Deference to Doctors in Dutch Euthanasia Law

Abstract

The text of the Dutch laws against euthanasia and assisted suicide--Article 293, and its companion act, Article 294--seems straightforward enough:

He who robs another of life at his express and serious wish is punished with a prison sentence of at most twelve years or a fine of the fifth category. He who deliberately incites another to suicide, then assists him therein or provides him with the means is punished, if the suicide follows, with a prison sentence of at most three years or a fine of the fourth category.

These articles have been part of Dutch law since before the Dutch Penal Code, het Wetboek van Strafecht, replaced the French Code Penal in 1886. At present, these articles remain part of that law, despite the fact that in the winter of 1993, the Dutch parliament finally reached a compromise between those who clamor for legalization of euthanasia and those who fight to block such a change. The legislature approved a state-proposed change, not to the euthanasia law itself, but to the Coroner's Act, which governs, among other things, the disposal of dead bodies. The new law sets out guidelines which, if followed, generally prevent prosecution of physicians who commit euthanasia, even while the law continues to criminalize such acts.

None of this is news really. The changes in Dutch euthanasia law have been percolating through the system for twenty years now, inspiring heated debate worldwide. As the harbingers of liberal social change, the Dutch hold an almost prophetic role as they work through the tangles of contemporary moral and legal debates. Still, while no one should be surprised that the Dutch finally stamped their approval on this novel compromise, the change itself continues to stir controversy around the globe. In large measure, one can attribute this to the sheer emotional nature of an issue such as euthanasia. Like abortion, the death penalty, and other legal issues involving the beginning and the end of human lives, euthanasia always will prompt strong reactions from its supporters as well as its detractors.

There also seems to be little news in the kind of compromise reached by the Dutch, unique though it may sound to American ears. The kind of latitude in prosecution and sentencing that has drawn the world's interest in regard to euthanasia is well within the parameters of usual Dutch criminal jurisprudence. In one key aspect, however, the Dutch have resolved this medical puzzle in a way that deserves particular scrutiny: The courts turned to the medical profession to weave the legal and political tangle of euthanasia law into something that could remain consistent to Dutch legal tradition while at the same time satisfying the popular political demand for change. In large measure, the Dutch courts used the insights of the Royal Dutch Medical Society, the Koninklijke Nederlandsche Maatschappij tot beverdering der Geneeskunst (KNMG), to design guidelines for the prosecution and punishment of doctors who commit euthanasia. In its acceptance of the KNMG guidelines and the defense of necessity the judiciary has, for all practical purposes, deferred to a completely extra-governmental body: the medical community.

This Comment scrutinizes the results of this judicial deference. First, this Comment surveys the Netherlands' criminal justice system, to give non- Dutch readers a basic familiarity with the setting in which Dutch euthanasia law has developed. Next, an examination of the history of Dutch euthanasia law, both legislative and judicial, demonstrates that Dutch judges and lawmakers have, in essence, deferred to physicians for answers to this difficult legal issue. This Comment then analyzes the guidelines themselves as well as the subjective process that physicians report going through to make euthanasia decisions. Several features of this process call for a careful re-examination of the en tire premise of deference to medical professionals. In particular, this Comment shows that the physicians' criteria are neither legally precise nor scientifically quantifiable. Instead, these criteria invite a deeply subjective interpretation of the patient's circumstances based on the physician's beliefs about what is good and valuable in a human life.

Keywords: Doctors, Physicians, Medical profession, Dutch, Euthanasia, Assisted suicide, Suicide, Dutch Penal Code, criminal jurisprudence, judicial deference

JEL Classification: I12, J11, J14, J17, J18, K10, K14, K40