EUROPE & EUTHANASIA: THE PERILS OF FOLLOWING A 'PROGRESSIVE' APPROACH

By David Fieldsend, Manager, CARE for Europe

Historical Background

For more than two millennia, going back at least to the famous 5th century BC Greek father of medical ethics, Hippocrates, and lasting until the end of the twentieth century, a near universal taboo of doctors being forbidden to deliberately kill their patients was maintained in all national jurisdictions in Europe[1].

A mercifully brief exception to this was introduced during the Nazi era when doctors were not just allowed, but instructed by the state, to kill people considered not fit to live by reason of infirmity, age or handicaps of various sorts (both mental and physical). There has also been a special exception in the case of Switzerland allowing assistance (but not direct administration of the lethal act) in suicide (not restricted to doctors) provided it is not carried out for selfish motives.[2]

To clarify, this taboo was on deliberate killing. It did not prevent doctors from ceasing the aggressive treatment of diseases once there was no longer any hope of achieving a cure, even if this might mean that death would take its natural course a few days earlier; nor to giving priority to controlling pain in the terminal stages of an illness, even if the high doses of opiates required for this might occasionally mean that death arrived a little earlier.

The basis for this taboo was quite clear; the 'right to life' is one of the most fundamental of human rights, quite literally none of the other rights can be exercised without it. The framers of the Universal Declaration of Human Rights[3] and the European Convention on Human Rights[4] were very clear that the states who were party to these treaties should do their utmost to prevent the deliberate taking of human life through the actions of another human being - whether an agent of the state or a private individual citizen. Doctors fall somewhere between the two - they are often regarded as private liberal professionals, but in many states their services are paid for from the public purse, or they are actual public employees.

Recent developments

Since the turn of the century a tiny minority of European states (three in all) have broken ranks and introduced laws legalising the deliberate taking of life by doctors (commonly referred to as 'euthanasia') in certain defined circumstances.

The first of these was the Netherlands. The Dutch parliament adopted a new law legalising euthanasia in April 2001[5] although because the Dutch Supreme Court had held as early as 1984 in the Alkmaar case[6] that a doctor who kills a patient may in certain circumstances successfully invoke the defence of necessity, euthanasia had already become common practice in the Netherlands before that.

The Netherlands' neighbour Belgium followed suit in May 2002 and Luxembourg in 2008, but in the latter case only after a constitutional crisis had been provoked when the Grand Duke (the sovereign monarch of that country) refused for reasons of conscience to sign the parliamentary legislative proposal into law.

However, it must be remembered that we are talking here about only three nations in a continent which has forty-seven states in membership of the Council of Europe, and twenty-seven in the case of the European Union. The overwhelming majority view remains that doctors should not be authorised to kill their patients in any circumstances.

The arguments of protagonists and subsequent consequences

Protagonists of euthanasia often begin by citing unsupportable suffering as the reason why euthanasia should be allowed, which most people think refers to unbearable pain. In response, palliative care (in which the prime treatment goal is effective pain management, rather than curative) is advanced as the solution and its wider availability is advocated. However, if that response is successful, the argument is moved on from preventing suffering to promoting autonomy. It is argued that a patient's right to free choice is being attacked if the range of choices available is restricted by ruling out the option of choosing death. It would not be fair to make the patient plead special circumstances like unbearable pain in order to justify their choice. In fact, in states where euthanasia has been legalised pain is not given as the prime reason for patients seeking it. Rather it is the perceived 'loss of dignity' involved in becoming dependent on others for the basic necessities of life or no longer being able to take part in enjoyable activities[7].

The notion of individual autonomy has been pushed to such a degree that there are those who consider that life is no longer worth living if they cannot act totally independently of the other. It is a 'suffering' of the mind and perceived loss of esteem in the eyes of others that is being deemed 'unbearable', rather than the experience of physical pain. But, of course, no-one is truly independent. In my own country where euthanasia (in common with the vast majority of European states) is illegal, I often hear older people saying that they 'do not want to be a burden' on their children or other younger relatives.

If the option of euthanasia were to be made available would they not feel psychologically pressured to make use of it? If it is 'routinized', as the UN report referred to below[8] feared, would there not be a risk that it develops from being a 'right to die' to becoming a 'duty to die', especially for those only being kept alive by the benefit of expensive medical treatment in an age of restricted budgets? And would the current effort to make palliative care more widely available be reduced if there is legal access to the cheaper alternative of euthanasia?

However, above all, euthanasia strikes at the heart of the doctor/patient relationship, which is totally dependent on mutual trust between the parties. Once the doctor is licensed to become the agent of death rather than the guarantor of the utmost effort to preserve life, the atmosphere risks being totally changed.

In the Low Countries doctors are now allowed to write prescriptions for death, as well as life. The letter of the law in both Belgium and the Netherlands states that this should only happen after the free and informed written consent, after a period of reflection, of a competent adult citizen. In the Netherlands there is also special provision for euthanasia to be requested by 12 to 18 year olds. Terminally ill patients are covered by both laws, but in Belgium there is also provision (subject to the consent of a second doctor) for cases where the patient is not likely to die in the near future.

However, studies have shown that the use of euthanasia under the provisions of these laws by no means represent the totality of the cases where drugs are administered with the intent of shortening life. In both Belgium and the Netherlands cases of the deliberate hastening of death without the patient's consent are significant.[9] More worryingly still, these non-consent euthanasia cases include minors, amongst them newborn infants,[10] and other vulnerable groups in society.[11]

Response of the international community to euthanasia legalisation proposals

When it saw the proposed law change in the Netherlands, the responsible Committee of the United Nations raised grave concerns[12] including, inter alia:-

The Committee is concerned lest such a system may fail to detect and prevent situations where undue pressure could lead to these criteria [requirements for free informed consent, etc] being circumvented. The Committee is also concerned that, with the passage of time, such a practice may lead to routinization and insensitivity to the strict application of the requirements in a way not anticipated. The Committee learnt with unease that under the present legal system more than 2,000 cases of euthanasia and assisted suicide (or a combination of both) were reported to the review committee in the year 2000 and that the review committee came to a negative assessment only in three cases. The large numbers involved raise doubts whether the present system is only being used in extreme cases in which all the substantive conditions are scrupulously maintained.

The Committee, having taken full note of the monitoring task of the review committee, is also concerned about the fact that it exercises only an ex post control, not being able to prevent the termination of life when the statutory conditions are not fulfilled

The Committee is gravely concerned at reports that new-born handicapped infants have had their lives ended by medical personnel.[13]

The situation in the Netherlands also gave rise to great concern at the Council of Europe[14] where its Parliamentary Assembly adopted a Resolution and a Recommendation to the Committee of Ministers in 1999[15] which the Committee of Ministers later largely adopted at their 790th meeting on 26th March 2002 as their official policy.[16] This includes the statement that:-

The Committee of Ministers therefore welcomes in this respect paragraph 9 (c) of the Assembly Recommendation, to "encourage the member states of the Council of Europe to respect and protect the dignity of terminally ill or dying persons in all respects…by upholding the prohibition against intentionally taking the life of terminally ill or dying persons, while:

i. recognising that the right to life, especially with regard to a terminally ill or dying person, is guaranteed by the member states, in accordance with Article 2 of the European Convention on Human Rights which states that 'no one shall be deprived of his life intentionally';

ii. recognising that a terminally ill or dying person's wish to die never constitutes any legal claim to die at the hand of another person;

iii. recognising that a terminally ill or dying person's wish to die cannot of itself constitute a legal justification to carry out actions intended to bring about death."[17]

An attempt in 2003 by Swiss MP Dick Marty to have this official Council of Europe policy position challenged by the Parliamentary Assembly stalled for the best part of a year and was then rejected at a plenary session in 2004.

As recently as January this year, this position was encouragingly reaffirmed by the Parliamentary Assembly when it adopted an amendment to a Resolution on 'Protecting human rights and dignity by taking into account the previously expressed wishes of patients' stating that: 'Euthanasia, in the sense of the intentional killing by act or omission of a dependent human being for his or her alleged benefit, must always be prohibited.'

Conclusions

In spite of these clear signals of concern about euthanasia legislation from the key international bodies charged with safeguarding the human rights of citizens in all European States, there continues to be agitation for other states to follow the lead set by this tiny minority of European states.

But this is a dangerous lead which clearly is not as straightforward as its proponents would have us believe. First we are told it is about the suffering of unbearable pain, then it becomes an argument for choosing not to carry on with life if a person finds it undignified. First we are told this is strictly for competent adults only, with a terminal illness, who give their free and considered consent, then we find that non-terminal cases, minors and other vulnerable people who cannot give consent on their own behalf are also being included.

The United Nations and the Council of Europe have been right to express strong concerns and to advise against following this lead that pretends to take us in the direction of progress, but is actually risking a return to less civilised times. The only adequate protection for the most vulnerable in our society is to maintain the prohibition on the deliberate taking of life and reaffirm the age-old status of doctors as savers of life who may never contemplate taking it away from anyone by a deliberate act, no matter how well meaning.

Copyright CARE (Christian Action Research and Education) for Europe AISBL 2012

205/14 rue Belliard, B-1040 Brussels, Belgium.

Tel: 32 2 732 1147. Fax: 32 2 732 1228. E-mail: info (at) careforeurope.org

[1] The original text included 'I will give no deadly medicine to any one if asked, nor suggest any such counsel'.

[2] Criminal Law & Assisted Suicide in Switzerland by Prof Dr Christian Schwarzenegger & Sarah J Summers 3rd February 2005 paper to UK House of Lords Hearing, downloadable at:- http://www.rwi.uzh.ch/lehreforschung/alphabetisch/schwarzenegger/publikationen/assisted-suicide-Switzerland.pdf

[3] UN Universal Declaration of Human Rights, Article 3

[4] Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms, Article 2

[5] Termination of Life on Request and Assisted Suicide (Review Procedures) Act" from 2002.

[6] Euthanasia: law and practice in The Netherlands by Sjef Gevers, British Medical Bulletin 1996;52 (No. 2)

[7]'As in previous years, the three most frequently mentioned end‐of‐life concerns were: decreasing

ability to participate in activities that made life enjoyable (90.1%), loss of autonomy (88.7%), and

loss of dignity (74.6%).' From "Fourteenth Annual Report on Oregon's Death with Dignity Act", The Oregon Department of Human Services, Feb. 29, 2012

[8] Concluding observations of the UN Human Rights Committee : Netherlands. 27/08/2001. (CCPR/CO/72/NET) available at http://www.unhchr.ch/tbs/doc.nsf/385c2add1632f4a8c12565a9004dc311/dbab71d01e02db11c1256a950041d732?OpenDocument&Highlight=0,euthanasia

[9] 2.0% of deaths due to legal euthanasia & 1.8% due to euthanasia without consent in Flanders, Belgium in 'Physician-assisted deaths under the euthansia law in Belgium: a population-based survey': Kenneth Chambaere PhD et al, CMAJ June 15, 2010 • 182(9) 1.7% of deaths due to legal euthanasia & 0.4% due to euthanasia without consent in the Netherlands in 'End-of-Life Practices in the Netherlands

under the Euthanasia Act' Agnes van der Heide, M.D., Ph.D. et al, in NEJM 356;19 May 10, 2007

[10] 14.4% of the non-consenting euthanasia cases reported at Ref 9 in the Netherlands concerned minors.

[11] Ibid also 15.3% 'incompetent because of other factors'.

[12]Concluding observations of the UN Human Rights Committee : Netherlands. 27/08/2001. (CCPR/CO/72/NET) available at http://www.unhchr.ch/tbs/doc.nsf/385c2add1632f4a8c12565a9004dc311/dbab71d01e02db11c1256a950041d732?OpenDocument&Highlight=0,euthanasia

[13] Ibid, excerpts from paragraphs 5 & 6

[14] The international body representing 47 states of the wider Europe, uniting EU member states with all other states on the continent (with the exception of Belarus).

[15] Protection of the human rights and dignity of the terminally ill and the dying - Parliamentary Assembly Recommendation 1418 (1999)

[16] Council of Europe CM/AS (2002)Rec1418finalE / 26 March 2002

[17] Ibid, paragraph 5