, few facts are known.8 Physicians had written about their personal experiences and books on guidelines for the practice of euthanasia had been published. But no thorough research data were available about the Dutch practice of euthanasia.9 Quoted figures ranged from 5,000-6,000 to as high as 12,000 or even 20,000 cases, the latter according to the American television program '60-Minutes'. But none of these figures was


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based on extensive social research. The only figures that one could be certain about were the statistics of the Prosecution Council (Openbaar Ministerie) (see Table II).10 TABLE II

1982 1983 1984 1985 1986 1987 1988 1989

5 10 19 34 84 126 184 338

In the Fall of 1991, however, the Committee Remmelink published its Report. The task of this State Committee was not to advise the Government about legalization of euthanasia, but to investigate the current euthanasia practice in the Netherlands. The Committee defined euthanasia as "any action which intentionally ends the life of someone else, on the request of that person". However, the committee decided to investigate a broad area of actions: 'medical decisions pertaining to the end of life', that is, "all situations in which physicians make decisions that aim (also) at ending suffering by hastening the end of the patient's life or in which the probability of a hastening of the end of life must be taken into account". Notice that in the latter definition decisions instead of actions are emphasized. Consequently, withholding and withdrawing life-sustaining treatment could easily be taken into consideration, without the need to debate the question whether not-acting (withholding/withdrawing) can be thought of as a form of acting. To obtain data concerning such medical decisions, the Committee Remmelink asked the Institute of Public Health Care of the Erasmus University of Rotterdam to initiate an empirical research project. The research group decided to undertake (1) a retrospective study by means of interviewing a random population of some


Cases dealt with by the Dutch Prosecution Council

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400 physicians; (2) verifying the true cause of death of a random number of some 8500 recent death cases; (3) a prospective study in which the 400 interviewed physicians were asked anonymously to provide information about the true cause of death of each of their patients dying in the next 6 months; and (4) interviewing a number of physicians with different specialties to eliminate possible bias in the three previous studies due to a much higher incidence of euthanasia in particular specialties. In the Netherlands, each year some 130,000 people die. One third of these people die in circumstances in which physicians cannot make any decisions at all (e.g., accidents, lethal cardiac arrest, etc.). In about half of the remaining two thirds cases in which physicians have a chance to make some decision regarding the end of life, they actually do. In other words, in some 49,000 instances physicians have to decide whether to continue life support, withhold treatment, increase the dose of morphine to a potentially lethal level, assist in suicide, or actually kill the patient. It was found that some 2,300 patients die every year due to euthanasia, or 5% of those 49,000 cases. This, obviously, is much higher than the number of cases that are brought to the attention of the Prosecution Council (see Table II), but much less than the wild guesses in many Dutch and foreign media: 6,000 to even 20,000 cases. Assisting in suicide is even less common, since it occurs in some 400 instances. Although the incidence of euthanasia is only 1.8% (2,300 out of 130,000), one in every 20 times that a physician has to decide how to deal with the immanent death of the patient, he or she decides to commit euthanasia, that is, to grant the patient's wish to be killed. Since every year some 5,800 patients request euthanasia, primarily patients suffering severely from cancer but virtually all being mentally competent, physicians grant such wishes in less than half of the number of cases. However, elsewhere in the Report, other forms of intentional death-hastening are mentioned. Since a competent patient's request not or no longer to be treated must always be obeyed by a physician, even if the patient's intention is to die sooner, such cases cannot be counted as euthanasia. On the other hand, the administration of pain treatment by the physician, also if this has been requested by the patient, is an act for which the physician does bare responsibility. The Report concludes that in 6% of the total number of 22,500 cases in which pain treatment with a


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possible lethal effect is administered, hastening death was the very purpose of the administration, and in as much as 30% it was at least one of the purposes. Given the Committee's own definitions, it seems that these cases, at any rate the 6%, should be counted as genuine euthanasia cases. This would constitute an increase in the incidence of euthanasia from some 1,350 to 8,100 cases. The Report furthermore concludes that there are about 1,000 patients whose death is caused or hastened by physicians without any such request at all. This number pertains to patients who no longer were competent to make decisions, yet who apparently suffered severely. Notice that these 1,000 cases do not pertain to the withholding or withdrawing of medically futile treatments. The Committee, very correctly, stressed that the moral status of such decisions does not depend on the availability of a patient request, since physicians are simply not allowed to administer futile, and thus harmful, treatment. Yet the Committee felt that these 1,000 cases should not be of concern either; moreover, they should be considered as 'providing assistance to the dying'; such involuntary euthanasia was justified because the suffering of those patients had become 'unbearable' and life had to be considered 'given up' according to medical standards. Death would have also occurred quickly (usually within a week), if the physician had not acted. And elsewhere, the Committee adds that actively ending life when 'the vital functions have started failing', is 'indisputably normal medical practice'. In some 280 of these 1,000 cases, patients had previously expressed the wish to be killed if, e.g., the pain would ever become unbearable or their situation dehumanized. These cases, therefore, can justifiably be counted as voluntary, genuine euthanasia cases. Yet in merely 17% of these 1,000 cases, the physicians mentioned 'previously uttered request of the patient' as their reason to kill the patient. The researchers explained that this is not amazing since physicians are more often guided by their own impressions of the patient's unspoken but probable wishes, than by explicit oral or written patient requests. One may wonder whether such 'impressions' are always correct. At any rate, a paradox emerges between this kind of reasoning and the very opposite reasoning by a number of courts and legislators, that suffering is a purely subjective phenomenon and that, consequently, only the patient can decide whether his or her suffering has become unbearable. It

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seems that advocates of euthanasia use the latter strategy when defending the right of the competent patient to autonomously opt for euthanasia, and the former strategy when defending the practice of euthanasia on the mentally incompetent patient. Furthermore, the Committee found that in 450 of these 1,000 cases pain treatment was no longer adequate to relieve the patients suffering. However, the impossibility to adequately treat the pain was the very reason to kill the patient in only 30% of the cases. The remaining 70% were justified by the physicians for very different reasons, such as: (1) low quality of life, (2) no prospect of improvement, (3) all forms of medical treatment had become futile, (4) all treatment was withdrawn but the patient did not die, and (5) one should not postpone death. In one third of the cases, the fact that family and friends no longer could bear the situation played a role in the decisionmaking, and in one percent of the cases, economic considerations such as shortage of beds played a role! One may wonder how the Committee's justification that these patients medically could be considered as having been 'given up', should be understood. Certainly, such actions are not 'indisputably7 normal medical practice. One may argue that, after subtracting from these 1,000 cases the number of cases in which there existed a previous patient request or in which pain treatment and palliative treatment were no longer adequate, too small a percentage would remain to be worried about. It seems to me, however, that nobody is anxious about the justifiable cases, which undoubtedly constitute the majority of physician decisions regarding the end of life. Furthermore, one may wonder whether the numbers are really that small. For the research Report mentions one more category that merits attention: the 20,000 cases in which physicians withhold or withdraw treatment, thereby shortening life, neither because the patient so requests, nor because the treatment is futile, but because only limited benefit is to be expected and there are other reasons to withdraw or withhold. Looking at these 'other reasons', we find that in 16% of these unrequested withholdings/withdrawings, hastening death was the very reason for the decision to withhold/withdraw, and in another 19% hastening death was one of the reasons. Again, given the definitions of the Committee itself, in which intention is the key word, these cases, at any rate the former, constitute nonvoluntary 'euthanasia' cases, which would imply an increase from 1,000 to 4,200 or even 8,000


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TABLE III Figures from the Report Remmelink about the incidence of euthanasia Assisting in suicide Killing on the patient's request Administration of pain-killers, intended explicitly to shorten the patient's life Killing of the patient without that patient's request Withholding/withdrawing non-futile treatment intended explicitly to shorten the patient's life Number of cases of intentional hastening death of patients Administration of pain-killers, intended, among others, to shorten the life of the patient Withholding/withdrawing non-futile treatment intended, among others, to shorten the life of the patient Total number of medical actions directed towards hastening death of patients

400 2300 1350 1000 3200 8250

6750 3800 18.800

THE ALKMAAR CASE

The boldest and most controversial defense of euthanasia was brought forward in the famous Alkmaar case of 1983. Case 1.: Alkmaar Mrs. S. born in 1886, was a patient of doctor P. since 1974. As her family


of such cases. Briefly, there remains a serious lack of clarity regarding the actual incidence of euthanasia. Whereas the Committee Remmelink clearly intends to rninirnize the problem of euthanasia by depicting a small incidence of euthanasia, a review of the actual empirical data suggests a much higher incidence (see Table HI). Obscurity thus remains. But the obscurity is not limited to the empirical facts. Legal scholars continue to argue about the interpretation of various articles in the Criminal Law that apply to euthanasia, the policy of the Prosecution Council is questioned, and Courts issue controversial decrees.

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On May 10, 1983, the District Court of Alkmaar argued (a) that more and more people acknowledge the right to autonomy with regards to the ending of life; (b) that it is a well-known fact that in order to be able to end one's life in an acceptable and non-violent way, assistance of a third party often is necessary; and (c) that, therefore, in the case of assisting in ending somebody's life on that person's voluntary request, even though such an act formally constitutes a violation of art. 293 or 294 of the Dutch Criminal Code, the material illegality may be absent, if and only in so far as such an action from a legal perspective cannot be considered undesirable. The Court listed a number of additional criteria of cautiousness, which are listed in Table I. As the physician had complied with all these complementary requirements, the District Court of Alkmaar found him not guilty. An historical decision! The prosecutor, however, appealed the verdict. The High Court of Amsterdam that dealt with the Alkmaar case in appeal, did not accept the arguments of the District Court. The Court stated that it is not up to the judge to define the legal status of particular actions. This is the task of the legislature, and the latter has defined killing, including killing on the victim's request, as a crime.


physician, he had seen her many times, on some of which occasions Mrs. S. had asked him whether it was possible to end her life by means of a medical procedure. One day Mrs. S. presented Dr. P. a living will on euthanasia, which he accepted. Despite her age, mentally Mrs. S. remained in very good condition. But physically she declined rapidly. She then broke her hip and since an operation was not possible, she was confined to her bed. She suffered gravely as her physical condition worsened visibly. Her requests for ending her life became more frequent and urgent. In the beginning of July, Mrs. S.'s condition suddenly deteriorated. She was unable to eat or drink and lost consciousness. On the 12th of July, she regained consciousness and told Dr. P. that never again did she want to go through another such breakdown. Once again, she asked to be killed. When finally Mrs. S.'s son requested to meet his mother's wishes, doctor P. decided to honor her request. On the 16th of July 1982, at 11.00 A.M., Doctor P. had a final discussion with his patient. Present were her son, and his wife as well as doctor P/s assistant. Dr. B.. Once again, Mrs. S. conveyed that she had just one wish left: to die as soon as possible. With three consecutive injections, that put Mrs. S. to sleep, then into a coma and finally stopped her breathing, doctor P. fulfilled the last wish of his patient.


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THE MEDICAL EXCEPTION


The High Court's rejection of the verdict of the District Court of Alkmaar was challenged by Enschede, professor for criminal law and former judge of the Supreme Court.11 It is true, Ensched£ admits, that it is not up to the judge to define the legal status of civilians' actions. But where, Enschede asks, does the judge find the legal status of various actions as defined by the legislature? In the law, of course, but where in the law? Enschede wants to remind us of the fact that the various codes have different functions. State, administrative and civil laws describe which actions are allowed and which are not. The criminal law, also called penal law, does not tell which actions are legal and which are not. It only describes for which illegal actions punishment can be imposed. The State does not have the right to punish somebody because of his actions, even when those actions are illegal, unless that particular form of wrongdoing is defined by the criminal law as a punishable action. To be punishable, an action has to be illegal, but many illegal actions are not punishable. The criminal code lists all actions that are punishable and presumably those actions are illegal. But from the mere fact that some action is defined by the criminal code as punishable, it does not necessarily follow that it is always an illegal action. Actually, the criminal code itself defines various grounds for punishment exclusion. One such ground is the order of a legal authority to do something that, according to the code, is punishable, e.g., driving on the left lane of a Dutch street. Since 1916, the Supreme Court has also allowed for unwritten punishment-exclusion grounds, one of which is 'excusable error'. Enschede now wants to argue, that there exists another unwritten punishment exclusion ground, the so-called medical exception. Enschede maintains that this exception is consistent with the current Dutch criminal law. To prove his point, he starts out quoting the legal scientist Modderman, one of the authors of the current Dutch criminal code. In 1880, when reviewing the paragraphs in the former code on abortion, a member of parliament asked Modderman, who was Minister of Justice at that time, whether it was not necessary to explicitly exclude from punishment those abortions that are performed to save the life of the mother. Modderman vehemently denied such need. A physician

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THE GRONINGEN CASE Case 2: Groningen One day in August 1982, Dr. K., a physician in the Dutch province of Groningen informed the prosecutor that she had committed euthanasia on Mrs. M.. Dr. K., a psychiatrist, had been a good friend of Mrs. M., a 73-year-old lady with multiple sclerosis. After they had first met, Mrs. M. suffered a major deterioration of her physical situation and started talking about euthanasia. She had lived a difficult life, but she always had continued fighting and she had managed to gain control over the situation again. This time, fighting seemed totally useless. Not being able to change the course of her disease, she refused any of the alternative medications Dr. K. proposed. Sometime in the middle of 1982, Dr. K. started making preparations for euthanasia. She contacted various physicians and met with a pastor. With an anesthesiologist and a pharmacist, she discussed the best technique. Dr. K. checked again with Mrs. M. whether she still wanted to die. Finally, on August 4, Dr. K. gave her friend Seconal and a glass of port-wine. Mrs. M. started talking nonsense and then lost consciousness. Two hours later, Mrs. M. still had not died. Being afraid that one of the nursing-home personnel might pass by and start resuscitation, Dr. K. injected morphine. She then delivered a letter to the prosecutor to inform him about her actions.


who acts according to the professional standards of care, whether performing surgery, a circumcision or an abortion, is excluded from punishment. Physicians, acting according to the standard of professional medical care, do not fall under the range of the criminal law. As for the professional standards, it is u p to the medical profession and the medical profession only, not to the lawyers with their limited legal tools, to set those standards. Parliament agreed and no exclusive paragraph was added to the articles on abortion in the criminal code. Abortion to save the mother's life did not need a special exclusive paragraph in the criminal law. Likewise, Enschede maintains, the legislature did not feel the need to make an explicit exclusion to articles 293 and 294 for euthanasia committed according to the standards of good professional medicine. The task to decide what is and what is not good professional medicine has been assigned to the medical profession and it is u p to the medical disciplinary boards to rule in arbitrary cases. If a physician appears to have acted according to the standards set by the medical profession, criminal courts should not impose punishment.


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On March 1,1984, the District Court of Groningen argued that it is possible not to find some criminal deed liable to punishment, if such a deed is a medical action, if it is necessary for medical reasons or of critical importance for adequate medical care and if all prudence is applied which medical science and practice require. Whether this is the case depends on five preconditions. Euthanasia may only be performed: 1. by a physician who must have consulted another physician who himself has seen the patient; 2. on a patient whose condition is irreversible and experienced by the patient as unbearable suffering; 3. when the explicit and earnest request can be considered lasting and based on a proper evaluation by the patient of his own condition and the alternatives available; 4. when the patient does not think there is a reasonable alternative; 5. when all other requirements of prudence are fulfilled. In the case of Dr. K., the first precondition had not been realized, because Dr. K. had merely informed other physicians and discussed the case of Mrs. M. with them. These physicians had not seen and examined Mrs. M. themselves. Dr. K/s appeal to the medical exception therefore was rejected.12 Dr. K. was found guilty and liable to punishment, but a new door was opened for physicians to commit euthanasia and not to be found liable to punishment: the medical exception. But this door advocated by Enschede and opened by the District Court of Groningen did not remain open very long. On October 11, 1984, the High Court of Leeuwarden that dealt with the Groningen case in appeal, argued that the mere fact that it is a physician who commits an act in accordance with the guidelines of the medical profession, does not exclude the offender from punishment. According to the High Court there exist no indications that the legislature in 1886 had intended to exclude physicians committing euthanasia from the scope of art. 293 of the Criminal Code. Medical interventions certainly do not fall under the criminal law, so long as they are genuine medical interventions. To remove an inflamed appendix, the surgeon has to cut the patient, but such an incision has never been thought of as a form of battery, not by physicians, neither by society, nor by legislators or judges. Even abortion to save the life of the mother hardly ever has been thought of as a crime to be punished with imprisonment.

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FORCE MAJEURE Although the Supreme Court agreed with the High Court of Leeuwarden in its rejection of the medical exception, it did not totally agree with the verdict of the High Court. The Supreme Court stated that the judges of the High Court had not examined properly whether, according to scientific medical knowledge and according to the norms of medical ethics, Dr. K. had been compelled by 'force majeure' {overmacht; overpowering force). Article 40 of the criminal code states that he who commits a crime while compelled to do so by force majeure is not liable to punishment. Force majeure can be understood either as 'psychological force majeure' or as 'conflict of duties'. As for the former, when appealing to this interpretation Article 40, to convince the judges that Article 40 applies, the offender cannot merely argue that (at the moment of his deed) he was


For that reason, Modderman in 1880 argued that no special exclusion of punishment was needed to guarantee that physicians practicing standard medicine would be found guilty of a crime. However, unlike surgery to remove an appendix or abortion to save the life of the mother, euthanasia is not to be considered standard medicine. Nowadays, euthanasia cannot be considered standard medicine for many physicians, including Dutch physicians, vehemently oppose euthanasia. In 1886, euthanasia certainly was not considered standard medicine. Euthanasia was already a common topic of public discussion in 1886. But unlike, for example, the USA, in the Netherlands there seem to have been no outspoken advocates of euthanasia and nobody considered it an accepted medical practice. If the legislators had thought differently, they would have written a special punishment exclusion clause to articles 293 and 294 for euthanasia. But no such special clause exists. Even in the explanatory statement to the criminal code no exception of any kind is made to articles 293 and 294. An appeal to the medical exception as a punishment exclusion ground therefore had to be rejected by the High Court of Leeuwarden. Dr. K., however, appealed. Two years later, on October 21, 1986 the Supreme Court of the Netherlands decided on the case. It agreed with the High Court and rejected the physician's appeal to the medical exception.


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mentally different from all other people (i.e., insane or feebleminded) and that therefore he could not be expected to have acted otherwise. The offender has to make plausible that under similar circumstances any other person might have acted similarly. One way to make such an argument is to show that it is understandable that the stressful circumstances of the case psychologically compelled the offender to act as he did, and consequently, it is reasonable to presume that anybody else might have acted similarly under similar circumstances. Physicians committing euthanasia have tried to make such an argument. But this interpretation of Article 40 is not very useful in the case of euthanasia for the following reason: only the actor is excused, not the act. Advocates of euthanasia, however, argue that physicians do not commit euthanasia because they are compelled to do so by psychological forces. They commit euthanasia because they think the act of euthanasia is moral. Therefore, not the actor but the act should be excused. They are correct indeed. A physician is supposed to be able to withstand the difficult situations which arise when patients fail to recover, suffer and are dying. That is, what they are trained to do, or for what they should be trained. As mentioned before, Article 40 allows for a second interpretation of 'force majeure', that is 'conflict of duties'. People might feel that in spite of their duty to act in accordance with the law, they also have a duty to foster other interests and that the latter duty in some cases overshadows the former. Article 40 allows judges not to impose punishment in case someone committed a crime because he was compelled to do so in order to protect some overriding interest. In that case, the offender has to argue that anyone else, having to balance the various interests at stake, reasonably could have chosen to protect the same interest he chose to protect, even if that required violation of the criminal law that protects some other interests. Conscience typically is not shared by 'anyone else' and cannot be verified and for that reason the courts have rejected an appeal to conscience.13 The alleged offender has to show it is reasonable to presume that anyone else might have acted similarly under similar circumstances.

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Jos Welie THE MEDICAL EXCEPTION BEHIND THE VEIL OF FORCE MAJEURE

any other member of the medical profession might have acted

similarly. Because he or she is the only one who can judge whether the patient is incurable, whether there are alternatives, and whether the request is not a hidden signal for help? But if that is the case, then the criterion of being a physician is superfluous for other criteria of cautiousness already guarantee all this (see Table I). Is anyone being a physician automatically a moral human being whose judgment in matters of life and death is always just? Are there two categories of 'jusf actions: those that do not match any act described in the criminal code and those that match the standards of the medical profession? In reference to the decree of the Supreme Court in the Alkmaar case, G. E. Mulder wrote that the Supreme Court, by making itself dependent on the judgments of medical ethicists and medical experts, could easily lose grip on euthanasia cases. Nonetheless, in its second ruling in the Groningen case the Supreme Court, stated that a physician practicing euthanasia is not even required to obtain a second opinion in order to be able to make a successful appeal to art. 40. By not requiring a second opinion based on independent examination of the patient, the Supreme Court has lost one of the few possibilities left to control the policy of the medical profession regarding euthanasia. It is a rather peculiar fact, that in a country that entertains a general distrust of institutionalized and monopolized power, and at a time in which the medical profession is increasingly scrutinized and sharply criticized, individual physicians are granted the power to decide in matters of life and death. Paradoxi-


Van Veen, commentator on the verdict of the Supreme Court, aptly noticed that on the one hand, the Supreme Court in its decision in the Groningen case rejected the medical exception, but on the other hand introduced a new kind of medical exception, hidden behind the veil of art. 40 (interpreted as conflict of duties). It is called force majeure but, actually, it is not. As explained, someone making an appeal to force majeure as a punishment exclusion ground has to show that anyone else might have acted similarly under similar circumstances. But according to the Supreme Court, it is sufficient if any other member of the medical profession might have acted similarly. Why a physician? Why is it that a physician goes unpunished if


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cally, the jurisprudential 'legality' of euthanasia that was fought for by advocates of voluntary euthanasia on the basis of the principle of autonomy and self-determination of patients, actually has increased the paternalistic power of the medical profession above its last limit, above the law.

1 The Dutch Society for Voluntary Euthanasia sued the Dutch criminologist C. Rutenfrans, who had suggested that the Society endorses involuntary euthanasia. The statements of R. Fenigsen in a recent article in the Hastings Center Report, indicating that the Dutch Society for Voluntary Euthanasia advocates involuntary euthanasia as well, led to a number of angry responses by the Society itself and a group of less outspoken advocates of euthanasia. (See: R. Fenigsen, Responses (1989)) 2 Rechtbank Utrecht 11-3-52, NJ 52,275. 3 Sluis (1989). 4 Staatscommissie Euthanasie. 5 Tweede Kamer, Wetsvoorstel 18 331 (1985) and Tweede Kamer, Wetsvoorstel 20 383 (1987). 6 One of the authors stating that euthanasia has been legalized in the Netherlands, is David Clarke (1988). However, he adds that the legalization has been realized through case law. This addition reduces the incorrectness of the statement, in that there exists indeed a number of judicial decrees on euthanasia (defined as killing on the victim's request or assisting in his suicide) in which the physician was not found guilty of a criminal act. But the Dutch legal system is not a case law system. Though judicial decrees do influence the interpretation of the law, the decrees themselves are not considered to be positive law. Therefore, those decrees have not legalized euthanasia. 7

8

art. 293:

He who kills somebody else on his explicit and serious request shall be punished with imprisonment of maximally twelve years or with a fine of the fifth category. art. 294: He who purposively incites somebody else to suicide, helps him to do so or supplies him with means, shall be punished with imprisonment of maximally three years or with a fine of the fourth category.

Commissie onderzoek medische praktijk inzake euthanasie (1991). A new State Committee has been installed to investigate these issues, but the results which are expected late 1991, were not yet available at the moment of publication of this article. 10 Openbaar Ministerie (1986), Openbaar Ministerie (1986-1987), and Openbaar Ministerie (1989). 11 Ch. J. Enschede (1985 and 1986). See also: G. E. Langemijer, Ch. J. Enschede

9


NOTES

436

Jos Welie

CASES Hof (High Court) Amsterdam 17-11-83, NJ (Dutch Jurisprudence) 84,43. (For the Ttequisitoir' to this case, see: Schalken, T.M.: 1984. Hof (High Court) Leeuwarden 11-10-84, NJ (Dutch Jurisprudence) 85,241. (Also published in: Tijdschrift voor Cezondheidsrecht 1985, no. 17.) Hof (High Court) 's Gravenhage (The Hague) 10-6-85 & 11-11-86, NJ (Dutch Jurisprudence) 87,608. Hoge Raad (Supreme Court) 27-11-84, NJ (Dutch Jurisprudence) 85,106. Hoge Raad (Supreme Court) 21-10-86, NJ (Dutch Jurisprudence) 87,607 (Also published in: Tijdschrift voor Gezondheidsrecht 1987, no. 2.) Rechtbank (District Court) Alkmaar 10-5-83, NJ (Dutch Jurisprudence) 83,407. Rechtbank (District Court) Groningen 1-3-84, NJ (Dutch Jurisprudence) 84,450. Rechtbank (District Court) Leeuwarden 21-2-73, NJ (Dutch Jurisprudence) 73, 183. Rechtbank (District Court) Rotterdam 1-12-81, NJ (Dutch Jurisprudence) 73,183. Rechtbank (District Court) Utrecht 11-3-52, NJ (Dutch Jurisprudence) 52,275. REFERENCES Clarke, D.B.: 1988, 'Euthanasia and the law', In Monagle, J.F. and Thomasma, D.C. (eds.) Medical Ethics: A guide for health professionals, Aspen Publishers, Rockville, Maryland, pp. 217-233. Commissie onderzoek medische praktijk inzake euthanasie: 1991, Medische beslissingen rond het levenseinde. The Hague, Sdu Uitgeverij Plantijnstraat. Enschede, Ch.J.: 1985, De Arts en de Dood: Sterven en Recht. Kluwer, Deventer. Enschede, Ch.J.: 1986, 'Andere wetgeving7 in Tol, D. van (ed.), Euthanasie Wetgeving: Andere Wegen, Amsterdam, pp. 49-63. Fenigsen, R.: 1991, 'A case against Dutch euthanasia', Hastings Center Report, 19(1)47-49. Langemijer, G.E., Enschede, Ch.J. and Veen, T.W. van: 1986, 'Euthanasie heeft geen wetgeving nodig7, Ned. Tijdschr. Geneeskd.(l30) 223-225. Langemijer, G. E., Enschede, Ch. J. and Veen, Th. W. van: 1987 'Beroepsrecht en medisch handelen in de euthanasiediscussie', Nederlands Juristen Blad, 112(2) 50-51. Openbaar Ministerie (Prosecution Council): 1986, Jaarverslag (Annual Report),


and Th. W. van Veen (1986 and 1987). 12 It is interesting to note that the Court, in spite of Dr. K's lack of compliance, decided not to impose any punishment because of the circumstances of this case, particularly because of the grave suffering of the patient, her very explicit request to Dr. K., and Dr. K.'s sincerity. 13 As for euthanasia, the District Court of Utrecht had rejected an appeal to conscience in 1952.


437

Law and Medicine 4(4) 455-465. Staatscommissie Euthanasie: 1985 Rapport van de Staatscommissie Euthanasie. The

Hague, Staatsuitgeverij, (An English summary, titled 'Final Report of The Netherlands State Commission on Euthanasia' is published in Bioethics. 1,2 (1987) pp. 163-174). Tweede Kamer: 1985, Wetsvoorstel 18 311; Initiatief Wetsvoorstel Euthanasie (Wessel-Tuinstra/Kohnstamm) Handelingen van de Tweede Kamer. 1985-1986, (18)331. Tweede Kamer: Wetsvoorstel 20 383; 'Regelen met betrekking tot de hulpverlening door een geneeskundige die zich beroept op overmacht bij, levensbeeindiging op uitdrukkelijk en ernstig verlangen van een patient Handelingen van de Tweede Kamer, 1987-88, (20) 383, nr. 1-2; 1987-1988, pp. 1-3.


Bijzondere Onderwerpen: Euthanasie. Openbaar Ministerie (Prosecution Council), Jaarverslag. (Annual Report), 'Bijlage bij de memorie van toelichting op de begroting van justitie, Handelingen van de Tweede Kamer 1986-1987, (19) 700, Hoofdsruk VI, nr. 3. § 11,1. Openbaar Ministerie (Prosecution Council): 1989, Jaarverslag. (Annual Report) Bijzondere Onderwerpen: Euthanasie. Schalken, T.M.: 1984, 'Euthanasie en de rechtspolitieke betekenis van het gewetensconflicf (Requisitoir Hof Amsterdam 17-11-83, NJ 84,43), Nederlands Juristen Blad 109(2) 38-50. Sluis, I. van der: 1989 The practice of euthanasia in the Netherlands', Issues in

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