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The Netherlands Euthanasia Legislation
Ian Ireland
Law and Bills Digest Group
22 May 2001
Introduction
On 10 April 2001, the Upper House of the Netherlands Parliament passed
legislation whereby the termination of life on request and assistance
with suicide will not be treated as a criminal offence if carried out
by a physician and certain criteria of due care have been fulfilled. It
is expected that the legislation will come into force later this year.
This Research Note provides information on:
- existing rules in the Netherlands
- summary of new legislation
- due care requirements
- regional review committees
- minors, and
- access to termination of life on request and assisted suicide in the
Netherlands for people from other countries.
Existing rules in the Netherlands
The Criminal Code of the Netherlands contains a variety of provisions
prohibiting the intentional taking of human life (e.g. Articles 293 and
294).
However, termination of life on request and assistance with suicide have
been de facto permitted in certain defined circumstances by virtue of
a non-prosecution agreement between the Netherlands Ministry of Justice
and the Royal Dutch Medical Association.
To comply with these requirements, the physician must ensure that the
request for termination of life or assistance with suicide is made by
the patient and is voluntary, and establish that the patient's situation
entails unbearable suffering with no prospect of improvement.
The procedural requirements include that:
- the termination of life on request and assistance with suicide be
performed by a physician
- before the physician assists the patient, he or she must consult a
second physician, and
- the death must be reported to the authorities as a case of euthanasia
or physician-assisted suicide.
Summary of new legislation
Under the legislation a physician who terminates a life on request or
assists with a suicide has to comply with two conditions to be exempt
from criminal liability, namely:
- he/she must practice the due care criteria, and
- report the cause of death to the municipal coroner.
It should be noted that the incorporation of provisions on exemption
from punishment in Articles 293 and 294 of the Netherlands Criminal Code
does not decriminalise other forms of termination of life or assistance
with suicide.
Additionally, it clearly is not the case under the legislation
that patients have a right to demand termination of life or assistance
with suicide, nor that physicians must acquiesce to a request.
Due care requirements
The due care criteria which must be met in order to obtain exemption
from criminal liability require that the attending physician:
- be satisfied that the patient has made a voluntary and well considered
request
- be satisfied that the patient's suffering is unbearable, and that
there is no prospect of improvement
- has informed the patient about his or her situation and prospects
- has come to the conclusion, together with the patient, that there
is no reasonable alternative in the light of the patient's situation
- has consulted at least one other physician, who must have seen the
patient and given a written opinion on the due care criteria referred
to above, and
- has terminated the patient's life or provided assistance with suicide
with due medical care and attention.
Regional review committees
The legislation provides for the establishment of regional review committees
for the termination of life on request and assisted suicide.
Each regional review committee, of which there are five, is composed
of an uneven number of members. It must consist of a legal expert, a doctor
and an expert in the field of ethics or philosophy.
The committees assess whether a case of termination of life on request
or assisted suicide complies with the due care criteria. The committee
is required to notify the physician of its findings, giving reasons.
Where a committee is of the opinion that the physician did not act in
accordance with the due care criteria, the case must be brought to the
attention of the Public Prosecution Service which then has the power to
launch a criminal investigation.
Regional committees have the capacity to personally discuss with the
physician the assessment given and through annual reports contribute to
public debate and awareness of termination of life on request and assisted
suicide and the supervision exercised.
Minors
The legislation covers requests for the termination of life or assistance
with suicide by minors. A physician may comply with a request by minors
between the ages of 12 and 16 where they are deemed to be capable of making
a reasonable appraisal of their own interests and the parent/s or guardians
is/are unable to agree to the termination of life or assisted suicide.
With respect to minors aged between 16 and 18, the legislation provides
that a physician may comply with a request where they are deemed to be
capable of making a reasonable appraisal of their own interests and the
physician consults with the parent/s or guardian of the minor.
Access to termination of life or assistance with a suicide in the
Netherlands for people from other countries?
The Netherlands Ministry of Justice believes that it is not possible
for people to come from other countries to seek termination of life or
assistance with suicide in the Netherlands because of the legislation's
procedural requirements.
The procedure for the notification and assessment of each case requires
the patient to have made a voluntary, considered request and to be suffering
without any prospect of improvement. In order to be able to assess whether
this is the case, it is considered that the doctor must know the patient
well and implies that the doctor has treated the patient for some time.
The practical effect of this procedural requirement, however, remains
to be seen.
Remarks
It is a fact that the majority of Netherlands people support voluntary
euthanasia. It is also a fact that willing doctors in the Netherlands
have been participating in voluntary euthanasia for a considerable time.
Research suggests that a majority of Australians including health professionals,
support voluntary euthanasia. (See: Department of the Parliamentary Library,
Information and Research Services, Research Papers, Nos 3 and 4,
1996-97, 'Euthanasia-the Australian Law in an International Context Part
1: Passive Voluntary Euthanasia' and 'Euthanasia-the Australian Law in
an International Context Part 2: Active Voluntary Euthanasia'.)
Why then did the Australian Parliament in 1996 not reject the Euthanasia
Laws Bill 1996 (the Andrew's Bill) which overturned the Northern Territory's
fledgling voluntary euthanasia law and removed the Territories' power
to enact such laws in the future?
The answer is complex. It is partly contained in the fierce parliamentary
debates on the Euthanasia Laws Bill 1996, and in the equally fierce
public debates in response to that legislative initiative and the political
dynamics surrounding its passage. Perhaps part of the answer, however,
lies beyond those debates.
The enactment of Netherlands legislation represents the culmination of
almost thirty years of public debate in that country about legalising
voluntary euthanasia. The nature and result of that discussion has been
influenced by an arguably unique combination of social and cultural factors:
- a willingness to discuss difficult moral issues openly
- a profound respect for the autonomy of others
- the Royal Dutch Medical Association's approval of doctors participating
in termination of life on request or assisting with suicide
- respect for the medical profession, and
- truly universal and comprehensive medical coverage.
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