A Presentation of the Belgian Act on Euthanasia Against the Background of Dutch Euthanasia Law

European Journal of Health Law

Volumn 10, Issue 3, 2003, Pages 239-255

  Nys, Herman ^a,b  

^a UNIVERSITY OF LEUVEN   (Belgium)

^b MAASTRICHT UNIVERSITY   (Netherlands)

Author keywords

[No Author keywords available]

Indexed keywords

AUTOREGULATION; BELGIUM; EUTHANASIA; HUMAN; INTERMETHOD COMPARISON; JURISPRUDENCE; LAW; LEGAL ASPECT; LIVING WILL; MEDICAL PROFESSION; NETHERLANDS; PRACTICE GUIDELINE; REVIEW;

ADVANCE DIRECTIVES; BELGIUM; EUTHANASIA, ACTIVE, VOLUNTARY; HUMANS; NETHERLANDS; PATIENTS; PHYSICIANS; RIGHT TO DIE; SUICIDE, ASSISTED;

EID: 0347357613     PISSN: 09290273     EISSN: None     Source Type: Journal    
DOI: 10.1163/157180903770847526     Document Type: Review

References (31)

1. John Griffiths, "Self-regulation by the Dutch medical profession of medical behaviour that potentially shortens life". In Regulating morality, ed. H. Krabbendam and H.-M. Ten Napel (Antwerp: Maklu, 2000), pp. 177 and 183; Heleen Weyers. "Euthanasia: the process of legal change in the Netherlands. The making of the requirements of careful practice," In Regulating physician-negotiated death, ed. A. Klijn, M. Otlowski and M. Trappenburg ('s Gravenhage: Elsevier, 2001), p. 236.
2. John Griffiths, "Self-regulation by the Dutch medical profession of medical behaviour that potentially shortens life". In Regulating morality, ed. H. Krabbendam and H.-M. Ten Napel (Antwerp: Maklu, 2000), pp. 177 and 183; Heleen Weyers. "Euthanasia: the process of legal change in the Netherlands. The making of the requirements of careful practice," In Regulating physician-negotiated death, ed. A. Klijn, M. Otlowski and M. Trappenburg ('s Gravenhage: Elsevier, 2001), p. 236.
3. Mortier, Freddy and Deliens, Luc, "The prospect of effective legal control of euthanasia in Belgium," in Regulating physician-negotiated death, ed. A. Klijn, M. Otlowski and M. Trappenburg (s' Gravenhage: Elsevier, 2001), p. 180.
4. See for the English text of the recommendation: Herman Nys, "Advice of the Federal Advisory Committee on Bioethics concerning legalisation of euthanasia," European Journal of Health Law 4(1997): pp. 389-393.
5. Bert Broeckaert, "Belgium: towards a legal recognition of euthanasia," European Journal of Health Law 8(2001): p. 96.
6. This definition had been suggested already in 1977 by the late professor in health law, Leenen. See Henk J.J. Leenen, "The development of euthanasia in the Netherlands," European Journal of Health Law 8(2001): p. 127.
7. Maurice Adams, "Euthanasia: the process of legal change in Belgium. Reflections on the parliamentary debate," in Regulating physician-negotiated death, ed. A. Klijn, M. Otlowski and M. Trappenburg ('S Gravenhage: Elsevier, 2001), pp. 30-31. Adams adds that very recently a few cases have been prosecuted without mentioning on what offence the prosecutions have been based. These prosecutions did up to now not turn out in punishments.
8. Henk J.J. Leenen, "The development of euthanasia in the Netherlands," European Journal of Health Law 8(2001): p. 126
9. John Griffiths, Alex Bood and Heleen Weyers, Euthanasia and Law in the Netherlands (Amsterdam: Amsterdam University Press, 1998), p. 106.
10. Idem, 103 and note 41 where reference is made to so-called 'travelling euthanasia doctors" who made their services available to patients whose own doctors had failed to honour their requests. Given the fact that a large majority of Belgian physicians opposes the act and will not apply it and that the act does not contain a "due medical care" clause, one may expect that Belgian euthanasia practice will be more vulnerable to "specialised euthanasia physicians"
11. Henk J.J. Leenen, "The development of euthanasia in the Netherlands", European Journal of Health Law 8 (2001):p. 128
12. Note that in the translation of section 2.4. of the Dutch act in the European Journal of Health Law (2001): p. 185, in stead of "is /are able to agree" the expression "is/are unable to agree" is used which of course would lead to a situation that euthanasia can be practised against the will of the parents. This was indeed the purpose of the draft of the bill; see Henk J.J. Leenen. "The development of euthanasia in the Netherlands," European Journal of Health Law 8(2001): p. 130 who adds: "Actually, euthanasia against the will of the parents has not occurred in the Netherlands. If they object, intensive deliberations take place. This results in the child accepting the problem of the parents or the parents accepting the problem of the child. Parents who understandably do not want to lose their child are inclined to object. But, on the other hand, they do not want their child to suffer unbearably". See www. Minbuza.nl for a correct translation (visited on 3 November, 2002).
13. Note that in the translation of section 2.4. of the Dutch act in the European Journal of Health Law (2001): p. 185, in stead of "is /are able to agree" the expression "is/are unable to agree" is used which of course would lead to a situation that euthanasia can be practised against the will of the parents. This was indeed the purpose of the draft of the bill; see Henk J.J. Leenen. "The development of euthanasia in the Netherlands," European Journal of Health Law 8(2001): p. 130 who adds: "Actually, euthanasia against the will of the parents has not occurred in the Netherlands. If they object, intensive deliberations take place. This results in the child accepting the problem of the parents or the parents accepting the problem of the child. Parents who understandably do not want to lose their child are inclined to object. But, on the other hand, they do not want their child to suffer unbearably". See www. Minbuza.nl for a correct translation (visited on 3 November, 2002).
14. John Griffiths, Alex Bood and Heleen Weyers, Euthanasia and Law in the Netherlands (Amsterdam: Amsterdam University Press, 1998), pp. 100-101.
15. The intention of the Belgian legislature is to limit the validity of an advance directive to 5 years after it has been drawn up or confirmed. However, this result is not reached in the way this subsection of the act has been phrased. Suppose that someone draws up an advance directive on 1 January 2002. He becomes in a situation that he cannot express his will anymore two years later. Ten years later he becomes irreversibly unconscious - the situation required in order that euthanasia requested in an advance directive may be performed-. The advance directive, although at that moment 10 years old is still valid because less than 5 years have been lapsed since the advance directive was drawn up and the moment the patient could not express his will anymore. When I confronted the members of the Commission of Justice of the Chamber during a hearing in february 2002, with this odd situation they admitted it; nonetheless the bill was not amended because otherwise it had to be sent back to the senate and apparently the majority did not wanted to "loose more time'.
16. John Griffiths, "Important changes in euthanasia law," Newsletter MBPSL 4(2001): p. 2; also Albert Klein and John Griffiths, "Can doctor's hands be bound," www.rechten.rug.nl/ mbpsl/milaanpa.html (accessed: November 18th, 2002), p. 4: "although there are a number of serious legal difficulties invoolved, euthanasia pursuant to an A.D. is probably legal in Dutch law. The bill (now: act, HN) includes a provision specifically providing for such a case. But this does not mean that the problems of implementing such an A.D. in medical practice will have been solved".
17. John Griffiths, "Important changes in euthanasia law," Newsletter MBPSL 4(2001): p. 2; also Albert Klein and John Griffiths, "Can doctor's hands be bound," www.rechten.rug.nl/ mbpsl/milaanpa.html (accessed: November 18th, 2002), p. 4: "although there are a number of serious legal difficulties invoolved, euthanasia pursuant to an A.D. is probably legal in Dutch law. The bill (now: act, HN) includes a provision specifically providing for such a case. But this does not mean that the problems of implementing such an A.D. in medical practice will have been solved".
18. M.A.J.M. Buijsen, "Kwaliteit van leven als maatstaf bij beslissingen rond het levenseinde: de zaak Brongersma [Quality of life as a criterion to end-of-life decisions: the case Brongersma]," R & R (2001): pp. 4-5.
19. Sjef Gevers and Johan Legemaate, "Physician assisted suicide in psychiatry: an analysis of case law and professional options," in Asking to die. Inside the Dutch debate about euthanasia, ed. D.C. Thomasma et al. (Dordrecht: Kluwer Academic Publishers, 1997), pp. 77 and 85; see also Henk J.J. Leenen. "The development of euthanasia in the Netherlands," European Journal of Health Law 8(2001): p. 127: "but with non-somatical suffering special rules apply eg the patient is not entitled to refuse treatment"
20. Sjef Gevers and Johan Legemaate, "Physician assisted suicide in psychiatry: an analysis of case law and professional options," in Asking to die. Inside the Dutch debate about euthanasia, ed. D.C. Thomasma et al. (Dordrecht: Kluwer Academic Publishers, 1997), pp. 77 and 85; see also Henk J.J. Leenen. "The development of euthanasia in the Netherlands," European Journal of Health Law 8(2001): p. 127: "but with non-somatical suffering special rules apply eg the patient is not entitled to refuse treatment"
21. John Griffiths, "Self-regulation by the Dutch medical profession of medical behaviour that potentially shortens life," in Regulating morality, ed. H. Krabbendam and H.-M. Ten Napel (Antwerp: Maklu, 2000), pp. 179-180
22. Parl.doc, Report Commission of Justice, p. 217. The Chamber Commission on Health unanimously stated that the bill will not include psychiatric patients.
23. Henk J.J. Leenen and J.K.M. Gevers, Handboek gezondheidsrecht. Deel I. Rechten van mensen in de gezondheidszorg (Houten/Diegem: Bohn Stafleu Van Loghum, 2000), p. 331. As an example they refer to a diabetes patient who for the rest is in a healthy condition
24. Donald Van Tol, "Physician-assisted suicide: the Brongersma case," Newsletter MBPSL, 5(2001): pp. 3-4.
25. John Griffiths, "Important changes in euthanasia law," Newsletter MBPSL 4(2001): p. 2
26. In the beginning of October 2002, Mario Verstraete died after euthanasia; this case was widely mediatized by Belgian and foreign TV stations because Verstraete had more than once claimed to be the first patient dying from euthanasia in Belgium. Verstraete suffered from MS and was not terminally ill. Because the Belgian euthanasia act entered into force on 23 September 2002, the period of one month could not have been respected: a valid request for euthanasia could only be expressed from that day onwards. Supporters of the act claimed that if the letter of the act had not been respected, at least the spirit of it was because long before the 23 of September his physicians had had lengthy discussion with him. Legally, this is of course not relevant and because not all the procedures have been respected, the death of Verstraete was a criminal offence. To my knowledge no prosecution has been started. Whether the case has been reported to the Federal Control Committee is not known either.
27. John Griffiths, Alex Bood and Heleen Weyers, Euthanasia and Law in the Netherlands (Amsterdam: Amsterdam University Press, 1998), p. 106
28. Non-reporting was previously in the Netherlands a separate, far more minor offence. See John Griffiths, "Important changes in euthanasia law," Newsletter MBPSL 4(2001): p. 2.
29. John Griffiths, "Self-regulation by the Dutch medical profession of medical behaviour that potentially shortens life," in Regulating morality, ed. H. Krabbendam and H.-M. Ten Napel (Antwerp: Maklu, 2000), p. 177.
30. See in this respect the plea of some members of the Belgian advisory committee on bioethics in the recommendation on euthanasia (see not 1) that "the answer on the question whether a legal regulation of euthanasia is desirable may not be separated from a legal regulation offering guarantees for a competent and independent establishment of death"
31. Heleen Weyers, "Euthanasia: the process of legal change in the Netherlands. The making of the requirements of careful practice," in Regulating physician-negotiated death, ed. A. Klijn, M. Otlowski and M. Trappenburg ('S Gravenhage: Elsevier, 2001), p. 17.