RECENTLY the Dutch Supreme Court ruled that doctors could carry out a euthanasia request even if their patient developed severe dementia and could no longer express an explicit wish to die.
The ruling was sparked by the case of a 74-year-old woman who was euthanised in a nursing home in 2016 after developing advanced dementia.
The woman had written a will some years before her admission to the aged care facility, and had regularly stated that she wanted to die.
The doctor who euthanised her said she had spoken three times to the patient about her wish to die, but not about her will because “she could not remember anything about it”.
The patient’s long and short-term memory was poor and she no longer recognised her husband, the doctor said.
Crucially, an inquiry into the 74-year-old woman’s death revealed that the woman, who had Alzheimer’s, was surreptitiously given a coffee containing a sedative, and then had to be held down by her family as she appeared to struggle against a lethal injection administered by her doctor.
And so it seems that the patient was euthanised against her will.
Murder charges were brought against her doctor, but then a lower court ruled last year the doctor did not violate the law.
In its first ruling on euthanasia since it was legalised in Holland 18 years ago, the Supreme Court upheld that decision on April 21.
The ruling has been sharply criticised by Dutch Catholics.
“The Supreme Court leaves it up to the physicians involved, which increases their uncertainty,” Cardinal Willem Eijk, a trained physician as well as head of the Dutch bishops’ conference, said.
Leading Australian ethicists are concerned this judgement is the latest example of what can happen if the law is vague and open to interpretation.
“The key criterion for euthanasia in the Netherlands is ‘unbearable and hopeless suffering’,” Xavier Symons, a bioethicist at the University of Notre Dame and a 2020 Fulbright Future Scholar, (pictured) said.
“Yet this is a notoriously vague criterion, and I fear that doctors will continue to exploit the vagueness of this definition when it comes to vulnerable, cognitively impaired patients. They now have some degree of legal protection to do this.”
Margaret Somerville, Professor of Bioethics at University of Notre Dame Australia, agreed: “The (Dutch) case was unusual just in being examined by the authorities… who concluded there was no liability of the doctor because she had acted in “good faith” but that she should have stopped administering the lethal dose when the old lady struggled.”
“The whole episode is mind-boggling horrific,” Professor Somerville said.
In Australia, voluntary assisted dying (VAD) is lawful in Victoria.
The lawmakers who introduced it claim there are ample safeguards – a person must make at least three separate requests for VAD.
A similar law is due to start in Western Australia in mid-2021, and some Queensland lawmakers are pressing to introduce VAD after a parliamentary health committee spent a year taking submissions, and concluded most people support it.
“Euthanasia law in the Netherlands is significantly more permissive than euthanasia legislation in Victoria or Western Australia. So we need to be careful about making comparisons,” Dr Symons said.
“But once euthanasia is legal in a jurisdiction, legislators can always go back and amend the law to make it more permissive.
“Even if we start with legislation that contains extensive ‘safeguards’, pro-euthanasia advocates can always come back and push for the legislation to be expanded.
“And I fear that this will happen in Australia.
“Indeed, GPs in Victoria are already campaigning for the assessment criteria for VAD to be changed to make it easier for patients to be assessed by a doctor.”
The issue of legislation creep worries ethicists deeply.
It’s what some people call “the slippery slope”, although this is sometimes dismissed by pro-euthanasia advocates as an empty rhetoric.
Professor Somerville said the latest Dutch ruling showed how far euthanasia laws had moved since their introduction in the early 2000s.
“… basically the outcome is approval of administering euthanasia to people who have given consent in an advance directive,” she said.
“Canada currently has legislation before it that would allow the same thing.
“Canada is expanding access to euthanasia after only two years of its being legal. The same will happen in Australia.
“The pro-euthanasia advocates have long had a policy of ‘just let’s open the door a little and we can expand it.”
Dr Symons said another point to consider was that laws need to be enforced for safeguards to be effective, and there was ample evidence in Holland to show that this had not happened.
“The euthanasia review committees in the Netherlands – the organisation charged with reviewing the practice of euthanasia the country – was notoriously lax in its oversight processes,” he said.
“Despite ongoing media reports of aberrant euthanasia practices, it was only in 2019 that the first doctor was prosecuted for breaching Dutch euthanasia regulations (and this case has resulted in the Supreme Court ruling that we are now discussing).
“It doesn’t help that the committees are stacked with practitioners who are overwhelmingly supportive of euthanasia to begin with.”