The public era of euthanasia in the Netherlands began in 1973,(1) when two significant events occurred. A government commission reported that the ban on active euthanasia should remain, and a doctor, after admitting killing her sick mother who wanted to die, was found guilty, and given a suspended sentence. Evidence was tendered that she had only done what was already commonly, though unofficially, done by many doctors. The court announced several conditions which, in its view, would justify the active killing of a patient.
In 1981 and 1983, two courts reached similar conclusions.
A State Commission on Euthanasia decided in 1982,(2) that a doctor who terminates the life of a patient at the latters expressed and serious desire no longer should be punishable, providing that a number of conditions have been met, even though Article 293 of the Penal Code provided, as it still does, that taking the life of another person, even at that persons express and serious request, is a serious offence against human life, punishable by up to 12 years imprisonment.
The guidelines when carrying out euthanasia were formally published by both the government and the Royal Dutch Medical Association (KNMG) in 1984 and in 1987.(3) They required that the request be voluntary, well-considered and durable, that there be unacceptable suffering and that a second doctor be consulted. For many years, all these provisions have been known to be often abused. For example, regarding a well-considered request, a study by van der Wal in 1990(4) showed that the interval between the first request and euthanasia was no more than a day in 13% of cases, no more than a week in another 35% and had been as short as a few hours.
Since 1984, the courts have created increasingly liberal grounds for exempting doctors from prosecution after euthanasia, accepting psychological distress as a reason and no longer requiring terminal illness. To justify what was admittedly an offence, the courts decided that it was lawful for a doctor, faced with the alternative of leaving the patient in pain or giving relief by killing, to take the compassionate option, by taking life. The doctor is said to be acting under a higher duty or force majeure.
Many unsatisfactory court determinations followed. In 1985, a doctor was charged with being implicated in about 20 deaths in a nursing home, without the knowledge or consent of the victims. He was found guilty and sentenced to a year in prison but, following an outcry against the severity of the sentence, the verdict was overturned on a technicality. He was then awarded US$150,000 damages by a civil court.(5) In 1987, nurses killed three unconscious patients in an intensive care unit by injecting them with drugs. They admitted their guilt and were charged with murder, but discharged because of oor communication between the nurses and doctors over euthanasia policy.(6)
Courts accepted that some common practices outside the law could now be used to justify their legal recognition. The objective criteria normally required by criminal law were replaced by conformity with changing medical standards, and by subjective criteria which could not be tested at law. Prominent among those is unbearable and hopeless suffering, a criterion that has been shown by Dutch lawyers to be incapable of any consistent interpretation.(7)
The same reasons are invoked in the Netherlands as elsewhere to justify euthanasia, chiefly respect for self-determination, but only voluntary euthanasia is openly discussed. While some regard Dutch euthanasia as the flowering of patient autonomy, others regard it as the domination of patients by doctors who have gained unprecedented power over patients lives.
Public opinion polls are also used to justify policy, though the same polls that gain 70% support for voluntary euthanasia in the community encounter 90% opposition, when conducted in nursing homes.(8)
Official support for non-voluntary euthanasia is readily found. The State Commission on Euthanasia in 1987 recommended that non-voluntary euthanasia should not be an offence, if carried out in the context of careful medical practice, though that was not defined.7 In 1988, a KNMG working party condoned euthanasia for deformed infants, in some instances thinking it ought to be compulsory.(7) In 1991, a KNMG committee condoned the killing of patients in persistent coma.7
After years of uncertainty and argument, from within and without, about its euthanasia practices, the Dutch resolved in 1990 to set up a Commission, chaired by Attorney General Remmelink. It conducted an inquiry over a twelve month period and, in 1991, issued the Remmelink Report.(9) The statistical Survey on which the Report was based was carried out by the Central Bureau of Statistics and published in English in 1992, under the name of Dr van der Maas.(10) Though the Commissioners were surprised at some of the findings, especially non-voluntary killing, they at once excused such practices in their Report, but the statistics cannot be denied.
By adopting the narrow definition of euthanasia as active termination of life upon the patients request, the Dutch reported there were 2,300 instances of euthanasia in the year of the survey, or 1.8% of all deaths. When, however, to these are added instances of killing patients without request and intentionally shortening the lives of both conscious and unconscious patients, the figures are dramatically altered. They now become: 2,300 instances of euthanasia on request; 400 of assisted suicide; 1,000 of life-ending actions without specific request; 8,750 patients in whom life-sustaining treatment was withdrawn or withheld without request, partly with the purpose (4,750) or with the explicit purpose (4,000) of shortening life; 8,100 cases of morphine overdose partly with the purpose (6,750) or with the explicit purpose (1,350) of shortening life; 5,800 cases of withdrawing or withholding treatment on explicit request, partly with the purpose (4,292) or with the explicit purpose (1,508) of shortening life.(11)
Thus, there were up to 23,350 instances of doctors intending, by act or omission, to shorten life, lifting the incidence of euthanasia to over 20% of all deaths in the year. Because of lack of precision in some of the above categories, it is not possible to be certain about the exact incidence of the intentional taking of life without consent, that is, of non-voluntary euthanasia, but there can be no doubt that it was substantial.