Human Rights and the practice of euthanasia in the Netherlands

The extent to which the practices of euthanasia, assisted suicide and other forms of doctor-assisted death have flourished in the Netherlands are relatively well understood, thanks to two surveys conducted confidentially in 1990 and 1995 by the Dutch government. They came to the following findings:

 

	1990 % of all deaths/number of cases	1995 % of deaths/number of cases
Euthanasia	2.4% / 3,256 cases	1.8% / 2,319 cases
Assisted suicide	0.3% / 386 cases	0.3% / 407 cases
Cases in which a patient's life was deliberately ended by a doctor without the patient's request	0.8% / 1,031 cases	0.7% / 950 cases
Intensified pain treatment, partly intended to hasten death	3.89% / 4,895 cases	2.9% / 3,935 cases
Withdrawal of treatment or decision not to administer treatment, with the explicit intention of hastening death	8.7% / 11,208 cases	13.3% / 18,045 cases

In other words, some 26, 593 deaths in the Netherlands in 1995 were either directly caused or hastened by medical practice. This is 19.6% of all deaths in the country.

How should one assess these figures from a human rights perspective? The first general methodological point is that the very notion of human rights is ill-equipped to deal with the complexity of such matters. By definition, human rights are rights which the individual is said to enjoy, usually against the state but also, at least indirectly, against the rest of society. It is therefore extremely difficult, within the framework of the ideology of human rights, to assess the wider social impact of euthanasia practices on people who neither request nor want euthanasia. Indeed it is simply not possible, within a legal framework - i.e. in a court of law - to give protection from fear to a weak and dying person who may be afraid of euthanasia. Such protection can only be afforded, if it is deemed necessary, by an overall political approach to the question based not exclusively upon the individualistic approach inherent in the ideology of human rights, but more widely on an attempt to promote the common good.

Such considerations may sound technical but they are of the very first importance to doctors and to society generally. The standard argument in favour of euthanasia goes like this, in the words of one life-long practitioner, Professor Anries van Dantzig: "Abortion and euthanasia are part of the process of making room for the conviction of those of us who no longer believe in the sanctity of human life," he says. I do not think it is democratic that I should be forced to suffer on the basis of another person’s principles." Such an approach may have its merits but it is very individualistic. In Britain and Canada, doctors who otherwise disagree on the rights and wrongs of euthanasia have reached very wide agreement that any moves towards legalizing the practice would radically change the relationship between all patients and doctors in society. Meanwhile, the British House of Lords’ Select Committee on Ethics came to the conclusion that arguments based on individual autonomy were insufficient to deal with the complexity of the issues at stake:

"Ultimately we do not believe that the arguments are sufficient reason to weaken society's prohibition of intentional killing. That prohibition is the cornerstone of law and of social relationships. It protects each one of us impartially, embodying the belief that we all are equal. We do not want that protection to be diminished. We acknowledge that there are individual cases in which euthanasia may be seen by some to be appropriate. But individual cases cannot reasonably establish the foundations of a policy which would have such serious and widespread repercussions. Dying is not only a personal or individual affair. The death of a person affects the lives of others, often in ways and to an extent which cannot be foreseen. We believe that the issue of euthanasia is one in which the interests of the individual cannot be separated from the interests of society as a whole."

This point is of the first importance because, as the analysis below will show, the arguments in favour of autonomy have, in any case, given rise to cases of euthanasia and doctor-induced death where no request has been made on behalf of the patient.

Indeed, as the figures show, one of the most basic human rights, the right to life, is systematically violated in the Netherlands thanks to its relaxed attitude towards euthanasia. Moreover, these violations are not prosecuted under the Netherland’s own laws against murder. The lives of between 950 and 1,000 people are ended every year in the Netherlands without them having requested euthanasia. Many of these cases are severely handicapped new-born babies. Ending a new-born baby’s life is de facto considered lawful in the Netherlands if the baby has no chance of survival, or if the baby can never, or probably never, live without intensive medical care. In such cases, the baby’s case is deemed "hopeless". In the case of adults who are either unconscious or suffering from dementia, they are considered to be incapable of deciding anyway and so the doctor decides for them.

The point is that, whatever the rights and wrong of euthanasia, Dutch practice does not conform to international human rights law. The arguments in favour of euthanasia, whether voluntary or involuntary, are intelligible arguments. They rely on notions such as the right to autonomy, or on the belief that some human lives are not worth living. To be sure, these underlying notions are themselves questionable. But what seems incontrovertibly true is that, in the Netherlands, the right to life, proclaimed in human rights documents, is violated. In other words, it is inconsistent for the Dutch government to proclaim its adherence to documents like the European Convention on Human Rights or the forthcoming EU Charter of Fundamental Rights, both of which documents stipulate in their respective Article 2 that everyone has the right to life. (In the case of the EU Charter, the rule is even stricter than in the European Convention, since the latter convention allows for an exception to be made in cases where the death penalty is provided for by law, and also where life is taken in self-defence, during lawful arrest or to prevent escape, or in ‘action taken for the purpose of quelling a riot of insurrection.’) There is no right to euthanasia, whether voluntary or involuntary, in any supranational human rights document and consequently Dutch law and practice are in contravention of the very principles – i.e. that such supranational documents have legal force - which the country claims to uphold.

Pro-euthanasia commentators may claim that in 15% of these cases, the patient expressed a wish for euthanasia at some previous point in his life (e.g. before dementia or unconsciousness set in) while in 14% of cases, a request was made by a next of kin. But such figures only underline the very flexible notion of "consent" or "autonomy" on which the practice of euthanasia in the Netherlands is based.

This is an important point for assessing the overall right of a patient to ask for euthanasia. The right autonomously to decide over one’s own life is the argument advanced most forcefully by those who campaign for euthanasia and it is also the one which is usually accepted most widely by the general public. It should be emphasized that the Dutch use of the word ‘euthanasia’ reflects this: in Dutch parlance, the word refers only to active measures taken by a doctor to end a patient’s life on his request. ‘Voluntary euthanasia’ is thus, strictly speaking, an oxymoron.

Comment is also called for on the question of non-treatment decisions with the intention of hastening death. The Dutch no longer consider such cases to be "euthanasia". And yet the practice of withdrawing treatment for the explicit purpose of hastening death is, as the tables above show, common.

Philosophically, this is perhaps the most difficult area of the whole debate. Where is the dividing line between deciding not to prolong a dying person’s life artificially and ending it deliberately? The philosophical difficulties are, of course, exacerbated by the improvements in medical science which increase the ways in which life can be prolonged.

Despite these difficulties, some attempts at clarification seem in order. There are numerous categories of medical decision taken as death is approaching. The doctor can decide to do nothing; he can decide to administer certain palliative medicine, in the knowledge that a side-effect of this may be to accelerate the patient’s death; or he can take action with the explicit intention of hastening death. There may be further sub-categories but these three would seem, nonetheless, to exist.

As the table shows, Dutch doctors regularly take decisions in the third category. They accounted for 13.3% of all deaths in the Netherlands in 1995. Opponents of euthanasia in the Netherlands say that the withdrawal of medical treatment has now become established practice in the country, even to the extent of hastening a patient’s death. Furthermore, the patient’s consent is not always sought or obtained. In 80% of these cases in which life is shortened because treatment is either withheld or broken off, the doctor was convinced that the patient was fully conscious of the decision to administer euthanasia and that he agreed with it: in 20% of cases, in other words, the patient was not thus capable. In 15% of cases, doctors acted without consulting the patient or a relative of the patient; in 4% of cases, doctors act without even consulting a colleague.

In these cases, as in others, supporters of euthanasia in the Netherlands often claim that the time by which life is shortened in these cases is very low, often as little as 24 hours. If this is true, it is difficult to see what is the point of euthanasia, since its practice obviously has an overall effect on the relationship between the patient and the doctor. Apart from the difficulty of knowing exactly how long a dying person has yet to live (or for that matter of being sure that they are, in fact, dying) there are certainly also cases where life is shortened by a considerable period of time. One lifelong practitioner and theoretician of euthanasia has said that it should be considered for severely handicapped new-born babies "who have no hope of joining the human community" – i.e. for people who may otherwise live.

In other words, the Dutch practice of euthanasia, as they narrowly define it, has led to very considerable spill-over into other areas of medical practice. In particular, it has caused the withholding of medical treatment to be considered normal medical practice, and has also sanctioned euthanasia of people whose consent has been neither sought nor obtained and who, in the case of babies, could not give it under any circumstances. Figures are not available for the number of cases of narrowly-defined euthanasia (i.e. a doctor ending a patient’s life on his request) of people with mental illness. Although people with depression can ask for an obtain euthanasia in the Netherlands, it is questionable to what extent one can properly speak of ‘autonomy’ when people are suffering from clinical depression or schizophrenia.