1.2.1 Postma (1973)

A family relationship also featured in the Postma case. The patient, a severely ill seventy-eight-year-old nursing home resident, was, among other things, partially paralyzed and incontinent, but mentally still quick-witted. A month before her death, she contracted pneumonia, intensely longed for death, and urged her physician and family members to end her life. The doctor was convinced of the severity of her suffering but thought he could not proceed to actively end her life due to the criminal prohibition of termination of life on request. In addition, he feared resistance from the nursing home staff. The patient’s daughter, Mrs. Postma-van Boven, who happened to be a physician, ultimately administered a lethal morphine injection to her mother. She was sentenced by the District Court to only one week’s suspended imprisonment “given the utter purity of her motives.”⁹

The Postma case was a milestone because, for the first time, a court considered the possibility of impunity for termination of life on request. The District Court put the question of whether an exception to the ban could be justified to a physician, a healthcare inspector. In his expert opinion, several due care requirements of the later Euthanasia Act were clearly recognizable. He considered an exception to the ban conceivable if the following criteria were met:

• The patient is incurably ill because of a disease or an accident or is medically considered as such.

• The physical or mental suffering is subjectively unbearable or severe for the patient.

• The patient has expressed a wish to end their life or, in any case, to be relieved of their suffering, if need be, in advance in writing.

• The euthanasia is performed by a physician: either the attending physician or another in consultation with that physician.¹⁰

According to the inspector, the patient would also have to be in the process of dying, or the start of that process would have to be imminent.¹¹ The judges did not accept that requirement.¹² Nor is it mentioned in the Euthanasia Act.

The physician’s appeal to force majeure was rejected because she had not first tried to alleviate her mother’s suffering. Unlike the rulings in the Eindhoven doctor case, this verdict caused much public controversy. Times had clearly changed. The court case resulted in numerous publications on end-of-life decision-making. It also triggered the creation of advocacy organizations committed to the social acceptance and legalization of euthanasia.¹³

1.2.2 Wertheim (1981)

Another important court decision was made in the Wertheim case, involving a euthanasia activist (Mrs. Wertheim-Elink Schuurman) who had assisted another woman in suicide. At the latter’s request, she provided a lethal drug, which resulted in the woman’s death. Her life had been a series of tragedies. She was an alcoholic, lived in isolation, and thought she had cancer, which a later autopsy revealed she did not.

The District Court considered, inter alia, that “according to many nowadays – in contrast to the time when the Criminal Code was drafted – suicide is not necessarily unacceptable in exceptional cases,”¹⁴ and referred to the criteria mentioned in the Postma ruling. These were strengthened by the Court’s explicit acknowledgment that the request for assisted suicide must be voluntary, well-considered, and sustained, that there are no other options available to improve the situation and that the decision to end life was made after the person concerned was fully informed about this. The Court added that a physician must be involved in deciding whether to assist in suicide.¹⁵ Again, these were requirements that ended up in the Euthanasia Act.

Because most of the requirements had not been met, Mrs. Wertheim’s appeal to force majeure in the sense of emergency was unsuccessful. She was sentenced to a suspended prison term of six months with a probation period of one year.¹⁶

After the Wertheim ruling, the Procurators General decided that every case of termination of life on request or assisted suicide that would become known to the Public Prosecutor’s Office should be referred to them for a prosecution decision.¹⁷ Such a decision was made in the Schoonheim case (1984), in which the Supreme Court’s ruling more or less definitively shaped Dutch euthanasia policy.¹⁸

1.2.3 Schoonheim (1984)

The patient was a ninety-five-year-old woman, permanently disabled, bedridden, and entirely dependent on others for her care. She had written an advance directive requesting euthanasia, was still fully competent, and, as her condition deteriorated, asked ever more pressingly for her life to be ended. After a severe breakdown, leaving her unconscious for days and unable to eat or drink, she again insisted on euthanasia to avoid a repeat of the horrible experience. According to Dr. Schoonheim, her family doctor, she found the experiences of everyday life extremely burdensome, causing her to suffer unbearably.

After consulting a junior doctor, the general practitioner decided to comply with his patient’s wishes, whereupon he was prosecuted. Although the charges were initially dismissed,¹⁹ Dr. Schoonheim was nevertheless found guilty on appeal.²⁰ Although no penalty was imposed, he appealed to the Supreme Court, arguing that the appellate court had not sufficiently addressed whether the patient’s suffering was so unbearable that the doctor reasonably had no choice but to spare her that suffering by euthanasia. With respect to this point, the judges sympathized with Dr. Schoonheim. The Supreme Court considered that a physician could successfully invoke force majeure in the sense of emergency if:

• they have carefully weighed the relevant duties and interests at stake;

• they have done so in accordance with medical ethics and according to the medical-professional standard; and

• in doing so, and given the case’s particular circumstances, they have made a choice that can be justified objectively.²¹

It also listed several factors that may be important in the assessment:

• whether, according to professional medical judgment, it was to be feared the person would suffer increasingly from loss of dignity or that their suffering, already experienced as unbearable, would worsen;

• whether it was foreseeable that the person would soon be unable to die with dignity;

• whether there were still possibilities to alleviate the suffering.²²

It is tempting to associate the first two factors with the principle of respect for autonomy. Yet that would amount to an incorrect reading of the ruling. The Supreme Court did not discuss patient self-determination. It considered the factors mentioned primarily as elements of suffering. The Supreme Court overturned the appellate court’s judgment and referred the case to the The Hague Court of Appeal, which upheld the appeal to force majeure and dismissed the charges against Dr. Schoonheim.²³

A considerable period elapsed between the judgment of the Court of Appeal and that of the Supreme Court. More than likely, the decision had been postponed to take note of the position of the Royal Dutch Medical Association (KNMG).²⁴ That physicians’ organization is another major contributor to Dutch euthanasia policy.

1.2.4 The Royal Dutch Medical Association

Euthanasia was on the agenda of the Association’s general assembly meeting a week before the Supreme Court’s ruling in the Schoonheim case. Its board had previously published its position on euthanasia in the Association’s weekly magazine. The board had accepted that euthanasia was now practiced in medicine in the Netherlands, and it was also convinced that doctors were the only ones who should be allowed to perform euthanasia.²⁵

The KNMG board wished to remove the legal uncertainty among physicians who may be considering performing euthanasia by formulating due care requirements. For the physician’s action to be responsible, the patient’s request had to be well-considered and based on their free will. The desire to die had to be sustained and the suffering unacceptable. In addition, the physician who was asked to perform euthanasia had to consult an experienced colleague. Finally, the board considered it fundamentally wrong to register a case of euthanasia as a natural death. The board not only argued that not filling out death certificates truthfully is unworthy of a medical professional, but it also felt that everything that takes place in medicine under the heading of euthanasia should be verifiable. In addition, the board was aware that obfuscating the cause of death in cases of euthanasia would only add to the existing tension between the law and medical practice.²⁶

Dutch courts have always been clear about falsifying death certificates. The obligation to report unnatural deaths is strict. In the Rademaker case (1987), the Supreme Court ruled that euthanasia should always be regarded as a nonnatural cause of death, even if death is inevitable and the moment of dying naturally very near.²⁷

At the assembly, the Association’s President concluded the item by reiterating the board’s explicit wish not to take a moral position on euthanasia. The intention was merely to offer guidance to individual members of the profession contemplating the performance of euthanasia.²⁸

1.2.5 Chabot (1994)

The fact that the Dutch courts chose to be guided by the views of the medical profession was also evident in another case, involving a fifty-year-old woman who had ended her life by taking lethal drugs provided by her psychiatrist, Dr. Chabot. For years, she had been suffering mentally because of past marital problems, the resulting divorce, and the death of both her young sons. After these events, and notwithstanding years of counseling, the woman was determined to die. Dr. Chabot found his patient to suffer continuously, unbearably, and hopelessly. Although she was physically healthy and her suffering was not the result of a psychiatric condition or disorder, there was a complicated grieving process with symptoms of depression. According to the psychiatrist, this condition was treatable, but the patient consistently rejected all further treatment. If she were not offered physician-assisted suicide, she would most likely try to commit suicide herself. The woman had previously saved up medication and attempted suicide. Everything indicated she could make another attempt. Following consultations in writing with seven experts (fellow psychiatrists and ethicists), Dr. Chabot agreed that the woman no longer had any realistic prospects for treatment.

The District Court and the Court of Appeal honored Dr. Chabot’s appeal to force majeure.²⁹ However, the Supreme Court did not, and found the psychiatrist guilty without imposing a penalty.³⁰ Dr. Chabot was blamed primarily because none of the consulted experts had personally examined the patient. Therefore, the untreatability of the suffering had been insufficiently established. In particular, as the suffering was not somatic, the Court considered examination in person by a consultant to be essential.³¹

In addition, it also clarified the following points:

• Psychiatric patients can also request euthanasia voluntarily and well-considered.

• The cause of suffering does not affect the degree to which it is experienced. In other words, the hopelessness and unbearableness matter, not the cause (somatic, psychological, or other).

• Therefore, suffering caused by a psychiatric illness or disorder can justify euthanasia as well.

• In the event of such suffering, courts of law must assess the doctor’s appeal to force majeure as an emergency with extra caution because (1) it must be ruled out that the illness or disorder influenced the patient’s decision-making ability, and (2) it is more difficult to establish the unbearableness and the hopelessness of suffering stemming from a psychiatric cause.

• In principle, there can be no hopeless suffering if the patient freely refuses realistic alternatives for relief.³²

1.2.6 Parliament and Government

The years 1984–1986 proved decisive for Dutch euthanasia policy. Although there was hardly any political input until that period, from 1980 onwards political parties began to make their views known. In 1984, the first bill was introduced, a private member’s bill by social liberal MP Mrs. Elida Wessel-Tuinstra.³³ However, this bill met with resistance from the then center-right government.³⁴

In 1989, the subsequent center-left government ordered an inquiry into the practice of euthanasia.³⁵ Since this study could not be conducted without the cooperation of physicians, some of their wishes were granted: a notification procedure for euthanasia and guidelines for its judicial handling.³⁶ Subsequently, the study revealed that in 1990 euthanasia had been performed an estimated 2,300 times, and assisted suicide about 400 times. It also revealed that a life was ended about 1,000 times without the patient’s request. In only 40 percent of cases had a report been made of the decision-making process; and in only 18 percent of cases had the doctor reported an unnatural death.³⁷

Parliament agreed to the government’s proposal to provide the notification procedure developed for the purpose of the study with a legal basis.³⁸ This was implemented in June 1994. Until the enactment of the Euthanasia Act in 2002, the legal prohibition of euthanasia existed alongside a regulation as to the method of reporting cases – a typical example of Dutch pragmatism.

In 1994, a government without Christian Democrats took office, which had not been seen since 1918, and another study was conducted. As it turned out, the number of euthanasia cases had increased to 3,200 in 1995, but the number of physician-assisted suicide cases had remained the same. The number of times termination of life had occurred without the patient’s explicit request had dropped to 900. The proportion of cases in which peer consultation had taken place had increased to 92 percent, and the notification percentage had risen to 41 percent.³⁹ Because this percentage was considered too low, the government proposed that regional euthanasia review committees be placed between the notifying physicians and the Public Prosecutor’s Office. These would have to assess whether a doctor reporting a case of euthanasia or assisted suicide had acted in accordance with the due care requirements. And if that were the case, the committee should advise not to prosecute.⁴⁰

In 1998, the government introduced a bill.⁴¹ The Act on the Assessment of Termination of Life on Request and Assistance in Suicide (the “Euthanasia Act”) came into force on April 1, 2002. This Act formalized the notification procedure and the consultation requirement while strengthening the review committees’ position. Since the Euthanasia Act came into force, they no longer have a purely advisory role. If a review committee rules that a notifying doctor has met the due care requirements, it does not inform the Public Prosecutor’s Office (and the Healthcare Inspectorate) of the facts.⁴² The case is then closed. The Act added nothing to the due care requirements. But for a proper understanding of these requirements, we have one last court ruling to consider.

1.2.7 Brongersma (2002)

In April 1998, former senator Edward Brongersma ended his life by taking lethal drugs given to him by his family doctor. Eighty-six-year-old Mr. Brongersma had no severe physical illnesses, nor any psychiatric disease or disorder, apart from some age-related complaints such as dizziness and osteoporosis. However, he suffered tremendously from his deterioration, loneliness, dependence on others, and a great sense of futility. Mr. Brongersma also feared that if he delayed too long, he would no longer be physically able to commit his desired suicide.

His general practitioner, Dr. Sutorius, had many conversations with his patient, and he concluded that his wish to die was durable, well-considered, and had come about voluntarily. The doctor was empathetic to Brongersma’s suffering. After consulting a psychiatrist and ruling out a psychiatric disorder, he concluded that no more treatment options were available. A fellow general practitioner and a psychiatrist confirmed the unbearableness and hopelessness of the patient’s suffering. Thereupon, Dr. Sutorius assisted in Mr. Brongersma’s suicide.

The District Court considered that there was no consensus in medical ethics as to whether a narrow or a broad definition should be used regarding the unbearableness of suffering. The judges opted for a broad one. Because all the due care requirements had been met, the physician could, according to the District Court, rightly invoke force majeure and the charges against him were subsequently dropped.⁴³

The Public Prosecutor’s Office questioned whether being “tired of life,” being “done with living,” or “suffering from life” fell within the medical domain. According to the prosecution, the due care requirements developed in case law and those of the forthcoming Euthanasia Act were limited to that domain. The Court of Appeal endorsed this view and found the general practitioner guilty but did not impose any penalty.⁴⁴ Dr. Sutorius appealed the Court’s judgment in cassation. In December 2002, the Supreme Court decided that only suffering predominantly caused by a medically classifiable somatic or psychological illness or disorder can legitimize deliberate life-terminating acts by a physician. And in the case of Mr. Brongersma, it concluded, no such legitimization existed. Thus it revoked a core consideration of the Chabot judgment, according to which the cause of suffering is irrelevant.⁴⁵

In its judgment, the Supreme Court referred extensively to the legislative history of the Euthanasia Act. And because it was rendered after the latter’s enactment, the so-called classification requirement is inextricably linked to the Act’s criterion of suffering.

1.4.1 Criminal Code

Since April 1, 2002, the provisions of the Criminal Code read as follows. The italicized parts are the additions due to the Euthanasia Act.

1.4.2 Due Care Criteria, Written Requests, and Minors

The due care requirements are formulated in Article 2, paragraph 1 of the Euthanasia Act as follows:

Paragraphs 2, 3, and 4 of Article 2 of the Euthanasia Act contain the following provisions regarding written advance directives requesting euthanasia and minors:

1.4.3 Notification Procedure

Notification and review were considered indispensable by the legislator. On the one hand, the procedure ensures proper monitoring and continuous improvement of the quality of life-terminating acts on request by physicians; on the other, it ensures that the practice of euthanasia is transparent and verifiable.⁵²

Since the Euthanasia Act came into force, the notification procedure for the termination of life on request and the provision of assisted suicide is as follows. In accordance with the requirements of the Burial and Cremation Act, the doctor does not prepare a death certificate but reports an unnatural death to the municipal coroner and provides them with a reasoned account.⁵³ The coroner, in turn, notifies the Registrar’s Office and the Public Prosecutor’s Office to obtain a certificate of no objection to burial or cremation.⁵⁴ The municipal coroner verifies how and by what means the patient’s life was ended;⁵⁵ they then forward the doctor’s report to the competent regional euthanasia review committee.⁵⁶

1.4.4 The Regional Euthanasia Review Committee

There are five regional euthanasia review committees composed of a lawyer acting as chairperson, a physician, and an ethicist. They assess whether the physician acted in accordance with the statutory due care requirements. The committee rules within six weeks of receiving the report and its ruling is communicated to the physician in writing. The case is closed if the committee rules that the doctor has acted with due care. If, in the committee’s opinion, the doctor did not meet the statutory requirements, its findings are sent to the Board of Procurators General of the Public Prosecutor’s Office and the Healthcare Inspectorate. Each of these parties will decide whether action should be taken, and if so, what form the action should take.⁵⁷

The regional euthanasia review committees assess reported cases of euthanasia against the statutory due care requirements and, in doing so, they interpret them. Some years ago, the euthanasia review committees laid down their policy in a guideline. The Euthanasia Code 2018 (revised in 2020 and 2022) outlines the aspects and considerations that the committees consider relevant regarding the statutory due care requirements. The Code can be found on the committees’ website. It should be seen as a summary of the considerations published by the committees, of particular interest to physicians and consultants as well as meeting the information needs of patients who wish to make a request for euthanasia and of other interested parties.

3.1.1 The Euthanasia Review Committee

The competent euthanasia review committee had ruled that the geriatrician – Dr. Arends – had not complied with the due care requirements.⁹¹ To begin with, she could not have concluded unequivocally that the request was voluntary and well-considered. Her patient, who had Alzheimer’s disease, had never made a verbal request for euthanasia, nor was there a clear, written advance directive to that effect.⁹²

Considering the patient’s history and the oral testimony given by the geriatrician and the patient’s general practitioner, the committee established the patient was no longer competent when her life was ended, at least not insofar as regards euthanasia. She had never discussed this subject with the geriatrician, nor could she have discussed it. By her own admission, the geriatrician decided to terminate her patient’s life solely on the basis of the patient’s written advance directive.⁹³

According to the review committees’ policies at the time, which set out the practicalities of the statutory due care criteria, a written advance directive must make clear that it is unmistakably applicable to the situation that has arisen. The physician must then consider the patient’s medical history and all the other specific circumstances. They must interpret the patient’s behavior and statements, both during the course of the illness and immediately preceding the performance of the euthanasia. At that moment, it must be abundantly clear that performing euthanasia is commensurate with the advance directive and that there are no contraindications (i.e. clear signs that the patient does not want to have their life terminated). At that moment, it will also have to be clear that the patient experiences their suffering as unbearable.⁹⁴

In this case, shortly after being diagnosed with Alzheimer’s, and four years before her death, the patient had drawn up a written advance directive with a dementia clause. Her reasons for wanting euthanasia were apparent: she did not want to go into a nursing home for elderly people with dementia, and she wanted to part with her nearest and dearest in a dignified manner before it would be too late.⁹⁵ Originally, the dementia clause began with: “I want to exercise my legal right to have voluntary euthanasia performed on me when I am still somewhat competent and when I am no longer able to live at home with my husband” (emphasis added).⁹⁶

However, it became apparent that the patient had changed her advance directive one year before she died. The first sentence now read: “I want to exercise my legal right to have euthanasia performed on me when I consider the time right for such” (emphasis added).⁹⁷ And whereas in the earlier version of the directive the clause had ended with “Trusting that by the time the quality of my life has reached the situation described above, I be euthanized voluntarily,”⁹⁸ in the second version, the last sentence now read as follows: “Trusting that at such time as the quality of my life has become so poor that euthanasia be performed at my request.”⁹⁹

In the year before her death, the patient had made it clear to her general practitioner that she did not want to go into a nursing home and that, if this were to happen, she wanted euthanasia to be performed. According to her general practitioner, the patient had never expressed a desire for euthanasia to be performed when she was still competent. And although, by the end of the year, she had apparently frequently said at home that she wanted to die (but always with the addition “but not now”), she had never actually asked the general practitioner to perform euthanasia. The review committee considered it plausible that the woman had lost her competence to decide on euthanasia during that year. When she was eventually admitted to a nursing home, her husband asked the resident geriatrician to perform euthanasia on the basis of her written advance directive.¹⁰⁰

The review committee found there were two mutually exclusive dementia clauses, resulting in doubts about whether the patient wanted the written advance directive to replace a verbal request. Taking also into account the irreversibility of termination of life, the committee concluded that the physician should have erred on the side of caution. It therefore considered that the provisions in the Euthanasia Act concerning a written advance directive were not applicable in this case. And, because a verbal request had also not been made, the review committee concluded the geriatrician had not complied with the first statutory due care requirement.¹⁰¹

As regards the requirement of due medical care and attention in terminating the patient’s life, the committee concluded as follows. Prior to the euthanasia, the geriatrician had put Dormicum (midazolam) in her patient’s coffee. This had been done surreptitiously, although it had been discussed with the patient’s husband and daughter, to deprive her of the opportunity to resist the administration of the lethal drug. Furthermore, when the drip was inserted, the patient shied away. She woke up and tried to sit up when the thiopental was being administered.¹⁰² Her family helped hold her down so the geriatrician could quickly administer the remainder of the dose. According to the review committee, the physician wrongfully failed to consider whether this could be interpreted as a relevant sign that the patient did not want the drip inserted or injected with a syringe. Indeed, she should have seriously considered this possibility. Therefore, the physician should have ceased the procedure to assess the situation, and she should not have continued once the patient had to be held down. The committee emphasized that coercion, or even the appearance of coercion, needs to be avoided at all times.¹⁰³

3.1.2 Disciplinary Boards and District Court

The committee’s ruling was subsequently forwarded to the Public Prosecutor’s Office and the Healthcare Inspectorate. Both decided to act. Initially, the latter met with success. The Regional Disciplinary Board for Healthcare ruled that the Inspectorate’s complaint was well-founded and reprimanded the geriatrician.¹⁰⁴ On appeal, the Central Disciplinary Board for Healthcare reduced the sanction to a warning. It found that the physician had acted reprehensibly, but only “to a limited extent.” The Board’s lowering of the sanction was primarily motivated by the thoroughness of the physician’s examinations before her patient’s death and the degree to which other healthcare professionals were involved. She had also sought advice from several other professional care providers. And, unlike the Regional Disciplinary Board, the Central Disciplinary Board sympathized with the manner in which the geriatrician had administered the Dormicum.¹⁰⁵

After the Central Disciplinary Board had ruled, the District Court rendered its judgment in the criminal case. The Public Prosecutor’s Office had principally charged the physician with performing termination of life on request and, alternatively, with murder. But it had also asked the District Court not to impose a penalty.¹⁰⁶ The District Court considered there to be sufficient proof for an express and earnest desire on the part of the patient, as required by Article 293, paragraph 1 of the Criminal Code. According to the Court, it was apparent from discussions in parliament at the time that the legislator clearly intended termination of life on the basis of an advance directive to fall within the scope of the Euthanasia Act. And in this case, an advance directive was at hand. Perhaps the dementia clause was not entirely unambiguous. Still, if it were to be interpreted that the patient only wanted euthanasia as long as she could decide the exact moment herself, this would have deprived her advance directive of any meaning.¹⁰⁷

According to the Public Prosecutor’s Office, it was apparent from the parliamentary proceedings that the first due care requirement entails an obligation to verify written advance directives so long as incompetent patients can still make concrete and coherent statements about whether they want to live or die. The geriatrician had failed to comply with this requirement.¹⁰⁸ The District Court considered obtaining verbal verification from an incompetent patient about their wishes or suffering to be impossible. Such a requirement would obviate an advance directive. The Court was aware of the existence of medical guidelines which also oblige physicians to try to verify the current viewpoints of patients regarding ending life in the event of incompetence; however, in its opinion, these rules were stricter than the statutory requirements. Legally, according to the District Court, such an obligation does not exist.¹⁰⁹

The defendant and the Public Prosecutor’s Office subsequently agreed to bring the criminal case immediately before the highest judicial body in the Netherlands. In addition, the Procurator General lodged an appeal in cassation against the decision of the Central Disciplinary Board, something that had never occurred before.

3.1.3 The Supreme Court and the Euthanasia Code Revised

On April 21, 2020, the Supreme Court pronounced two judgments.¹¹⁰ In the criminal case, it upheld the ruling of the District Court. By dismissing the charges against the geriatrician, the District Court had not erred; the geriatrician had acted with appropriate due care.

According to the Supreme Court, the Euthanasia Act is unambiguous: a physician is allowed to act based on a written request for termination of life once that has been made by a patient. For a physician to be allowed to carry out such a request, the Act stipulates that the patient must be no longer capable of expressing their will. It does not make any distinction with respect to the possible causes of that incapacity. However, it is apparent from the parliamentary proceedings that the legislator explicitly included dementia as such a possible cause. A physician, therefore, has an obligation to interpret a written request to determine the patient’s intentions. In doing so, they must consider all the relevant circumstances and not just the literal wording of the request. At a minimum, the request must be such that the patient asks for termination of life in a situation where they can no longer determine or express their will about having their life ended due to advanced dementia. Moreover, if the patient wants to see this request carried out in cases where there is no physical unbearable suffering, it will have to be clear from the request that the patient considers their (future) state of advanced dementia itself to be unbearable. Furthermore, it is essential that the physician carefully assesses the patient’s current situation so as to compare this situation with the circumstances described in the written request, whereby the physician has to pay special attention to contraindications conflicting with that request in the period following the drafting of the request by the patient, in particular oral statements by the patient inconsistent with that request. If these statements are made in the period after the point at which the patient is no longer able to determine or express their own will due to advanced dementia, they can no longer be automatically construed as an expression of will explicitly aimed at the withdrawal or modification of the earlier written request.¹¹¹

The Supreme Court also quashed the decision of the Central Disciplinary Board in the disciplinary case. Its view that – in principle – there is no room for interpretation of a written request, was considered incorrect.¹¹²

Because of both rulings, the joint euthanasia review committees felt compelled to amend the Euthanasia Code 2018, which sets out their interpretation of the statutory due care requirements. Consequently, the Code provides guidance for physicians considering requests for euthanasia, too. The following changes were made:

1. 1. The written advance directive containing a request for termination of life must be interpreted with a view to ascertaining the patient’s intention. In doing so, the physician must consider all the circumstances of the case and not merely the literal wording of the written request. Thus, there is room for interpretation.

2. 2. Determining whether there is hopeless and unbearable suffering in the case of advanced dementia is a medical-professional judgment reserved for the physician. Therefore, the euthanasia review committee must exercise restraint in evaluating this professional medical judgment and ask whether the doctor could reasonably conclude that the patient was suffering unbearably.

3. 3. When euthanasia is to be performed on a patient who is incompetent as a result of advanced dementia, the physician does not need to consult with the patient about the time and manner in which the euthanasia will be carried out. Such a conversation is futile because such a patient lacks understanding regarding this topic.

4. 4. If there are indications that agitation or aggression may occur during the performance of euthanasia on an incompetent patient, the medical standards to be observed by the physician may lead them to conclude that premedication is appropriate.¹¹³

3.1.4 A Lost Opportunity

The Supreme Court only referred to the Act’s legislative history in its rulings. There are no references to fundamental rights, which is remarkable, even incomprehensible. One can only speculate why it decided to limit applicable law in this way. Of course, judicial review of statute law against fundamental rights as protected by the Dutch Constitution is not an issue since the latter prohibits this. Still, treaty provisions such as those of the Convention for the Protection of Human Rights and Fundamental Freedoms (or the European Convention on Human Rights, ECHR), to which the Netherlands is a party, are justiciable. The Constitution requires national courts of law to declare laws of national origin inapplicable if they are incompatible with self-executing international treaty provisions.¹¹⁴

The Dutch Euthanasia Act is believed to be generally consistent with relevant ECHR provisions,¹¹⁵ as the European Court of Human Rights (ECtHR) in Strasbourg has adopted a wide margin of appreciation in its rulings on assisted suicide. However, the Coffee Euthanasia case was obviously a hard case. On several occasions, the ECtHR has ruled that decisions about one’s death fall within the scope of ECHR, Article 8. In Haas v. Switzerland (2011), it stated: “an individual’s right to decide by what means and at what point his or her life will end, provided he or she is capable, or of freely reaching a decision on this question and acting in consequence, is one of the aspects of the right to respect for private life within the meaning of Article 8 of the Convention.”¹¹⁶

However, interferences with the exercise of this right are permitted. The ECtHR continued as follows:

The Strasbourg Court has acknowledged that state parties to the ECHR have divergent views on voluntary termination of life; a positive state obligation to facilitate euthanasia or assisted suicide is therefore not implied in Article 8. But, when a state does decide to allow such practices, it is obligated – because of the right to life as protected by Article 2 – to implement measures to prevent those who are unable to make such a decision freely and with a full understanding of its implications from taking their own lives; measures that may restrict the exercise of everyone’s right to decide by what means and at what point their own life will end.

The Supreme Court missed the opportunity to test the Euthanasia Act’s provision on written euthanasia requests against Articles 2 and 8 of the ECHR. Therefore, we do not know whether it considers it within the margin adopted by the ECtHR. From a fundamental rights perspective, we are kept in the dark as to whether the incompetent but once competent are protected by the right to life or the right to respect for privacy. Constitutionally, the Supreme Court did not do what it is supposed to do. Its rulings in the Coffee Euthanasia case are authoritative merely because of their judicial ranking, not because of their merits.

Apparently, Article 2, paragraph 2 of the Dutch Euthanasia Act was in as much need of interpretation as the patient’s written euthanasia request.¹¹⁸ Interpreted literally, the Act’s due care criteria require the patient to be fully competent at the time of euthanasia. Such a patient’s will can easily be determined. However, once they are “no longer capable of expressing their will,” or seem incapable of doing so, the written request for euthanasia that was drafted when they were “capable of making a reasonable appraisal of their interests” becomes guiding. According to the Supreme Court, the ability to express or determine one’s will is something a demented patient can lose, and once it is lost – to be determined by the physician – it is lost forever. Whether that is consistent with the realities of dementia or not, something of a caesura is assumed between a former self and a present self, if there is such a thing as a present self in patients with advanced dementia.

A request for euthanasia by a former self somewhat resembles euthanasia asked for by a third party. Euthanasia requested by a proper third party is also possible in the Netherlands.

3.2.1 The Groningen Protocol

On March 15, 2007, the Netherlands introduced rules on the intentional termination of life of newborns (children under the age of one) suffering severely. Those rules, revised on February 1, 2016 and laid down in a ministerial regulation, are by and large similar to the ones on euthanasia: they are embedded in criminal law, they require the fulfillment of due care requirements, and they provide for procedures of notification and review by an expert committee.

These rules are the result of developments in the 1990s. In 1992, the Dutch Pediatrics Association published a much-debated report on the limitations of neonatology.¹¹⁹ And in the mid 1990s, the question of whether one could speak of due care and whether the physician in question could, therefore, successfully invoke force majeure in specific cases was also submitted to the court in two cases, those of Prins (1995) and Kadijk (1996).¹²⁰

In March 1993, at the parents’ request, Dr. Prins administered a lethal injection to a severely handicapped newborn who was in great pain and did not have long to live. The Court of Appeal granted the gynecologist impunity since he had acted with due care. And in April 1994, Dr. Kadijk ended the life of a severely handicapped three-week-old girl. The child suffered from a chromosomal abnormality, was in great pain, and had little chance of life. At the request of the parents, who wanted to take care of their firstborn and let her die at home, the doctor allowed the child to die peacefully in her mother’s arms. In the Netherlands, treatment of a nonviable newborn infant is usually not initiated. In the Kadijk case, however, treatment was started. The baby was even resuscitated on the second day when a respiratory arrest occurred. But since the girl could not drink and needed to be tube fed, an emergency was created compelling the general practitioner to act. Dr. Kadijk was granted impunity by the appellate court.

Even though the charges against both physicians were dismissed, doctors felt burdened by the risk of being prosecuted for murder, despite being convinced of having acted responsibly. Partly in response to these concerns, the government decided, in 1996, to set up an advisory committee for termination of life in newborns, with the following task: “To advise on the basis of requirements of due care for medical intervention with respect to newborn infants with serious disorders, on a procedure for reporting and reviewing cases in which that intervention has led to deliberate termination of life.”¹²¹

In its report, the committee considered that when it comes to decisions concerning the end of life in newborns, a distinction must be made between deliberate termination of life on the one hand and other decisions (such as refraining from treatment) on the other. While the latter are acts of standard medicine not requiring special review, decisions to hasten the end of life do require specific standards and specific review. The report then elaborated on the requirements of due care that are relevant in cases of intentional termination of life in severely ill newborns. In doing so, it followed the conditions formulated in the Prins and Kadijk court rulings. After considering the objectives of the assessment and the preconditions for adequate assessment, the committee expressed a preference for retrospective assessment by a national multidisciplinary review committee. It also felt that the existing criminal law framework should remain largely intact, due in part to the provisions of international law.¹²²

Even before the government decided to set up a committee, the Dutch Pediatrics Association accepted a protocol for active termination of life in severely ill newborns as a national guideline in the spring of 2005. This protocol, better known as the Groningen Protocol as it was drawn up by the Groningen Academic Hospital, indicated how termination of life in severely ill newborns is to be handled with due care.¹²³ Although the protocol gave rise to international outcry,¹²⁴ it was consistent with the Prins and Kadijk court rulings as well as the advisory committee’s recommendations. Later that year, the government decided to set up a national expert committee that would retrospectively assess against the required standards of care. To this end, the committee should receive information from the doctor via the municipal coroner. The committee’s judgment would not replace the decision by the Public Prosecutor’s Office as to whether to prosecute but – as an expert opinion – it would serve as advice. The committee would also review reported cases of late-term abortion, also a criminal offense according to Dutch law. The regulation came into effect in February 2007.¹²⁵

3.2.2 Murder, Due Care, Notification, and Review

According to the Order establishing the Review Committee on Late-Term Abortions and Termination of Life in Newborns – as the regulation is called nowadays – and the accompanying instruction of the Public Prosecutor’s Office, a physician is granted impunity if they successfully appeal to force majeure in the sense of emergency.¹²⁶

A physician who has terminated a newborn’s life is expected to notify the municipal coroner, who verifies how and by what means life was ended. The coroner must inform the Public Prosecutor’s Office to obtain a certificate of no objection to burial or cremation and forward the doctor’s report to the Review Committee on Late-Term Abortions and Termination of Life in Newborns.¹²⁷

The Committee consists of six members. Its chair is appointed from among their number. Four members are physicians from several disciplines related to the issues at hand (gynecology, neonatology, and child neurology). One member is an expert in ethics, and one is a lawyer.¹²⁸ It reviews on the basis of due care criteria and communicates its findings to the physician and the Public Prosecutor’s Office within six weeks. If the physician is found to have acted with due care, the latter will, in principle, not prosecute. If they are found not to have met the requirements, the Healthcare Inspectorate will also be informed.¹²⁹

According to Article 7 of the Order, a physician has acted with due care in terminating the life of a neonate if:

The Review Committee publishes its findings on its website.¹³⁰ Since the predecessor of the current Order came into force in March 2007, it has received two notifications. In both cases, the physician was found to have acted with due care.¹³¹

The due care requirements of the Order differ significantly from those of the Euthanasia Act. First, the patients cannot request intentional life termination since they are incompetent. But whereas the Euthanasia Act stipulates that the patient requests and the physician consents, it is the parents who consent under the Order. As parental consent is the necessary condition, this implies that the physician can request to terminate their newborn’s life. But it also allows parents to make a request themselves. When the Dutch health minister informed parliament in June 2022 of a forthcoming amendment to the Order (as discussed in the next paragraph), he had a letter accompanied by the results of a study into end-of-life decision-making concerning forty-four severely suffering children aged between one and twelve.¹³² Brouwer, Maeckelberghe, and Verhagen presented ten cases in detail.¹³³ In all of these cases, the parents were the requesting party.¹³⁴ This implies that it is the parents who guide the physician regarding the unbearableness of the suffering, and this being its subjective aspect (as opposed to its hopelessness), since the child is unable to do so. Of course, this begs the question of whether the suffering of a severely ill child is really distinguishable from that of its parents.¹³⁵

Second, although the Public Prosecutor’s Office must always be informed, the actual number of notifications has been meager.¹³⁶ According to the latest evaluation study, published in 2022, this is probably due to low levels of confidence in the Review Committee and fear of criminal prosecution. Even when the Committee has determined that all requirements have been met, the Public Prosecutor’s Office will still make its own assessment. When the occasion arises, doctors would rather opt for cessation of treatment rather than active termination of life.¹³⁷

Finally, although the Review Committee has barely had the opportunity to interpret the due care requirements of the Order, because of the almost complete lack of notifications, it still saw fit to be more specific. Of particular interest is the definition given by the Review Committee in its annual reports of “termination of life in newborns,” which is said to mean: “the deliberate shortening of a newborn infant’s life where the child is suffering unbearably and is without prospect of improvement (current suffering) or can be expected to suffer unbearably and have no prospect of improvement in the future (future suffering). The child’s state of health precludes any prospect of independent life.”¹³⁸ This definition, which raises new questions, is not provided in the Order itself, nor can it be found in the explanatory memorandum provided by the responsible ministers.

3.4.1 The Need for Clarity and Comfort

Since 2012, the euthanasia review committees have registered cases of termination of life involving dementia as a separate category. In that year, they received forty-two notifications in this category (1 percent of the total number of notifications in that year).¹⁴⁴ In 2022, the number had gone up to 288 (3.3 percent).¹⁴⁵ Since 2012, the numbers have been increasing in absolute and relative terms. From 2012 to 2022, 1,612 life-termination cases were reported in this category; in 28 of these cases, the procedure was performed on the basis of a written advance directive.

By 2019, the need for clarity was apparent from the relatively large number of judgments (98) in the dementia category published on the website of the review committees and the relatively large number of notified cases (4) that were found to be at odds with the statutory due care criteria.¹⁴⁶ Obviously, the Supreme Court felt that the disparity between the judgments of both disciplinary boards and of the criminal court in the Coffee Euthanasia case did not contribute to the guidance of physicians.

Nevertheless, the Supreme Court’s rulings at least brought about some certainty. Physicians considering whether or not to act upon a written euthanasia request will have been somewhat reassured. The Court unequivocally established that it is up to them to interpret the written advance directive, whereby all of the circumstances of the case will have to be considered, and not just the literal wording of the advance directive, to determine the patient’s intentions.

Finally, by ruling that the question of whether the physician performing the euthanasia has acted in compliance with the due care criteria should be assessed based on the insights and guidelines of the medical professional, the criminal courts have been made to understand that they should exercise caution. And the Public Prosecutor’s Office has also been sent the clear message not to pursue criminal prosecution too lightly.

3.4.2 Interpreting Euthanasia Law

However, some critical comments are warranted. The Coffee Euthanasia case hinges entirely on interpretation, on the interpretation of the advance directive and on the interpretation of the Euthanasia Act’s provision on written advance directives. In the first sentence of the latter provision, two capabilities are mentioned: the capability to express one’s will and the capability to appraise one’s interests reasonably. The absence of the first capability is required when a physician is considering whether or not to comply with the written advance directive. In contrast, the second capability needs to be present when that directive is being drafted. It is up to physicians to reconcile both parts of that sentence in their decision-making. A literal interpretation of the sentence would require a reticent attitude on their part as regards written euthanasia requests by demented patients. After all, only a profoundly comatose patient is entirely unable to express anything. In the Coffee Euthanasia case, the euthanasia review committee, the Public Prosecutor’s Office, the Inspectorate, and both disciplinary boards took this position.

On the other hand, the geriatrician’s interpretation of that sentence made her feel confident enough to declare that she would have performed euthanasia even if her patient had indicated she did not want her life ended.¹⁴⁷ The criminal court clearly favored this interpretation. The practical implications of the different interpretations are enormous. But which interpretation is the correct one?

As discussed in Section 3.1.3, the Supreme Court based its judgment in the criminal case solely on legislative history. The reference list of its rulings consists of just a few references to parliamentary documents that are more than twenty years old.

Now, the Euthanasia Act is a text first and foremost, and legal texts have in common with many other “public” texts that the original intention of the empirical author is not particularly relevant for a proper understanding. Like literary works, legal texts are produced for a community of readers. The empirical author of a public text knows its readers will not necessarily interpret it in accordance with the author’s original intent.¹⁴⁸ A published novel is not a secret diary, with the author and reader being the same person. Nor is it a personal letter, with a recipient who could contact the sender and ask them what they meant. A law is no different, even when the author has left many notes about what was intended in the form of parliamentary documents. Once released to the public, the text of the law is what we must hold on to.¹⁴⁹

On the other hand, a legal text cannot have every meaning attributed to it by its readers. A text is not a picnic, as Umberto Eco once said, to which the words are taken by its author and its meaning by its readers.¹⁵⁰ A text can have multiple meanings but does not allow for all interpretations. Some are acceptable, and others are not. A text has meaning in itself. An assertion about what Eco calls its intentio operis can only be proved by placing it alongside the text as a coherent whole. Any interpretation of one of its parts can be accepted if it is confirmed by other parts of the text, just as any interpretation given thereof must be rejected if it contradicts them. The more that part is confirmed, the more acceptable its interpretation is.¹⁵¹ The most acceptable interpretation is the one – using Ronald Dworkin’s terminology – with the best “fit.”¹⁵² Did the Supreme Court provide such an interpretation of the first sentence of the Act’s provision on written advance directives? Did it come up with the most acceptable interpretation? Has it succeeded in finding its intentio operis?

Suppose that on these pages I suggest to readers an interpretation of an enigmatic passage in Foucault’s Pendulum by Umberto Eco, a passage to be found in chapter 107 of that book. And suppose I then claim this interpretation to be the correct one. However, if I subsequently add that I have only read that chapter, my claim will hardly be taken seriously by readers who are familiar with this 120-chapter novel. Such an interpretative strategy will startle many. An interpretation of a part of a text would indeed have to be based on an understanding of the entire text as a coherent whole. And what applies to literary criticism also applies to law. The entire text needs to be read and understood as a coherent whole, a text which – unlike Eco’s bulky novel – is written by countless authors.

As regards the first analogical application of the regulatory concept, it is essential to realize that the Dutch law on euthanasia is not solely made up of the Euthanasia Act. The Burial and Cremation Act is also relevant, as are provisions of the Criminal Code on termination of life on request and assisted suicide, which are in turn embedded in fundamental rights protected by the Dutch Constitution and numerous European and international human rights treaties to which the Netherlands is a party. Again, no references to fundamental rights are made in either of the Supreme Court’s rulings in the Coffee Euthanasia case. It should have spoken out clearly on how the Act’s provision concerning written advance directives relates to those points of reference. The Supreme Court should have come up with a coherent understanding of the entirety of Dutch euthanasia law. It should have grasped its underlying principles, produced a sound theory of all applicable rules, and presented an interpretation of the provision that best fits that theory.

The Supreme Court may very well have come up with the most acceptable interpretation, but it has failed to provide proof. It simply did not read the entire book on Dutch euthanasia law. It skipped the chapter on fundamental rights.

3.4.3 No Basis in Statute Law

Unwillingness to “read the entire book” is also apparent in the second analogical application of the regulatory concept. The Order establishing the Review Committee on Late-term Abortions and Termination of Life in Newborns is a ministerial regulation issued jointly by the health and justice ministers. Unlike those of the Euthanasia Act, its rules are not laid down in statute law.¹⁵³

In the Netherlands, fundamental rights are protected in two ways. The Netherlands is a party to numerous international and European human rights treaties. In addition, the Dutch Constitution of the Kingdom of the Netherlands contains a catalog of fundamental rights. Although it does not have provisions on the right to life, the Constitution does safeguard the right to physical integrity. Article 11 reads: “Everyone has the right to the inviolability of their body, subject to limitations to be set by or under the law.” However, all liberties protected by the Dutch Constitution are “subject to limitations set by or under the law.” For restrictions on exercising the right to physical integrity, statute law or regulation based on statute law is required. Constitutionally, either the legislator issues restrictive rules, or another body granted regulatory power by the legislator does. However, the legislator did not come up with such rules, nor did it grant such a power to another body. The Order establishing the Review Committee on Late-Term Abortions and Termination of Life in Newborns is a set of rules without any basis in statute law. The Dutch legislator has failed to fulfill its constitutional obligations. The Order (including its predecessor) has been evaluated twice. In the latest study report, the legislator was urged to provide statute law.¹⁵⁴

Policymakers also appear unwilling to bring fundamental rights into the equation. However, they must respect the integrity of the law as well. And since the proposed rules on termination of life in children aged between one and twelve are nothing but an addition to the existing Order, the chapter on fundamental rights will likely be ignored again.

3.4.4 Too Hard to Fit in?

From a fundamental rights point of view, the second and third analogical applications of the regulatory concept, especially, are challenging. Being a party to numerous human rights treaties, the Netherlands is obliged to harmonize its laws and rules with their provisions. As far as the performance of euthanasia on children is concerned, the legal framework provided for by the ECHR is supplemented by provisions to be found in the Convention on the Rights of the Child (CRC). The most relevant are:

• Article 6: States Parties recognize that every child has the inherent right to life. States Parties shall ensure, to the maximum extent possible, the survival and development of the child.

• Article 3: In all actions concerning children … the best interests of the child shall be a primary consideration.

• Article 4: States Parties shall undertake all appropriate … measures for the implementation of the rights recognized in the present Convention. Regarding economic, social, and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources.

• Article 23: States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life … . States Parties acknowledge the right of the disabled child to special care.

• Article 24: States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health.¹⁵⁵

As discussed in Section 3.1.4, the right to life is also protected by the ECHR. According to Article 2, everyone’s right to life is protected by law. Although the right to life is not absolute, the permissible interferences by the state with exercising that right are extremely limited in number. For this reason, the right to life enjoys a special status among the rights and freedoms protected by the ECHR.

The state party to the ECHR is not merely obliged to abstain from acts violating the right to life. It also has a positive obligation to take measures to protect everyone’s right to life. To that end, it must have rules prohibiting deprivation of life backed by effective enforcement. Traditionally, criminal law has been the only appropriate instrument as far as intentional ending of human life is concerned.¹⁵⁶ However, since the ECtHR’s ruling in the case of Pretty v. United Kingdom (2002), intentional ending of life on request by the person concerned is considered to be the exception. Because of that ruling, states that are party to the ECHR are no longer obliged to make such acts punishable by law. As regards the total ban on assisted suicide in the United Kingdom, the European Court stated that “[Mrs. Pretty] is prevented by law from exercising her choice to avoid what she considers will be an undignified and distressing end to her life. The Court is not prepared to exclude that this constitutes an interference with her right to respect for private life.”¹⁵⁷

In Haas v. Switzerland (2011), the European Court clarified that “an individual’s right to decide by what means and at what point his or her life will end, provided he or she is capable of freely reaching a decision on this question and acting in consequence, is one of the aspects of the right to respect for private life within the meaning of Article 8 of the Convention.”¹⁵⁸ Consequently, interferences by public authorities with the exercise of that right must meet the requirements of Article 8, paragraph 2. They must be in accordance with the law, meet a pressing social need, and be proportional to one of the legitimate aims mentioned in that paragraph. And protection of the right to life (of those incapable of freely reaching a decision about what means and at what point their lives will end), as enshrined in Article 2, is such a legitimate aim.

However, the Order establishing the Review Committee on Late-Term Abortions and Termination of Life in Newborns is not about intentional termination of life and of weighing the right to privacy against the right to life. The Order and the proposed amendment are about intentional termination of life in incompetent human beings, that is, without request. No leeway is given by the ECtHR regarding the intentional ending of life without request. In its ruling in Haas v. Switzerland, the Court added,

And, as with all fundamental rights protected by the ECHR, their enjoyment may not be merely “theoretical or illusory.”¹⁶⁰

In March 2007 the predecessor of the current Order took effect. Curiously, this regulation only addressed the establishment of a national review committee. The due care requirements could be found in the explanatory memorandum.¹⁶¹ During its evaluation, which took place in 2013, it turned out that the regulation was inadequate. There was almost no reporting because of a lack of clarity regarding the due care requirements, especially concerning the criterion of suffering, and because of a lack of trust among physicians.¹⁶²

As a result, the regulation was replaced by the current one. Four changes were made. First, the requirements of due care were included in the regulation itself. Second, the composition of the committee was changed. From now on, it would consist of six members instead of five (four doctors, an ethicist, and a lawyer), with the chair no longer automatically being the lawyer.¹⁶³ Third, the Public Prosecutor’s instruction was renewed. The expert committee’s judgment would no longer be just advice to the prosecutor; it would be a “weighty” one.¹⁶⁴ In effect, the prosecutor’s judgment thus became a settlement judgment. And finally, the concept of suffering was broadened, not in the regulation itself but in the explanatory memorandum:

This addition was the result of a position paper adopted by the Royal Dutch Medical Association in 2013, which included the following: “The prognosis regarding the current and future state of health is the basis for the decision to discontinue a life-prolonging decision. In doing so, the physician can consider the expectations regarding the degree of suffering, the severity of the treatment program, the life expectancy, the possibilities for self-reliance, and the degree of dependence on the medical care system.”¹⁶⁶ The Review Committee accordingly adopted a definition of termination of life in newborns in its annual reports, as discussed in Section 3.2.2.

Increasingly, the pediatric profession has successfully kept criminal law at bay. However, the amended rules for termination of life in newborns have not led to more notifications. There is little reason to suppose the extension to those aged between one and twelve will be successful in this respect. Presumably, neonatologists and pediatricians would like to see a review procedure similar to the one in the Euthanasia Act. However, by effectively reducing the prosecutor’s judgment to a settlement judgment, the enjoyment of the right to life for severely suffering children up to twelve years of age is already made “theoretical or illusory.” Force majeure is a typical criminal law concept. Standardizing force majeure in the sense of emergency as a conflict of duties such that people contemplating a criminal offense can know in advance when they can do so with impunity is very peculiar. From a fundamental rights point of view, almost categorical impunity is not problematic as far as the Euthanasia Act itself is concerned, because it involves requests by competent persons. It is a very different situation when it comes to euthanasia being performed on incompetent children. Legally speaking, such arrangements are most likely a bridge too far.

Regarding the CRC, the Netherlands has not signed and ratified the Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure.¹⁶⁷ Therefore, communications by or on behalf of an individual or group of individuals claiming to be victims of a violation by the Netherlands of the rights outlined in the CRC cannot be submitted to the Committee on the Rights of the Child. However, as a party to the CRC, the Netherlands is duty bound to submit to the Committee reports on the measures it has adopted which give effect to the rights recognized in the CRC and on the progress made on the enjoyment of those rights.¹⁶⁸ In its concluding observations on the fourth periodic report, the Committee expressed its remaining concern that euthanasia can be applied to patients under the age of eighteen.¹⁶⁹

4.1.1 The Facts

Mr. Heringa’s ninety-nine-year-old stepmother (“Moek”) resided in a nursing home. She was bedridden and suffered from heart failure. In addition, she had severe back pain and could barely see. Repeatedly, Moek had let it be known she was done with living. Because her general practitioner was not yet willing to help her fulfill her wish to die, Mr. Heringa contacted the Dutch Association for a Voluntary End to Life (NVVE) on behalf of his stepmother. One of its consultants visited Mrs. Heringa and suggested her wish could be carried out by voluntarily refusing food and fluids. This was not what Moek wanted, and when Mr. Heringa discovered his stepmother was collecting pills to carry out her wish to die of her own accord, he felt duty bound to find out how he could help her end her life. Thus, Mr. Heringa obtained a booklet from the Foundation for Scientific Research on Suicide with Care (WOZZ), which provided information on different methods of suicide. In the three weeks preceding her death, he and his stepmother agreed on when the suicide would occur and how it would be realized – by taking medication, including malaria tablets provided by Mr. Heringa and the pills Moek had collected already. At her express request, Mr. Heringa gave his stepmother these drugs in June 2008, which she swallowed in his presence, whereupon she died.

Parts of the procedure were videotaped by Mr. Heringa, including a conversation in which his stepmother said she was done with her life. These recordings were broadcast on national television in February 2008 as part of a documentary entitled Moek’s Last Wishes: A Self-Directed Death. Mr. Heringa was subsequently charged with assisting in suicide.

4.1.2 The District Court and the Court of Appeal

Mr. Heringa invoked force majeure in the sense of emergency. He felt that he was forced to choose from mutually conflicting duties and interests, and in doing so, he let the most serious prevail. The obligation to comply with Article 294, paragraph 2 of the Criminal Code was at odds with the unwritten moral duty to help his ninety-nine-year-old stepmother achieve a painless, peaceful, dignified death. Mr. Heringa believed he had carefully weighed his options and had observed the principles of proportionality and subsidiarity. In his opinion, there were no real alternatives. Mr. Heringa’s stepmother could not obtain the required medication herself and expressly did not choose to die by refusing to eat and drink. In his opinion, consulting her own general practitioner once again or a second general practitioner was not an option either, given the circumstances. Moek did not want to consult another doctor. The fact that she lived in a predominantly Orthodox Protestant region would also have made it difficult to find a willing physician. Finally, Mr. Heringa argued that at that time (spring 2008), such requests to doctors were pointless anyway in situations like that of his stepmother.

According to the District Court, it was unlikely that there were no real alternatives available in advance for realizing the self-chosen end of Mr. Heringa’s stepmother’s life in a dignified manner. In its opinion, he had made insufficient effort to act within the framework of the Euthanasia Act, whereby statutory requirements of due care could be observed. Mr. Heringa was wrong in qualifying his stepmother’s general practitioner as being reluctant and in considering seeking another doctor as futile from the outset. No penalty was imposed because the District Court felt it was beyond question that his actions were also inspired by compassion, given the close bond between Moek and her stepson.¹⁷⁶

The Court of Appeal also recognized that the Euthanasia Act’s special ground of impunity in Article 294, paragraph 2, in conjunction with Article 293, paragraph 2 of the Criminal Code, does not exclude a successful appeal by a nonphysician to Article 40 of the Criminal Code, the Code’s general provision on force majeure. But, unlike the District Court, the appellate court did accept the appeal to force majeure in the sense of emergency. It ruled that Mr. Heringa found himself in actual concrete distress because of the conflict of duties he experienced. The judgment is of interest because the appellate court used the Euthanasia Act’s due care requirements as a frame of reference and subsequently concluded that the exceptional circumstances required for a successful appeal to force majeure did indeed exist.¹⁷⁷

4.1.3 The Supreme Court

In cassation, the Public Prosecutor first argued that the Court of Appeal had erred concerning the applicable framework of reference. In doing so, it had misinterpreted the law. According to the Public Prosecutor, the appellate court had also failed to substantiate why Mr. Heringa was entitled to a successful appeal to force majeure in the sense of emergency.¹⁷⁸ Without much ado, the Supreme Court agreed:

What exactly was meant by the last sentence is not entirely clear. Still, it is a fact that Mr. Heringa had not reported his actions after his stepmother’s death, as doctors are required to do.¹⁸⁰ In contrast, the appellate court had previously concluded that he had “done everything possible to record his actions transparently and thus to make his actions fully verifiable, also for the criminal court.”¹⁸¹ Interestingly, the Supreme Court also considered that restraint as regards the acceptance of force majeure in the sense of emergency by a nonphysician was appropriate in light of the social and political debate currently taking place on termination of life on request and assistance in suicide.¹⁸²

4.1.4 Another Appellate Court

Once the Supreme Court had clarified how the law was to be interpreted, it referred the case to another appellate court, which dismissed Mr. Heringa’s appeal to force majeure. In this respect, several findings were considered relevant: (1) In his final decision, Mr. Heringa allowed himself to be solely led by his stepmother’s wishes; he had not sufficiently taken into account that his actions constituted a criminal offense; (2) Mr. Heringa had not asked the NVVE counselor whether he knew of another physician who might be willing to cooperate; and (3) Mr. Heringa had left his stepmother alone after he had helped her take the drugs on the evening of her death.

This last circumstance clearly influenced the sentencing. Not only could there have been unexpected complications during his stepmother’s process of dying; the Court considered this course of action to also contradict the reasons for his actions Mr. Heringa brought forward afterward – that he wanted to prevent his stepmother from taking her own life without anyone being present and without her being able to say goodbye to her loved ones beforehand. This course of action had previously been considered justifiable by the first appellate court.¹⁸³ Mr. Heringa’s departure, as well as his failure to report the unnatural death of his stepmother, had met with understanding at that court, given his stepmother’s wish to end her life quietly.¹⁸⁴

In the end, Albert Heringa received a more severe penalty than had been asked for by the prosecution: a suspended prison sentence of six months with a two-year probation period. Mr. Heringa also brought up another ground for dismissal by arguing that Article 294, paragraph 2 of the Criminal Code should be declared inapplicable due to conflict with Article 8, paragraph 1 of the ECHR. In response, the second appellate court pointed out that according to European case law, the right to privacy does not imply a state obligation to facilitate euthanasia. Within the margin of appreciation, states are free to provide further rules on making euthanasia possible, as long as the requirements set out in Article 8, paragraph 2 of the ECHR are met. Therefore, the appellate court continued, “It falls within the margin of appreciation of a state to determine in which cases it is justified to make an exception to a prohibition on assistance in suicide.”¹⁸⁵ And this, it concluded, “implies that it is not in violation of Article 8 ECHR to permit assisted suicide only under the conditions set out in Article 293, paragraph 2 of the Criminal Code, to which the second sentence of Article 294, paragraph 2 of the Criminal Code refers.”¹⁸⁶

4.2.1 Drion’s Pill (1991)

The personal choice of elderly people as regards the end of their lives has been the subject of public debate in the Netherlands for quite some time. The discussion was triggered in 1991 by former Supreme Court Justice Huib Drion, who published a controversial essay entitled “The Self-Chosen Death of Elderly People” in which he expressed his conviction that “many elderly would find immense peace of mind if they were to have at their disposal the means of ending their lives in an acceptable manner at the moment this – in view of what life might have in store for them – seems appropriate to them.”¹⁸⁸ In his essay, the author advocated what would later become known as Drion’s Pill: a substance enabling elderly people to end their lives when they want to, in a manner acceptable to them and the people around them, and obtainable from their general practitioner or from another physician appointed for this purpose.¹⁸⁹

4.2.2 A Citizens’ Initiative (2010)

The debate intensified at the time of the Brongersma case in 2002. Since the Supreme Court’s ruling seemed to limit the scope of the Euthanasia Act, advocates of Drion’s Pill started exploring other avenues. In 2010, a group called Free Will (Uit Vrije Wil) launched a so-called citizens’ initiative.

In the Netherlands, individual citizens can put items on the parliamentary agenda by requesting that parliament discusses a detailed proposal in any policy area and takes a stand. Anyone who is of Dutch nationality and is aged eighteen or over can submit a citizens’ initiative. At least 40,000 declarations of support are needed for such an initiative to be debated in parliament.¹⁹⁰ The objective of the Free Will citizens’ initiative was to legalize the provision of suicide assistance to elderly people who consider their lives to be completed, at their express request and subject to requirements of due care and verifiability.¹⁹¹

According to the Free Will group, the Dutch Constitution guarantees all citizens the right to live according to their own views and preferences and to make decisions accordingly. This freedom extends to life’s final stage and life-and-death decisions. The group therefore considers self-determination to be the basis of the initiative: A free person who believes their life to be completed should have the right to choose the time and manner of their own death.¹⁹²

The group argued that we are living longer today, usually to our satisfaction. For various reasons, however, we may, at some point, conclude that the value of our life, and its meaning, have diminished to such an extent that we may prefer death to life. When it becomes clear to us that we cannot change our circumstances in any way, we may conclude that our life is completed: We then want to die in peace and with dignity, preferably in the presence of loved ones. This often requires assistance to prevent the suicide attempt from failing and having horrible consequences for the person concerned, or for others.¹⁹³

It was claimed that the personal freedom to decide on one’s death is hardly controversial from a moral point of view, and the Free Will group called attention to the fact that suicide is not prohibited by law in the Netherlands. Assisting in suicide, however, is prohibited. Free Will therefore believed that it should no longer be punishable to assist in suicide: Elderly Dutch people who wish to die with dignity should be given this opportunity by amending the law. The group believes this implies professional, responsible, and verifiable assistance in suicide.¹⁹⁴

Free Will proposed a law for assistance in suicide, to be provided by a suicide assistant: a registered care provider with a certificate showing they have satisfied specific training requirements. The suicide assistant should be associated with a Foundation for Suicide Assistance to Elderly People, which (1) selects, trains, and certifies suicide assistants, (2) supports them, (3) develops professional standards for suicide assistance, (4) supervises the prescription of lethal drugs, and (5) periodically assesses the practice of assisted suicide and reports on this to the government.¹⁹⁵

According to the proposal, elderly people, that is, people aged seventy and over, should direct their requests to suicide assistants, who will not be prosecuted if they comply with the due care requirements and properly report cases where they have provided suicide assistance.¹⁹⁶ When considering a request, suicide assistants must satisfy the following criteria. They must:

Under the proposed law, a suicide assistant must notify the municipal coroner and explain how the due care requirements were satisfied. The coroner would then establish how and by what means the patient ended their life and also check whether the report of the suicide assistant was drafted correctly. In turn, the coroner would issue a report on the assisted suicide to one of the five regional euthanasia review committees (set up under the Euthanasia Act), enclosing the relevant documents (the reasoned report of the suicide assistant, and the written opinion of the consulted independent suicide assistant) with their own account.¹⁹⁸

The regional euthanasia review committees, composed of a suicide assistant, an ethicist, and a lawyer–chairperson, would provide written opinions on the reports they receive. A committee would assess whether the suicide assistant acted in accordance with the due care requirements. If it concluded that the assistant had satisfied all the requirements, this conclusion would be shared with them, and the case would be closed. If it drew another conclusion, the findings would also be shared with the Public Prosecutor’s Office and the Healthcare Inspectorate. The Public Prosecutor’s Office would subsequently decide whether to initiate criminal proceedings; the Healthcare Inspectorate would see whether other measures should be taken.¹⁹⁹

The citizens’ initiative proposal is clearly modeled after the Euthanasia Act. What distinguishes the proposal from the Act is that a request can only be submitted by someone aged seventy or over. Unlike the Euthanasia Act, the proposal requires that the request is persistent and submitted in writing. Moreover, the suicide assistant does not necessarily need to be a physician. When a case of assisted suicide is reported, another certified suicide assistant will take a seat on the regional euthanasia review committee. Finally, the due care requirements are slightly different. Hopeless and unbearable suffering from a medically classifiable disorder is not required. The suicide assistant also does not have to inform the elderly person about their situation or prospects and reach a conclusion (together with the person concerned) that there was no other reasonable solution to their situation.²⁰⁰

4.2.3 The Schnabel Committee (2016)

When the citizens’ initiative was submitted to parliament in May 2010, the number of declarations of support had reached 116,871. The parliamentary committees on security and justice and on health, welfare, and sports held a public consultation with the initiators in February 2011. Later that year, parliament also conducted hearings with academics, publicists, lay experts, and relevant civil society organizations. The citizens’ initiative was debated in plenary in March 2012.²⁰¹

Parliament ultimately decided against any further discussions on the matter. Nevertheless, it did request the government to have further studies conducted. In July 2014, the health and justice ministers set up a committee to advise them on the social issues and legal options regarding the provision of suicide assistance to people who consider their lives to be completed.²⁰² The committee – named after its chair Mr. Paul Schnabel – made its recommendations known in February 2016.²⁰³

The committee was not asked to specifically consider the initiative’s proposal. It was to focus on examining “how the wish can be fulfilled of an increasing number of Dutch citizens to be invested with a greater right of self-determination in the form of assistance when they consider their lives to be completed.”²⁰⁴ It was considered to be “of essential importance that misuse be prevented and people feel secure.”²⁰⁵

Because various terms are used in public and political debates on the issue, such as “completed life,” “done with living,” “suffering from life,” “tired of life,” “voluntary euthanasia,” and “self-chosen death,” the committee first identified a number of characteristic aspects of a “completed life.” It then determined that the issue concerned people “who are generally elderly who, in their opinion, no longer have anything to look forward to in their lives, and who have developed an active and persistent wish to die as a result.”²⁰⁶

The Schnabel committee assigned various subquestions to independent academics. Based on their findings, it distinguished four different “completed life” situations: (1) situations within the scope of the Euthanasia Act, that is, situations characterized by suffering predominantly caused by a medical condition; (2) situations regarded as “borderline cases” because it is less clear whether the suffering is predominantly caused by a medical condition; (3) situations in which there is no suffering due to a medical condition; and (4) situations in which there is no suffering at all.²⁰⁷

Because it had not commissioned empirical research, the Schnabel committee assumed that the number of persons considering their lives to be “completed” and who consequently have an active wish to die is probably tiny, especially when the wish to terminate their lives is unrelated to medical problems. It estimated that, in many cases, this wish is based on a medical condition in which a combination of medical and nonmedical issues has resulted in unbearable and hopeless suffering within the meaning of the Euthanasia Act. In other words, most people who are suffering and feel their lives are “completed” can be classified under the first category: They can invoke the Euthanasia Act (without having a claim right, of course). Insofar as people who are suffering and feel that their lives are “completed” fall into the second category, the committee considered that it is up to the regional euthanasia review committees to discover whether the Euthanasia Act is applicable and, if so, to what extent. According to the Schnabel committee, the number of persons who may be classified under the third or fourth categories is very likely too small to justify expanding the legal possibilities regarding assistance in suicide.²⁰⁸

The Schnabel committee believed that the Euthanasia Act provides sufficient scope for obviating most problems relating to “completed life.” It felt that the Act functions properly and that it fulfills its objectives. It is practiced with due care and enjoys broad support among physicians. Most physicians report euthanasia and assisted suicide cases, ensuring the practice remains transparent and assessable. Furthermore, since the issue relates to life and death, the committee considered physicians’ involvement essential. For reasons of due care and safety, a physician simply has to be involved because of their medical expertise in assessing the voluntary and well-considered nature of the patient’s request, the availability of alternatives, and the safe and careful performance of euthanasia or the provision of suicide assistance.²⁰⁹

Ultimately, further expansion of the legal possibilities for assisted suicide was considered undesirable. Besides being unnecessary, new legislation would probably also adversely affect a practice deemed transparent and carefully conducted.²¹⁰

4.2.4 Mrs. Dijkstra’s Bill (2020)

The Schnabel committee did not conduct empirical studies to substantiate its claims. However, another committee commissioned by the health minister did. That committee, the Van Wijngaarden committee (also named after its chair), found the numbers to be very small. Based on a survey held in 2019 (with a sample of 32,477 people aged fifty-five and over; the total population in that age category in the Netherlands at the time was 5.6 million and the number of respondents who returned the questionnaire was 21,294), it estimated that only approximately 1,700 people aged seventy-five and over had a persistent and active desire to end their lives.²¹¹ This small number did not prevent social liberal MP Mrs. Pia Dijkstra from introducing a bill.

In the Netherlands, it is usually the government that proposes new legislation. However, any member of parliament can do so as well. As the citizens’ initiative did not have the desired outcome (a government proposal), Mrs. Dijkstra started preparing a bill, which she introduced in parliament in July 2020.²¹² Not surprisingly, the Euthanasia Act served as a model once again. The bill proposes to add a third paragraph to the Criminal Code’s ban on assisting in suicide.²¹³ Once the proposed End-of-Life Counseling of the Elderly Act has become law, Article 294 of the Criminal Code will read as follows:

The bill is meant to cater to the needs of the elderly. According to the proposal, an elder is a person aged seventy-five or over.²¹⁴ The end-of-life counselor referred to will be a registered practitioner of a newly created profession. These practitioners will be qualified experts in end-of-life counseling as referred to in the proposed act. They might be physicians, nurses, psychotherapists, or clinical psychologists, but they will have to meet additional training requirements yet to be specified by the health minister. Once qualified, they must have enrolled in the registry kept by the health ministry for healthcare professionals.²¹⁵

The extent to which the bill mimics the Euthanasia Act is quite astounding. End-of-life counselors considering assisting in suicide must also meet due care requirements. These can be found in Article 2 of the proposed act:

Once these requirements have been met, the counselor and the elder concerned agree on the time of the intended suicide.²¹⁷ At that time, the counselor will provide the latter with the necessary drugs.²¹⁸ The proposed Act also requires the counselor to attend the elder’s suicide.²¹⁹

The Burial and Cremation Act is amended to accommodate a notification procedure identical to the one to be followed by physicians performing termination of life on request or assisting in suicide in accordance with the Euthanasia Act.²²⁰ The municipal coroner subsequently informs the competent regional euthanasia review committee,²²¹ which will review in the way prescribed by the Euthanasia Act.²²² However, its composition is slightly different; a registered end-of-life counselor replaces the physician.²²³ Finally, the Public Prosecutor’s Office and the Healthcare Inspectorate are only informed if the committee finds that the counselor has not acted in accordance with the proposed act’s due care requirements.²²⁴

Mrs. Dijkstra’s bill is a well-thought-out successor to the citizens’ initiative. Numerous references to the initiative are made in the accompanying explanatory memorandum. The proposed law is meant to broaden the legal possibilities for assisted suicide for the elderly who consider their lives to be completed.²²⁵ Although the proposal is said to be based on several principles (respect for human life, quality of life, dying with dignity, solidarity, compassion, and tolerance), one in particular stands out:

This basic premise is not shared with the Euthanasia Act. However, since dying with dignity cannot do without the involvement of others, nor that of society as a whole, self-determination or autonomy is not presented by Mrs. Dijkstra as an absolute principle concerning only the individual interests of the elderly. In the accompanying explanatory memorandum, autonomy is not presented as a claimable right others must meet. Therefore, as a right, self-determination does not correspond with a duty on the part of others or the government to assist in suicide.²²⁷ The End-of-Life Counseling of the Elderly Act will not create a right to assistance in suicide, should the bill ever pass – a feature it shares with the Euthanasia Act.

5.3.1 Multiple Geriatric Syndromes

Since 2013, “multiple geriatric syndromes” have been included as a category in the joint annual reports of the Regional Euthanasia Review Committees (see Section 2.1).²⁶⁷ These judgments relate precisely to cases where the suffering also had nonmedical causes. Up to August 10, 2019, forty-nine such judgments had been published on the joint review committees’ website, of which only one led to the conclusion “due care criteria not complied with.”²⁶⁸ The other forty-eight judgments were studied to see what information was given about the nature of the suffering.²⁶⁹

According to the annual reports, 1,433 notifications of euthanasia in connection with multiple geriatric syndromes were made from January 1, 2013 to January 1, 2019. The published judgments are a tiny percentage of the total number of registered notifications in this category up to August 10, 2019.

What the published anonymized judgments say about the review practice of these notifications is unclear. Forty-nine judgments is a tiny number compared to the total number, but they were apparently worthy of attention since the committees decided to publish them. However, the exact reason for their publication is often not revealed.²⁷⁰ Although it is difficult to determine precisely what is being revealed by publishing these judgments, they are all a researcher has to go on. The vast majority of judgments in this category apparently did not deserve public attention.

The figures in Table 1 do not reveal a discernible trend in the annual number of notifications in the “multiple geriatric syndromes” category, nor do they suggest a growing number of notifications of euthanasia involving elderly people on the basis of nonmedical causes or “completed life” or “completed life”-type arguments since 2013. However, it should be noted that the numbers in the “multiple geriatric syndromes” category have been increasing since 2019, with 217 notifications in 2019, 235 in 2020, and 307 in 2021.²⁷¹ In 2022, 379 cases of euthanasia fell into this category (4.3 percent of all notifications).²⁷² In terms of numbers per annum, this is a record, but in terms of the percentage of all notifications, it is not.

If there is public demand for euthanasia in cases of completed life, it cannot be said, on the basis of numbers, that the Euthanasia Act was meeting it up to August 2019. However, this does not mean the Euthanasia Act cannot accommodate such demand. To determine if, and to what extent, it is able to accommodate requests for termination of “completed life,” the texts of the judgments need to be reviewed. What conclusions can be drawn from these?

Up to August 10, 2019, judgments had only been published in forty-eight cases in which the due care criteria were deemed to have been complied with. However, it has to be remembered that the researcher must make do with the sparse factual information the authors of the judgments were willing to provide under the heading “Nature of the patient’s suffering,” information derived mainly from documents that are not publicly available: the form completed by the coroner, the notifying physician’s report, the report(s) of the consultant(s), last wills and testaments, patient records, and letters and statements from medical specialists.

However, in all published judgments, the section headed “Nature of the patient’s suffering” is divided into two parts. The first part usually ends with the conclusion, “Improvement was not possible (any longer). The treatment was exclusively of a palliative nature.” This part relates to the criterion’s objective aspect (the suffering’s hopelessness) and describes the medical condition. The second part, which relates to the aspect of unbearableness, often starts with “The suffering of the patient consisted of …, ” and usually ends with “The patient experienced their suffering as unbearable.”

In the first part, a summary is given of the illnesses and disorders that existed before the patient’s death: medically classifiable illnesses and disorders such as osteoporosis, rheumatoid arthritis, decompensatio cordis, glaucoma, diabetic retinopathy, and so on; illnesses and disorders that are not life-threatening in and of themselves, and which are usually associated with advanced age. The illness(es) or disorder(s) causing the suffering is described in medical terms.

However, the authors rarely use medical terms exclusively. In the first part, terms such as “pain,” “tightness of the chest,” “impaired vision,” “tiredness,” “bedridden,” “dependent on care,” “limited mobility,” and “loss of vitality” are almost always included as well. These terms are used to describe the direct and indirect consequences of illnesses and disorders. After all, impaired vision is a consequence of glaucoma. And being bedridden might be a consequence of severe backache, which in turn might be a consequence of osteoporosis.

It would be logical for the reported consequences (or symptoms) to be mentioned exclusively in the second part of this section. Still, very often, both the underlying disorder(s) or illness(es) and the consequences are described in the first part. Occasionally, only consequences are described in the first part, without mentioning underlying disorders or illnesses.²⁷³ This could indicate the presence of many syndromes,²⁷⁴ but it may also be unclear exactly which illnesses or disorders were involved. In that case, either the causes were not identified, or a distinction is not generally made between the illness or disorder and its consequences, as with incontinence.²⁷⁵ Therefore, a certain amount of overlap usually exists between the information provided in both parts of the section “Nature of the patient’s suffering” in the published rulings.

“Pain,” “dependent on care,” “tiredness,” and “limited mobility” (factors) are also to be found in the second part of this section, in which they are used to describe the unbearable aspects of the suffering. Almost invariably, they are complemented by descriptions of circumstances contributing to the severity of that suffering.

These “aggravating circumstances” (Table 2) can relate to:

1. 1. The patient’s biography or personality (“the patient had always been extremely active,” “the patient had always been extremely independent,” “the patient … had always had control over their own life,” “due to the character of the patient, it was impossible for her to accept the circumstances,” etc.).

2. 2. The patient’s values (“the patient suffered because of his dependence on others,” “the patient felt she was losing control over her life and that she was becoming increasingly dependent on others, something she found unacceptable,” “the patient suffered unbearably because of loss of autonomy,” etc.).

3. 3. The patient’s social circumstances (“the patient hardly went outside,” “the patient was becoming increasingly socially isolated”).

4. 4. The patient’s stamina and perspective (“the patient suffered because of fear of further complications,” “the patient did not want to go to a nursing home,” “the patient did not want to go through any further loss of bodily functions”).

5. 5. The patient’s sense of purpose (“the patient perceived her life as pointless,” “the patient considered his life to be completed,” “the patient … did not see the point of living any longer”).

Pain, limited mobility, and so on were mentioned in all forty-eight cases reviewed as complying with the criteria of due care. The highest percentages of aggravating circumstances fell under the headings “Stamina and perspective” (75 percent), “Values” (56 percent), and “Biography and personality” (54 percent). Lack of a sense of purpose was mentioned in twenty-three judgments.

Only two judgments mentioned factors and circumstances from just one category. These judgments only referred to pain, limited mobility, and so on. The other forty-six judgments mentioned a combination of factors and circumstances from several categories. Only two judgments referred to factors and circumstances of all categories (see Table 3).

The phrase “multiple geriatric syndromes” is somewhat misleading. The phrase suggests that if the number of medically classifiable illnesses and disorders has reached a certain level, the statutory requirement of suffering will be met. It seems to imply that there is a “tipping point,” where the most recently diagnosed degenerative disorder is, as it were, the proverbial straw that breaks the camel’s back and thus makes the case eligible under the Euthanasia Act.

Analysis of the published judgments reveals that the number of syndromes does not have to be high at all. Although there are indeed judgments that mention many syndromes in the first part, there are also judgments mentioning just a few. Therefore, the number of syndromes does not appear decisive: Under the “right” circumstances, just one syndrome will suffice to meet the requirement. Whether or not the suffering is “caused to a significant extent” by one geriatric syndrome will depend on the syndrome and its direct and indirect consequences, but also – and very much so – on the circumstances of the case.

5.3.2 Two Hypothetical Cases

The figures up to August 2019 do not support the claim that the Euthanasia Act already provides a “way out” for elderly people who want to have their “completed lives” ended. This does not mean, however, that the Euthanasia Act does not have the potential to provide a “way out.” For the Act to be applicable, the Supreme Court stated that the suffering must be “predominantly caused by a medically classifiable (somatic or psychiatric) illness or disorder.” Considering how the euthanasia review committees have applied the criterion in cases of multiple geriatric syndromes, there would seem to be much room for interpretation.

Let us explore the possibilities by considering two hypothetical cases. For example, a man of advanced age develops a severe hearing disorder because of presbycusis. He will eventually lose most, if not all, of his hearing. Medically, little can be done, and there is no way to slow down the hearing loss. The man, a former professional musician, has always lived for his music. His entire social life revolves around music. He suffers tremendously because of his deteriorating hearing. For this man, a life without music is simply inconceivable. His life will then be stripped of all meaning. The prospect of losing his hearing altogether makes him suffer unbearably, suffering which did not exist before the onset of the presbycusis. The musician, who has no other medical complaints, asks his doctor to help him commit suicide.

Does his suffering meet the requirement? Intuitively, many will be inclined to disagree since presbycusis is just one disorder commonly associated with the advancement of age. However, the circumstances of the case must also be taken into consideration. After all, properly functioning hearing is a necessary condition for this particular man’s quality of life. One could argue that without properly functioning hearing his life is bereft of all quality.

Now take the hypothetical case of an elderly but healthy woman suffering from being alive. This former teacher has never been married and never had children. Furthermore, she no longer has any family, and all her friends have already died. She no longer genuinely desires to see or talk to other people. This woman is independent and healthy, but nonetheless, she is suffering tremendously under the prospect of inevitable physical and mental degeneration. She feels she has had a good life. She has managed to fulfill all her ambitions. But enough is enough, and there is no need to drag it out any longer. One day, she goes to see her doctor because of pain in her joints. The doctor tells her she has arthritis. This woman, who has no other medical complaints, then immediately asks the doctor to assist in her suicide. This case also involves just one of many frequently occurring geriatric syndromes.

The review policy of the committees indicates that one illness or disorder may suffice. The committees’ reviewing practices also indicate that its impact on the patient will depend on the specific circumstances of the case. Although many will object, intuitively, to applying the Euthanasia Act in both hypothetical cases, a euthanasia review committee would likely accept the elderly musician’s suffering as “caused to a significant extent by a medically classifiable illness or disorder.” In his particular case, all suffering is, in a way, a consequence of the illness. Without the presbycusis, there would not have been any suffering.

But does the former teacher’s suffering also meet the statutory requirement? Again, many would intuitively disagree. And not only because of the presence of merely one very common geriatric syndrome, arthritis, but presumably also because of a perceived difference in cause and consequence, which is considered somehow relevant. For this woman, life itself was already “unbearable” before arthritis occurred. Many would therefore argue that her suffering is not “predominantly caused by a medically classifiable illness or disorder.” They would argue that it clearly has other, nonmedical causes. Perhaps predominantly so. Consequently, the arthritis will be seen by many as nothing but a pretext. Surely, the Euthanasia Act is not meant to justify the acts of a physician granting such a request. But would a review committee have good reasons for disapproving such action?

Of course, the musician’s suffering would completely disappear if his presbycusis could somehow be cured. And, of course, even if her arthritis could be treated successfully, the teacher would continue to suffer severely. But the perceived difference between both hypothetical cases is nonsensical. The fact that, in the musician’s case, all suffering can easily be linked to a medical condition, which cannot be done in the former teacher’s case, makes for a rather presumptuous difference in appreciation. Are the circumstances she finds herself in less aggravating? The fact that a medical condition cannot fully explain her suffering is irrelevant because the musician’s presbycusis cannot fully explain his suffering either. Both cases are similar in that respect. At first sight, many would consider the musician’s case as different in some relevant way, but it does not take much reflection to learn that there is no basis for accepting such a difference in the reviewing process. There is no reason to assume that a committee would conclude that the statutory requirement was not being met in the former teacher’s case. Such a conclusion would be at odds with the logic of the reviewing practice.