In 2002 the Netherlands became the first country in the world to legalize euthanasia, formalizing what had been tolerated by the government for several decades prior. Today, however, the Dutch practice of euthanasia is arguably less settled legally than ever before.
In September, a doctor was found not guilty of breaking the law after administering a lethal injection to a patient with advanced dementia. It was the first time the Netherlands had prosecuted any doctor in a euthanasia case since legalization. That fact alone made the trial significant. However, the case also raised many legal and ethical questions about what constitutes patient consent, which is the legal concept at the crux of the country’s euthanasia law.
The direction of euthanasia in the Netherlands has global significance because the Dutch are pioneers for socially progressive legislation. They were also the first country in the world to legalize gay marriage in 2001, and today 28 other countries have followed their lead. Euthanasia legalization has not spread as quickly. However, the secular philosophy underpinning Dutch euthanasia—that consent is the only relevant consideration in an ethical question—is being adopted in much of the Western world. If the Dutch start to break new ground in how consent is understood, their ideas are likely to gradually seep into other European countries, and then to the U.S. and across the world.
Dutch law legalizes euthanasia for patients with “unbearable suffering with no prospect of improvement.” Flexibility in the definition of “unbearable suffering” means lethal injections were never exclusively reserved for patients with a physical terminal illness, such as someone with terminal cancer who is approaching a natural death.
Some doctors and patients have taken advantage of the room the law affords. Since 2009, there have been significant increases in euthanasia for patients with psychiatric illness and for elderly patients who have an “accumulation of old-age complaints” rather than a terminal illness. The recent trial involved a patient with advanced dementia. This type of euthanasia is still exceptionally rare, accounting for only 15 out of the roughly 62,000 reported instances of euthanasia since 2002. However, it is extremely controversial in the Netherlands.
Under Dutch law, when a person is of sound mind, he can write a legal declaration requesting euthanasia in the event that he develops advanced dementia. He needs to specify conditions about when he wants to die; for example, when he no longer recognizes his family. These legal declarations have turned out to be legal and ethical quagmires. Even some of the Netherlands’ strongest proponents of euthanasia don’t believe these documents should be honored. After all, how can a doctor determine if a patient with impaired faculties who signed one of these documents in the past is still determined to end his own life?
Dementia is a horrifying concept when one is still mentally competent, and it’s easy to say, “I’d rather die.” But when dementia has become advanced, perhaps the patient is not aware of it and doesn’t mind anymore. A legal declaration allows a patient to give consent now to something he may not necessarily still want in the future. While the threshold for euthanasia is slowly being lowered in the Netherlands, consent is still regarded as inviolable.
The patient at the center of the trial had written a legal declaration, but her stipulations about when she wanted to die were open to interpretation. “I definitely do not want to be placed in a home for dementia patients,” she wrote. But that part of her declaration was ignored and she had already been moved to a care facility. She also wrote that she wanted to die “when I am still somewhat mentally competent, and I myself think the time is right.” At the time of her death, however, her condition was so far gone that she was no longer able to verbally reaffirm her desire for euthanasia. Moreover, the doctor who ultimately administered the fatal injection had not met the patient until after she became mentally incompetent.
The details of the patient’s death on April 22, 2016, do not make pleasant reading. The doctor started by placing a sedative in her coffee. The patient appeared to be asleep, but she awoke and began to struggle when the doctor added the lethal drugs to her intravenous drip. Her husband and daughter restrained her on the bed while the doctor quickly finished the procedure.
The story of her death prompted such an outcry in the Netherlands that the Public Prosecutor’s Office investigated and eventually filed charges. The trial that ensued failed to give meaningful answers to the many questions surrounding consent and legal declarations.
The state based its case on the argument that the doctor should have attempted further conversation with the patient to obtain consent. It made this argument despite the fact that the patient, according to trial records, was no longer able to recognize her own face in the mirror. It is hardly surprising the court voted to acquit on those grounds.
The trial was a major news story in the Netherlands, and the public debate is a case study of how a secular society grapples with a complex ethical question. While the volume of commentary was enormous, very little attention was given to bigger philosophical questions such as, “What makes us human?” or “What gives life value?”
By and large, the Dutch seem to regard euthanasia for dementia patients as a practical problem. The premise that consent is all that matters has gone virtually unchallenged. The issue is how to obtain that consent from someone who can no longer give it.
It will take years or even decades for the full implications of the trial to become clear. In the short-term, euthanasia for advanced dementia patients will probably remain rare. However, the court was clear that it can be legal.
In the late 1990s, it seemed like the United States might be ready to legalize euthanasia. In the 1997 case of Washington v. Glucksberg, the U.S. Supreme Court ruled the Constitution did not prohibit physician-assisted suicide, but left states to decide the matter for themselves. In the wake of the ruling, Oregon enacted the Death with Dignity Act. In 1998, the TV program 60 Minutes aired tapes submitted by Dr. Jack Kevorkian, who had filmed himself injecting lethal drugs into a terminal patient. The tapes prompted a national debate about euthanasia. However, the issue faded from prominence after Kevorkian was convicted in 1999 of second-degree murder for a separate case and sent to jail.
Today, physician-assisted suicide is legal in nine American states and the District of Columbia. “Physician-assisted suicide” means a doctor supplies lethal drugs to a patient, who then takes them on his own. Euthanasia is a broader term, which can refer to a doctor administering the drugs directly to the patient. This is what usually happens in the Netherlands.
A Gallup poll from 2018 shows that 72 percent of Americans favor legalizing euthanasia. Given that level of support, it is surprising that more states have not legalized it.
There are several reasons for this. Euthanasia in America has never had proponents as dedicated and politically adept as those in the Netherlands. Kevorkian, who died in 2011, is still the most well-known “face” of America’s pro-euthanasia movement. No nationally famous elected official has made advancing euthanasia a significant part of their platform.
In the Netherlands, the political party Democrats 66 (D66), so called because it was founded in 1966, is responsible for most of the ground-breaking socially progressive legislation for which the country is famous. Expanding euthanasia is one of their top priorities. The D66 is historically a small party. However, it is extremely politically effective. Its members grasp that change comes incrementally, through patient but persistent effort over several decades. With that determination, they succeeded in first legalizing euthanasia and then expanding its eligibility criteria.
The Netherlands also does not have the fierce, organized opposition to euthanasia seen in the United States. The efforts of American states to legalize physician-assisted suicide have always been immediately challenged in court.
This dedicated opposition to euthanasia in America has also ensured that legalization has been limited to terminal patients with a prognosis of six months or less to live. Legal euthanasia for psychiatric or dementia patients without terminal illness, as it is administered in the Netherlands, is unthinkable in the current American context.
The lack of opposition in the Netherlands is mostly the result of secularization. In America, roughly a quarter of the population claims to attend church on a weekly basis, and opposition to euthanasia is strongest within this group.
In the Netherlands, half the population has no religious affiliation at all. Roman Catholics are the country’s single largest religious group, but even they are fine with euthanasia. Polls going back to the 1970s show their views on the matter have always been in line with those of the general population. Opposition to euthanasia is higher among Dutch Protestants, but polls indicate they are gradually becoming more open to it as well.
The recent trial in the Netherlands raised questions about consent that are deeply significant. It remains to be seen which answers, if any, the Dutch will arrive at, and how far their beliefs about the practice will spread to other countries. For now, it is fair to say that these questions deserve a better and more meaningful discussion than they have received so far.