Webcast archive: First euthanasia prosecution in the Netherlands

In this episode of Euthanasia & Disability, Amy Hasbrouck, Christian Debray, and Taylor Hyatt discuss:

Please note that this text is only a script and that our webcast contains additional commentary.

FIRST PROSECUTION UNDER THE NETHERLANDS’ EUTHANASIA LAW

For the first time, a Dutch doctor is being prosecuted under that country’s euthanasia law. The doctor is being charged for “failing to act carefully” and “overstepping a line” in the euthanasia of a 74-year-old woman with dementia. The woman made an advance directive several years ago that stated she wanted to die “whenever I think the time is right.” Though she would sometimes say she wanted to die, at other times she’d say “Not just now, it’s not so bad yet.”
The doctor interpreted her advance directive, along with the woman’s inconsistent oral statements, as permission to perform euthanasia. In what has become an infamous event, the doctor put a sedative into the woman’s coffee, and the family to held her down as she struggled against the lethal injection.
A public prosecutor in the Hague said the doctor could not have “unambiguously” determined that the woman wanted euthanasia, especially given her conflicting statements about her desire to die. The case will be heard at the district court of the Hague. Two other criminal cases against euthanasia providers have been dropped.

THE FEDERAL AS/E MONITORING SYSTEM GOES ONLINE

The federal government’s system for monitoring assisted suicide and euthanasia came into effect on the 1st of November, but not without a few problems.
The failure of federal and Québec government officials to agree on a reporting process that would provide both levels of government with the data they want threatened to derail the new system before it even started. On October 31, the Collège des médecins du Québec called on the province’s doctors to ignore the federal reporting requirements while continuing to file reports with the Québec government.
Québec’s Commission on End of Life Care has been recording euthanasia deaths in the province since December of 2015. Because Québec’s law is slightly different from the federal law, and the provincial government tracks different information, bringing the two reporting systems into line was more difficult than for the provinces that created new procedures based on the federal law and regulations; Alberta, British Columbia, the Northwest Territories, Nunavut, Ontario and Saskatchewan. Québec doctors would have had to fill out two reports for each euthanasia.

At the last minute, Quebec and Ottawa agreed to harmonize their data collection systems, by creating a new form that will provide all the needed information for both levels of government and avoid duplication. The new form is expected to be ready by the end of November. Québec doctors will continue to use the provincial reporting system until the new form is online.

We’ve obtained a copy of the reporting form, so as to see what’s included in all the drop-down menus mentioned on the Health Canada website, and to verify that the federal process complies with all the safeguards. We haven’t had time to do an in-depth analysis but in the meantime the “Guidance for Reporting on Medical Assistance in Dying” provided a few surprises.
- Under “What constitutes a written request” the guidance says: “A patient’s written request may take any form – it does not have to be in the format required by the Criminal Code as a safeguard when MAID is provided (i.e., duly signed, dated and witnessed) to require reporting. It must, however, be an explicit request for MAID and not just an inquiry about MAID or a request for information.”
  - There are many sample forms online to request AS/E, but the ones we found don’t specifically ask about the nature of the physical or psychological suffering.

The English version of the Ontario form limits “external pressure” to “pressure from others”, while the Saskatchewan form did not mention suffering, simply referring to the medical condition as “intolerable.”
The Guidance document does nothing to clear up the confusion about the effect of the second opinion. The chart labeled “when physicians and nurse practitioners are required to report” includes the contingency that AS/E was NOT provided because the “patient [was] ineligible for MAiD.” But later, in the section entitled “Exceptions: when is a report not required”, we learn that the practitioner doesn’t have to report when their “… involvement is limited to providing a second opinion … of a patient’s eligibility.” Does this mean the practitioner giving the second opinion doesn’t have to report only if they agree that the person is eligible? Or does it mean that if the practitioner giving the second opinion says the person is not eligible, their opinion isn’t reported and doesn’t count?
The “Patient’s Description of Suffering” is reduced to a “check all that apply” list, with an “other” option. Once we analyze the form, we’ll be able to say whether the list is thorough, or whether there is space to specify what “Other” means.

The guide for medical practitioners warns that “Health Canada or [the] provincial or territorial designated recipient will follow up … if the information provided is unclear or incomplete, or to find out why [the practitioner has] not reported.” But how will Health Canada know the practitioner hasn’t filed the report?
Health Canada also warns that where practitioners fail “to apply the eligibility requirements or safeguards in the Criminal Code,” or they commit “continued or egregious omissions in reports“, practitioners could be referred to law enforcement.” But will that improve compliance with the law, or just modify what practitioners write on the forms?

Though we can’t access the online portal, we did notice a couple of problems on the “welcome” page.
- Partially-completed reports cannot be saved. If the practitioner doesn’t have everything they need at hand before starting, they can’t save and continue the form later.
- On the other hand, the portal website will wait two hours before timing out. While this might be helpful for practitioners trying to organize paperwork, it could leave personal information available on an unattended computer.
You might think we’re nit picking here, but this is exactly the kind of backsliding that’s so worrisome. Baby steps add up to bigger steps, and the next thing you know, they’re drugging people’s coffee and holding them down for the lethal injection.