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Physician permitted to grant a written request for euthanasia from individuals suffering from advanced dementia

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Den Haag, 24 april 2020

A physician is permitted to grant a written request for euthanasia from individuals suffering from advanced dementia. All of the statutory requirements applicable to euthanasia must be satisfied in such situations, however, including the requirement of unbearable suffering without prospect of improvement.  In that event, the physician is not subject to criminal prosecution. The Dutch Supreme Court handed down this judgment today in a case brought 'in the interest of the law'. In its judgment, the Supreme Court explained the premises for imparting substance to the requirements of due care in that special situation.

The judgment pertains to both the criminal case and the disciplinary case against a nursing home physician who administered euthanasia for a demented patient experiencing unbearable suffering without prospect of improvement. In a written statement, the patient had expressed her wishes in the event of advanced dementia with admission to a nursing home. The Public Prosecutor's Office decided to prosecute the physician. The District Court ruled that the physician had acted with due care and therefore could not be prosecuted. The Public Prosecutor's Office did not appeal that decision. The procurator general (PG) of the Supreme Court subsequently filed an appeal in cassation in the interest of the law in both the criminal case and the disciplinary case. The PG's claims were intended to enable the Supreme Court to provide guidance in the developing law in respect of euthanasia.

Supreme Court's opinion in the criminal case
In its judgment in the criminal case, the Supreme Court explained the premises based on which a physician is permitted to grant a written request for euthanasia from a patient suffering from advanced dementia. Briefly put, the key premises entail the following.

The law provides for the possibility that a person may record a request for termination of life in a written statement that anticipates a situation in which they are no longer capable of expressing their will. A physician may grant such a request if all the legal requirements applicable to euthanasia are met, including the requirement of unbearable suffering without prospect of improvement. In that event, the act of the physician is not a criminal offence. This also applies if the inability to express one's will is caused by advanced dementia. All the requirements imposed by law in respect of euthanasia must be satisfied in that event, as well. These requirements ensure that the physician acts with due care. This is why they must be imparted substance in such cases in a manner that does justice to the special nature of situations involving advanced dementia. Those statutory requirements entail, among other things, that in such cases, the written request must specifically ask for termination of life in a situation in which the patient can no longer express their will as a result of advanced dementia.

Even when it is clear that the request is intended for the situation of advanced dementia and that that situation has now arisen, such that the patient is no longer capable of forming and expressing their will, there may be circumstances in which the request cannot be granted. For example, these may include behaviour or verbal expressions on the part of the patient from which it must be inferred that the patient's actual condition does not correspond to the situation referred to in the request.

The requirement of unbearable suffering in particular requires special attention in cases of advanced dementia. The legislative history indicates that unbearable suffering primarily involves a patient's physical suffering as a result of another physical condition. However, even in the absence of another condition, there may be signs that the patient is suffering from advanced dementia to such an extent that their suffering can be considered unbearable.

As is already common practice in cases involving the termination of life of a patient with advanced dementia, there is reason to consult not one but two independent physicians beforehand to determine whether the request can be granted.

The case at issue
The Supreme Court subsequently assessed the District Court's judgment in the case against the nursing home physician based on the premises it had formulated. The District Court ruled that the physician had acted with due care and therefore was not subject to criminal prosecution. According to the Supreme Court, the District Court did not err in its assessment.

Supreme Court's opinion in the disciplinary case
In addition to those proceedings, the PG applied for cassation in the interest of the law against the decision of the Central Disciplinary Committee for the Healthcare Sector (Centraal Tuchtcollege voor de Gezondheidszorg, the CTG) in the same case. The CTG ruled that the physician had failed to comply with the requirements of due care, and imposed a disciplinary warning. The Supreme Court set aside that decision.

First, the Supreme Court held that the CTG need not always be bound by the opinion of the Regional Euthanasia Review Committee (Regionale Toetsingscommissie Euthanasie) in respect of the physician's actions. The medical disciplinary court has a duty to form an independent opinion regarding the physician's medical action based on the standards of disciplinary law.

The Supreme Court furthermore ruled, as it did in the criminal case, that in addition to the interpretation of the patient's written request based on its wording, other circumstances may also be involved from which the patient's intentions can be inferred. The opinion of the CTG that there was no room to interpret the request was therefore incorrect.

A decision by the Supreme Court in a case in which cassation is sought in the interest of the law has no legal consequences for the parties involved. The decision of the lower court continues to apply to the parties.

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Summary
Read a summary of the judgment here (pdf, 137,8 KB)

 

 

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