Physician-assisted death — euthanasia — is lawful in three European countries, as well as Colombia and Canada. It is illegal, still, in the United States, though physicians in 10 states may supply lethal doses to terminally ill patients for self-administration. And the U.S. ban may not last forever: 72 percent of Americans support euthanasia, according to a May 2018 Gallup poll.
For the sake of an undeniably worthy goal, ending avoidable suffering, euthanasia places great confidence and trust in fallible human beings: patients who request it; doctors who carry it out; and institutions, legal and professional, that regulate it.
Anyone confident about how this will work in practice should review a Dutch court’s Sept. 11 not-guilty verdict in the Netherlands’ first-ever murder case against a physician accused of violating the country’s euthanasia laws.
The patient was a 74-year-old woman diagnosed with Alzheimer’s disease four years before her death in 2016. She had seen her mother suffer with that agonizing incurable condition in a nursing home; not wanting to go through the same experience herself, she drafted documents, while impaired but still competent, asking that she be euthanized “whenever I think the time is right for this” and “when the quality of my life has become so poor.”
Doctors observed her closely until early 2016, at which time, in consultation with the family, the physician in charge concluded that she was suffering unbearably and incurably, and scheduled euthanasia for the morning of April 22, 2016.
The problem was that the elderly woman was herself now no longer capable of expressing clear volition. Dutch law requires a patient’s request for euthanasia to be “voluntary and well-considered”; an advance directive may suffice for patients who cannot make their wishes known, but doctors who proceed with euthanasia on that basis are supposed to stop if they detect “behavior and utterances that may indicate resistance or objections to termination of life.”
In this case, however, the doctor spiked the patient’s coffee with a sedative for what she later acknowledged was the purpose of “prevent[ing] a struggle during the euthanasia.” When the doctor inserted a needle for the lethal dose of thiopental, the patient, apparently reacting to pain, tried to stand up. At the doctor’s urging, family members then held the woman down so that she could finish the lethal injection.
A Dutch administrative review panel found fault with the doctor for slipping a sedative into the patient’s drink surreptitiously, for physically restraining her — and for acting on an ambiguously worded advance directive in the first place. The document could have been read to mean that the woman “herself could and would request euthanasia at the time she chose,” the panel noted. And prosecutors decided to press charges.
Widely covered in the Dutch media, the case crystallized long-standing concerns among physicians and others about the hazards of euthanasia for dementia patients, with or without advance directives.
Should physicians administer euthanasia “to someone who cannot confirm that he wants to die?” a group of 220 Dutch doctors asked in a 2017 open letter. “No, we are not going to do that. Our moral reluctance to end the life of a defenseless person is too great.”
Dutch prosecutors acknowledged that their goal was not so much to punish a wayward physician as to clear up a murky area of the euthanasia law: specifically, whether it imposes on doctors a legal duty to verify the current desire for life or death of a dementia patient.
By acquitting the doctor — who, like the patient, is not named in court documents — the Dutch court, in effect, answered “not necessarily.” Physicians may rely on advance directives, even, the ruling implies, a directive as ambiguously worded as this one was, without fear of legal liability. (Though they might receive admonitions from professional and administrative bodies, as this doctor did.)
“We believe that given the deeply demented condition of the patient the doctor did not need to verify her wish for euthanasia,” one of the three judges announced.
It’s a remarkable holding. As U.S. bioethicist Scott Kim has argued, there were, in effect, two patients in this case: the person who once expressed a desire for euthanasia, and the very different one who was so sick that she could not express those wishes, or any others, years later, but was still alive, talking, walking, able to feel pain.
Whose needs should take precedence? To this profound ethical question, the Dutch court answered with an unequivocal preference for the patient’s earlier “self,” even in a case surrounded with as many troubling details as this one.
Doctors in the Netherlands, it would appear, are now that much freer to administer death to a slightly wider range of patients on the basis of slightly less clear-cut evidence of those patients’ actual, current intent.
Seemingly, it can be permissible to take steps (such as physical restraint or undisclosed sedation) that alter “behavior and utterances that may indicate resistance or objections to termination of life.”
Critics of euthanasia often warn the practice is a slippery slope. This Dutch case suggests it’s more like Pandora’s box.
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