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Published: Fri, 02 Feb 2018
“ANALYSIS OF EUTHANASIA LAWS IN THE NETHERLANDS AND GREAT BRITAIN”
The progressive development of human rights, together with medical science, establishes a continuous discussion on the question of euthanasia. There are various opinions concerning how euthanasia should be practiced. Each of those opinions is supported by considerable argument, but right now it’s difficult to establish whether there are more proponents or opponents and which choice is correct.
Progress in modern medicine allows us a longer and healthier life expectancy. But new health problems continue to develop. However, prolonging life in this way does not necessarily provide a better or more acceptable death. There are even people who argue that modern medicine supports an extension of the process of dying, which can be painful and meaningless for patients, as well as torturous and financially burdensome for their families.
The subject of euthanasia is more often discussed within circles of doctors and religious communities than by lawyers, even though lawyers are the main source for establishing legal definitions of euthanasia. We see today that each country has its own legal approach to euthanasia, as reflected in its respective laws.
This paper compares euthanasia law in The Netherlands and Great Britain. We compare these two European states primarily because only one of them has legalized euthanasia, clearly illustrating the legal differences. But are their differences so distinct in practice as well? In order to clarify these issues, the first chapter focuses on a general definition of the concept of euthanasia, in order to better understand the entire concepts behind euthanasia law. The analysis of both jurisdictional approaches toward this concept is referred to in the second chapter. The third chapter is based on the comparative view of these countries and whether they are really so different. The fourth chapter only determines a position of International law towards the universal and problematic attitudes concerning euthanasia.
1.1. DEFINING THE CONCEPTS OF “EUTHANASIA“
The word Euthanasia originated from the Greek language: eu means “good” and thanatos means “death”. One meaning given to the word is “the intentional termination of life by another, at the explicit request of the person who dies.” However, there are additional classifications of this term as active or passive, and as either voluntary or involuntary. One form of euthanasia is considered assisted suicide. This division results in greatly confusing issues and the absence of a common legal definition for the term “Euthanasia”. It is very important that during long and elaborate research, is acted very carefully and leisurely in establishing any common definition for the term of “Euthanasia” because the term is very powerful.
1.1.1. THE ORIGIN OF EUTHANASIA
The basic concept of euthanasia was founded in ancient Rome, many years BC and long before of the yet-to-come Christian religion. Many ancient Romans did not believe in the essential value of individual human life, so physicians in those times often committed voluntary (and even involuntary) mercy killings. Suicide was tolerated among patients who were suffering, in great pain and had an incurable illness. Famed philosopher Plato said that people who were mentally and physically ill should be killed and do not have the rights to life. The first change in attitudes was noted with the creation of the Hippocratic Oath, which says: “I will use treatment to help the sick according to my ability and judgment, but never with a view to injury and wrong- doing.” Afterward, euthanasia was considered a crime of murder in Rome. A few physicians acted in accordance with the Hippocratic ideal, but those who supported mercy-killing for reasons attributed to relief from pain, kept ‘helping’ their patients to die. This illustrates that the philosophy behind euthanasia is a very complicated issue that has been with us from the origins of our civilizations. There always will be two groups of people with diverse opinions over this problem, no matter what the arguments or developments over time may be. But this does not mean these two groups could never come to common solutions agreeable to most people.
1.1.2. ACTIVE VS PASSIVE
Active euthanasia might defined as intentionally bringing on the death of an ill patient, at his express request, by active means such as injecting the patient with poison. This was once defined as ‘mercy killing‘, but the term was soon avoid because of its connection to the Nazis in World Word II and their killing of Jews, Gypsies, etc. On the other hand is passive euthanasia, usually defined as the refusal of medical treatment with the intent of causing the patient’s death. It is defined as the patient having a right to refuse all treatment and intervention when the illness is incurable; there no chance of recovery and death is inevitable. By this act, the patient takes all responsibility for his fate. That essentially means, if the patient suffers any sudden interruption in life-function, the doctors do nothing to save him and allow him to die.
1.1.3. VOLUNTARY VS INVOLUNTARY
Another division occurs between Voluntary and Involuntary euthanasia. These two types are not specifically relevant for this paper, but are mentioned for a better understanding of whole concept of euthanasia. Voluntary euthanasia allows refusal of treatment by the patient, knowing that this act of refusal will lead to his death. The opposite of voluntary is involuntary euthanasia, which occurs when a patient’s life is ended without his knowledge or consent. This may be a case in which a patient is unconscious or in vegetative state and someone makes the decision for him.  This method does not find so much obstruction and is clearer from a legal point of view than the voluntary act.
1.1.4. ASSISTED SUICIDE
Somewhere between active and passive euthanasia is the consideration of assisted suicide. This method is seen when a doctor gives a patient advice on how to end his own life, but does not perform the act himself. For example, it is considered assisted suicide if a doctor gives a pill sufficient to cause death, explains what it is and the patient takes it later by himself.
2. THE REGULATION OF EUTHANASIA
2.1. PAIN AND SYMPTOM-RELIEF APPROACHES
If a patient is fatally ill and suffers great pain, a general agreement that can help him out of his suffering exists. There are two special approaches which can be practiced, without any violation of the terms of criminal law causing bodily harm, even though they may shorten a patient’s life. The first is called the Double Effect, which is based on the doctor’s intention. Another method is called the Medical Exception. These two concepts are further described below.
2.1.1.”THE MEDICAL EXCEPTION”
In general, the medical exception accepts that doctors are allowed to do things which are for others forbidden, as long as there is a substantive medical reason. Medical treatment falls outside criminal law. That means things done by doctors are very serious crimes for others. This exception helps doctors as well as patients. For example, a doctor fearing prosecution by his patient would not be a contribution either to medicine or patients. On the other hand, this concept also has disadvantages. Doctors’ relief of liability for their acts might tend away from a proper responsibility towards patients, even though medical negligence or error is very difficult to prove.
2.1.2. “DOUBLE EFFECT”
“The principle of the double effect is a doctrine that distinguishes between the consequences a person intends and those that are unintended but foreseen and may be applicable in various situations where an action has two effects, one good and one bad.” This means, if the doctor’s primary intention is to relieve suffering, he may prescribe pain relief even though he knows it may cause a patient death. The doctor will not be guilty of murder unless his purpose was to cause a patient death. However, this raises an issue of intention, since in most jurisdictions the fine distinctions between primary and secondary intention that the doctrine of double effect requires is not permitted. Intention is present if its result is foreseen by he who acts. Nevertheless, the approach in medical cases is taken with this provision, even though the legal grounds on which it can be accomplished are not clear.
2.2. THE NETHERLANDS
On November 28, 2000, the Dutch Lower House of parliament, by a vote, approved the legalization of euthanasia [104 for and 40 against]. Then, on April 10, 2001, the Dutch Upper House of parliament followed and voted to legalize euthanasia [46 for, 28 against and one member was not present]. On April 1, 2002, the Termination of Life on Request and Assisted Suicide Act came into effect and euthanasia became legal in The Netherlands. By this step, The Netherlands became the first and (at that time) only country in the world where euthanasia was formally legalized. By law, is not punishable. Even though, since the beginning of 90’s, the Royal Dutch Medical Association and the Ministry of Justice agreed, that when a physician follows the prescribed guidelines for a non-prosecution agreement, euthanasia is practiced.
A proceeding case called Brongersma  played a big part in approval of the Act at that time. This case is considered as a landmark in the development of Dutch euthanasia law. Another reason was that parliamentary debate was closely interwoven. During parliamentary debate, many discussions concerning the new Act were centered on this case.
Doctor Philip Sutorius helped an 86 year old patient, ex-senator Brongersma (who was very well known to the public), to die in the belief that he was suffering because of his hopeless existence. The doctor helped him, the stated reason being that he was “tired of life”. A further medical opinion confirmed that he was in great pain. However, the public prosecutor disagreed with Dr. Sutorius’s solution. The case ended after 2 years , when the Supreme Court rejected all of the Sutorius defenses and he was convicted of murder (article 40, Penal Code). Yet the court used its discretion not to impose any punishment.
The most important aspect of the Brongersma case is that it raised the debate in parliament and forced all members to focus on the issue of euthanasia. Additionally, the patient who died was a former senator from the Labor Party. Just prior to the end of the proceedings, the Termination of Life on Request and Assisted Suicide Act was approved by members of parliament.
2.2.1 ACTIVE EUTHANASIA AND ASSISTED SUICIDE
In a majority of countries, the term ‘euthanasia’ includes most behaviors concluding in death, such as active, passive, voluntary euthanasia, etc. But in The Netherlands, only ‘active euthanasia’ has legal standing.  Since 2002, the conditions relevant to euthanasia are governed by the Termination of Life on Request and Assisted Suicide Act [Review Procedures]. The law is of three parts. The first regulates ‘requirements of due care’ and talks about responsibilities for reviewing reported cases. The second amends articles 293 and 294 of the penal code. And the third amends the Burial and Cremation Law.
The statutory ‘requirements of due care’ consists of six points:
1-The patient request was voluntary and well-considered
2- The conviction that the patient’s suffering was unbearable and without improvement
3-The doctor informed the patient of his situation and prospects
4-The patient must be informed that there is no other reasonable solution for his condition
5-The doctor has consulted at least one other independent physician, who has seen the patient and provided a written opinion on the requirements of due care, referred to in parts 1 – 4, and
6-The doctor has terminated a life or assisted in a suicide with due care
The illegality of euthanasia was ended by enactment of article 293. Article 293 provides: “Any person who terminates another person’s life, at that person’s express and earnest request, shall be liable to a term of imprisonment not exceeding twelve years or a fifth-category fine.” 
But article 293 adds:” The act referred to in the first paragraph shall not be an offence if it committed by a physician who fulfils the due care criteria of the Termination of Life on Request and Assisted Suicide Act and if the physician notifies the municipal pathologist of this act, in accordance with the provisions of the Burial and Cremation Act.”
That means behavior usually punishable is not recognized as a criminal offence if the act is committed by a physician who fulfils the set requirements and notifies the pathologist.
Since the only method ‘legally’ recognized as euthanasia is an active one, assisted suicide falls outside this group in The Netherlands. However, assisted suicide was never considered a crime prior to the creation of the new article 294 of the Penal Code.
Article 294 states: ”Any person who intentionally assists another to commit suicide or provides him with the means to do so shall, if suicide follows, be liable to a term of imprisonment not exceeding three years or a fourth-category fine”.
Nevertheless, both of those methods are treated differently by the Penal Code, although Dutch law does not make any differentiation between active euthanasia and assisted suicide in practice when they are justifiable. This means that, in practice, both are considered ‘euthanasia’ in the Netherlands.
2.2.2 REFUSAL OF TREATMENT
Refusal of treatment is known as passive euthanasia. In The Netherlands, this action is covered by the Law on Contracts for Medical Treatment, which is part of the Dutch penal code. According to article 11 of the Constitution, which states the right of all persons to the inviolability of the body, doctors must follow the wish of a patient in refusing a treatment.  The right to refuse begins at age of 12. In cases where a child is 12-16 years old, there is need of consent by both the child and his parents. In cases where a child is younger than 12 or between12-18 and not competent, then he or she is represented by parents or guardian. But for people 18 years old or older, who are not competent, the decision has to be made by a representative [Court-appointed representative, spouse or partner and a parent, child, brother or sister, doctor]. Another method of refusing treatment is through a written treatment directive. Article 450.3 of the Law on Contracts for Medical Treatment says: “In a case where a patient sixteen years of age or older cannot be considered capable of the reasonable assessment of his relevant interests, the health care provider and [the personal representative] shall follow the patients apparent views, laid down in writing, when he was still capable of such reasonable assessment and containing a refusal of consent. The health care provider may depart there from if he considers that there are well-founded reasons for doing so. ” There are almost no formal requirements such as witness or signature, but these instruments might increase the chance of a valid treatment directive. The only issue which may occur is where a doctor departs from the written document if he considers there are ‘well-founded reasons’ to do so. This formulation is vague; there is an agreement that the personal view of a doctor cannot amount to a ‘well founded reason’. A professional opinion that treatment will cause death of a patient is irrelevant. In effect, a ‘well founded reason’ refers to the authenticity of the document.
The question is, may a patient be killed by active euthanasia or assisted suicide against his will, when there are requirements for voluntary request and intolerable suffering? If the suffering is sufficient to be considered intolerable, that finding depends upon a doctor’s subjective opinion. Even though one rule includes consultation with another independent physician, there is no way to measure the size of suffering. Yet according to some authorities, the final decision over a voluntary request does not essentially depend on the patient. The Dutch law, supposed to protect autonomous decision, has proved to be insufficient and allows the killing of people who did not request it. One leading Dutch authority and advocate for many years in the question of euthanasia, René Diekstra, was “troubled that this vision of providing ‘relief from irremediable suffering while preserving autonomy’ was lost among the realities of euthanasia in The Netherlands”. Here she has created an argument for those who are against the concept of euthanasia, as a ‘slippery slope’ warning people against tolerating euthanasia and assisted suicide. The argument of the ‘slippery slope’ is very simple. Even though euthanasia need not be seen as the worst idea, it might lead to such bad things as the killing of a patient who has not requested it. Even if a line can be drawn between voluntary and non-voluntary euthanasia, it is impossible to adequately safeguard against a slip to one side. But there is no hard evidence of a slippery slope in The Netherlands. However, there will always be the potential for abuse when euthanasia is legalized in this form.
2.3. GREAT BRITAIN
In Great Britain, differently from The Netherlands, Euthanasia is, according to law, illegal. As well as euthanasia, assisted suicide is acceptable neither from a legal point of view nor in practice. But competent adults may refuse treatment and incompetent adults and children are treated in what is believed to be their best interest. In the beginning of the 19th century, euthanasia began be a point of interest in philosophical circles, mainly because of the influences of that time. Then, in 1994, the House of Lords in Great Britain rejected the legalization euthanasia because it would breach the Sanctity of Life Doctrine. In 2005, they re-visited the question of legalizing euthanasia as a consequence of introduction into the House of Lords of the Assistance with Dying for the Terminally Ill Bill. The primary aim of this Bill was to legalize euthanasia for those patients who are unable to commit suicide. The Select Committee travelled to Belgium, Switzerland and The Netherlands (where euthanasia and assisted suicide have been legalized) to analyze the advantages and disadvantages. The Assisted Dying Bill was not successful and was rejected in 2006 for reasons of indeterminate key terms, such as pain, suffering and the distinction between euthanasia and assisted suicide.
2.3.1. ACTIVE EUTHANASIA AND ASSISTED SUICIDE
Since there is no British provision for legal euthanasia, it is considered murder under English law, where conviction carries a life sentence. However, the motive of the offender or consent of the victim is relevant to the case and this was presented in case of Bland . There are some factors that can reduce the sentence. For example, if the defendant’s primary intention was to act in good faith to alleviate suffering. Another issue is assisted suicide, which is prohibited by Suicide Act 1961 section 2 and states: „A person who aids, abets, counsels or procures the suicide of another, or attempt by another to commit suicide shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years“. The issue rises, if someone assists another person to obtain an assisted suicide in another country [where the act is considered legal], is he then liable to be prosecuted under the Suicide Act 1961 section 2? One of the favorite destinations to receive an assisted suicide is Switzerland. As far as I know, there are approximately 150 cases every year and no one has yet been prosecuted.  The evidence over how strictly the law is enforced is seen in the case Pretty vs. The United Kingdom. The plaintiff, Dianne Pretty, claimed the criminal prohibition against assisted suicide contradicted the European Convention on Human Rights, but she was not successful. This case is analyzed in more detail in section four, “Approach of International law towards “Euthanasia”.
2.3.2. PASSIVE EUTHANASIA
A mentally competent adult has an absolute right to refuse any medical treatment considered as passive euthanasia, even though it leads to death. In the case of a competent child, he or she does not require parental permission to do so. But the decision must be in the best interest of the patient and a court can overrule any refusal. When an adult is mentally incompetent, the treatment decision is made on behalf of his representative, who is chosen by the individual himself, or judicially appointed [at the time he was still competent]. This decision-maker must pass the ‘best interest’ test. The action of prolonging life is usually considered to be in the best interest of the patient. The Mental Capacity Act 2005, section 4 states the requirements that must be considered:
A, the person’s past and present wishes and feelings, B, the beliefs and values that would be likely to influence his decisions if he had f capacity and C, other factors he would be likely to consider if he were able to do so.
The case Airedale NHS Trust vs.Bland  is a landmark case in passive euthanasia [withdrawal]. Antony Bland was a victim of the disaster at Hillsborough stadium. He was injured in the crush, after which he was diagnosed as a being in persistent vegetative state. He was fed through a tube. The conclusion by doctors was that Antony would never recover from this state. Since he was not competent in that state, his family and doctors agreed it was in his best interest to withdraw artificial nutrition. The Official Solicitor, Lord Lowry, representing incapable people such as Antony was against this decision. Lord Lowry said: “There is no duty, or indeed right to feed, when feeding is not in the best interests of the patient. But the real reason for withdrawing feeding is that the doctors consider that it would be in the patient’s best interests for him to be allowed to die.” The House of Lords agreed with the opposing solicitor that if the doctors’ intention is to deny any food and fluids to Antony then it would be considered as murder. But the Lords held that the doctors would not commit murder, because the offence requires an act, not an omission. Stopping feeding is considered an omission, not an act. The Law Lords dismissed the appeal against withdrawing the feeding of Anthony Bland, the feeding was stopped and he died couple of days later.  Lord Mustill said:
“The conclusion that the declarations can be upheld depends crucially on a distinction drawn by the criminal law between acts and omissions, and carries with it inescapably a distinction between, on the one hand what is often called “mercy-killing”, where active steps are taken in a medical context to terminate the life of a suffering patient, and a situation such as the present where the proposed conduct has the aim for equally humane reasons of terminating the life of Anthony Bland by withholding from him the basic necessities of life“.
One of the characteristics of Common Law countries is the use of precedent. For example, in Great Britain they look at precedent from previous rulings to know what the law is and how to apply it. The whole responsibility lies upon a judge, who may create the precedent. This is the reason why the argument of ‘slippery slope’ is one of the biggest fears in Great Britain. The legislation is very strict towards a problematic of opening ‘flood gates’. That is, thus far, the reason why euthanasia and assisted suicide has not been legalized in Great Britain. They are very careful in choosing their laws and, as far as they remain unable to find sufficient definitions in the question of euthanasia, there won’t be any possibility of legalizing euthanasia and/or assisted suicide.
Nevertheless, before a couple of years ago this idea of legalization was an unimaginable idea for any country and yet these days there are three Europeans states where it is legalized and others outside of Europe. In my opinion, eventually euthanasia will be legalized in Great Britain even though, right now, Britain’s is one of the strictest legal systems regarding euthanasia.
3. COMPARITIVE ANALYSIS
The laws regarding euthanasia, assisted suicide and other medical behavior that potentially shortens life are now recognized in places as diverse as the Netherlands, Great Britain and in other western countries. Discussions involve a large range of issues, including instruments such as ethics, law, and medicine; nevertheless they have a very common character. The issues are discussed in the media and elsewhere, but less by legal entities. The purpose for comparing the approaches to euthanasia in Great Britain and The Netherlands is to illustrate some basic differences and similarities in legislature and practice in these two European countries.
3.1. GREAT BRITAIN VS. THE NETHERLANDS
According to law, Great Britain and The Netherlands stand in opposition to each other in questions relating to euthanasia. But are the differences really so distinct in practice as well?
3.1.1. ACTIVE EUTHANASIA
In both of these countries an anonymous survey was made for the years 2004-2005. The survey in The Netherlands showed that out of 136,790 total deaths, 1.3% were the result of voluntary euthanasia and 0.4% involuntary euthanasia. Additionally, 25 % of deaths had been accelerated by doctors using pain relief, known medically as “alleviation of symptoms with possibly life-shortening effect”. In Great Britain the survey revealed that out of 584,791 deaths, 0.16% was by voluntary euthanasia and in 0.33% cases doctors were involved who ended patient’s life without consent, which is considered as involuntary euthanasia. But in some 33 % (191,811) deaths had been accelerated by doctors using pain relief.  It is clearly seen from the research that the number of euthanasia preformed in The Netherlands is almost three times greater than in Great Britain, obviously because of the legalization of euthanasia in the former. But, according to the numbers in the survey, it’s clear from the data on pain relief [one third higher than in The Netherlands] that doctors in Great Britain prefer another method of helping patients die, the doctrine of the ‘double effect’. By using this ‘possibly life shortening’ method, doctors are more protected against possible prosecution, because it is very difficult to prove a doctor’s primary intention. Even though those doctors committed it ‘clearly’ for the purpose of helping patients to die. So euthanasia undoubtedly continues to be preformed secretly in Britain. In Great Britain, the doctrine of double effect is something like a replacement of euthanasia for doctors. Additionally, it is the only country in which the doctrine of double effect has been explicitly accepted as a legal defense.
3.1.2. ASSISTED SUICIDE
Assisted suicide is forbidden, according to law, in both of these countries. In The Netherlands assisted suicide is covered by Dutch penal code article 294 and in Great Britain by the Suicide Act 1961 section 2. But in practice, their approaches differ. The Netherlands makes no distinction in practice between legalized euthanasia and illegal assisted suicide. They are both commonly used without prosecution. A reason for that is when euthanasia is legalized then there are no reasons why AS should be banned. In Great Britain the situation is a little more complicated. AS is not accepted according to law or practice, but there are some factors which could be considered when deciding a case, although “there are no guarantees against prosecution. Those factors are:
* Whether a person stands to benefit financially from assisting a suicide or if they were acting out of compassion
* If the individual wanting to die was deemed competent enough and had a “clear and settled” wish to make such a decision. Particular attention would be paid to issues such as aged under 18, or suffering mental illness
* Whether the person was persuaded or pressured into committing suicide, or if it was their own decision
But generally it’s very difficult to establish causation of AS because the person assisted to die most often dies alone.
3.1.3. PASSIVE EUTHANASIA
The next point that could be considered similar is the refusal of treatment, also called passive euthanasia. In both countries it is acceptable to allow the principle in all situations. In cases where a patient is unconscious, a doctor [or representative of a patient] must consider ‘quality of life’. Thus The Netherlands and Great Britain both allow judgments based on ‘quality of life’ considerations in these cases. Contributing to that fact, the role of representative of non-competent patient is legally very well defined in both jurisdictions.
3.1.4. ANOTHER COMPARISON
The similarity connecting these two countries derives from the position of the patient, which is very strong. But the legal position of a representative of the patient can only in the Netherlands be described, without qualifications, as strong. Great Britain is odd in that it leaves a key role in certain decision-making to the courts. In most countries, courts are the main element of legal development. In Great Britain and The Netherlands, there are distinct legal bodies responsible for medical law, but only in GB does the General Medical Council appear to be an essential factor in the development of legal rules. In The Netherlands, a non-criminal procedure for reviewing cases of euthanasia and assisted suicide has been put in control of these issues. Religion plays a major role in questions of euthanasia. As long as people maintain close ties to the Christian faith, it is unlikely that there will be any major support for the legalization of euthanasia. But in Great Britain and The Netherlands, religion is no longer taking such a strong position in political strategies. However, that does not mean that religion could be turned aside. In The Netherlands, euthanasia was considered murder for a long time after these crimes ceased to be prosecuted. The same circumstances occur in Great Britain. In The Netherlands, as well as in Great Britain, there is always disagreement over interpretation of at least two fundamental principles over any debatable topic that comes before the legislature. Change will likely come only in answer to shifts in public opinion if it is legislative and is likely to develop further as a matter of judicial reasoning.
4. INTERNATIONAL LEGAL APPROACHES REGARDING “EUTHANASIA”
There is no international source that addresses euthanasia directly. However that does not mean euthanasia is excluded in its entirety from International Human Rights Law. The basic sources of international law where is relevant articles can be found are the International Covenant on Civil and Political Rights (ICCPR), The Universal Declaration of Human Rights (UDHR) and, perhaps most importantly, the European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR). One of the most relevant cases on the question of euthanasia at an international level is the case of Pretty vs. United Kingdom . The case was decided by the European Court of Human Rights.
Article 3 of the UDHR states: “Everyone has the right to life, liberty and security of person.” According to many experts, the ‘right to die’ is covered by this article. The individual has a right to refuse the right to life. If we consider that life is a right, then we are allowed to refuse this right when we are capable of it. Even though it is not a part
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