[Paleopsych] CBC: End of Life

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Fri Oct 8 14:00:33 UTC 2004

End of Life
The Center for Bioethics and Culture Network

    Recent developments in the euthanasia debate in the Netherlands
    by Henk Jochemsen, Ph.D.

    Last summer three themes surfaced in the public discussion on
    end-of-life-decisions. These are: euthanasia in case of patients with
    (beginning) dementia, terminal sedation and euthanasia, and life
    termination of severely handicapped newborn babies. This article will
    briefly describe and comment on these discussions.

    1. Euthanasia for patients with dementia.

    In the first month of 2004 it became known that the public prosecutor
    and the minister of justice had decided not to prosecute a physician
    who assisted a patient with beginning dementia in committing suicide.
    It concerned a patient who had experienced a long dementia process of
    his father and his mother, and for whom the prospect of going through
    such a process of - in his eyes - loss of dignity, caused "unbearable
    suffering without prospect". The physician accepted his claim of
    unbearable suffering and assisted in suicide. The public prosecutor
    considering the specific circumstances of this case, decided not to
    prosecute even though they opined that the physician should have
    fulfilled some additional requirements for careful procedure. After
    this decision became public, members of parliament asked questions of
    the minister of justice regarding this case. In the eyes of those MP's
    (Members of Parliament) this decision meant an extension of accepted
    practise and jurisprudence of euthanasia, since the suffering was
    caused by a future condition that the patient foresaw and feared. But
    when that condition would be a reality he would no longer be aware of
    it in the sense that it would then cause unbearable suffering. The
    minister referred to the Supreme Court decision in the Chabot case
    (1994) that determined that psychic suffering could provide a
    justification for euthanasia or physician assisted suicide.

    2. Terminal sedation.

    This summer Van der Maas and Van der Wal et al published an article in
    Annals of Internal Medicine on the practice of terminal sedation. In
    fact the main data in this article was published before in the report
    on euthanasia practise in the Netherlands that came out in 2002. But
    the Dutch media apparently thought this data was new and reacted to it
    in the mass media. The main quantitative finding is that in between
    four and ten percent of all death cases physicians apply so called
    'terminal sedation'. Terminal sedation is defined as the
    administration of drugs to keep the patient in deep sedation or coma
    until death, without giving artificial nutrition or hydration. This
    normally is maintained until the patient dies. A discussion point in
    this context is whether the patients should or should not receive tube
    feeding. In a terminal stage this normally will not be done. But when
    the terminal sedation is applied in non terminal stages, and no fluids
    are applied, the distinction between terminal sedation and euthanasia
    becomes very thin if real at all. This point gained weight by
    anecdotal evidence in the media reporting that very recently Dutch
    physicians were applying such terminal sedation as a way of fulfilling
    a euthanasia request but without reporting it as euthanasia. The law
    establishes that euthanasia should be reported to the Regional
    Euthanasia Review Committee, whereas pain treatment or sedation need
    not be reported, so an important question in the public debate was
    whether physicians are applying so called terminal sedation as a
    substitute for euthanasia since this would save them reporting and the
    possibility of further questions or an investigation by the Public

    It is interesting to note that this discussion occurred just a few
    years after the debate on terminal sedation started in the
    Netherlands. The question for those rejecting euthanasia is whether it
    is an acceptable form of terminal care. For those accepting euthanasia
    under the established conditions, the question is whether terminal
    sedations is actually a concealed form of euthanasia that does not do
    justice to the request of the patient. Both sides agree that if
    terminal sedation is to be considered as a special form of terminal
    care it should be applied only in the very last stages of life (life
    expectancy of days, at most a week), in a very careful way since the
    titration of the doses of sedative is not so simple. Under those
    conditions terminal sedation should not be seen as a form of
    euthanasia. A point of discussion is whether it is recommendable that
    in a case of intended terminal sedation the attending physician should
    consult a colleague. On this topic members of parliament have also
    asked questions of the government. The under minister of health care
    has asked the Royal Dutch Medical Association to formulate a protocol
    for applying terminal sedation as distinct from a form of euthanasia.

    3. Life termination of severely handicapped babies.

    During the second half of the 1980's and first half of the 1990's the
    debate on the regulation of euthanasia (that is voluntary euthanasia
    in the Netherlands) went parallel with the discussion on life-ending
    actions of physicians on incompetent patients. A special group of
    these are severely ill or handicapped newborn babies. The first kind
    of regulation of life ending actions that resulted in a change of the
    law on the burial of the dead in 1994 deals with voluntary as well as
    non voluntary euthanasia. Voluntary and non voluntary euthanasia
    should be reported by different forms and be evaluated by justice. In
    fact, very few cases of non voluntary euthanasia were reported and
    brought to court. This did happen with two cases of the termination of
    life of a severely handicapped baby. Both cases were brought to a
    lower and a higher court and the physicians were aquitted by the four
    courts. In the further debate on the legislation of voluntary
    euthanasia in the second half of the nineties, voluntary euthanasia
    was distinguished from non voluntary euthanasia. However, in the
    course of the debate the cabinet expressed the intention to establish
    a national review committee for cases of euthanasia for incompetent
    patients. That committee would have the same function as their
    regional euthanasia review committees: to evaluate the reported cases
    before justice will decide whether it will further investigate a
    specific case of non voluntary euthanasia. The criteria would
    presumably be derived mainly from the four court decisions on the
    aformentioned babies. So far, however, the cabinet has not taken any
    steps to establish such a national review committee.

    Recently the academic hospital in Groningen announced that it has
    formulated a protocol for dealing with cases of severely handicapped
    newborn babies whose parents ask for euthanasia. This has caused a
    renewed discussion on ending the lives of newborn babies, and on the
    best way of regulating and controlling it. Those favouring a
    regulation point out that it does happen in between twenty and one
    hundred cases annually without any legal control. However, whether a
    further legal regulation will lead to the reporting of all such cases
    is a big question in light of the fact that even after several years
    of a formal legislation of euthanasia just over half the number of
    cases are reported. Furthermore, it should be realised that in fact
    there is a legal regulation of non voluntary euthanasia, namely the
    article in the law on the burial of the dead that establishes that in
    cases of non voluntary euthanasia the physician must report such cases
    to the legal authorities, using a specific form designed for such
    cases. Even though the court decisions on the two babies indicate that
    there is little risk for physicians to be prosecuted after ending the
    life of a severely handicapped baby under certain conditions, very
    few, if any, such cases have been officially reported since then. The
    experience with the legal regulation of euthanasia has taught that
    acceptance by the legal authorities of a protocol which describes the
    process of decision making and performance of life terminating actions
    will function as pseudo-legalisation. This psuedo-legalisation will
    not guarantee that all cases will be reported, and therefore merely
    creates a false idea of control, and is seperate from the ethical
    objection to such regulation.

    This topic has been discussed in parliament and the under minister of
    health has promised to present the cabinet position before the end of
    this year.

    4. In conclusion

    Considering the three debates it can be concluded that the legislation
    of euthanasia in the penal code has not put to rest the discussions in
    society on life ending actions of physicians. The attempt to get the
    practise of euthanasia into the open and under legal control has
    failed. Though part of this practise is now open to legal scrutiny, a
    significant part of the formally legalised practise is not, and there
    continues to be considerable grey area in both the medical care for
    the dying and the intentional killing of patients.

    Of additional concern is the trend toward a continual broadening of
    the interpretation of the requirements for legal euthanasia. Currently
    this concerns patients with beginning dementia, and one of the most
    worrisome aspects is that just a few years after the legalisation of
    voluntary euthanasia the discussion on the presumed need for the
    regulation of non voluntary euthanasia has begun once again.

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