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.