The Special Senate Committee on Euthanasia and Assisted Suicide
Of Life and Death - Final Report
Palliative Care in Canada
The first palliative care programs were established in Montreal and Winnipeg hospitals in 1975. Four hundred and fifteen palliative care programs are now included in the 1994 directory of the Canadian Palliative Care Association. Canada has a reputation on the international scene for the development of hospital-based palliative care and for the quality of some of its palliative care professionals. However, many witnesses stated before the Committee that palliative care is still largely unavailable in Canada even in major cities,<$F"Is organized palliative care available throughout Canada? The answer to that question is a categorical "no" [...] also [that] it is not available in some major centres" (Latimer, 4:12)."There are very few people who receive appropriate palliative care services" (St-Germain, 9:23). "The number of patients who are dying who can receive palliative care is minuscule. If they have good hospice care, they do have pain control. We are concerned about the people who do not have palliative care" (Scandiffo, 8:48). "Palliative care in an organized and accessible form is available in any large urban centres in Canada [...] rural areas are the most difficult for service to be provided. The biggest problem has to do not so much with the quantity and placement of service as its connectedness or disconnectedness from other care" (Henteleff, 5:17). "This does not just apply to under-serviced areas. There are major centres where palliative care is not available to all of the people who require it" (McGregor, 4:53). "It is (palliative care) certainly not available in all communities, and especially in smaller communities; palliative care or, frankly, access to psychiatric resources, is difficult" (Rowand, 9:36).>although programs exist in every province.
The purpose of this appendix is to provide detailed information regarding palliative care services in Canada. We will briefly review the definition of palliative care, then analyze the position of palliative care services in the overall Canadian health care system, and describe the present situation in the provinces.
2. Definition of Palliative Care
The high degree of specialization of medicine, the perceived anonymity of care, the emphasis on acute care in hospitals, and a tendency to be preoccupied with curing illness over easing suffering, by attending to the total needs of the person, have made many seek alternative approaches:
There is an image of dying people that many Canadians have - the person is comatose, hooked up to monitors with intravenous tubes sticking out everywhere. We have too often seen our loved ones like this and we have seen them in pain and suffering.
Hospice care is different. It makes sure that someone is relatively free of pain, is often able to be awake so they can remain an active part of their families until a few hours or days before death, does not use monitor or tubes, and tries to give as much control to the patient and family as they choose to have<$FHarry van Bommel, Dying for Care - Hospice Care or Euthanasia, NC Press, Toronto 1992, 24.>
Many witnesses referred to the Health and Welfare Canada definition of palliative care:
Palliative care is a program of active compassionate care PRIMARILY directed towards improving the quality of life for the dying. It is delivered by an interdisciplinary team that provides sensitive and skilled care to meet the physical, psycho-social and spiritual needs of both the patient and the family. The philosophy and principles of palliative care may apply to patient population other than the dying and palliative care programs may have a SECONDARY role in addressing the needs of these populations (capitals in the text)<$FHealth and Welfare Canada, Health Services and Promotion Branch, 1989, Palliative Care Services, Report of the Subcommittee on Institutional Guidelines, Guidelines for Establishing Standards, p. 1.>.
Others referred to the World Health Organization which :
Defines palliative care in terms of being active, total care, focusing on control of pain and other symptoms and [...] psychological, social, and spiritual support aimed to improve the quality of life [...] it affirms life and regards dying as a normal process; that it neither hastens nor postpones death.
Palliative care associations promote integrated delivery services such as care and support to dying persons and their families through teams of professionals and volunteers; bereavement support to families; and public awareness and education.
A coordinated network of interdisciplinary services that provides active, compassionate care to the terminally ill at home, in hospital or other care facility [...]when quality of life rather than treatment directed at cure or prolongation of life is the primary objective. It is delivered by an interdisciplinary team that provides sensitive and skilled care to meet the needs of the whole person and to promote the on-going health of the family [...] the terminally ill person's friends and family play an invaluable part in the care [...] the care of the people who are dying is a responsibility shared by individuals and communities as well as social and health care systems.<$FIsland Hospice Association, The Prince Edward Island provincial palliative care organization, 1994, 12.
3. Canadian Palliative Care Associations
The Canadian Palliative Care Association (CPCA) was founded in 1991 and incorporated in 1993. It has a membership of some 250 individuals, provincial associations, and various programs and services organizations. VON Canada, the Canadian Cancer Society, the Canadian AIDS Society and the Canadian Society of Palliative Care Physicians are its four affiliate members. The CPCA receives financial support from Health Canada and it organizes national palliative care conferences every second year, publishes a Directory and promotes palliative care at the national level.
The typical provincial palliative care organization is registered as a charitable and non profit organization and is community-based. Nine out of ten were incorporated after 1990. They are advocates for palliative care policy development, adequate funding, the establishment of standards, and the development and expansion of palliative care services. They support palliative care groups and institutions by providing members education and development opportunities, networking, advocacy and informational services locally and nationally. They are financed through membership fees and charitable donations.
4. Availability of Palliative Care Programs
There is a dearth of published information on palliative care in Canada. Material has been provided by witnesses appearing before the Committee or gleaned from their briefs. Various governmental and non-governmental palliative organizations were asked to provide data. Articles are found in specialized journals, however, accurate statistical data is scarce about numbers of programs, institutions, number of patients, comparative costs, and other aspects of palliative care. Such material is not collected by Statistics Canada, the federal Department of Health or palliative care organizations.
The 1994 Canadian Directory of Services Palliative Care and HIV/AIDS lists palliative care services for all provinces and territories. Table I summarizes this information and table II lists the number of provincial palliative care programs for 1981, 1986, 1990, and 1994. For example, there were 55 programs in Ontario in 1981, 11 programs in New Brunswick in 1990, etc.
TABLE I - PALLIATIVE CARE PROGRAMS IN 1994*
NUMBER OF BEDS
*Compilation from Canadian Palliative Care Association, Palliative Care HIV/AIDS, Canadian Directory of Services.
TABLE II - PALLIATIVE CARE PROGRAMS IN THE PROVINCES-1981,1986,1990,1994
|1.Province Name (Rank 1981,1986,1990,1994 for the Number of
Programs for Each Year)
2.Rank In Population 1993 : Population in 1993 (thousands)
3. Rank in Ratio Population (thousand)/Programs; Ratio Population (thousandss/programs)
British Columbia (2)(2)(2)(2)
Nova Scotia (7)(6)(5)(5)
Prince Edward Island(9)(9)(10)(10)
Sources: Data for 1981 and 1986 from (Scott,1992,15); for 1990 from Canadian Palliative
Care Association,1990, The Canadian Palliative Care Directory; and for 1994 from
Canadian Palliative Care Association,1994, Palliative Care and HIV/AIDS,
Canadian Directory of Services.
Data for population from statistics Canada
The information provided in these directories is of limited use as they are "based on self-reporting of services." Some services may not have been reported and some that are in the Directory may not qualify in the absence of verification. It is, therefore, hazardous to make comparisons between provinces. For example, statistics are provided but there is no indication whether they represent a week, a month or, the whole year so that the number of cases may vary dramatically.
The real extent of palliative care programs is not known at this time. The most quoted estimate is that less than five percent of dying people in Canada receive palliative care.<$F "Harry van Bommel's book, published less than a year ago, includes his survey of the situation which indicates that five per cent of patients who request palliative care have it available to them" (Ms. Seguin, 7:40 ). "Only five per cent of dying patients in Canada receive palliative care" (Mount, 5:30-31) "In their book, Health Care in Canada: A Description and Analysis of Canadian Health Services, (1988, 1990), Dr. Ralph Sutherland and Professor Jane Fulton estimated that about 5% of people who are dying receive some form of palliative care service" (van Bommel, 28:19). The full quotation is: "Dr. Ralph Sutherland and Jane Fulton estimate in their 1988 book, Health Care in Canada, that less than five percent of dying people in Canada receive palliative care through formal recognized palliative care programs. They further estimate that perhaps 10% of cancer patients may receive palliative care" (Harry van Bommel, Dying For Care - Hospice Care or Euthanasia, NC Press Toronto, 1992, 33. Finally, the Canadian Palliative Care Association has issued a release, in January 1995, stating that "only a tiny percentage of the population has access to palliative care services - about 5%". >This information was first cited in the Canadian Palliative Care Directory published in Toronto in 1987 by the Palliative Care Foundation from data collected in 1986. <$FScott, "More Money For Palliative Care?" Journal of Palliative Care, 1994, 16.>
5. Palliative Care in the Canadian Health Care System
To properly delineate the place of palliative care services in the Canadian health care system, we must define the involved jurisdictions and applicable standards and differentiate these services from long-term care. We also must examine issues in their development (such as funding for activities and training of health care professionals).
According to the Constitution Act and its subsequent interpretation health is a provincial jurisdiction in Canada.<$FWith some exceptions such as specific population (native people, military, federal prisoners, residents of the territories).> In practice, responsibility is shared with the federal government. The Canada Health Act defines basic principles. To summarize: "the federal government has [...] the financial resources to provide funding for health services but not the jurisdiction. The provinces have the jurisdiction but do not have sufficient financial resources to do what they choose"<$FAnne Crichton and David Hsu, The Canadian Health Care System: Its Funding and Organization, 1990, 28.> The federal government affects health services through activities by various departments and through its spending power. The federal government can also significantly impact on health delivery by way of legislation or changes to existing Acts or regulations.
There is no single standard for health care programs across Canada. While standards for medical practice are usually defined by medical associations, minimal standards for programs are usually derived from the philosophy and principles guiding an individual program and developed by various stakeholders such as hospital, professional associations, and governments.
In developing standards there is often a dynamic interplay between federal and provincial jurisdictions. The Canadian Council on Health Facilities Accreditation, the Department of Health, the Federal/Provincial Advisory Committee on Institutional and Medical Services<$FIts guidelines program dates back to 1972. "Guidelines are produced by expert working groups of health professionals, some of whom are government representatives. The final draft is reviewed and recommended by the Subcommittee (on Institutional Program Guidelines, composed of federal and provincial governments and professional representatives) for approval by the Advisory Committee" Health and Welfare Canada, Health Services and Promotion Branch, 1989, Palliative Care Services, Report of the Subcommittee on Institutional Guidelines, Guidelines for Establishing Standards, p. iv.> are major players. "Provincial jurisdiction is quite absolute, subject only to rights enshrined in the Charter of Rights and other components of our constitution, and to the exclusion of the limited areas of federal jurisdiction."<$FSutherland and Fulton, Health Care in Canada: A Description and Analysis of Canadian Health Services, Ottawa, The Health Group, 1988, 54.> However, federal legislation ensures Canadians of minimal, universal, and portable national standards in the delivery of health care programs. For palliative care, the following quotation from the Vice President of the Manitoba Hospice Foundation describes the actual process:
Health is a provincial responsibility. Concerning the hospitals in this city (Winnipeg) with palliative care units, the boards of the hospitals control ultimately what goes on in those palliative care units; but accreditation of educational programs, accreditation of all the postgraduate training programs for physicians, both specialists and family physicians, is the responsibility of national bodies, of the Royal College of Physicians and Surgeons and the College of Family Physicians of Canada. That way, if our palliative care training programs and other things are looked at by national organizations, then you can ensure uniformity even though the primary responsibility for the health is at the provincial level.
The Medical Director of the Palliative Care Program at St. Boniface Hospital added the following when asked if there are standards to follow for developing palliative care:
The Canadian Palliative Care Association is presently developing standards but they have not been put in the presses yet. There is a newly formed Canadian Society of Palliative Care Physicians. The development of standards in that society is one of our mandates as well.
5.3 Palliative Care vs. Long-Term Care
Palliative care is recognized as part of a continuum of care and services the objective of which is to improve the quality of one's last days by lessening physical, psycho-social and spiritual pain for terminally ill patients or for patients no longer in need of therapeutic or curative care.
The continuum may begin with family care by a family physician, continue with acute care in an hospital setting, than move on to long-term care and to community care in a home or in a hospice.
Long-term care is part of the same continuum. It is defined by the Canadian Long-Term Care Association as: "an integrated mix of services devoted to respecting personal autonomy, maintaining or promoting health or restoration, and providing social and personal supports as required."<$FBrochure, Canadian Long-Term Care Association.>
Long-term care is delivered "for sustained periods of time either on a continuous or intermittent basis"<$FIbid.>while palliative care is typically aimed at terminally ill patients. The average stay in palliative care services is very low: 19 days in the Maison Michel Sarrazin in Quebec City <$FDionne, 13:16.> and the median at Elizabeth-Bruyère Care Centre in Ottawa is between 15 and 21 days.<$FInterview with Dr. John F. Scott, Director of the Elizabeth-Bruyère Care Centre, December 7, 1994.>
Dr. Wyman, in his testimony, quoted the administrative definition of palliative care services used by the Ontario Medical Association:
As it currently stands, the palliative care fee applies to one designated physician responsible for the care of a terminally ill patient suffering from disease. Palliative care will be deemed to start when care is directed to maintaining the comfort and emotional well-being of the patient and the non-aggressive treatment of the underlying disease process. Palliative care fees should be charged retroactively after death on the basis of actual visits rendered for a period not to exceed four weeks prior to death and are not meant to apply when unexpected death occurs after prolonged hospitalization for another diagnosis unrelated to the cause of death. That last part was intended to ensure that if somebody was in hospital with a chronic illness and then died of some other cause, that palliative care was not being applied in those circumstances because it was not an expected death for a terminal disease.
Wyman, 20: 72-73
Some proponents of palliative care envision a "seamless" system where services are offered much earlier and patients do not have to relocate to receive appropriate care.
It is difficult to precisely delineate when one type of care begins and when the other finishes. Both offer community-based services and services "in nursing homes, homes for the aged, special care homes and extended care health centres<$FBrochure, Canadian Long-Term Care Association.>" The Ontario Palliative Care Association, in a brief concerning Ontario Bill 173, stated:
We believe palliative care is an essential part of long-term care. [...] We believe long-term care facilities, including chronic care beds, have an important role to play in the provision of palliative care. [...] In conclusion, the Association supports the redirection of long-term care ensuring patient/client centered care for the terminally ill.<$FFax, Ontario Palliative Care Association, August 16, 1994.>
The blending of long-term and palliative care is encouraged by the shift of care in provinces from institutions to community-centred care and home care. Many long-term care services have palliative related components in them.
6. Funding for Palliative Care
Health care is in a state of flux in Canada making it difficult to collect reliable facts on palliative care services and to expect that they will remain constant for very long. Large deficits have propelled provincial governments into reducing health spending. Health services are pressured to innovate to become more efficient. There is also a trend from hospitalization to community-based care.
In hospitals there is fierce competition by:
Medical specialists for scarce resources, most are anxious to introduce the latest technological advances in their specialty and all are curbed by hospitals budgets [...] the introduction of new techniques to improve life threatening conditions (such as heart disease or kidney failure) may take precedence over other repair technologies such as joint replacements, which are not necessarily to prolong life itself but will remove pain and improve the quality of life. <$FAnne Crichton and David Hsu, Canada's Health Care System: Its Funding and Organization, Canadian Hospital Association Press, 1990, 86.>
Currently, physicians are linked to hospitals and are paid on a fee-for-service structure<$FApproximately 75% of physicians in the 1980s; the rest were salaried. Salaried physicians were "researchers and teachers; diagnostic specialists, anesthesiologists or medical administrators; public health specialists and specialists in occupational medicine." Usually the medical associations determine a fee schedule annually, to be negotiated with their respective provinces. However, some specialists, such as psychiatrists, are paid by sessions, others (pathologists, radiologists) are usually employed by hospitals (Crichton, 1990, 69).> This system has been identified as one factor in health expenditures is rising significantly higher than the overall population increase <$FCrichton, 1990, 121; Lamarche, "The Crisis of Health Services in Canada" 1994, 12.> Witnesses<$F"The position of the College of Family Physicians of Canada is not so much for more funding, but for better distribution ... We believe that the fee-for-service system does not reward family physicians appropriately for the type of care they provide best, including palliative care" (Dr. Perkin, 23:10). "The other specific area that I was requested to comment on was the payment mechanism for palliative care in Ontario. In the mid 1980s, it became apparent to the tariff committee that we did not have appropriate fees to pay for the services of the growing number of physicians providing palliative care." (Dr. Wyman, 20:72).> have identified this form of payment as an obstacle to the development of palliative care, since it severely limits the time available to patients.
The situation is evolving. New Brunswick has innovated in setting up the New Brunswick Extra Mural Hospital which employs a professional medical staff. It is designed as a substitute to institutionalization, and an umbrella to provide for home care programs (see provincial section). A greater interest in preventive medicine has emerged; provinces are integrating some forms of community-based systems into their health care systems, and are creating regional structures for planning and delivering health services<$FA number of reports have been published including: Nova Scotia, 1990, Health Strategy for the Nineties . British Columbia, 1991, Report of The Royal Commission on Health Care and Costs.> Palliative care is more and more considered as an alternative to often excessively costly acute institutionalized care by provinces. At least four provinces have issued policy statements on palliative care, including Nova Scotia in 1988; Ontario in 1993, Alberta in 1993, and Saskatchewan in 1994).
7. The Health Care Crisis
In the 1990s certain aspect of the Canadian health care system are being questioned, including:
Centralized and rigid management, emphasis on curative and institutional care, number of physicians, their work practices, the fee-for-service pay system, and their monopoly on health services distribution; institutionalization and hospital practices, pharmaceutical companies and marketing practices which leads to an inappropriate use of technologies; and prices not related to R/D spending.<$F Paul A. Lamarche, "The Crisis of Health Services in Canada", speech to the Sixth Annual Bioethic Conference, November 25, 1994 7.>
The system is one of the most expensive in the G-7 countries.<$FThe most expensive is the United States. Canada's per capita spending is $1915 US, Japan's is $1267 US, Great Britain's is $1035 US. 10% of the Canadian GDP is allocated to health compared to 6.6% to Great Britain and Japan and 8.3% in Italy. (Lamarche, 1994, 4.)> It has difficulties in meeting actual and future needs of the population, is inflationary (the impetus is to provide more services, which are mores sophisticated and more expensive), and contributes marginally to the upgrading of the health of the population.
Decentralization is one of the many options that is being implemented by several provinces to improve the efficiency of the system. Another is reducing high-cost acute care treatment and promoting continuing care, including home care:
Even small shifts in the large institutional sector budgets into community-based services can have a significant impact. For example, taking five percent out of the total Canadian institutional sector budget and putting it into home care services translates into an increase of about 120 percent into the estimated home care budget.<$FDouglas E. Angus, Ludwig Auer, J. Eden Cloutier, and Terry Albert, Sustainable Health Care for Canada, Queen's University, Ottawa, Economics Projects, 1995, 82.>
These changes may translate into opportunities for palliative care. However, this raises the question of costs and effectiveness of this reorientation:
The provision of care for the elderly people in the community is not an easy option that will painlessly save costs as well as meet the preferences of elderly people...There are two overriding issues: a) Have sufficient resources been identified and committed to meet the growth in the need for the care of frail elderly people in the community? b) Has the capacity of the community to bear this additional responsibility been addressed and, where necessary, is it being strengthened.<$FOECD, 1994, "New Orientation for Social Policy", in Sustainable Health Care for Canada, op. cit. 97.>
8. Cost of Palliative Care Services
The extensive use of a large number of volunteers is one of the characteristics of palliative care in Canada, which currently operates within small budgets. Many witnesses believed that palliative care services are cost-effective because most palliative care centres involve an often large number of volunteers. Ms St. Germain, a nurse, stated:
When I talk about the development of palliative care and people respond with arguments about budgets, I say that it is possible to do a great deal with very little.
However, others doubted that palliative care services are necessarily cheaper. Dr. Elizabeth Latimer of Hamilton Civic Hospital declared that palliative care:
may be a little cheaper than high-tech health care, but we do not think we would want it to be that way because it requires a professional team of people [...] It will cost money [...] palliative care of intensely sick, dying patients at home may not be any less expensive than hospital care.
Latimer, 4:15, 4:21
The Director of Bioethics at the Hospital for Sick Children in Toronto reiterates that it is hands-on, not high-tech; it takes more people. (Lynch, 11:27). The President of Wellesley Hospital in Toronto added :
there is evidence that home care in some circumstances can be more expensive than institutional care. I think that is a reality. Very often, home care is sold on the basis of a cost-effective alternative to institutionalization. Sometimes it is; sometimes it is not.
The Executive Director of Maison Michel Sarrazin continues:
in general, palliative care costs about half what hospital care costs. It makes economic sense. Dying at home, which is increasingly the trend, is still less costly. But community participation in the form of volunteers makes an extraordinary difference. I mentioned our 250 volunteers. If we had to pay all the people who work at Maison Michel Sarrazin, it would cost us the same as in a hospital.
However, there is virtually no comparative data and there is a lack of comprehensive studies. The only studies actually cited were two in the United States and an unspecific reference to some data published in Ontario in 1988.
Another approach to the issue of cost is to consider that the last year of life in cancer patients may represent 75% of the total health care costs of their lifetime,<$FOxford Textbook of Palliative Medicine, 761.> and the claim that 25% of all hospital costs are spent in a patient's last month of life<$FJ. F. Fries, "Reduction of National Morbidity," in Aging and Health: Linking Research and Public Policy>. Costs are high because futile, aggressive and onerous treatments are used to keep the patient alive although some of these treatments may appear rather inappropriate for a dying person and even unethical according to some witnesses. They said that intensive invasive care caused increase in the chance of surviving.
A study done in Quebec in 1975-1976 led to the establishment of the Royal Victoria Palliative Care Unit in Montreal. At that time, palliative care unit hospitalization cost was deemed comparable to an acute care unit. Direct nursing personnel costs were slightly higher but that was compensated by significant savings from proper symptom control and, to a minor extent, by less expensive medication costs. Perhaps that study should be revisited to compare with actual experience over the years. But what is factual for one institution may not be valid for another.
Finally, some witnesses appeared pessimistic that palliative care can be made available while relying on volunteers and public and that it is difficult to innovate within the existing health care system.<$F"We must learn to better distribute our resources in health care [...] 90 per cent of our money are spent in large, acute care hospitals. That is great, but it means that people in chronic care, palliative care, and outreach into the community, are poorly supported" (Senn, 9:17).> However, most witnesses consider that the issues surrounding palliative care are more important than simple dollars and cents<$F"The cost of the health care system ought never, ever, ever to be used as a justification for ending life prematurely" (Rowand, 9:38). "I do not believe that cost has to be the critical factor in palliative care" (Seguin, 7:41). "As a compassionate and caring nation, we cannot afford not to (afford the cost of the extensive palliative care institutions)" (Mcpherson, 8:20). "It has been said that the true measure of a caring society is seen in the way it treats its most frail members" (McGregor, 4:53). "From the sixties and seventies, perhaps even since the war, came the belief in amelioration, the belief that things could constantly improve. The question we need to ask ourselves as a society is where we want to put our money, because many of the high-tech procedures are not paying off in the benefit that had been promised" (Latimer, 4:22)>.
9. The Training of Health Care Professionals
Successful palliative care requires trained health care professionals. According to an inquiry by Dr. Neil Macdonald <$F"Ontario Palliative Care Statement: A Template for the Rest of Canada" Canadian Medical Association Journal, 1993,> none of the 16 Canadian faculties of medicine offers a formal palliative care course, although designated lectures within other courses are available to medical students<$F20 hours at McGill; Dalhousie 16+ ; McMaster 15.5; Calgary 11; UBC, Queens and Western from 1 to 3 hours.>. Only two schools of medicine stated that they have a "definite commitment to increased curriculum time". There are only 18.25 person years devoted to palliative care physician positions in Canadian universities. Dr. Macdonald, considering the lack of attention to palliative care, asks the question: "Why have not the principles of pain management and palliative medicine more clearly informed medical practice? His answer:
Part of the reason for this gap is what is taught and what is practised relates to the continued isolation of many palliative care programs from the mainstream of medical care [...] most of them are still concerned with a select group of patients, generally with cancer, toward the end of their life [...] palliative care should be more closely integrated into overall disease control programs. Using cancer as an example we may look upon cancer control as having four phases. 1. Prevention of occurrence (example - anti-smoking programs). 2. Prevention of invasive cancer (example - PAP tests). 3. Prevention of death or severe morbidity (surgery, radiotherapy, chemotherapy). 4. Prevention of suffering [...] Palliative care is [only] concerned with the fourth phase.<$FNeil Macdonald, "Teaching Palliative Care: A Structural Overview," in Roderick MacLeod, Teaching Palliative Care: Issues and Implications, 1993 13.>
Another reason advanced by Dr. Macdonald is the view which is not uncommon in academic circles today that palliative research and education may be regarded as "soft" and lacking in intellectual rigor. Palliative care, he says, struggles for academic recognition: many of its practitioners are not connected with academic centres and it lacks an international communications system.
Palliative Care in the Provinces
"Palliative care is a core health service that each community or region must provide", according to Paul Ramsay, Minister of Health, in a letter to the Committee in 1994. Mr. Ramsay said that since 1992, significant new funding has been allocated to palliative care/hospice programs to increase availability of services, train caregivers and volunteers, and develop educational and resource material. These had been among recommendations of the 1991 Report of the British Columbia Royal Commission on Health Care and Costs.
British Columbia reports having spent approximately $50 million on palliative care programs in 1994/95 within a system which is decentralizing by establishing regional/community structures. The Ministry of Health funds palliative care through various programs which link existing hospital and community based services such as home care nursing and the province's one dedicated hospice. Emphasis is placed on symptom management and services appropriate to the evolution of the illness. The province is "looking actively" at providing patients in their homes with drugs and equipment free of charge.<$FThe "home care" has a palliative care component when drugs and equipment are provided and palliative care services by physicians can be billed to the province.>
Dr. Williard P. Johnston, Secretary-Treasurer of the Canadian Physicians for Life and family practitioner in Vancouver, says palliative care in B.C. is only just beginning:
In Vancouver, one would expect to have the most highly developed palliative care network in the province, both because of its size and because of the eminence in research and in tertiary patient care. As a primary care physician, I have difficulty finding adequate palliative care facilities for my needy patients. I can assure you that we are in the early stages of developing the entire ethic of palliative care as a medical tradition in this city."
The President of the British Columbia Hospice/Palliative Care Association, told the Committee:
Our organization consists of approximately 100 organized hospices within the province of British Columbia. There is an unknown number of hospices and steering groups that are forming at this time. We are constantly receiving requests for our start-up manual and inquiries about how to go about providing hospice/palliative care in the communities. There are also many volunteers who are providing hospice/palliative care in no organized fashion within our smaller communities. Hospice began in our province with the people [...] hospice/palliative care is only 10 years old in the most advanced areas in British Columbia; [however,] there are many places and people who do not know what hospice/palliative care is.
Mr. Horgan, Chaplain of St. Paul's hospital in Vancouver where there is an active palliative care unit said:
where there are no hospices located in-hospital, there are hospice interest groups and volunteers working in the community with physicians, with nursing staff, etc. I would say that the work of hospice education and of movement towards facilities in all areas of the province is very definitely underway.
Training in Palliative Care
The Vancouver Hospice program provides training in hospice care through Vancouver Community College in two courses (Palliative Concepts for Professionals in Care Facilities and Caring for Persons With a Terminal Illness). A third course, Advanced Hospice Training, will be offered in 1995. The Vancouver Hospice staff also provide Hospice Orientation to all continuing care staff.
The University of Victoria provides a course in palliative care in the School of Nursing; the British Columbia Medical Association has approved palliative medical care as part of the curriculum at the University of British Columbia, School of Medicine. Training material has also been developed by the Victoria Hospice Society and the British Columbia Hospice/Palliative Care Program.
Limitations and Gaps in Palliative Care Service Delivery
Palliative care services in British Columbia are dependent on volunteers and their budgets are very limited.<$F"The budget of each hospice varies. For the most part, there is no provincial funding. Most of the monies are raised within the community." (Coupal, 16:49)> Medication and supplies are not yet reimbursed by the province for patients wishing to end their days in their home. Some regions are underdeveloped while others offer extensive services. Finally, "the fragmentation of existing services makes it very difficult to plan and to possibly reorganize services to meet the needs of clients, families and health care providers.<$FFax, Carr, Vancouver Hospice Program, December 5, 1994.>
According to the Government of Alberta:
Historically, palliative care has been funded through hospital global budgets, home care programs and long-term care facilities. Palliative care services and programs are developed at the discretion of the organization or agency to meet identified local needs. Some urban hospitals and long-term care facilities have designated funding within their global budgets to support palliative care units or palliative care teams, if demand has warranted a special program.<$FLetter, Donald J. Philippon, Deputy Minister, Alberta Health, October 20, 1994.>
In 1991/92, the Health Unit/Health Facility Partnership was implemented "to strengthen and enhance the delivery of community-based services to support earlier discharge, to prevent admission to health facilities, and to enhance community-based palliative care services." <$FHealth Canada, 1993, 16.> In December, 1993, Alberta Health published Palliative Care: A Policy Framework in which it identified principles by which a continuum of care and support services would be available to terminally ill patients and their families. These principles include individual and family focus; independence and choice; access to palliative care based on an assessment of needs; palliative care to be offered in any setting; integration of care; support of family and community roles; preference given to care in the home; hospital care as required; development of a multidisciplinary body of knowledge; continuity of care; and coordination of services.
Alberta is cost cutting deeply in health care. The province states that since 1991 Alberta Health has been identifying service improvement and cost cutting targets for each sector of the health system. In April, 1995, Regional Health Authorities became responsible for the development of all health care services in their jurisdiction.<$FAlberta Health, 1993, 4.>
Alberta Health states that the government will support palliative care through reallocating dollars from hospitals to the community. The new Regional Health Authorities will allocate these resources in their respective regions. The Palliative Care Policy Framework (1993) and local/regional needs will guide the Regional Health Authorities in the development and funding of palliative care services."<$FLetter, Donald J. Philippon, Deputy Minister, Alberta Health, October 20, 1994.>
The impact of the reform on palliative care services is yet to be evaluated. Mr. Hiebert, who represented the Catholic Health Association of Canada before the Committee, declared that:
Governments in the past have been hesitant to fund palliative care [...] Clearly, the government in our province has changed its view towards supporting palliative care because it is concerned about the [...] health care system.
Dr. L. R. Ohlhauser, Registrar of the Alberta College of Physicians and Surgeons, has written to the Committee that "there is now more emphasis on palliative care in both medical education and in practice." Although there is increased emphasis, not all medical practitioners are satisfied. Traditional medical emphasis on cure and doctor directed over client/family focused care is still prevalent in attitudes and even in some of the education according to some witnesses. The Alberta Palliative Care Association is concerned that the local administrators are not sufficiently aware of palliative care needs. The Association is providing them with information.
Current Palliative Care Availability
Palliative care is available in most parts of the province but not across all health care sectors, according to Alberta Health and the Alberta Palliative Care Association. However, palliative care is not always accessible by all individuals in the province and in many areas limited expertise or knowledge of the philosophy of palliative care results in poorly delivered care. Free-standing hospices, as well as volunteer services, and psychosocial supports, are not funded directly by Alberta Health at this time. Free-standing hospices are not funded directly by the province.
Training in Palliative Care
In Alberta, expertise in palliative care is available in major cities from major hospitals in Edmonton, the Hospice Calgary Society, the Alberta Cancer Board, palliative care organizations, and various long-term care facilities. The University of Alberta in Edmonton and the University of Calgary provide some palliative care training as part of nursing and medical curricula. There are also two certificate programs for nurses which are related to palliative care. These courses do not completely address the needs of all palliative care clients but focus mostly on clients with malignancies, pain control needs and AIDS. Distance and cost mean that courses are not easily available to nurses outside of the major urban areas.
Limitations and Gaps in Palliative Care Service Delivery
The Palliative Care Association of Alberta identified numerous barriers to the development of palliative care services.<$FLetter, Sandy Doze, Co-Chair Palliative Care Association of Alberta; Maureen Scott, Co-Chair, March 4, 1994> These limitations summarize the situation in most provinces, according to palliative care advocates:
Financial: funding fitted into categories of long-term and acute care do not address the needs of palliative care patients; lack of a standardized statistical reporting system for reporting palliative care services; high cost of medication and equipment if patients return to their homes; insufficient pharmaceutical budgets in facilities; non-coverage, by the province Drug Benefit List of all palliative care-related medications; insufficient community funding for palliative care services.
Accessibility: time-lag after request for acute care beds and/or technologies, and difficult access to facilities for patients staying at home; private and appropriate environments are rarely available in facilities; inappropriate compensation for physicians involved in palliative care,<$FPhysicians are paid on a fee-for-service basis. Home visits and extra time for a patient are not considered.>; palliative care services are not available everywhere in the province; lack of understanding of palliative care patients' special needs by health administrators.
Education: lack, in palliative care education, of palliative care professionals and volunteers; lack of a specialized palliative care body of knowledge; lack of communication skills of health care providers; and lack of public knowledge of palliative care services.
Legislative: the current Hospital Act/Nursing Home Act places limitations on care levels allowed to specific facilities; lack of advance directives or legislation to ensure consideration of patients' choice.
Coordination: lack of a continuum of services and lack of adequate linking between services including links to specialty palliative care knowledge.
Research/Quality: lack of an evaluation model and standards for palliative care services; lack of research in various palliative care areas, including a focus on outcomes and quality of life for dying individuals.
Ethics: medical model of cure vs. care; service priorities; relation with euthanasia/assisted suicide.
According to Dr. Zach Thomas, President of the Saskatchewan Palliative Care Association:
Saskatchewan Health has assigned a high priority for palliative care in the province. Palliative care has been designed as one of the ten core services for which Health Districts are responsible [...] there are palliative care programs at various stages of development throughout the province [...] palliative care is considered an important component of the heath care structure of this province and a leading example of integration of different sectors of care and community relevant delivery of care.<$FLetter, Dr. Zach Thomas, President, Saskatchewan Palliative Care Association, December 29, 1994.>
In 1994, Saskatchewan Health released, in collaboration with the Saskatchewan Palliative Care Association, its Guidelines for Developing an Integrated Palliative Care Service that would extend existing programs and govern the establishment of new ones. It builds on current programs such as a Home Care Program established in 1978 which provides assessment, nursing, volunteer services and care coordination in 45 districts. Another long-term program, Special Care Home services "is provided by 171 special care homes and 99 hospitals. Approximately 93% of long-term care beds are in special care homes. Most facilities are operated by non-profit boards. 85% of long-term care residents have heavy care needs."<$FHealth Canada, 1993, 26.>
Funding for palliative care services is provided through the Health District which oversees:
that sufficient and appropriate funding is available for acute in-patient care, long-term care and home care [...] extra funds are being directed towards Community palliative care so that not only sufficient home care human resources (nursing, home support) are available but also medications and supplies free of charge to ease the financial burden on patients and families while choosing to remain at home.<$FLetter, Dr. Zach Thomas, President, Saskatchewan Palliative Care Association, December 29, 1994.>
The Saskatchewan Palliative Care Association promotes the advancement of palliative care services in the province through partnership with Saskatchewan Health to develop the provincial palliative care policy. It held a workshop in 1994 to facilitate the implementation of this policy throughout the province. It advocates enhancement and development of palliative care programs in Health Districts.
Current Palliative Care Availability
The Saskatchewan Palliative Care Association stated the provincial health care system is a world leader [in] realizing the significance of palliative care as a prime example of the "Wellness Model" of care." Funds are provided to support a "broad spectrum of palliative care initiatives," including "full benefit palliative care coverage and introduction of free supplies for palliative care persons in the community." The actual services provided are:
One full time salaried physician for providing palliative care medical support in one major city. In the other major city there are three physicians who provide part time coverage and receive a component of salary for their time commitments towards palliative care. To a large extent, the day to day medical care is provided by patient's own family physicians supported by specialists and oncologists. Provision of nursing and other support services are through salaried personnel employed by Health Districts. Individuals and community organizations provide volunteer services, as well as funds, to support areas of activities not funded by the health care districts; such as bereavement support.<$FIbid.>
While initial palliative care programs were directed towards cancer patients, they are increasingly available to patients suffering from all types of diseases, including HIV/AIDS. The Association also promotes the establishment of a Provincial Palliative Care registry which would be a first of its kind anywhere, and would greatly enhance planning for service delivery and research initiatives.
Training in Palliative Care
The Saskatchewan Palliative Care Association contributes to numerous educational initiatives at all levels in the provinces such as an educational training program of community caregivers in rural areas; it also provides information and resources (phone calls, literature, books, videos, the Association newsletter, etc.. Training for physicians and nurses exists in Regina and Saskatoon. District medical societies and departments of Continuing Education (medical and nursing) organize and provide educational opportunities for physicians, nurses and other care-givers.
Limitations and Gaps in Palliative Care Service Delivery
The Association identifies "management of pain, resolution of psychosocial problems and meeting of spiritual needs" as high priority needs to be met, as well as improving the awareness of both the caregivers and the public in general concerning palliative care programs, adequate provision of beds for long term care of palliative care patients in their own communities, continuous education, development of a body of knowledge in palliative care, and full integration in the health care delivery system leading to the creation of a "smooth flow system without seams and gaps so that persons can receive optimum care at the most appropriate location."
Dr. Thomas, president of the Saskatchewan Palliative Care Association is optimistic. He stated that the "health care reform initiatives have greatly benefited the development of palliative care services" in Saskatchewan, "as the health care services in each Health District come under one unified administration structure, this has facilitated: need based planning, team approach, appropriate resource allocation, and coordinated delivery. This has brought "wholesomeness" to the care being provided and thereby preventing fragmentation and sectorial considerations.<$FIbid.>
There are two palliative care centres in Manitoba; one is at the Riverview Hospital and the other at St. Boniface Hospital. The latter has about 200 active cases on their palliative home care program, which offers a telephone help-line. The Riverview Hospital also offers a home care program. According to Dr. Deborah Dudgeon, Medical Director of the Palliative Care Program at St. Boniface Hospital, most pain problems are managed by general practitioners. She added:
there are a number of rural programs throughout Manitoba as well [...] and there is certainly more palliative care in the community than in institutions, and that is where it should be.
Manitoba Health provides palliative care-related services such as home care (therapy, oxygen, dialysis, etc.) and respite care (respite to caring family through short-term admission to a personal care home).
James C. Mcrae, Manitoba Minister of Health, wrote to the Committee that:
palliative care services are categorized as hospital palliative care, community-based home care and other community-based services. Funding for palliative care services is through the funding allocated for hospitals and for the provincial home care program. Hospitals with palliative care programs fund them within the overall budget. The provincial home care program provides a range of services based on assessed individual care requirements. Manitoba Health funds home care services directly or through purchase of service arrangements or through grants to external agencies.<$FLetter, James C. Mcrae, Manitoba Minister of Health, October 4, 1994.>
Training in Palliative Care
Dr. Peter Kirk, Vice President of the Manitoba Hospice Foundation, and Department Head of Family Medicine at the University of Manitoba told the Committee:
that for all family practice residents (the postgraduate program) should receive as part of their core training, training in palliative care. The program is two-year; one month is spent by all residents in palliative care. At the undergraduate level, an average of nine hours is devoted to palliative care. The Manitoba Hospice Foundation has a program for volunteers which involves 16 hours.
Limitations and Gaps in Palliative Care Service Delivery
Dr. Dudgeon considers that palliative care is given a low priority in the overall health care structure of Manitoba. For her, the province has not given any official or unofficial encouragement to the advancement of palliative care. The two major clients' needs which are not met are: home care support, and absence of knowledgeable physicians and nurses in the community for assessment and treatment of patients. One of the major barriers to the development of palliative care is the insufficient funding for human resources and education.<$FFax, Dudgeon, St-Boniface General Hospital, November 30, 1994.>
The Ontario Government is making significant changes to its health care system. In December 1992, the Ministry of Health announced an annual $4.8 million redirection of funds for:
Exciting new initiatives in community palliative care, the care of the dying patients and their families. These initiatives were aimed at improving the care available to such patients in their home and in long-term care institutions by means of four initiatives: education of interdisciplinary service providers, education of family physicians, support and maintenance of hospice volunteer visiting programs, and the establishment of pain and symptom resources teams in all areas of Ontario.<$FFax, Ontario Palliative Care Association, February 6, 1995.>
The Ontario Palliative Care Association stresses that: "the most outstanding feature of the whole process of these initiatives was the key concept of partnership with many diverse groups sharing a common interest in improving palliative care delivery in Ontario."<$FIbid.>
Recently, the Ministry of Health has been focusing on the community-based service sector. With Bill 173, multi-services agencies will be created to manage and coordinate service delivery. "With the implementation of this Act, enhanced services for palliative care patients will be available in the community. This will allow for more flexibility in planning for services needed for palliative care patients at home."<$FIbid.>
Current Palliative Care Availability
According to the Ontario Palliative Care Association:
Palliative care is provided in a number of settings. Services range from full palliative care teams and designated units in hospitals, to beds scattered throughout facilities with a variety of personnel trained in the provision of palliative care. The 38 home care programs in Ontario provide palliative care services to patients in their own home. Some programs have designated palliative care case managers with specialized interdisciplinary palliative care teams. The services are often enhanced by volunteers through local hospice programs. Specialized hospital palliative care teams work in partnership with community service providers acting as expert resources in pain and symptom management and providing crisis intervention when needed.<$FIbid.>
On June 15, 1994, Ms. Heather M. Balfour, of the Community Hospice Association of Ontario, described to the Committee the organization of hospice programs affiliated to her organization in Ontario:
Hospice programs are primarily volunteer support oriented, although some of them have nursing, therapy, social work and/or physicians on staff or on a service arrangement. Most of our hospices provide care to people in their own homes, although we do have one that is a free standing hospice. Many of our hospice programs provide a combination of services, including day-care and day-care centres, care to client in a hospital or in a nursing home, and also respite care. Most of our hospice programs are not diagnosis specific. Most of our hospices do get some provincial government funding as a result of the recent Ontario Ministry of Health Palliative Care Initiative. The bulk of their financial support comes from generous individuals, foundations and community groups.
The first Ontario hospice was created in 1979 in Windsor. In 1989, there were eight hospices in the province. (Most of the 60 affiliated hospices were created in the 1990s) Ms. Balfour expects that more hospice programs will be developed.
Training in Palliative Care
In December, 1992, the Ministry of Health provided funds for 30-hour courses for service providers and family physicians. It is also planned that 124 family physicians will receive formal education in palliative care as well as practicum in a palliative care setting. The five medical schools in the province share the responsibility for this program. Training is also available for volunteers.
Limitations and Gaps in Palliative Care Service Delivery
Although progress is being made, the development of palliative care in Ontario must overcome a traditional absence of government policy, lack of financial support, professional and public ignorance and apathy. According to Ms. Balfour hospices lack staff 95% of persons working there are volunteers. The Association's view is that:
The issues that confront dying patients and their families and community care providers are varied and complex. The funding provided through these [government] initiatives represents a limited response to the palliative care needs of a large, culturally and socially diverse population. Further support will be needed to meet the immediate and future needs for palliative care expertise in Ontario.<$FFax, Ontario Palliative Care Association, February 6, 1995.>
Current Palliative Care Availability
Quebec has a unique system where some doctors receive fixed salaries. This is an improvement over the fee-for-scheduled service system of other provinces wherein billable time for palliative work is a major problem. The building of multidisciplinary palliative care teams is thus facilated. According to Dr. Mount:
Quebec handles the funding mechanism differently. The problem in most provinces, including Ontario, is that you cannot make a living doing palliative care because of the nature of the medical acts on a medical act basis. There just are not enough acts of the kind that are remunerated. Quebec instituted a salaire fixe or vocation [...] It is a way of putting physicians on salary to do palliative care. None of us get rich doing it, but we make a good living.
The originality of the Quebec model is: "the willingness to integrate health and social services in a common process of opening care practices to the more social dimensions of illness, misery and suffering."<$FRapport de la Commission d'enquête sur les services de santé et les services sociaux, (Commission Rochon) 1988, 400-401.>
Dr. Louis Dionne, Executive Director of the Maison Michel Sarrazin, provided the Committee with a positive portrait of palliative care services in Quebec:
Most university hospitals have created palliative care services for terminally ill patients including home care, a consultation team, a clinic for symptom control and a bereavement service. Some are oriented towards research and teaching. La Maison Michel Sarrazin is a teaching center that has been affiliated with Laval University for 10 years [...] It has raised a movement called Le mouvement des soins palliatifs throughout the province of Quebec. In Montreal there are good centres such as l'Hôpital Notre-Dame and l'Hôpital Royal Victoria that have done exactly the same. This movement has created a desire for the people who look after patients to have palliative care in their own institutions.
La Maison Michel Sarrazin operates a home-care program in collaboration with local health centres and the Centre locaux de services communautaire. L'Association québécoise des soins palliatifs stated in its brief: palliative care services are implemented in all regions in Quebec, however, they are not well enough known and are badly operated."<$FL'Association québécoise des soins palliatifs, November 17, 1994.>
The palliative care service of the Royal Victoria in Montreal was created in 1974. It was the first service to integrate a home maintenance program, a consultative service for all hospital's patients, an external clinic, a bereavement program for families, and a specialized hospital unit which included teaching and research activities. It is the first in the world to be integrated into a short-term hospital. In St-Boniface's Hospital, in Manitoba Dr. Paul Henteleff, the president of the Canadian Palliative Care Association was the first, in Canada, to open a palliative care unit. The Royal Victoria palliative care service is still, after 20 years, an international reference model. Finally, in Montreal, l'Entraide Ville-Marie was the first home care service to be organized in Canada.
Training in Palliative Care
In 1991, the McGill Medicine Faculty and its Oncology Department, created the Palliative Care, Medicine, McGill division to maintain and facilitate the development of clinical programs and to ensure minimal palliative care standards in all participating hospitals. They also have the responsibility to devise a pre-doctoral curriculum, a post-doctoral teaching program and continuous medical training, including the organization, every second year, of the Care for Terminally Ill patients International Congress. There also is a clinical and psycho-social research program with affiliated institutions.
The Maison Michel Sarrazin created with l'Université Laval "La chaire de soins palliatifs de l'Université Laval" in 1992 to foster the development of teaching and research in palliative care. Activities are included in the curriculum of the 1st year as well as the 4th year for medical students.
Limitations and Gaps in Palliative Care Service Delivery
The Quebec government strongly supports palliative care services and is geared toward providing a proactive response to the population's needs, according to Dr. Dionne. He further stated that education in palliative care is provided within the Quebec city region to almost all generalists and specialists. There is room to extend education and training opportunities to all health care professionals.
Dr. Dionne pointed to further research on the control of pain and especially suffering related to the psycho-social situation of the patient. He also believes that the public should be provided with current information on palliative care and other related issues.
Current Palliative Care Availability
Dr. Sydney Grant, Medical Director for the New Brunswick Extra-Mural Hospital and Medical Director of the Palliative Care Unit at the Dr. Everett Chalmers Hospital in Fredericton told the Committee "there is unofficial encouragement in our province in the sense that we have palliative care units in our major hospitals and that palliative care directors (when providing palliative care to patients) are paid on a fee-for-session basis."<$FFax, Haslam, December 8, 1994.> He also states that "there is enough funding in this province for palliative care"<$FIbid.> The following exchange with Reverend Kenneth Weir of New Brunswick is also worth noting:
Rev. Weir: We have something which is unique in Canada. We have the extra-mural hospitals and nurses who are extra-mural [...] We have this available in our province and we have nurses and ancillary staff there. We also have trained professionals in our institutions. People die at home and in institutions all the time with support systems<R> Q. [in New Brunswick palliative care is available to nearly 100 per cent of the population?]<R>Rev. Weir: Absolutely.<R>Q. [with adequate pastoral, nursing and medical care?]<R>Rev. Weir: Yes. <R> Q. [With a good team?] <R>Rev. Weir: Yes.
The New Brunswick Extra-Mural Hospital is responsible for palliative and acute care programs, as well as for a long-term home health program in New Brunswick. It was established in 1981 to address interrelated major health problems such as growth and aging of the population, high costs of construction and operations for hospital/care institutions, and a high prevalence of long-term degenerative conditions.
The New Brunswick Extra-Mural Hospital is a hospital corporation under the New Brunswick Hospital Act, patients are admitted, cared for and discharged by physicians, the staff is all health care professionals, and all patients have the status of hospitalized patients for insured services provided under the provincial legislation. Its objectives are to provide:
1) an alternative to hospital admission<R>2) an alternative or postponement of admission to nursing homes<R>3) long-term continuous home health care to chronic invalids, disabled of all ages, and terminally ill persons
Major services such as nursing (on a 24-hours basis), dietary, respiratory and occupational therapies, physiotherapy and social work (home makers, meals-on-wheels and sick room supplies), x-ray and laboratory services are offered through other institutions. <$FNew Brunswick Extra-Mural Hospital, Summary of Operations, 6.> The target population is the provincial population of New Brunswick., i.e. "those persons whose illnesses do not, or no longer, require the 24-hour surveillance, high technology, and the concentration of diagnostic and treatment services characteristic of the modern active treatment hospital".
Limitations and Gaps in Palliative Care Service Delivery
Dr. Grant points to some resistance on the part of physicians to become involved in palliative care because of a lack of awareness of palliative care services and philosophy. For him, the main priority is public education on palliative care and death and dying issues. He also refers to a substantial need for respite care.
Ms. Brenda Haslam, Chair of the New Brunswick Palliative Care Association and Board Member of the Canadian Palliative Care Association agrees that the chief need is education for health care professionals and the general public. Stronger support services, including respite care are required.
In 1991, the province had the highest cancer mortality rate in Canada for women and the second highest for men, according to Statistics Canada. In 1993, there were 2,300 cancer deaths and 4,700 new cancer cases. The first palliative care programs in the province were developed to meet the needs of dying cancer patients.
Nova Scotia was one of the first provinces, in the mid-eighties, to adopt guidelines for palliative care services<$FNova Scotia Palliative Care Association 1994, (A) 3.>. The Government of Nova Scotia has adopted in principle a modification to its physicians' compensation system. The new arrangement is based on a session-fee scheme and is applicable to doctors practising in palliative care. The provincial Metropolitan Hospital recommended the establishment of a coordinated program of palliative care services into a provincial program of comprehensive oncology services available everywhere.
Current Palliative Care Availability
Palliative care services are "initiated and supported by community efforts in all sectors"<$FIbid. 1994 (B) 5. >. There is also a palliative care service (6 beds, a consultation service and a home care service) funded by the province in the Camp Hill Medical Centre in Halifax.
Training in Palliative Care
"There are 16 hours in the undergraduate medical curriculum specifically assigned to palliative care at Dalhousie University School of Medicine, while the Camp Hill Medical Centre, in Halifax, is affiliated with Dalhousie University as a teaching institution. Medical students may choose to do elective or selective rotations within the Palliative Care Service, and family medical residents may choose to do an elective in palliative care; in 1995, training periods will also be available for nurses."<$FLetter, Ina Cummings, November 3, 1994.>
Limitations and Gaps in Palliative Care Service Delivery
Most palliative care services are situated in the Halifax Metro area and are accessible to a minority of patients according to the Nova Scotia Hospice/Palliative Care Association. Funding throughout Nova Scotia is considered "fragmentary and inconsistent" by Dr. Ina Cummings. She identifies education and resources as the major barriers to the development of palliative care in the province.
PRINCE EDWARD ISLAND
Current Palliative Care Availability
Ten beds are available in the province for palliative care. The Prince Edward Home, a long-term care facility, provides eight of them. A part-time medical specialist and two on-call physicians with palliative care training provide services. The average length of stay is 30 days and there often is a waiting list. The Prince Edward Home does not provide a 24 hour home care service. It can rely on approximately 200 volunteers. The Western Hospital provides 2 other beds in its palliative care unit. Referrals are made by family, health professionals and home care workers.<$FIsland Hospice Association, 1994, 19.>
Limitations and Gaps in Palliative Care Service Delivery
In July, 1994, The Island Hospice Association identified limitations and gaps in the delivery of palliative care services in Prince Edward Island. They identified the problems as follows:
No official government policy on palliative care services.
No central information or referral to services and a "fragmented system of limited, unequal and unpredictable access to palliative care services [...] a convoluted entry point to available services".
Limited home care support, and no outpatient, consultation or formal educational services. Most resources are in the Charlottetown area.
A lack of professional and public education concerning availability of palliative care services. Patients of modest means are forced to rely exclusively on family physicians, who may have neither the time nor the expertise required to manage complex physical problems or to coordinate all the support required for the patients and their family.
A lack of formalized physicians' consultation service, which leads to large differences in pain and symptom management.
Limited after-hours support available: current home care programs are built on a model of short-term convalescent and long-term maintenance care for the elderly and the disabled.
A lack of alternative choices to institutional care.<$FIbid. 5-6.>
Current Palliative Care Availability
There is an eight bed facility at St. Clare's Mercy Hospital in St. John's and Dr. Margaret Scott's position as Provincial Palliative Care Consultant is funded by the Memorial University of Newfoundland and the Newfoundland Cancer Foundation. Dr. Scott says that local clinics and hospitals are developing palliative care services: "St.-Clare's has extended its service to acute care consultations; and the Cancer Foundation is establishing a designated interdisciplinary team. Funding for St.-Clare's palliative care service was $650,000 in 1993 (all other programs were part of the provincial Department of Health global budget). However, Dr. Scott did not have the average cost for palliative care beds in a hospital, hospice, or home care.<$FFax, Margaret Scott., December 2, 1994; accompanying text from Joan Davis, Assistant Deputy Minister (ADM) of Health, and input from E. Davis, Chief Executive Officer, Health Care Corporation of St. John's.>
The Newfoundland and Labrador government includes palliative care within its program of Continuing care but makes no special allocations for it. In a letter the provincial Minister of Health said the province "does not fund programs - funding is from institutional global budgets. A facility can set its own budget for specific programs within their global allocation." <$FLetter, Newfoundland and Labrador Minister of Health, November 14, 1994.>
Training in Palliative Care
The Newfoundland and Labrador Minister of Health, Lloyd G. Matthews, said in his letter:
Continuing education of physicians is done through the Division of Continuing Education, Faculty of Medicine, Memorial University of Newfoundland, and education of institutional staff by in-service and continuing educational programs within the specific facilities. There are opportunities for staff to attend conferences and education opportunities both outside the facility and outside the province.
Limitations and Gaps in Palliative Care Service Delivery
Joan Davis, Assistant Deputy Minister of Health, identifies five gaps in service delivery: "availability of physicians who are willing to provide services in an individual home; access to services across geographic areas of the province; availability of equipment such as the pump for continuous subcutaneous infusion of medications (CSCI) for pain management; the home support often needed exceeds the available financial resources; and support and counselling for the family is very limited." Dr. Scott adds that some patients are not referred soon enough and that some health care professionals do not perceive palliative care as a therapeutic option.<$FFax, Margaret Scott, December 2, 1994; accompanying text from Joan Davis, Assistant Deputy Minister of Health, and input from E. Davis, Chief Executive Officer, Health Care Corporation of St. John's.>
Dr. Scott identified three major issues for the near future: "professional attitude, knowledge and availability; public awareness of palliative care; and ethical and research issues at all levels." She recommends emphasis on palliative care in undergraduate and postgraduate education, physicians' continuing education, and public debate.
The Northwest Territories does not provide separate funding for palliative care: "funding for palliative care cannot be isolated from the rest of the health care budget; it would however be very small in comparison to the overall health care budget."<$FLetter, Elaine Berthelet, Acting Deputy Minister, October 11, 1994.>
Training in Palliative Care
The Department of Health and Social Services stated that the Northwest Territories encourages the advancement of palliative care education through "a contract for gerontology services; education is one of the roles of the gerontologist and topics relating to palliative care have been included in the past for health professionals and community members."<$FIbid.> The Department said individual facilities provide training to their staff.
According to Joy Kajiwara, Director Continuing Care, Health and Social Services for the Yukon, "unofficial support is provided through funding for hospice [care] incorporated in global funding for hospital, operating budget for Home Care and continuing care facilities and contribution agreements to hospice."<$FLetter, Kajiwara, Continuing Care, Health and Social Services, Yukon, November 2, 1994.>
Information regarding the current status of palliative care in the provinces was provided by provincial health departments' officials and by representatives of palliative care associations who responded to an interview by telephone and filled out a questionnaire describing palliative care in their province, and by witnesses who appeared before the Committee.
Respondents felt the commitment to palliative care was substantial in four provinces: Saskatchewan, Ontario, Quebec and New Brunswick, while respondents felt that a low priority was given to palliative care in Manitoba and Prince Edward Island. Respondents from other provinces either expressed their concerns about the future of these services or stressed considerable gaps in services.
To summarize, the situation of palliative care in Canada reflects the current health care situation. It is characterized by change and great expectations as well as concern for the future since health care services are in a process of decentralization.
Recent Reports from Foreign Jurisdictions
In 1994, a Select Committee of the House of Lords was struck to consider the "ethical, legal and clinical implications of a person's right to withhold consent to life-prolonging treatment and the position of persons who are no longer able to give or withhold consent; and to consider whether and in what circumstances actions that have as their intention or likely consequence the shortening of another person's life may be justified on the grounds that they accord with that person's wishes or with that person's best interests...". In addition, in the United States, several states had appointed task forces to analyze and make recommendations to the state legislatures with respect to end of life issues. The complete list of recommendations of the Medical Ethics Committee of the House of Lords and the New York State Task Force on Life and the Law have been reproduced below.
House of Lords Select Committee on Medical Ethics: Recommendations - January 1994
We recommend that there should be no change in the law to permit euthanasia.
We strongly endorse the right of the competent patient to refuse consent to any medical treatment.
If an individual refusal of treatment by a competent patient os overruled by the Court, full reasons should be given.
We strongly commend the development and growth of palliative care services in hospices, in hospitals and in the community.
Double effect is not in our view a reason for withholding treatment that would give relief, as long as the doctor acts in accordance with responsible medical practice with the objective of relieving pain or distress, and without the intention to kill.
Treatment-limiting decisions should be made jointly by all involved in the care of a patient, on the basis that treatment may be judged inappropriate if it will add nothing to the patient's well-being as a person.
We recommend that a definition of pvs and a code of practice relating to its management should be developed.
Development and acceptance of the idea that, in certain circumstances, some treatments may be inappropriate and need not be given, should make it unnecessary in the future to consider the withdrawal of nutrition and hydration, except where its administration is in itself evidently burdensome to the patient.
Treatment-limiting decisions should not be determined by considerations of resource availability.
Rejection of euthanasia as an option for the individual entails a compelling social responsibility to care adequately for those who are elderly, dying or disabled.
Palliative care should be made more widely available.
Research into pain relief and symptom control should be adequately supported.
Training of health-care professionals should prepare them for ethical responsibilities.
Long-term care of dependent people should have special regard to maintenance of individual dignity.
We support proposals for a new judicial forum with power to make decisions about medical treatment for incompetent patients.
We do not recommend the creation of a new offence of "mercy killing".
We strongly endorse the recommendation of a previous Select Committee that the mandatory life sentence for murder should be abolished.
We recommend no change in the law on assisted suicide.
We commend the development of advance directives, but conclude that legislation for advance directives generally is unnecessary.
We recommend that a code of practice on advance directives should be developed.
We do not favour the more widespread development of a system of proxy decision-making.
HL Paper 21-I, January 1994, page 58
When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context <R>The New York State Task Force on Life and the Law. May 1994
The principles identified by the Task Force are set forth below. The Task Force believes that these principles will offer important guidance for physicians while respecting the need for professional judgment in formulating treatment recommendations.<R>
Physicians have a professional obligation to provide appropriate pain relief and palliative care.
Physicians have a professional obligation to assess and treat depression or refer patients for treatment.
Physicians should not refrain from discussing a patient's suicidal thoughts, and indeed should explore, discuss, and respond to a patient's indications of suicidal thinking. This is an important aspect of care and also may facilitate prevention of suicide.
Physicians should not perform euthanasia or assist a patient to commit suicide. However, the provision of medication that may hasten a patient's death is ethically and professionally acceptable, provided the medication is not intended to cause the patient's death or to assist the patient to commit suicide, and the medication is provided in accord with accepted medical standards.
A physician may appropriately provide medication in the face of a known risk of suicide, provided that the benefits of the medication outweigh the risk and the physician has considered the comparable benefits and risks of alternative treatment options.
The provision of medication used by a patient to commit suicide does not, in itself, establish that the physician intended to assist the patient to commit suicide. Rather, an evaluation of the physician's intent must take into account a range of factors, such as the physician's reasons for providing the specific amount and type of medication, and whether the amount and type of medication could have served a legitimate medical purpose for the particular patient in light of identified treatment goals.
1. Patients' participation in treatment decisions contributes to their sense of self and well-being. Physicians should seek patients' participation in decisions about withdrawing or withholding life-sustaining treatment early enough in the course of illness to give patients a meaningful opportunity to have their wishes and values respected. (p. 153)
2. Health care professionals have a duty to offer effective pain relief and symptom palliation to patients when necessary, in accord with sound medical judgment and the most advanced approaches available. (p. 158)
3. Physicians and nurses must be aware that psychological dependence on pain medication rarely occurs in terminally ill patients. While physical dependence is somewhat more common, proper adjustment of medication can minimize any negative effects. Concerns about psychological or physical dependence should not prevent patients from receiving appropriate palliative treatments. (p. 160)
4. The provision of appropriate pain relief rarely poses a serious risk of respiratory depression. Moreover, the provision of pain medication is ethically and professionally acceptable even when such treatment may hasten the patient's death, if the medication is intended to alleviate pain and severe discomfort, not to cause death. (p. 162)
5. The education of health care professionals about pain relief and palliative care must be improved. Training in pain relief and palliative care should be included in the curriculum of nursing schools, medical schools, residencies, and continuing education for health care professionals. In addition, biomedical research facilities should engage in further research in the physiology of pain and its appropriate relief, both at the basic and the clinical levels. (p. 165)
6. Hospitals and other health care institutions should explore ways to promote effective pain relief and palliative care and to remove existing barriers to this care. (p. 167)
7. Public education is essential to improve pain relief practices. Nurses and physicians should create an atmosphere that will encourage patients to seek relief of pain. To the extent possible, strategies for pain relief should give patients a maximal sense of involvement and control. (p. 169)
8. Insurance companies and others responsible for health care financing should promote effective pain and symptom management and address barriers that exist for some patients. (p. 170)
9. New York State statutes regulations should be modified to improve the availability of medically necessary analgesic medications, including opioids. This should be done in a balanced manner that acknowledges the importance of avoiding drug diversion. (p. 171)
10. Health care professionals should be familiar with the characteristics of major depression and other common psychiatric illnesses, as well as the possibility for treatment. They must be sensitive to the special factors complicating the diagnosis of these conditions among the elderly and the terminally ill. Physicians must also be trained to distinguish major clinical depression from the sadness and temporary reactive depression that often accompany terminal illness. Major clinical depression is generally treatable and can be treated effectively even in the absence of improvement in the underlying disease. Patients should also receive appropriate treatment for less severe depression that often accompanies terminal illness. (p. 175)
11. It is common for terminally ill patients to have suicidal ideation, although patients rarely act on such thoughts. Physicians should create an atmosphere within which patients feel comfortable expressing suicidal thoughts. Discussion with a physician or other health care professionals about suicide does not prompts suicide; on the contrary, talking with health care professionals often decreases the risk of suicide. (p. 177)
12. When a patient requests assisted suicide or euthanasia, a health care professional should explore the significance of the request, recognize the patient's suffering, and seek to discover the factors leading to the request. These factors may include insufficient symptom control, clinical depression, inadequate social support, concern about burdening family or others, a sense of hopelessness, spiritual despair, loss of self-esteem, or fear of abandonment. These issues should be addressed in a process that involves both family members and health care professionals. (p. 179)
Medical Decisions Concerning the End of Life in the Netherlands
The Special Committee learned early in its study that the Netherlands' experience with euthanasia and assisted suicide was particularly controversial in Canada. In part, this was probably because of misunderstandings as to the status and definition of euthanasia in the Netherlands. Euthanasia and assisted suicide are criminal offences under the equivalent of our Criminal Code, but neither action is prosecuted if certain conditions are met and safeguards observed. Because of differences in the structure of the criminal law, this situation would not be possible in Canada and can be difficult for Canadians to grasp. The legal situation and the definition of euthanasia in the Netherlands are discussed in detail in section 2.0 of this paper.
Partly as a result of legal and definitional differences, some witnesses said that euthanasia was performed far more often there than was officially admitted. Others suggested that the introduction of semi-legalized euthanasia had inhibited the development of good palliative care, in contrast to England where euthanasia is illegal and there is an extensive network of hospices. Still other witnesses argued that the Dutch example supports the "slippery slope" argument: that any condonation of euthanasia or assisted suicide detracts from the absolute value of life and will inevitably lead to its increasing prevalence among both consenting and non-consenting patients. Particular concern was expressed for the elderly or disabled, who might feel social or emotional pressure to request euthanasia so as not to be a burden on their family or society.
In order to deal with these concerns, the Committee held a video-conference on October 25, 1994 with a number of Dutch legal and medical experts experienced in the issues of euthanasia and assisted suicide.<$FSee Appendix A for a list of participants.> The video-conference included two sessions lasting more than six hours. The following paper is based on the results of those discussions, as well as on background documentation published in both the Netherlands and Canada.
In his introductory address to the video-conference, Dr. Gerrit van der Wal addressed criticisms of the Dutch system and described the concerns about euthanasia and assisted suicide that exist in the Netherlands itself:
The argument that the Dutch practice of euthanasia is fuelled by scarcity of health care resources, especially for elderly people in nursing homes, has no support. Most cases of euthanasia take place at home and concern patients who, after hospitalization and treatment have proven ineffective, have a life expectancy of less than a month...
It has also been argued that pain treatment in the Netherlands is insufficient, and, hence, the argument continues that patients are forced into an unnecessary wish for euthanasia. Whether or not this is the case and I do not believe that it is so it is not of significant importance for the practice of euthanasia, since in only about 5 per cent of cases is pain the most important reason for requesting euthanasia.
Finally, it has been argued that the Dutch experiment will inevitably lead downhill the slippery slope argument... It must be maintained that openness and critical investigation are the most important ingredients for the prevention of a slippery slope.
Do we have problems? Yes, of course, we have problems. I hope this presentation has shown that there are at least three main issues with which we are confronted: first, the substantial existence of cases of unrequested termination of life and a related gray area; second, the reporting of cases of euthanasia to the public prosecutor; third, the need for improvement of the quality of the medical community's views and performance regarding the end of life.
van der Wal 20:10-11
Although it seems probable that the approach of the Netherlands to euthanasia policy will continue to generate controversy, there is one point on which there appears to be consensus. At no point was it suggested to the Committee that the Netherlands model could be successfully transferred to Canada. There is much to learn from the Netherlands, if only because the Dutch approach has resulted in better data on euthanasia being available than in societies where euthanasia remains illegal. However, Dutch experts are the first to point out that the Netherlands' approach to euthanasia evolved from specific aspects of Dutch culture, and is not transferable. Dr. van Delden, one of the participants in the video-conference, has put it as follows:
Does the Dutch approach to euthanasia provide a model for Canada? Apart from the normative part of any answer, my response would be a caveat: euthanasia is not a subject to be treated out of context. If you take euthanasia policy from the Dutch context and insert it into another health care system and culture, a disaster might result. I do not want to suggest that euthanasia is only acceptable (if at all) in the Netherlands; but only that euthanasia cannot be separated from its cultural context.<$F"Euthanasia in the Netherlands: The Medical Scene", in Barney Sneiderman and Joseph M. Kaufert, eds., Euthanasia in the Netherlands: A Model for Canada , Legal Research Institute of the University of Manitoba, 1994, p. 25.>
1. The Socio-Medical Background
1.1 The Cultural Setting
The Netherlands has a population of 15 million people, and had 129,000 deaths in 1990, the year the van der Maas study was undertaken (see section 3.0 for a description of this study). The Royal Dutch Medical Association has noted that a variety of social factors led to the current view on euthanasia: increasing emphasis on patient decision-making, and an openness on the part of doctors to discuss with their patients their condition, treatment and prognosis; an increasing emphasis on personal autonomy; and the focus of Dutch churches, other than the Roman Catholic Church, on moral choices made by the individual.<$FHouse of Lords, Report of the Select Committee on Medical Ethics, London, 31 January 1994 Appendix 3, pp. 64-66.> In 1991, the religious affiliation of the population aged 18 years and over was 34 per cent Roman Catholic, 17 per cent Dutch Reformed Church, 8 per cent Reformed Churches, 5 per cent other religious affiliation, and 37 per cent with no religious affiliation.<$FThe Statesman's Year Book, edited by Brian Hunter, 130th edition, 1993-94, pp. 998-999.>
Commentators on the Dutch cultural milieu invariably mention an entrenched pattern of openly discussing difficult issues.
In terms of culture, the former cabinet answered a question from Parliament concerning why the Netherlands seems to be so much more advanced in [euthanasia policy]. The official answer was that it has something to do with Holland's historical background; that the Dutch have always been an open and honest people. It was stated that they are a self-determined people who want what they think is good for themselves.
These attributes combined with the honesty to name an issue and to speak openly have taken us a step forward in the Netherlands. I do not pride myself on this. It is simply the historical set-up.
Dr. van Delden has put it as follows: "I can safely say that Dutch society is one without extremes. In a sense almost everyone belongs to the middle class, and this probably has some bearing upon the fact that as a society we do not operate in a very antagonistic or legalistic way. Ours is a society characterized by the philosophy of "talking it over again," of trying to reach consensus.<$FJ.J.M. van Delden, "Euthanasia in the Netherlands: the Medical Scene", in Euthanasia in the Netherlands: A Model for Canada?, p. 23.>
From the Dutch point of view, the difference between their experience and that of other countries is largely the openness with which the Dutch discuss the issue of euthanasia. The information that they receive from other countries indicates that euthanasia, by the Dutch definition, is being practised clandestinely .
It is the openness [in the Netherlands] which is the main difference, not the factual situation with regard to these medical decisions concerning the end of life.
1.2 The Health Care System
The Dutch are proud of their health care system, which is highly developed and universally available. In 1991, the following figures applied:
The total cost of health care was 51.4 billion guilders, or 9.6% of the gross national product. <$FIn Canada, health expenditures levelled off at 10.1% of Gross Domestic Product (GDP) in both 1992 and 1993. (Health Canada, National Health Expenditures in Canada, 1975-1993, p. 3).>
There were 165 hospitals which supplied modern health care with state of the art technology. There are 60,000 beds for a population of 15 million. Most of the health care institutions are private, non-profit institutions.
Every Dutch citizen was registered with one of the 6388 huisartsen or family physicians (GP's). Most primary care is provided by the G.P. in the patient's home, or in an office in the physician's home. The family physician lives in the same neighbourhood as his patients, makes house calls when the patient is too ill to come to the office, and normally has the entire family in his care. 75 per cent of the Dutch see their G.P. at least once a year.
There is a mixed system with private insurance and national health insurance under the Health Insurance Act. About 60 per cent of all inhabitants are insured under the latter scheme for virtually all health care expenses.
Only 2 percent are uninsured, but even they are covered by the Exceptional Medical Expenses (Compensation) Act which provides for a national insurance scheme under which everyone is insured regardless of income. The Act covers serious medical risks (such as a stay in hospital longer than one year and admittance to a nursing home) which cannot be borne by the patient personally and for which it is difficult to obtain insurance cover.
There is a legal duty imposed on all health care professionals to provide necessary care. Refusing or discharging a patient for economic reasons is a criminal offence.<$Fvan Delden, "Euthanasia in the Netherlands", pp.23-24.>
Even though nearly all Dutch people are insured Dr. Bakker did caution the committee that economic considerations must be kept in mind.
Up until now in the Netherlands, only the medical considerations have been of importance. There are no economic considerations in decisions concerning the end of life because 100 per cent of the people in the Netherlands are insured for their medicare and all other kinds of care. It is only the medical consideration that count at this moment.
However, we must be careful of that. It is an important point to keep in mind, and constant control with no economic considerations comes into the picture in this respect.
In the vast majority of cases, the patient-physician relationship is longstanding, perhaps 10 or 20 or 30 years, at the time a request for euthanasia is made.<$FMishara 2:36>
The Royal Dutch Medical Association has a membership of 25,000, plus an indirect association with 8,000 to 10,000 physicians. The Dutch Physicians' League, an organization of doctors opposed to euthanasia, has a membership of about 650 physicians. There are approximately 40,000 doctors in the Netherlands in total<$FDillman 21:25; House of Lords, Appendix 3, pp. 64-66.> and some belong to both organizations.<$FBakker 21:36>
Even within the Dutch Physicians League, there are differing viewpoints on the best approach to opposing euthanasia. Dr. Zbigniew Zylicz, for example, is trained in the British school of palliative care, and the founder and medical director of the Hospice Rosenheuvel. His reason for founding the hospice was to prevent euthanasia through good palliative care.
Zylicz makes no secret of his ardent opposition to euthanasia. He is one of the 600 doctors who are members of the Nederlands Arstenverbond (NAV), or Dutch Physicians' League, which split from the Royal Dutch Medical Association over its stand on abortion and euthanasia.
But Zylicz disagrees with the NAV's anti-euthanasia tactics which consist, in part, of mud-slinging against mainstream Dutch physicians and the use of what he calls questionable research data. The NAV's tactics are too radical, and only reinforce the polarized views on the subject, Zylicz said. <$FMullens, "A place where euthanasia is talked about but is not offered", in Euthanasia: Dying for leadership, p. 33.>
The role of nurses in the health care system, and more particularly in the issue of euthanasia, was not completely clarified by the video-conference. The one nurse who participated indicated that a nurse's role in decision-making could vary considerably depending upon the physician and head nurse involved:
It is sometimes the case that within the same hospital a nurse on one ward will be asked to participate in decision-making while on another ward a nurse will not be asked to participate in that process.
There also seemed to be some disagreement about whether a nurse's personal views on euthanasia could affect her or his career, not dissimilar to the debate that takes place in Canada about the effect of a nurse's views on abortion on her or his career.
I would like to point out that for nurses who do not object to euthanasia, there is no problem. However, for nurses who do object to euthanasia, there can be career difficulties. Those who object will never be promoted to head nurse, because they refuse to do certain things. I think this is wrong.
When a nurse is being interviewed for a hospital job, she is asked, "Are you willing to assist a doctor in euthanasia cases?" If she says, "No", she will not be offered the job. I think that is wrong.
Nurses still have requests that have not been fulfilled. For example, they are not yet part of the decision-making process. They participate in decision-making only when doctors allow them to take part. Otherwise, they cannot express their opinions. Many nurses feel they want to talk about it and need to talk about it, but there is nobody to talk to.
In response to a question about how many nurses in Holland are pro-euthanasia or anti-euthanasia she replied as follows:
Mrs. Vlaming: We have no figures on that, but there are only a few nurses who really object to being involved in euthanasia.
Dr. van der Wal: Some hospitals and nursing homes of a religious affiliation in the Netherlands have a policy as stated by Mrs. Vlaming. However, it is incidental, in my opinion, because it is forbidden for nurses to assist in the performance of euthanasia. It is forbidden for nurses to have a real say in the decision-making process about euthanasia and assisted suicide.
It is impossible for the management of a hospital or a nursing home to erect a career barrier for a nurse. They can ask a nurse beforehand if she has objections to euthanasia or assisted suicide. If they are prepared when they receive a request from a patient, they can give that information to the doctor or refer it to another nurse. Like doctors, it can be asked of nurses as well.
Mrs. Vlaming: I do not agree.
When Mrs. Vlaming was asked to expand on what the nurses felt were the main issues regarding euthanasia she responded:
The main problems for the nurses are a result of not properly defining euthanasia. We have been working with the nurses to educate them about when they should speak about euthanasia and when they should not. They feel the same as you do when treatment is withheld, or when passive euthanasia occurs. They refer to everything as euthanasia, so it is difficult. Often, they have the idea that they are euthanizing people when they are not. Approximately five or six times a week they call the bureau and say, "Can I do this? Can I do that? Is it my duty to euthanize these people?" There is no end to their questions.
The issues that we are talking about today will be of interest to the nurses in Holland also because after two years they think that they know all about it, but they do not. Emotionally, they cannot deal with euthanasia. That is the problem.
1.3 The Nursing Home System
The nursing home physician is a member of a distinct medical specialty, with its own licensing authorities and a separate training regime of approximately three years after a doctor has received his basic qualifications.<$FDillman 21:63>
[As has been said], we have about 300 nursing homes, comprised of 50,000 beds and about 700 nursing home doctors. A quick calculation will tell you that each nursing home has an average of two or three doctors and 100 to 300 beds. In each nursing home, there are about 50 to 150 nurses, as well as nursing assistants.
With regard to control, social control in the nursing homes is very high. The heart of the care there is done by nurses. Rooms in nursing homes accommodate two, four, or six patients, so there is a built-in element of control there. There are some single rooms, in particular for the very ill. I believe that is almost impossible for nursing home doctors to terminate the lives of patients who did not request it.
van der Wal 21:37
1.4 Pain Control and Palliative Care
A number of witnesses before the committee suggested that the Dutch approach to euthanasia had resulted in the underdevelopment of palliative care and hospices on the British model. Alternatively, they suggested that the demand for euthanasia in the Netherlands resulted from deficiencies in palliative care treatment. A majority of the Dutch themselves feel that these are both characterizations of the situation are inaccurate.
The government summary of the Remmelink Report refers to the importance of terminal, or palliative care:
By terminal care, the commission means the whole of assistance and care on behalf of dying humans and their next of kin. Optimal care for someone dying implies that the doctor has knowledge of adequate treatment for pain, of alternatives for the treatment of complaints about unbearable pain and awareness of the moment at which he must allow the process of dying to run its natural course.<$FThe Netherlands, Ministry of Welfare, Health and Culture, "Medical Practice with Regard to Euthanasia and Related Medical Decisions in the Netherlands: Results of an Inquiry and the Government View", VDB 92-034, p. 8.>
During the video-conference, Dr. Heintz suggested that the number of patients who actually receive euthanasia is fairly low, notwithstanding its availability, indicates a high standard of palliative care both in the hospital and in the home situation.<$FHeintz 21:17> The number of cancer patients who have euthanasia or assisted suicide in the Netherlands is in the range of 5 per cent, which is compatible with what the Committee was told about the percentage of patients in Canada whose pain cannot be controlled.<$Fvan Delden 21:24>
At the heart of the Dutch approach to end-of-life issues is the question of autonomy and personal choice. When the House of Lords Select Committee on Medical Ethics visited the Netherlands to discuss the issue of euthanasia, the Deputy Head of the Medical Ethics Section of the Dutch Ministry of Welfare, Health and Culture, observed:
Dame Cicely Saunders [the head of the British hospice movement] had said that she would, if necessary, render patients into a state of pharmaceutical oblivion, but that for many this was not an acceptable condition. People who did not share Dame Cicely's Christian belief might prefer not to die in such a condition, but to choose euthanasia instead.<$FHouse of Lords, op. cit., p. 67.>
While the Dutch do not have the British system of hospices, it is a deliberate policy rather than a sign of neglect. The Dutch system believe in bringing palliative care to the patient rather than the patient to palliative care.<$Fvan Delden, "Euthanasia in the Netherlands", p. 24.> On the whole it integrates palliative care into other aspects of the health care infrastructure. For example, a system of Comprehensive Cancer Centres covers the whole country. At these centres, health care organizations, hospitals, GPs and nursing homes can obtain advice or consultation from all the cancer specialists, including the palliative care specialists.<$FHeintz 21:28>
As Dr. van Delden noted during the videoconference:
We do not have separate palliative care facilities in general. There are some facilities, but that is not the major way in which we deal with this. Palliative care is integrated into other existing forms of health care. Hence, it is integrated into the hospital. A central part is played by our nursing homes. Also, the general physician plays a central role in palliative care.
van Delden 21:28
Some physicians who are opposed to euthanasia agree that palliative care must be approached differently in the Netherlands. As Dr. Zbigniew Zylicz, the founder and medical director of the Hospice Rosenheuvel, notes:
In Britain, there is more of a tradition of hospitalization, of institutionalization for dying. It is different here. Dutch people are used to dying at home. In Holland, statistics show that 42 per cent of patients die at home, with fully available home nursing care, compared to only about 20 per cent in Canada and Britain. . . . . To create more institutions will not help. We do not need here in Holland 40 or 50 hospices. We need a new way of thinking. What we need here is 30 to 50 consultants on palliative care who can work with the doctors in the community, visit patients in their homes. We need university training programs to teach the advanced methods of pain and symptom control<$FMullens, "A place where euthanasia is talked about, but not offered, in Euthanasia , op. cit., pp. 33-34>
Other physicians who are opposed to euthanasia believe that there is a need for more palliative medicine in Holland but that it has been hindered because of economic motives. Dr. Karl Gunning, a Dutch physician whose testimony the committee heard before the video-conference, commented:
You have heard all kinds of testimony about palliative medicine, something which we in Holland are trying to introduce. However, we are not receiving the support of the government, even though it has received a report from a committee which it initiated that states that pain treatment, when sufficient, is a solution to the problem. Why did the Dutch government not solve the problem by dealing with pain? Why did it have to introduce euthanasia? Why did it have to legalize it? I suspect that there are strong economic motives behind it.
1.5 What the Doctors Say
Dr. Dirkyan Bakker was the only participant in the video conference who stated that he was against euthanasia for personal reasons:
My religious belief forbids me to perform euthanasia. On the other hand, I am a member of the Royal Dutch Medical Association and a member of the small group of physicians who are opposed to performing active euthanasia.
That group of doctors has some concerns about the act of euthanasia. Because the law, which does not permit euthanasia but facilitates performing it under certain circumstances, is evolving, we are afraid of the slippery slope...
Our concern is that if you have a very strict definition of euthanasia, not many patients or doctors will fulfil that criteria and the grey zone will be very large. Our concern is that the grey zone can be enlarged and when the possibility of performing euthanasia on request is widened, again the slippery slope will come into play.
At the moment, there is a lot of discussion about active euthanasia. We are free either to perform it or not to perform it. Legislation is made for the future. Future generations will not have had these extensive discussions around the problems concerning end-of-life matters. When exceptions are made more in the direction of the rule, then exceptions become the rules and rules not to perform active euthanasia may be exceptions in the future. That is our concern.
To be honest, a very small minority of people in the Netherlands is opposed to performing active euthanasia.
The Committee was also told that, for those physicians who will perform euthanasia, it is always a difficult act.
I know doctors have done it ten times, and the tenth time it is with as much difficulty as the first. It is done on the request of the patient, and it is because the patient is suffering, but it is still very difficult for a doctor. That is my experience.
When the Dutch panel was asked if physicians ever said "Never again" after performing euthanasia, one replied:
I was one of them. The first time I performed euthanasia, I said that I would never do it again. One of my patients then asked me to do it for him, and I decided that I could not refuse him, no matter how I felt. I had known him for almost ten years. I also knew his wife and family.
De Heer 21:68
2. The Legal Situation
One of the participants in the video-conference was Professor Leo Meijers, the Advocate General, Supreme Court of the Netherlands, who described his role as an independent scientific advisor of the Supreme Court. Another was Mr. Eugene Sutorius, a defense counsel specializing for the last ten years in Dutch law on euthanasia, a deputy judge in the Court of Appeal in Amsterdam and a member of the Ethics Committee of the Royal Dutch Medical Association.
As Mr. Sutorius pointed out during the video-conference,
the concepts that [Canadians] use in [their] criminal law system are quite different from [the Dutch] continental system, which is derived from Roman law.
Trial by jury, for example, is unknown in the Netherlands. Procedures for the administration of justice are mainly embodied in the Code of Civil Procedure and the Code of Criminal Procedure, although provisions relating to administrative procedure are found in a variety of statutes. Sixty-two cantonal and 19 district courts are courts of first instance. From district courts, appeals lie to five regional Courts of Appeal and then to the Supreme Court. All judicial appointments are made by the Crown.
The Supreme Court at the Hague has several divisions, each consisting of five judges headed by an advocate-general for a total of 24 justices. Known as the Court of Cassation (the power to quash), the Supreme Court hears appeals involving procedural errors or mistakes of law. If the Supreme Court allows an appeal on a point of law, it may be necessary to send the case back to a trial court to review how the facts of the case relate to the law as restated by the Supreme Court. The lower courts are autonomous and not bound by Supreme Court decisions. However, if they do not follow the legal principles established by the Supreme Court, their decisions will naturally be appealed to the Supreme Court. Hence, they tend to follow the precedents established by the Supreme Court even though not legally bound to do so.<$FLeenen 21:33.>
Criminal proceedings may be instituted only by the Department of Public Prosecutions. It is composed of the Advocate-General, the Solicitor-General and the advocates general at the Supreme Court; five attorneys-general, advocates-general and solicitors-general at the courts of appeal; 19 chief public prosecutors, and traffic magistrates attached to district and cantonal courts for a total of 250. The department is structured hierarchically in the same manner as the judicial system. The Advocate-General is independent and is appointed for life. He is consulted by the Supreme Court in all cases brought before it and may initiate an appeal "in the interests of law" on his own initiative.<$FGeorge Thomas Kurian, Encyclopedia of the First World , Vol. II, pp. 775-6; >
The Department of Public Prosecutions has considerable independence. Dutch law recognizes the principle of opportunism as opposed to the principle of legality. This means that a public prosecutor is not bound to prosecute except on the express order of a court of appeal, the minister of justice or the procurator general. Mr. Sutorius emphasized the importance of the prosecutor's role in Holland:
He can drop a case on what we call the "opportunity principal" on grounds that are in the public interest, which gives him a discretionary freedom. That is why, in the end, the Minister of Justice has political responsibility for it and has to decide whether or not he will prosecute a case.
It is this discretion on the part of the individual prosecutor and, ultimately, on the part of the Minister of Justice, that permits the unique Dutch approach to euthanasia and assisted suicide. Although both acts remain illegal under the Criminal Code, it is universally understood that no prosecutions will be initiated if certain conditions are met. In Canada, prosecutors have considerable discretion as to whether or not to initiate a prosecution depending upon their assessment of the likelihood of a conviction, but none to refuse a prosecution on "public interest" grounds where they are convinced that a criminal act has taken place and is provable. As well, with certain specific exemptions, criminal prosecutions are initiated by provincial prosecutors, and the imposition of national guidelines would be extremely difficult.
As Mr. Sutorius pointed out during the video-conference, "it is not easy to translate [Dutch] concepts into proper and meaningful definitions which [Canadians] would understand"<$FSutorius 21:39>, and this leads to numerous misunderstandings and misinterpretations of the Dutch situation.
Euthanasia is defined as a criminal offence under Article 293 of the Netherlands Criminal Code: "Anyone who takes the life of another person at that other's express and serious request, will be punished with a prison sentence of a maximum of twelve years, or a category five fine."
Assistance in committing suicide is defined as a criminal offence under Article 294 of the Netherlands Criminal Code: "Anyone who deliberately incites another to commit suicide, assists him in so doing or provides the means for him so to do will, if suicide follows, be punished with a prison sentence of a maximum of three years, or a category four fine."
Three important points are implied by these definitions. Firstly, euthanasia and assisted suicide are acts; they are defined as doing something, usually handing over or administering a drug. They are not defined as refraining from action that is, not starting or stopping a treatment (not even by the action of changing the switch of a ventilator). Secondly, euthanasia and assisted suicide are defined as voluntary (at request), thereby excluding particular patients, such as newborn infants or comatose patients. Thirdly, the term "intentionally" is usually interpreted as "with the primary intention of". Thus the treatment of pain, for example by high doses of morphine, with the secondary effect of shortening the life span, is not considered to be euthanasia.<$FGerrit van der Wal and Robert J.M. Dillman, "Euthanasia in the Netherlands," British Medical Journal 1994; 308: 1346, at 1346.>
Although assisted suicide and euthanasia have different legal consequences, a moral distinction between the two acts is not usually made in the Netherlands. In both cases, the physician has to comply with same procedural and substantive requirements.<$FProfessor J. Legemaate, "Legal Aspects of Euthanasia and Assisted Suicide in the Netherlands 1973-94", a paper presented at the Euroconference on euthanasia and assisted suicide, Maastricht, June 10-11, 1994, p. 1 (to be published in the Cambridge Quarterly of Healthcare Ethics).>
Finally, article 40 of the Code states: "It is a defence to a criminal charge if the accused was compelled to action by overmacht." The defence of overmacht was described by Dr. Gerrit van der Wal during the video-conference:
The legal basis of this verdict is the force majeure wherein the physician must act. The doctor is confronted with conflicting obligations: towards the patient, as a caregiver; and towards the law, as a civilian. Professional obligations force the doctors to act against the formal provisions of the law, but in accordance with viewpoints developed in medical ethics and with the explicit wish of the patient who relies on him or her.
van der Wal 21:9
As Professor H.J.J. Leenen, Professor Emeritus of Social Medicine and Health Law, pointed out, the term force majeure is a concept used in civil, or private, law in North America, but not in criminal law. Therefore, he suggested that it would be better to use the term "necessity", a concept familiar to the Canadian criminal law.<$FLeenen 21:14, The defence of necessity arose in Canada during the recent Latimer case.>
A recent paper on the defence of necessity describes the common-law situation as follows:
In theory, then, the defence of necessity is not precluded when the accused is charged with what in effect amounts to a mercy-killing, even when ... the deceased did not consent to the act. However, even if the accused is a physician and the deceased his patient who had pleaded for a lethal injection to end his misery, the public policy of the common law is that the defence of necessity cannot be allowed to undermine the prohibition against active voluntary euthanasia (or for that matter, physician-assisted suicide). In fact, in none of the small handful of mercy-killing cases against physicians has the accused even raised a necessity defence.
The policy is illustrated by the unreported 1992 English case of R. v. Cox, in which the accused-physician was charged with attempted murder after he gave a lethal dose of potassium chloride to a 70-year-old patient who had begged him to end her life. The patient was dying of rheumatoid arthritis, complicated by gastric ulcers, gangrene and body sores; and near-fatal doses of heroin were unable to relieve her agony. (The reason that Dr. Cox was not charged with murder was that the patient was so near death that the pathologist could not prove that the injection of potassium chloride had caused the death).
Still, the accused did not seek to excuse his act on the grounds of (medical) necessity... The accused was therefore left without a defence to the charge, and the trial judge accordingly instructed the jury that the evidence of guilt was overwhelming and that it had no option but to convict. The jury complied, although a number were in tears when the verdict was announced. Dr. Cox received a one year suspended sentence, and although reprimanded by the General Medical Council he was not stricken from the medical roles.
In sum, although the defence of medical necessity has been recognized in abortion cases, the Cox case illustrates the unwritten common law rule that it is not available in euthanasia cases. In the Netherlands, on the other hand, the judiciary has carved out what amounts to a defence of medical necessity in cases involving physicians who either give lethal injections to or assist the suicide of consenting patients.<$FSneiderman and Verhoef, pp. 6-9>
Another term used to describe the defence of necessity is noedtoestand, which is technically translated as "situation of necessity". "However, in the case of euthanasia the "necessity" which has been recognized by the Dutch courts is not a general necessity but specifically a medical necessity, measured in terms of the state of medical knowledge and the professional norms of doctors, and it seems clear that no one but a doctor can successfully invoke it.<$FJohn Griffiths, University of Groningen, Faculty of Law, unpublished paper, p. 1.> In brief, the Dutch defence of noedtoestand recognizes a situation in which a doctor is faced with a situation of emergency, and committing a crime is considered a lesser evil than adhering to the letter of the law. There is no reasonable alternative to breaking the law because the intent of the doctor is to relieve suffering and there is no alternative method.<$FBarney Sneiderman, "Euthanasia: Law Reform and Social Policy", in Euthanasia in the Netherlands: A Model for Canada , p. 9.>
2.2 Judicial Interpretations
Starting with the Postma case in 1973, a series of prosecutions against physicians accused of euthanasia or assisted suicide resulted in judicial and medical guidelines outlining the circumstances in which such acts would be acceptable in the Netherlands. In the Postma case, a doctor was found guilty of giving her 79 year-old mother a lethal injection after repeated requests to end her suffering. Although she was placed on probation for a year, the facts of the Postma case resulted in considerable sympathy for the doctor, and resulted in the Royal Dutch Medical Association (KNMG) producing a working paper on the subject. As well, the Court set out a number of conditions that would have to be met before an accused would be exonerated of euthanasia.
In 1984, two separate events accelerated the evolution of euthanasia policy in the Netherlands. First, the KNMG published a policy position on euthanasia in its official journal. Second, the Supreme Court accepted, in the Schoonheim case, that a physician could be acquitted of euthanasia when faced with an irreconcilable conflict between (1) his duty to abide by the law and (2) his duty to relieve a patient's suffering by ending a life of unbearable and irreversible suffering. Dr. Schoonheim had euthanized a 95-year-old patient who was mentally unimpaired but suffering continuous physical degeneration. Since she had become bed-ridden in a nursing home, she had consistently asked to die. "By the last week of her life, she could no longer take liquids nor speak and was suffering periodic lapses of consciousness. However, she did regain some ability to speak and expressed her horror at the fact that she was still living. She then begged her son to help her to fulfil her repeated requests to die.<$FSneiderman and Verhoef, p. 14.> After discussions with the patient, the family and a young colleague, Dr. Schoonheim finally agreed to terminate her life. The next year, a district court, following the guidelines in Schoonheim, acquitted Dr. Admiral in the death of a 34-year-old multiple sclerosis patient who, although totally paralysed and suffering intractable pain, was not in danger of imminent death.
As with the Canadian judicial system, the Dutch prosecutorial system is not without flaws. The der Terp case, in which a doctor had killed a number of patients in a nursing home, resulted in an acquittal. This has been interpreted in a number of articles as an indictment of the Dutch approach to euthanasia, and a confirmation that the "slippery slope" exists.
One case which is always cited in international literature is the der Terp case in which a doctor, without request in accordance to the rules, killed some patients in a nursing home. That is the case to which Professor Legemaate referred. In that case, the prosecution erred. It brought before the court files which were not admissible because of medical secrecy. The court had to dismiss the case, not because they accepted the actions of the doctor, but because the requirements of law were not met.
2.3 Political and Legislative Response
Following the 1984 Supreme Court decision there were various attempts to legislate on the subject of euthanasia. In 1986, 1987 and 1993, Bills were introduced which would have set out criteria for euthanasia in either the Penal Code or the Medical Practice Act. None of these bills succeeded.<$FHouse of Lords, op. cit., p. 65>
At the beginning of 1988, there were two draft laws on euthanasia before Parliament. After the general elections in 1989, a new coalition government was formed, which decided that any legislation on euthanasia should be preceded by a national investigation.
In January 1990, a commission of inquiry into medical practice with regard to euthanasia (the Remmelink commission) was set up by the Minister of Justice and the State Secretary of Welfare, Health and Culture. An independent investigatory team, led by Professor P.J. van der Maas, was contracted to conduct a wide-ranging study of the existing situation. To encourage the cooperation of the Royal Dutch Medical Society, the Ministry of Justice guaranteed legal immunity to participating physicians, and agreed on a notification procedure to be used in cases of euthanasia and assisted suicide:
The doctor does not issue a declaration of a natural death; the doctor informs the medical examiner by means of an extensive questionnaire; and the medical examiner reports to the public prosecutor who decides whether a prosecution must be started.<$Fvan der Wal and Dillman (1994), p. 1347.>
The aim of the notification procedures was to harmonize prosecution policies in the various regions of the country, and to eliminate certain investigative practices, such as the interrogation of relatives within hours of death, that had discouraged physicians from reporting cases.<$FLegemaate (1994), p.5.>
Following the recommendations of the Remmelink committee, which reported in September 1991, the government introduced a Bill to give legislative force to the voluntary 1990 guidelines. As recommended by the Commission, the reporting procedure was extended to include "active interference by a doctor within the scope of care for the dying without an explicit request from the patient, apart from those situations in which the vital functions have already and irreversibly begun to fail."<$FThe Netherlands, Ministry of Welfare, Health and Cultural Affairs, "Medical Practice with Regard to Euthanasia and Related Medical Decisions in the Netherlands: Results of an Inquiry and the Government View", VDB 92-034, p. 7.>
In recent articles, officials of the Royal Dutch Medical Association have criticized this extension of the reporting procedures, arguing that it creates the false impression that the ending of life without an explicit request can be as acceptable as euthanasia and assisted suicide. Whereas euthanasia and assisted suicide respect the crucial role of self-determination, ending a patient's life without a request raises far more difficult questions of legitimacy.<$FLegemaate (1994), p. 9; van der Wal and Dillman (1994), p. 1348.>
The new law, Bill 22572, came into force on June 1, 1994. It did not amend the Penal Code, and euthanasia remains a criminal offence. Instead, the Burial Act 1955 (Act on the Disposal of the Dead) was amended to specify the required reporting procedure. Where the correct procedure is followed, and the specified criteria fulfilled, a policy of non-prosecution prevails. On the other hand, reporting is now mandatory and a physician who does not comply can be prosecuted.
A physician... must state when there is an unnatural death involved and the notification procedure must be followed. Only if an improper statement concerning the causes of death is given can a physician bypass the notification procedure. In effect, it is mandatory.
To come within the provisions on assisted suicide and euthanasia of the Burial Act, a physician must complete a full written report based upon a lengthy questionnaire, and submit it to the municipal coroner who forwards it to the local public prosecutor. The prosecutor reviews each case in light of the legislation and existing jurisprudence. All such decisions are reviewed at regular meetings of the solicitors-general for each of the five appeal courts. Ultimate political responsibility for all decisions not to prosecute rests with the Minister of Justice.<$FHouse of Lords, op. cit., p. 64>
Aside from requiring a case history, the questionnaire asks whether the patient made a request "freely, quite explicitly and on a well-considered and permanent basis". Additionally, the physician must describe when and to whom the request was first made and repeated; whether a written declaration of will (advance directive) was available; the evidence showing that the patient was fully aware of the import of the request and of his/her physical condition; and whether the views of the next of kin were requested or why they were not consulted. If the patient has a psychiatric disorder, additional information is required, such as whether any medical or therapeutic alternatives were available and the evidence showing that the patient rejected these alternatives.
In a case where there was no explicit request, the physician must explain why this was so, whether there was any other communication by the patient concerning the termination of life, who first raised the question of termination, and at what point. The physician must describe any other considerations which determined the medical decision and the timing of the intervention.<$FDecree of 17 December 1993, Ministry of Justice.>
The criteria that emerged from court decisions and professional guidelines are both substantial and procedural:
- the request for euthanasia must come from the patient and be entirely voluntary, well-considered and persistent;
- the patient must have adequate information about his medical condition, the prognosis and alternate treatments;
there must be intolerable suffering with no prospect of improvement, although the patient need not be terminally ill;
- other alternatives to alleviate the suffering must have been considered and found ineffective, unreasonable or not acceptable to the patient;
- euthanasia must be performed by a physician who has consulted an independent colleague;
- the physician must exercise due care, and there should be a written record of the case; and
- the death must not be reported to the medical examiner as a natural death.<$FSutorius 21:42>
These are the formal requirements, but there are also other informal or local resources of which physicians either can or must avail themselves.
By example, ... the practising physician can go to the state inspector of health for guidance. Alternatively, he can go to the Royal Dutch Medical Association, the local district attorney, or the medical examiner for guidance. In many districts of the country, it is the rule that 24 hours before euthanasia takes place, the physician must consult the medical examiner who functions as a go-between on behalf of the physician between the medical system and the legal system.
Even where a physician is not prosecuted under the Criminal Code, he or she could be found guilty of bad medical practice by a medical disciplinary court. In the Netherlands, these are not just disciplinary bodies but legal courts regulated by law.<$FLeenan 21:64> During the video-conference, Mr. Sutorius pointed out that there have been several cases where a physician had to undergo both criminal proceedings and disciplinary court proceedings.
After 10 years, there have been nine or ten cases in the criminal court sphere and five or six disciplinary court rulings. By and large, the rulings are harmonious.
In the Chabot case, it may be interesting for you to know that our inspector for public health initiated a complaint in his own right, after our Supreme Court declared Chabot guilty without punishing him. That case will now be tried before a disciplinary court, a fact which does not please Dr. Chabot because already there have been years of sessions in this matter. Nevertheless, it happens.
That may be an indication of the unrest which has originated in society because of this case.
The Dutch panel during the video-conference seemed to be strongly of the opinion that it was preferable to have legislative action than "judge-made law". While the political situation in the Netherlands makes a legislated solution difficult, if not impossible, there was general agreement between the Dutch panel and the Canadian Senate committee that the issue was best dealt with by politicians rather than the courts.
We have a problem [in the Netherlands] in that we are a multi-opinionated society. Christian Democrats are against euthanasia. Catholics are mostly in favour of euthanasia. Yet, officially, the Episcopates, Roman Catholics, and the Christian Democratic Party are opposed to euthanasia. They generally hold one-third of the seats in Parliament. Until the last half-century, the Christian Democrats always formed the government and they refused to legislate euthanasia. The Parliament was incapacitated to legislate. The only way it was possible was because of the Supreme Court jurisprudence.
2.4 Psychological or Mental Suffering
There have been several recent cases in the Netherlands involving physicians who assisted a suicide brought about by psychiatric or mental suffering. In the Netherlands, and in the testimony heard by the Committee, this has been the most controversial development of Dutch policy. Mr. Sutorius summarized the present legal situation as follows:
In Holland, we finally agreed that suffering is always mental, even if it has a somatic [physical] source. Suffering is a mental process.
We also agreed that psychiatric suffering is much less physical, and the possibility of alternatives is more difficult to exclude. Everyone agreed in Holland that we should not take the same route as we did with somatological suffering.
The Supreme Court found itself caught in the principle of equality... It was clear that suffering can be as exhaustive and unbearable when it has psychiatric roots, as when it is caused by terminal cancer. There was no reason to exclude those categories of sufferers requesting death. ...
It is important to note that our Supreme Court agreed that there should be no distinction made between suffering from a psychiatric disease or a somatological condition. Also, when we talk about psychiatry, no distinction is to be made between whether it is a disease or a trauma.
However, the process of arriving at these conclusions was neither easy nor uncontroversial. In 1990, Dr. Kors, a paediatrician, assisted in the suicide of a 25-year-old anorexic, Maria S. Dr. Kors had been treating her since 1974, when she was eight-years-old. Despite aggressive therapy, Maria did not improve. In May 1990, her younger brother committed suicide by asphyxiation, and Maria announced at his funeral that she intended to do the same. Maria had previously asked Dr. Kors to assist her suicide, but after her brother's funeral she refused further tube feeding or hospitalization. She weighed 19 kilos, and was continually afflicted with vomiting and severe stomach pains. A psychiatrist who had previously seen Maria met with her again, and gave his opinion that she was mentally competent and that there were no treatment options to ease her mental suffering. Dr. Kors provided a lethal dose of seco-barbital, which Maria took five days after making a video explaining her desire to die.
When Dr. Kors was charged with assisting a suicide, his attorney, Mr. Sutorius, argued that a provision in the constitution of the Netherlands guaranteeing "equality before the law" prevented restricting euthanasia or assisted suicide to patients with somatic-based suffering or physical illness.
Given that the issue is whether the patient's suffering is unbearable and beyond remedy, it is pointless to inquire as to the source of his misery. What counts is the suffering, not from whence it has sprung. After all, if the patient is afflicted with cancer, multiple sclerosis, or a non-diseased body encased in a tortured soul, suffering is a mental process whose magnitude is not conditioned upon its origin in the body or the mind. In either case, the patient can experience her continued existence as a living hell with no way out except the merciful release of death. Furthermore, since the euthanasia policy is buttressed by the twin pillars of beneficence and autonomy, the mentally competent patient whose suffering is non-somatic surely qualifies as much as her counterpart whose suffering stems from a physical disease process. In either case, the resort to euthanasia is a beneficent act because it enables the patient to end a life whose burdens have overwhelmed its benefits...
The Court was satisfied from the evidence that the medico-legal guidelines had been satisfied: that the patient was free of psychosis and was mentally competent; that her wish to die was well considered and persistent, and that it was a product of her free will; that her suffering was relentless and intolerable; and that there were no reasonable treatment regimes to ameliorate her condition.<$FSneiderman and Verhoef, 21-22.>
In another case that commenced with a death in 1985, but did not legally terminate until 1994, Dr. Duintjer, a psychiatrist, was charged with assisting the suicide of a 50-year-old patient. Martha N. was married and had two adult children, but also a 25 year history of depression and alcohol abuse. During the last years of her life, she experienced unbearable bouts of depression and engaged in several attempts at suicide. In 1983, she drank a household cleanser which damaged her vocal chords; in 1984 she set herself on fire and a few months later jumped out a second story window; and in 1985 she took an overdose of sedatives obtained by falsifying a prescription. She had made repeated requests of both Dr. Duintjer and her family physician for assistance in committing suicide.
By , Dr. Duintjer was prepared to accept that there were no treatment modalities that could ease her distress. It was clear that she desperately wanted to die, not only for her own sake but also to put an end to the constant stress that her condition imposed upon her family. Furthermore, she had a clear understanding of her situation and was mentally competent to ask for medical assistance to end her life.<$FIbid.>
The doctors also involved her pastor in the case, and after a dozen meetings he too was of the view the that case was hopeless, and that the physicians were entitled to assist her in her determined attempts to die. Although the prosecution was complicated by various technical matters, the court rejected the argument that psychiatric patients were by definition incompetent to qualify for euthanasia.
The most recent and most publicized case, Chabot, concerned Hilly Boscher, a 50 year-old-social worker devoted to her two sons. The first committed suicide after a broken love affair, and four years later the younger son was stricken with cancer. On the day he died, she attempted suicide. After unsuccessful attempts to obtain a lethal dose of drugs, she contacted the Dutch Society of Voluntary Euthanasia who put her in contact with Dr. Chabot.
As an experienced and well respected psychiatrist, Dr. Chabot took particular gratification from the many cases in which he had helped suicidal patients find reason to get on with their life. At their first session, she was quite insistent that her continued existence was intolerable.
Although adamant that life held no prospects for her, she did agree to enter into an ongoing therapeutic relationship with Dr. Chabot. At his suggestion, she also kept a journal which she shared with him. What emerged from the therapy sessions and her writings was an unwavering determination to die.
As indicated, she refused anti-depressants as well as "bereavement therapy". Hilly told Dr. Chabot that she simply was not prepared to undertake the commitment to work with him to change her bleak outlook on life. She was who she was and she could not envision becoming a different person.
On August 30, she told him that she had some sedatives and asked whether the dosage would be lethal if swallowed with alcohol. When he said that he thought not, she beseeched him to provide her with a prescription for Vesperax [a potent barbiturate-based sleeping pill] and that she would have it filled at various pharmacies until she had enough to end her life. He replied, "If I help someone to die, it will not be in secret."
After Dr. Chabot reported the case to the authorities, he wrote a letter to a Dutch psychiatric journal, in which he stated: I do not know whether I did the right thing... but I do believe I chose the lesser of two evils. We can no longer avoid the question of whether, in certain circumstances, people should be allowed to die at a time and in a manner that they feel appropriate.<$FIbid . pp. 27-31.>
After seven experienced colleagues had reviewed the transcript of the therapy sessions and concluded that it was a hopeless case, Dr. Chabot concluded that the lesser evil was to provide her with the means to commit suicide painlessly and with as little violence as possible.At his trial, Dr. Chabot testified that there was no question of a psychiatric illness or a major depressive disorder.
Although the patient was suffering from neither a physical nor mental illness, Attorney Sutorius argued that the case fit squarely within the medico-ethical principles of self-determination (autonomy) and mercy (beneficence) that are the twin pillars of the Dutch euthanasia policy. Regarding the former, he argued that respect for the person outweighs the duty to preserve life; and regarding the latter that the relief of unbearable and irremedial suffering likewise outweighs the duty to preserve life.<$FIbid . p.31.>
The Supreme Court accepted the principle that mental suffering could be sufficient to justify assisted suicide, but added a number of cautionary notes. In the event, it reversed Dr. Chabot's acquittal, and entered a conviction, on the grounds that none of the consulting psychiatrists had personally examined the patient. Under the circumstances, the court waived any punishment, the equivalent of an absolute or conditional discharge in Canada.
During the video-conference, Dr. Leenen noted four salient features about the Chabot decision. First, although there was some debate as to whether or not the lady was a psychiatric patient, the court decided that even a psychiatric patient could be competent to request assisted suicide. Second, people who are not psychiatric patients but are suffering severe and intractable mental pain have the same right. Third, particular care must be taken to fulfil the strict letter of the guidelines, including a personal examination by a second consultant, when non-somatic or mental suffering is involved. Fourth, the court confirmed that imminent death was not necessary for the defence of necessity to be available.<$FLeenen 21:47-49>
Dr. Leenen emphasized that psychiatric patients, or persons who are not patients but are suffering severely, present a particularly difficult problem. In 1993, the Royal Dutch Medical Society released a report emphasizing the difficulty in determining whether or not a psychiatric patient can deal with such an important decision.
In my opinion, and in that of Mr. Meijers and the state committee, it is possible, but you have to be very careful because if the wish to end life results from psychiatric disease, then you have to treat the disease and not end the life. It is always difficult to assess. Nevertheless, the Supreme Court did not exclude that fact, but rather mentioned three times in the decision that it was very important to be cautious. Such a warning is rather exceptional from the Supreme Court to the doctors.
In response to a question about the prevalence of depression in dying patients, Dr. Heintz noted that depression at the end of life is very common. In the Netherlands, when it occurs in a hospital situation a psychiatrist is always asked for a consultation. If it can be treated, and the patient accepts the treatment, that is the preferred response.
The diagnosis and treatment of depression is an essential part of adequate terminal care. In that respect, we treat those patients also, but not every patient wants treatment. The final wish of the patient is something that comes first.
However, where a psychiatric patient is involved, the concept of available alternative treatment and the right to refuse treatment becomes much more complex. As Professor Leenen pointed out, a psychiatric patient is unlikely to be allowed to refuse treatment, and this is an important deviation from the normal rules of consent. Such patients have to accept treatment if the treatment is available, unless it is unreasonable under all of the circumstances to expect them to consent.<$FLeenen 21:50> Where the patient's suffering has a physical cause, a competent refusal of treatment ends the issue of possible alternative treatment because the patient cannot be treated against his or her will. However, with psychiatric patients and patients who are mentally suffering, a refusal of a realistic alternative treatment will likely disqualify the patient from receiving assisted suicide.
The holdings of the Supreme Court in Chabot can be summarized as follows:
1. Assistance with suicide can be legally justifiable in the case of a patient whose suffering does not have a somatic base and who is not in the terminal phase.
2. A person suffering from a psychiatric sickness or disorder can still express a wish to die that is legally the result of an autonomous (competent and voluntary) judgement.
3. However, the suffering of such a person, in principle, cannot be considered "lacking any prospect for improvement" if he or she has refused a realistic therapeutic alternative.
4. In such a case, the legal requirements of consultation can only be met if an "independent colleague" of the physician assisting the suicide has personally examined the patient.<$FGriffiths, op cit 9.>
Several participants in the video-conference noted that the Supreme Court did not seem comfortable dealing with the issue of assisted suicide to relieve mental suffering, and Mr. Sutorius concluded that:
Our Supreme Court followed the route they took in 1984, but at the same time they signalled to our society that this is the borderline and they did not wish to go further.
From the testimony of a number of witnesses before the Committee it seemed clear that cases where a suicide was assisted to relieve mental or psychological suffering caused particular discomfort. Many groups and individuals seemed concerned with the suggestion that physicians involve themselves in the suicide of individuals who have neither a terminal illness nor a specifically physical source of suffering.
These cases have troubled many Dutch proponents of their Euthanasia policy, who express the sense that perhaps this is going too far. There is the sentiment that such a request should elicit the following message from the physician to the patient (however tactfully expressed). "I do not mock or deny your suffering. But if you are that unhappy, then exercise some initiative and find the way to kill yourself. After all, you can read Derek Humphrey's best-seller, Final Exit, which will guide you to your death. Yet, do not turn to me for the answer. I am at your service, but this is where I draw the line that it is not my role as a physician to provide lethal drugs as a permanent cure for unhappiness.'<$FSneiderman, pp. 15-16>
Many people think that from now on, after Chabot, it is easy for people who have psychiatric suffering, psychological suffering to get help to die. This is not so," said Martine Corneliesse, co-ordinator of members' services for the Netherlands Voluntary Euthanasia Association. "If anything, it is now more difficult," she said. Psychiatrists are very wary of this topic and the publicity of Chabot has made them even more way. His decision was attacked in our most important mental health journal. In psychiatry, there is no support for it. <$FMullens "The Dutch way of death", in Euthanasia, op. cit., p. 20.>
2.5 Other Aspects of the Law
Because euthanasia must be requested by a competent person, severely defective newborns, comatose patients and patients with Alzheimer's are not eligible for euthanasia. If a newborn has a severe condition which cannot be resolved, treatment can be withheld or stopped on the basis of futility. After long discussions with the family and medical team, there can be a cessation of medically futile treatment. If the baby, against expectations, does not die, and the pain cannot be relieved, it is a difficult situation.
From a legal point of view, again, [there is] the principle of necessity. The doctor's duties are in conflict. The baby is suffering severely from unrelenting pain, yet the doctor is not allowed to terminate the life of that severely handicapped baby. The doctor can appeal, citing the necessity rule in our Penal Code, when he is unable to assist or relieve the pain. This happens in the Netherlands about four times a year.
These occurrences are not euthanasia by Dutch standards, but individual cases of a conflict of duties wherein the discretion to prosecute may or may not be exercised. The Royal Dutch Medical Association provides ethical guidance to physicians facing such situations, but this does not affect the law.
The withdrawal of treatment for patients in a persistent vegetative state is legal because the treatment is medically pointless. Again, there are medical criteria that must be followed with respect to consultation and safeguards. Artificial feeding and nutrition is regarded as medical treatment, and the courts have upheld its withdrawal in the case of patient in a persistent vegetative state.<$FLeenen 21:19, Sutorius 21:45.>
It has not yet been clarified whether a person may request euthanasia by means of an advance directive or living will:
We have not yet had a case in which a physician performed euthanasia pursuant to a living will. Although there is currently no legislation in Holland endorsing the concept of patients' advance directives, we know that physicians are terminating life-prolonging treatment pursuant to such direction. Yet what about a living will requesting euthanasia in certain circumstances (e.g. a persistent vegetative state or advanced Alzheimer's disease)? My own view is that, if such a case arises, a court would likely rule that the physician acted properly provided that witnesses testify that the living will did in fact represent the views of the patient.<$FEugene Sutorius, "Euthanasia in the Netherlands: The Legal Scene", in Euthanasia in the Netherlands: A Model for Canada?, p. 18.>
Although family members or friends cannot request euthanasia on behalf of an incompetent patient, a person with an advance directive requesting euthanasia may nominate a personal delegate to interpret the advance directive.<$FLeenen 21:20>
Although people from outside the country do inquire about the possibility of coming to Holland to receive either euthanasia or an assisted suicide, It is absolutely impossible to come to the Netherlands simply to receive euthanasia.
The Dutch approach evolved, in large part, out of the close and long-term physician-patient relationships that exist in the country and euthanasia will not take place in the absence of a very close physician-patient understanding.
3. The Data: the van der Maas study and the van der Wal study
3.1 The van der Maas study
The report of the Remmelink Commission which was issued in September 1991, also contained the results of research carried out by the institute of Social Health Care of the Faculty of Medicine at Erasmus University in Rotterdam, with the cooperation of the Dutch Central Bureau of Statistics (the van der Maas study). In 1992, the van der Maas study was published in English in a special issue of Health Policy.<$FP. van der Maas, J.J.M. van Delden and L. Pijnenborg, "Euthanasia and Other Medical Decisions Concerning the End of Life." Health Policy, vol. 22 (1993)> It is the data from this study that most subsequent commentators cite and, because of the controversial nature of the subject, the following sections contain exact quotes whenever it seems appropriate. However, it should be noted that some concerns have arisen about the translation, which has perhaps contributed to some of the controversy surrounding the Dutch experience.
Although the Remmelink commission was concerned with euthanasia, the van der Maas study had a wider scope. In Holland, euthanasia is limited to situations where there is an explicit and serious request, but the study chose to deal also with life-shortening acts where there was no explicit request (including withholding and withdrawal of treatment), and with the alleviation of pain or other symptoms where the shortening of life was a side effect (double effect).
The reasons for broadening the definition of the study were twofold: (1) there are divergent definitions of the concept of euthanasia and a narrow definition would have led to interpretation problems; and (2) medical advances have created broad grey areas between withholding/withdrawal of treatment, pain control and life-terminating acts at the request of the patient.
A decision to withhold or withdraw a life-prolonging treatment can be as decisive in its consequences as administering drugs with the purpose of hastening the end of life. Moreover, the medical situation around the end of life will require the simultaneous consideration as to withdrawing or withholding treatment, intensifying the alleviation of pain and/or symptoms, with shortening of life as a side-effect and the administration of drugs with the purpose of hastening the end of life.<$Fvan der Maas, pp. 5-6.>
In order to enhance the accuracy of the study, a three-part design was used. The first part of the study consisted of an extensive interview (average duration 2 1/2 hours)<$FIbid. p. 14.> with a sample of physicians: approximately 152 general practitioners, 203 specialists, and 50 nursing home physicians. The interviews were carried out by experienced physicians and other academics, all of whom received extensive training. Phase two, performed by the Dutch Bureau of Statistics, was a review of all death certificates over a five month period. The third part of the study required the physicians interviewed in phase one to complete a questionnaire for each patient in their care who died within approximately six months following the initial interview. Eighty percent of physicians interviewed in phase one participated in this follow-up study.
Because of the complexity of the study, and the need to weight the results between the different studies and the different types of physicians involved, the results can be difficult to interpret. For example, the questionnaire in part one (the physician interview) was different than the questionnaire in parts two and three.
3.2 Scope of the van der Maas Study
The general subject of the study was "medical decisions concerning the end of life" (MDEL). This term as used in the van der Maas study:
covers all decisions made by physicians concerning courses of action aimed at hastening the end of life of the patient or courses of action for which the physician takes into account the probability that the end of life of the patient is hastened. The (course of) action(s) concerned are: withdrawing or withholding treatment (including tube feeding) and administering, supplying or prescribing of drugs. Refusal of a request for euthanasia or assisted suicide and decisions not to resuscitate are also included in this investigation of medical decisions concerning the end of life.<$FIbid. pp. 19-20.>
Not included were the complications of medical interventions or errors where there was no intent to end the life of the patient, and decisions concerning the care of the patient, allowing the patient to die at home, or other usual medical interventions where a possible hastening of death was not involved.
MDELs were classified on the basis of four questions: what does the physician do? what is the physician's intent in doing this? did the patient request this intervention? was the patient able to decide upon this intervention?
There are three ways in which a physician can intervene: administering drugs that (possibly) hasten the end of life, and either withholding or withdrawing a (possible) life-prolonging treatment. These can occur in combination, as when terminating a life-prolonging treatment leads to administering drugs that may shorten life.<$FIbid. p. 20.>
The data that caused the most controversy are found in chapters 6 (life-terminating acts without the patient's explicit request), 7 (alleviation of pain and symptoms) and 8 (non-treatment decisions). In all cases, the physician's intention is crucial, and is dealt with somewhat differently than in Canada:
It can be assumed that termination of life can never be the most important aim in the interaction between physician and patient. If a physician deliberately performs actions that shorten the patient's life it can be argued that, in final analysis, termination of the patient's suffering is intended and that under certain circumstances, also according to the physician's judgement, this suffering cannot be terminated in any way other than by termination of life.<$FIbid. p. 21.>
Three categories of intention were recognized for the purposes of the study:
Category I: (acting with) the explicit purpose of hastening the end of life;
Category II: (acting) partly with the purpose of hastening the end of life;
Category III: (acting while) taking into account the probability that the end of life will be hastened.
In Canada, the first category would normally be considered murder. However, during the video-conference, Dr. J.J.M. van Delden, a member of the Remmelink Commission Research Team, described the situation in the Netherlands as follows:
We had one category for research purposes which was phrased in the following manner: "the explicit intent to shorten the patient's life", not "to kill". As a matter of fact, most doctors who answered that they had performed an NTD [non-treatment decision] with the explicit purpose to hasten the end of the patient's life, meant that they did not want to prolong suffering...
... In 6 per cent of the cases of alleviation of pain and symptoms [APS], the intention was described as the explicit purpose to hasten the end of life. In the case of euthanasia, the intention was described by the same wording, as you know. If the context is taken into account, however, one will soon realize that, in the case of euthanasia, the decision was made to hasten the end of life and then the means were sought. In the cases of APS, however, there is ongoing medical treatment which is failing to achieve its palliative goal. The physician sees himself as confronted with the need to use higher, possibly lethal, doses. There may be a point at which the physician realizes that he or she actually hopes that the patient dies. Thus, the physician answers the research question that his purpose, at least partly, was to hasten the end of life.
Those cases prompt us to speak of the boundary area around euthanasia. But are the intentions the same as in the euthanasia cases? I do not think so. In the case of euthanasia, the physician would surely have tried another drug if the first one failed. In the case of APS, that would never have happened.<$Fvan Delden 21:13; see also Dances with Data It should also be noted that, because of the low number of physicians involved in the study, the 6 per cent of physicians represents under 20 actual physicians.>
The third category of intention would presumably correspond to the Canadian concept of potentially life-shortening pain control, which is a generally accepted aspect of palliative care. Between the first category (an explicit intent to shorten life in order to alleviate pain and symptoms) and the third category (potentially life-shortening pain control) lies a grey zone. This second category is described in the van der Maas study:
This distinction of the two major categories still does not solve the difficulty that many physicians cannot always indicate what their intention actually had been in a certain case. Sometimes an intervention is performed to achieve one particular effect (e.g. pain relief) but the side-effect (e.g. death) is not unwelcome. Strictly speaking, this situation should be categorized as intentional intervention. In order to be considered unintentional, this side-effect should in fact not have been desired. This strict interpretation could not be adhered to when the questionnaire was constructed because there were occasions when, in the opinion of the physician, neither description did justice to his intention. We therefore allowed for the third category (acting) partly with the purpose of hastening the end of life'. This description relates to a situation in which death of the patient was not foremost in the physician's mind but neither was death unwelcome. This type of intention was included specifically in the questionnaire for the alleviation of pain and/or symptoms.<$Fvan der Maas, p. 21.>
Several other definitional issues of the van der Maas study should be noted. These were the concepts of: "terminal phase" <$FAs will be noted in the main body of the report, the definition of "terminal phase" has caused difficulties in Canada as well>or the "concrete expectancy of death"; "medically futile"; and "do not resuscitate decisions". The van der Maas study suggests that there was "great resistance against the use of [terminal phase] as a criterion for the admissibility of euthanasia."<$Fvan der Maas, p. 23.> This appears to evolve from the Dutch point of view that the essential criterion is relief of intolerable suffering, rather than only intolerable physical pain, as well as the difficulty of defining "terminal".
As for the concept of "medically futile", the van der Maas study concluded that:
This concept plays an important role in the non-treatment discussion, with or without a request of the patient. Jurisprudence has appeared, meanwhile, in which this concept has been used. There is nevertheless no uniform definition. The concept of "futile" depends too much on what is considered to "have a point", i.e. to make sense. This concept was therefore not used in the questionnaires because its interpretation is too variable.<$FIbid. p. 24.>
"Do not resuscitate" decisions are defined as situations in which "there is an explicit agreement that:
the patient will not be resuscitated if a (functional) cardiac and/or respiratory arrest occurs. This anticipating decision is called a DNR (do not resuscitate) or NTBR (not to be resuscitated) decision. Such decisions play an important role in clinical practice. In this investigation they are also considered as an MDEL."<$FIbid. pp. 23-4.>
3.3 Euthanasia and Assisted Suicide
The data resulting from the van der Maas survey with respect to euthanasia or assisted suicide are not particularly controversial. However, the definitions used are not generally familiar to a North American audience and this can cause some ambiguity.<$FSince euthanasia requires an explicit request, situations in which a patient is incapable of consenting are never included in Dutch discussions of euthanasia. Euthanasia is an intentional act to terminate life by a person other than the person who dies, upon the request of the person who dies. Assisted suicide is the intentional assistance given to a person to terminate his or her own life upon that person's request. The distinction between euthanasia and assisted suicide therefore depends upon whether the drug is administered by another or taken by the patient. However, because the incidence of assisted suicide is so low, it was treated together with euthanasia for most of the study.>
In virtually all cases there was a strong and explicit request (96%), made wholly by a patient (99%) who was totally able to take a decision (98%) and who had a good insight into the disease and prognosis (100%). The request was usually repeated (94%).<$Fvan der Maas, p. 45, Table 5.8, p. 50, Table 5.15.> Medical colleagues were consulted in 84% of the cases, and relatives informed in 94% of the cases.<$FIn another four percent of the cases, the reason for not informing relatives was either because the patient did not wish it or there were no relatives to inform. van der Maas, p.50, Table 5.15.>
Of approximately 130,000 deaths in Holland in 1990, the study estimated that 1.8 percent (approximately 2,300) resulted from euthanasia, and .3 percent (approximately 400) resulted from assisted suicide. There were an estimated 25,000 requests per year for euthanasia or assisted suicide "in due course" (general requests if the suffering became unbearable), and an estimated 9,000 requests for euthanasia "in the foreseeable future" (specific requests based on an existing situation). The study did not deal further with the 25,000 general requests.
The study estimated that 4,000 out of 9,000 specific requests a year were seriously considered by the physician but refused because the situation did not justify it (e.g. there were still alternative possibilities for alleviating pain, the suffering was not unbearable, the request was not well considered or the patient did not properly understand his/her disease, the patient withdrew the request after discussion, or the physician had specific objection in the particular case or objected in principle to euthanasia and/or assisted suicide).
The remaining 2,000 or so requests (other than the 4,000 which were refused and 2,700 which were carried out) involved situations where the patient died before the request could be carried out, where the physician did not consider the request sufficiently explicit to accept or deny, and where there was neither a refusal nor an action by the physician because the patient changed his/her mind or did not persist.
The reasons most generally cited for requesting euthanasia were loss of dignity (57%), pain (46%), not dying in a dignified way (46%), dependence (33%) and tiredness with life (23%). The vast majority of requests were from cancer patients (83%), although cancer accounts for under 30% of deaths in Holland.<$FIbid. pp. 44-45, Tables 5.5 and 5.8.> The fact that unworthy dying was the most commonly cited reason for requesting euthanasia may account for the reluctance among Dutch physicians to limit requests for euthanasia to patients suffering from an irreversible and painful physical ailment.
At the time the decision to perform euthanasia or assisted suicide was made, most of the patients were receiving only palliative treatment for the relief of suffering (77%). Others were receiving no treatment (14%), treatment that was life prolonging but not curative (10%) or curative treatment (2%).<$FIbid . p. 45, Table 5.6. More than one answer could be given, so figures do not total 100%.>
These data can be interpreted in different ways. Dr. Karl Gunning, felt that these figures were questionable because of the different definition of euthanasia used by the Dutch. He explained his concern as follows:
You may have heard that the committee [Remmelink] concluded that of the 130,000 people who die annually in Holland, only 2,300 were killed by euthanasia. However, if you read the report well, you will come to the conclusion that their definition of euthanasia is different from what is used in the rest of the world.
The definition of euthanasia is "to cause consciously the death of a patient". The Remmelink committee said that euthanasia is "to end consciously the life of a patient at his own request". Of course, if you add the words "at his own request", the committee is completely right when it says that there were only 2,300 cases of euthanasia. However, if you read the report further, you will come to the conclusion that a lethal drug was given to almost 4,000 people. This is so, because assisted suicide and the giving of a lethal drug when not requested were not regarded as euthanasia. Thus, you could calculate that there were something in the order of 16,000 cases in which either the treatment was slow, started, or stopped, or an overdose of drugs was given with the intention to shorten the patient's life.
3.4 Life-Terminating Acts Without the Patient's Explicit Request (LAWER)
The single most controversial aspect of the van der Maas study is the finding that almost one percent of deaths during the time under consideration (.8%, or approximately 1,000) might be from life-terminating acts without explicit and persistent requests. Here again, one must consider the rigorous guidelines used in the study. The introduction to the series of questions asked of physicians included the following:
There are situations in which it is decided to perform a life-terminating act without the patient's request to do so. This can occur if the patient has made only vague remarks but not an explicit request. Other situations in which this might happen are, e.g., those in which the patient is no longer able to make such a request, or if the condition of the patient is evidently intolerable...
In this introduction and the instruction to the interviewer it was not specified that cases involved must be cases in which the explicit purpose was hastening the end of life.<$FIbid. p.57.>
During the video- conference, the experts from the Netherlands addressed the issue of 1,000 deaths without requests for euthanasia:
Mr. Leenen: I have been involved with advice on euthanasia for 20 years. I was surprised to hear about the 1,000 cases. We know that at the end of life some patients experience such severe suffering that something needs to be done. This occurs in the United States, as well as in your country. At this point in time, the patient is no longer able to express his or her will. In my opinion, this happens in but a few cases. They are the exceptions which we discussed [earlier].
When we look at the 1,000 cases and read the article published in The Lancet, we see that in 60 per cent of cases the will of the patient was known. Out of the 1,000 some 600 had expressed their will. However, their will was not in accordance with legal norms. It was not persistent, reiterated, et cetera. Because of the fact that they did not comply with the rules, the researchers decided to put them in the category of "non-requests".
This leaves us with 400 cases to consider. Of this number, we know that some cases are acceptable because, at the end of life, painkilling was no longer possible; they were suffering. I would say that there were also cases which were not according to the rules. Some say that this need not happen any longer. It has been suggested that we should develop a new policy by which to ask people earlier what they want, thereby not waiting until they are incompetent or comatose.
To be fair, I am not happy about the 300 or so cases that we know of where termination of life was applied. By the way, in our terminology, termination was applied: it is not euthanasia. There are two things to consider here: first, we know about it; we know what is happening concerning these cases, but many countries do not know what is happening.
Second, there is now the possibility for us to develop a new policy towards these patients. I am against termination of life without request. It should occur only in exceptional cases. I am in favour of euthanasia, but only on request. We are not happy about having 300 or 400 termination-of-life cases where the rules were not applied. But do not exaggerate. Dr. Gunning says that information is one sided, but this is not true. There are not 10,000 to 20,000 cases. This applies to 300 cases, perhaps a maximum of 400, and I am not happy about these. ...
Dr. van Delden: I wish to add something to Professor Leenen's presentation.
I agree that we are not trying to defend all these cases. They were a surprise to us and some of them should not have occurred. But I am hesitant to refer to the number 300 or 400 because you must be aware that this is based on 47 cases we found in the study. It is difficult to take these 47 into higher numbers.
Dr. van der Wal: We should not argue too much about the exact numbers, but I have done some research in this field, too. Our numbers for life-terminating acts without request in the nursing home situation were lower than those found by the van der Maas group.
Of the cases at issue, the patient was totally unable to assess the situation or make an adequate decision in three-quarters of the cases involved, and not totally able to do so in another 14% of the cases. In over a quarter of the cases the patient had made a non-explicit request (such as "Doctor, please help, I no longer want to suffer").<$Fvan der Maas, pp. 61-62, Table 6.4.>
In over nine out of ten cases (92%), there were no treatment alternatives. In the remaining cases, the alternatives were not used because the patient had indicated that he or she no longer wanted treatment, because it would only prolong suffering, or because the gain to be expected was no longer in proportion to the treatment. Over three-quarters (76%) of the patients already required morphine or morphine-like drugs for the relief of pain, and in almost one-half of the patients (45%) these drugs were not effective against pain or other symptoms. "On the one hand, this attests to the seriousness of suffering in the situations described and on the other hand it exemplifies the difficulty of distinguishing these cases from those described in the next chapter under "alleviation of pain and symptoms."<$FIbid. p. 62, Table 6.5.>
Almost two-thirds of these cases involved either morphine only or morphine in combination with other drugs, while thirty percent used other sedatives with or without muscle relaxants. This reverses the statistics for euthanasia and assisted suicide, where other sedatives were used over two-thirds of the time and morphine only one-quarter, and is similar to the drug profile used in the alleviation of pain and symptoms.<$FIbid. pp. 47, 66; Tables 5.10, 6.9.> In almost nine out of ten cases, life was shortened by less than a week (67%) or a month (21%).
The most important considerations to the physician when performing a life-terminating act were as follows (more than one answer could be given):
No chance of improvement<T>60%<R>All medical therapy had become futile<T>39%<R>No needless prolongation<T>33%<R>Relatives could no longer cope<T>32%<R>Low quality of life<T>31%<R>Pain/suffering of patient<T>30%<R>Wish by patient<T>7%<R>A therapy had been withdrawn but patient did not die <T>3%<R>Economic considerations(e.g. scarcity of beds <T>1%<R>Other <T>1%<$F Ibid. p. 64, Table 6.7.>
In over 70% of the cases, life was shortened by a maximum of one week.<$F Ibid. p. 65, Table 6.10> Of the 97 cases studied, only two involved situations where there were no discussions with a patient who was totally able to make a decision. Both cases dated from the early 1980s, when the legal situation was less clear. One involved a patient with a lung tumour with metastases who suffered much pain:
The physician had known this patient for 15 years. The most important consideration for the physician to administer an overdose of morphine was to no longer prolong suffering. ...In a non-verbal understanding with the patient's wife the decision to increase greatly the dose of morphine was taken.
The second comparable case also concerned a patient with cancer in whom alleviation of pain and/or symptoms was intensified to the extent that the patient died within one day. "The patient's suffering was intolerable for everyone. Patient and relatives could no longer stand it.<$FIbid. pp. 68-69.>
Had there been explicit requests by the patients, these would presumably have been cases of euthanasia. On the other hand, had the suffering been tolerable, the intent would have to been to control the pain rather than cause death. <$FWithin the Canadian palliative care system, it seems possible that these two cases would have resulted in total sedation.>
Nonetheless, the statistic continues to disturb the Dutch themselves. "In all cases it was not a criminal attitude of the doctor but paternalism - the doctor thinking it was best for the patient. But, that said, it still shouldn't have happened," said Dr. Gerrit van der Wal, a medical inspector for North Holland who conducted an independent study that confirmed the Remmelink data <$FMullens, "The Dutch way of death" in Euthanasia, op. cit., p. 19.>
3.5 Alleviation of Pain and Symptoms
The first question that was asked physicians in this section of the van der Maas interviews was "Did you ever face a situation in which you had to give such high doses of morphine or morphine-like drugs that it almost certainly would shorten the life of the patient?"<$Fvan der Maas, p. 71.> More than 80% of physicians, regardless of speciality, had done so. In approximately two-thirds (65%) of the cases, the life-shortening effect was simply "accepted". In 30 percent of the cases the life-shortening effect was part of the intent, although not the primary intent. In 6 percent, it was the explicit purpose. For the Dutch, this raises interesting issues of intent. How do these 6 percent of cases differ from euthanasia, assuming that there was an explicit request by the patient?
If the context is taken into account, however, one will soon realize that in the cases of euthanasia the decision was made to hasten the end of life and then a means was sought. In those cases of APS, however, there is an ongoing medical treatment which fails to achieve its palliative goal. The physician then sees himself confronted with the need to use higher, possibly lethal dosages. Then there may be a point at which the physician realizes that he or she actually hopes that the patient dies. So the physician answers us that his purpose (at least partly) was to hasten the end of life. Those cases prompted us to speak of a boundary area around euthanasia. But are the intentions one and the same as in the euthanasia case? Not necessarily. In the euthanasia case the physician would surely try another drug if the first failed to bring about death, whereas in the second [case of relieving pain] this would never happen. One misses this relevant point if one uses too narrow a concept of intentions by leaving out context.<$FJohannes J.M. van Delden, Loes Pijnenborg and Paul J. van der Maas, "Dances with Data," Hiertus, Vol. 1 (1993), pp.26-27.>
3.6 Non-treatment decisions
In a later article dealing with claimed misrepresentation of their data, the van der Maas study team made the following comment:
Concerning withholding or withdrawing of treatment it can be commented that the decision was to not prolong life by a certain period of time rather than to shorten life in the same period. The correct terminology depends on whether or not the results of usual medical treatment are considered part of human life expectancy.<$FDances with Data, p. 24.>
This is also true of situations in which a non-treatment decision is made without the explicit request of the patient, in cases where the patient is no longer competent.
On the one hand, therapies are involved which will probably meet with little or no success. Such treatment can be withdrawn or withheld for this reason. On the other hand, there are cases in which therapies can have a considerable (more than a month) life-prolonging effect but in which prolongation of life is undesirable or pointless and treatment is withheld or withdrawn for this reason.<$Fvan der Maas, p. 85.>
The non-treatment decisions are, perhaps unsurprisingly, the most difficult to quantify. The van der Maas team estimated that approximately 70% of physicians had at some point received and acted upon a request to withdraw or withhold treatment; almost half (46%) had received and acted upon such a request knowing that it was, at least in part, with the intention of shortening life. Approximately two-thirds of the situations (64%) involved cancer patients. Contrary to the situation when euthanasia or assisted suicide is requested, there is less of a role for the doctor to play because the patient has the clear right to refuse treatment.<$FIbid. pp. 79-84, Table 8.1.>
Decisions to withhold or withdraw treatment are normally made as the issue arises. "Do not resuscitate orders", on the other hand, are anticipatory decisions, always involving inaction rather than action.
3.7 Reporting MDELs
The van der Maas study was completed before the policy of non-prosecution for euthanasia when specific procedures are followed had been finalized, and physicians were presumably more concerned about prosecution in borderline cases. Nonetheless, three quarters of the general practitioners and about two-thirds of the specialists had reported their last experience with euthanasia or assisted suicide as a "natural death", and this seems troublingly high. The main reasons were as follows:
the "fuss" of a legal investigation<T>55%<R>the desire to safeguard relatives from a judicial inquiry<T>52%<R>fear of prosecution<T>25%<R>bad experiences in the past with stating non-natural death<T>12%<$FIbid. pp. 47-48.>
In the category of life-terminating acts without the patient's explicit request, the death certificate almost invariably stated that the patient died a natural death. Of the 97 cases studied, only in one did a general practitioner report a non-natural death and the public prosecutor decided not to prosecute. The reasons given were as follows:
the "fuss" of a judicial investigation<T>47%<R>the view that the death was in fact natural<T>43%<R>the desire to safeguard relatives from a judicial inquiry<T>28%<$FIbid. p. 64.>
In considering the reluctance of Dutch physicians to report non-natural deaths in an atmosphere of some legal ambiguity, it is worth noting a parallel situation in Canada shortly after the 1969 abortion legislation was passed. For the first several years, it was not clear whether or not abortions could be legally approved when it was the "mental" rather than the "physical" health of the woman that was at issue. Under these circumstances, the Badgley Report (Report of the Committee on the Operation of the Abortion Law, 1977) found that the reporting of abortions had some major anomalies:
The way the existing classification system is used requires extensive review, in particular, dealing with the codification of abortions listed as not specified as induced or spontaneous. By definition, these abortions are neither spontaneous miscarriages nor induced terminations of pregnancy. But between 1970 and 1973 there were nine abortions in this catch-all category for every ten reported therapeutic abortions.<$FReport of the Committee on the Operation of the Abortion Law (The Badgley Committee), Ottawa, 1977, p.25.>
Recent developments in the Netherlands suggest that reporting has greatly improved. In 1984, only 19 cases of euthanasia were reported to the public prosecutor. In 1990, the number was 454, and by 1992 it had leapt to 1,322.<$Fvan der Wal and Dillman (1994), p. 1348.> In 1993 1,415 cases were reported.<$FLegemaate (1994), p. 6.> During the video-conference, the "spectacular" increase was attributed to the "reticent prosecution policy of the public prosecutor and the notification procedure which has been functioning since the end of 1990". Until 1994, the number of cases prosecuted had also declined. Dr. van der Wal explained that this was partially due to the evolving jurisprudence, which lessened the need for test cases.
However, the fact that prosecution proceedings are almost never instituted anymore is due mainly to the fact that physicians who, having been informed about the prudent care requirements that should be taken into consideration, only report those cases for which they are almost certain they will not be prosecuted.
However, the conclusion that all unreported cases do not meet the standards is not justified. Our research indicates that most of these cases meet the substantive material requirements.
van der Wal 21:10
Another development has been the suggestion that the Ministry of Justice is toughening up its prosecution policy. In 1993, the number of official inquiries into euthanasia cases jumped to 14, although they recently always been no more than four per year, resulting in a corresponding increase in the prosecutions in 1994. The Ministry of Justice apparently argues that most of these investigations are a backlog of cases held up by the parliamentary debate over the new law. However, during the parliamentary debate, the Minister of Justice argued that euthanasia was justified only in terminal cases and most of the 1993 investigations involved situations in which the patient was not terminally ill. All major legal commentators criticized the Minister's viewpoint and the Supreme Court, in Chabot has clarified that assisted suicide is acceptable, under very strict conditions, in cases of severe and intractable mental suffering where the patient is not terminally ill.<$FLegemaate (1994) p. 10.> It remains possible that the perception that the prosecution policy could change, depending upon the views of the current Minister of Justice, may have caused some unease among physicians.
3.8 The van der Wal studies
The van der Wal studies were not publicly funded, and resulted in a thesis and several papers. In part they involved an extensive survey, by written questionnaire, of more than 1,000 general practitioners. Of these, approximately 700 were nursing home physicians which represents almost the total complement of nursing home physicians in the country. Whereas the van der Maas study dealt with all medical decisions concerning the end of life, the van der Wal study dealt only with euthanasia, assisted suicide and, to some extent, life terminating acts without express consent. The van der Maas study involved specialists as well as general practitioners and nursing home physicians. The van der Maas study was more broadly based, but the van der Wal study went into more depth about such issues as performance, medical technology and notification issues. The results of the two studies were by and large consistent.<$Fvan der Wal 21:7>
3.9 The Controversy Over Figures
As the above discussion indicates, there has been considerable controversy over whether the Remmelink findings underestimated the number of cases of euthanasia actually taking place in the Netherlands. During the video conference, the Dutch panel explained where the confusion seems to take place:
Usually [critics of the Dutch model] add up the following types and numbers of MDEL, which stands for medical decisions concerning the end of life: euthanasia; assisted suicide; LAWER cases, or life-terminating acts without explicit request by the patient; APS cases, or decisions to alleviate pain and symptoms; and NTD cases, or non-treatment decisions which were taken at least partly for the purpose of hastening the end of the patient's life. All these are lumped together and are taken as proof that more euthanasia than was reported occurred in the Netherlands.
van Delden 21:12
Clearly, from the Canadian point-of-view, alleviation of pain and symptoms and non-treatment decisions are not euthanasia. Again, however, the Dutch approach to the concept of "intention" appears to generate some of the confusion. In the Netherlands, it is common to refer to the primary or secondary intention of the physician as "to hasten the end of the patient's life". In Canada, although similar situations take place as in the Netherlands, the intent is rarely referred to as hastening the end of the patient's life although that is doubtless the effect. Dutch physicians apparently assume that if you know that the effect of certain actions is to shorten the patient's life, then you should describe that as at least partially your intent. However, in the view from the Netherlands, intentions do not govern the moral evaluation.
Intentions cannot carry the full weight of a moral evaluation for several reasons. First, intentions are primarily private matters. Ultimately, only the agent decides what his intentions are. Different agents may describe the same action in the same situations as being performed with different intentions. The changes between descriptions might be intrapersonal in the sense that what seems to be done at one time for one purpose might easily be viewed differently at a later stage.
What then can be considered to be the definite description of the intention? For example, no physician, in my opinion, performs euthanasia with the sole intent to kill his patient. His intention can always be described as trying to relieve the suffering of his or her patient. That, by the way, is exactly what infuriates Dutch physicians when they are treated as criminals or murderers after having performed euthanasia.
It is our opinion that moral evaluations should take into account all of the following factors: the type of physician; the intent; consultation with the patient; consultation with others; the competence of the patient; reasons for the decision; and, the extent of life-shortening as a result of the decision.
van Delden 21:12
The controversy as to the number of cases of euthanasia that occur in the Netherlands can to some extent be attributed to definitional problems. There are, however, other misunderstandings that can only be attributed to a misinterpretation of Dutch material. For example, the Committee was told by witnesses that 59 per cent of patients undergoing euthanasia died on the same day that they requested euthanasia, and 11 per cent died in the same hour. The author of the paper cited as authority for this disturbing accusation was Dr. van der Wal, who explained what his paper had actually said:
Yes, [the patients] did die on the same day that they requested euthanasia for the last time. Do you understand the difference? The patients had discussed the subject and had explicitly requested euthanasia many times before, but the day on which they died was the last time that they requested it.
The next sentence says that in 11 per cent of cases, patients died in the same hour that the first request was made. It was not the first request; it was the last request. If you would like to verify this, you should read my paper in Family Practice which has been mentioned today.
van der Wal 21:62
In a complex situation, dealing with a complex subject, only one thing seems clear. The approach of the Netherlands to the difficult subject of euthanasia and assisted suicide is different from any other country. It grows out of Dutch culture, Dutch law and the Dutch health care structure. The Netherlands is an attempt by one small country, with a history of openness and of respect for individuality, to come to grips with a fundamental and difficult issue. However, as Dr. Robert Dillman, the Secretary of Medical Affairs for the Royal Dutch Medical Association, has stated: "[The Dutch approach] should not be taken as a model. Euthanasia is not an export product."<$FMullens, "The Dutch way of Death", in Euthanasia, p. 16.>
It appears that the majority of the Dutch people support physician-assisted death at the end of life, where there is an informed and persistent request by a patient undergoing intolerable suffering and with no prospect of improvement. There is, however, considerable concern about some recent developments. Situations in which a physician has assisted the suicide of a patient with psychological or emotional suffering, but no physical disease, have aroused unease. Ending the lives of profoundly handicapped newborns, whose physical suffering cannot be alleviated, is as difficult and controversial a decision in the Netherlands as elsewhere.
The Dutch model of dealing with assisted suicide and euthanasia has, to date, evolved through court decisions and medical practice. Although it seems a large majority of Dutch citizens support assisted suicide and euthanasia, most of them would prefer that the present guidelines and procedures be formalized by their Parliament. This would put Dutch policy on a firmer footing and clarify the public interests involved.
Assisted Suicide and Euthanasia in Foreign Jurisdictions
This paper provides an overview of the applicable laws relating to euthanasia and assisted suicide, as well as any initiatives to amend such laws, whether successful or not, in the following foreign jurisdictions: United Kingdom, United States, France, Australia, Germany, Sweden and Switzerland. The method of selection of the various countries was based primarily on the quantity of available information. It should be noted that this is not, in any way, an extensive comparative legal analysis of the listed countries. The information herewith only provides a basic framework within which to begin to examine and compare the differential treatment, in law, of acts of euthanasia and assisted suicide in other jurisdictions. A more detailed analysis would require an in-depth study, not only of the various laws with respect to issues involving death and dying, but their enforcement, the legal practice and the cultural climate in which these have developed.
In the United Kingdom, assisting in the suicide of another is dealt with under the Suicide Act 1961.<$F 9 & 10 Eliz 2, c.60. The provisions of the Suicide Act 1961 that have been cited in this paper only apply to England and Wales, pursuant to subsection 3(3) of that Act. > Section 2 of this Act provides:
2. Criminal liability for complicity in another's suicide
(1) A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years.
(2) If on the trial of an indictment for murder or manslaughter it is proved that the accused aided, abetted, counselled or procured the suicide of the person in question, the jury may find him guilty of that offence.
All acts of killing are considered murder, whether or not the victim consented to or requested death. This is evident from the evidence of the Home Office to the House of Lords Select Committee on Medical Ethics:<$F Report of the Select Committee on Medical Ethics, Session 1993-94, HL Paper 21-IIp. 15.>
At present, the criminal law prescribes that the unlawful deliberate killing of another person is murder in all but a few circumstances. Most existing defences to murder rely on an absence of intention or an absence of responsibility for the act committed, with the result that the necessary mens rea does not exist. What is critical in this context is that the law allows no defence to murder on the basis of motive. A person who kills, with that as their clear intention and in their right mind, is guilty of murder even though they may have been motivated by a desire to end another's suffering or to give effect to their victim's clearly and honestly held wishes. The Scots law of murder is in certain respects different from that of England and Wales. However, it also recognises that, where the necessary intent to kill can be proved, there will be no defence to murder based on the consent of the victim or the motive of the accused.
In the United Kingdom, murder is an offence at common law that carries a mandatory life sentence. The English courts have defined that act of murder as follows:<$F Archbold Pleading, Evidence and Practice in Criminal Cases London: Sweet & Maxwell, 1992, p. 2042.>
Subject to three exceptions, the crime of murder is committed where a person of sound mind and discretion unlawfully kills any reasonable creature in being and under the Queen's peace with intent to kill or cause grievous bodily harm the death following within a year and a day.
The three exceptions referred to in the above extract would reduce murder to manslaughter and these exceptions have been codified in the Homicide Act 1957.<$F 5 & 6 Eliz 2, c.11.> They are the following: provocation, diminished responsibility and suicide pacts. The exceptions that may be relevant to cases of euthanasia are diminished responsibility and suicide pacts and these are set out below:
2.(1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.
(2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder.
(3) A person who but for this section would be liable, whether as principal or as accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter.<$F Homicide Act 1957, 5 & 6 Eliz 2, c.11.>
4.(1) It shall be manslaughter, and shall not be murder, for a person acting in pursuance of a suicide pact between him and another to kill the other or be a party to the other killing himself or being killed by a third person.
(2) Where it is shown that a person charged with the murder of another killed the other or was a party to his killing himself or being killed, it shall be for the defence to prove that the person charged was acting in pursuance of a suicide pact between him and the other.
3) For the purposes of this section "suicide pact" means a common agreement between two or more persons having for its object the death of all of them, whether or not each is to take his own life, but nothing done by a person who enters into a suicide pact shall be treated as done by him in pursuance of the pact unless it is done while he has the settled intention of dying in pursuance of the pact.<$F Ibid.>
It should be noted that the elements of manslaughter are the same as those of murder with the exception of the requirement for murder that there should be an intent to kill or cause grievous bodily harm. Further, with respect to diminished responsibility and suicide pacts, the onus is cast upon the accused to prove the facts reducing the offence to manslaughter on a balance of probabilities.<$FArchbold, p. 2042.>
The case of Dr. Nigel Cox<$F The Cox decision was one of the cases that prompted the study on medical ethics in the House of Lords: see Report of the Select Committee on Medical Ethics, Session 1993-94, HL 21-Ip. 8-9.> and his conviction in 1992 for attempted murder after he administered a lethal dose to a suffering patient prompted great controversy in the United Kingdom.
The facts involved a consultant rheumatologist at the Royal Hampshire County Hospital Winchester. He had injected his patient, Mrs. Lillian Boyes, who he had known for thirteen years, with a large dose of potassium chloride. She subsequently died. Mrs. Boyes was in her final stages and she was in extreme pain from rheumatoid arthritis. Any treatments that had been attempted had failed to alleviate her physical pain. On more than one occasion, she had expressed the wish that the medical staff should end her life.
The charge, in this case, was attempted murder rather than murder because the prosecution could not exclude the possibility that Mrs. Boyes had died of natural causes between the actual injection and her death. Dr. Cox was found guilty as charged because the jury found as fact that he had injected his patient with potassium chloride for the primary purpose of killing her. The fact that one is prompted by compassion for the victim's suffering is irrelevant to the charge of attempted murder.<$F In the case at bar, the defence had asserted that Dr. Cox was prompted by compassion for Mrs. Boyes' suffering and this was not disputed by the prosecution.> Accordingly, the judge, in this case, Judge Ognall, cautioned the jury that motive could afford the doctor no defence under the relevant criminal laws. Dr. Cox received a one year suspended sentence and was admonished by the General Medical Council.<$F For a discussion of the facts in R. v. Cox (Crown Court at Winchester) [unpublished], see Great Britain, House of Commons Library, Research paper by Keith Cuninghame (June 21, l993) at 2. For an edited version of Ognall J.'s charge to the jury, see R. v. Cox (1992) 12 B.M.L.R. 38. >
More recently, a case was reported in a London newspaper, the Observer, in which the Crown Prosecution Service [hereafter CPS] had decided not to charge a man with killing his terminally ill wife, despite having sufficient evidence to do so. The CPS decided as it did because it was felt that it would be in the public interest. The news clipping suggests that this was the first identified case in which the CPS has declined to prosecute in a killing because it believed that the victim was killed on compassionate grounds. The woman, in this case, was in the terminal stages of cancer. A post-mortem report indicated that she had not died from the cancer, but rather from an overdose of morphine. She had been receiving morphine through a motorised syringe driver which evenly administered regular doses throughout a 24-hour period. The CPS believed that on November 19, 1993, at 10 p.m. she had received a fatal dose of the drug.<$F Dean Nelson and Helen Murphie, "UK: No Charges over "Mercy Killing"", the Observer, 4 December 1994.>
Proposed Amendment Initiatives
In February 1994, a Select Committee of the House of Lords [hereafter the Committee] reported on "the ethical, legal and clinical implications of a person's right to withhold consent to life-prolonging treatment, and the position of persons who are no longer able to give or withhold consent; and to consider whether and in what circumstances actions that have as their intention or a likely consequence the shortening of another person's life may be justified on the grounds that they accord with that person's wishes or with that person's best interests; and in all the foregoing considerations to pay regard to the likely effects of changes in law or medical practice on society as a whole".<$F Report of the Select Committee on Medical Ethics, Session 1993-94, HL 21-I p. 7.> For a complete list of the recommendations of the House of Lords, see Appendix N to this Report.
In its Report, the Committee recommended that the present laws not be amended to permit voluntary euthanasia. Its members write: "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 foundation of a policy which would have serious and widespread repercussions.<$F Ibid . p. 48.>
One of the reasons the Committee reached its conclusion regarding voluntary euthanasia is that its members were of the view that it would not be possible to set secure limits on voluntary euthanasia. If voluntary euthanasia were legalised, they argued, it would not be possible to frame adequate safeguards against non-voluntary euthanasia. In addition, the Committee felt that to create an exception to the general prohibition of intentional killing would inevitably lead to its further erosion. The Committee also expressed its concern for the vulnerable, namely, the elderly, the lonely, the sick and the distressed; these individuals, it held, would feel pressure from the rest of society to select the option of death if it were made available to them.<$F Ibid., p. 49.>
Moreover, the Committee members recommended that a new offence of "mercy killing" not be created to encompass cases of deliberate killing to relieve suffering ("deliberate killing with a merciful motive"). They write: "To distinguish between murder and "mercy killing" would be to cross the line which prohibits any intentional killing, a line which we think it essential to preserve".<$F Ibid., p. 53.> The Committee was of the opinion that "mercy killing" could not adequately be defined since it would involve delineating precisely what constitutes a compassionate motive.<$F Ibid., p. 53.>
The Committee did, however, acknowledge the perceived injustice of the mandatory life sentence for murder. It, therefore, recommended, as did a previous Select Committee<$F Murder and Life Imprisonment, Report of the Select Committee, Session 1988-89, HL Paper 78-I cited in Report of the Select Committee on Medical Ethics, op. cit., p. 53.>, that the mandatory life sentence be abolished. In its report, the Committee concluded as follows:<$F Report of the Select Committee on Medical Ethics, op. cit., p. 54.>
This [abolishing the mandatory life sentence] would enable the judicial process to take proper account of the circumstances of a case and the motives of the accused. It would avoid the law being brought into disrepute either by the mandatory imposition of a life sentence in respect of an act which was widely thought to be compassionate and (by some) arguably justifiable, or by the inappropriate substitution of lesser charges where it was expected that a jury would not convict for murder because of the mandatory life sentence. It would also give scope for an effective life sentence to be imposed where the circumstances made it appropriate.
Approximately thirty of the fifty states have statutes which specifically prohibit aiding suicide.<$F Alaska Stat. & 11.41.120 (1989); Ariz. Rev. Stat. Ann. & 13-1103 (A)(3)(1989); Ark. Stat. Ann. & 5-10-104 (a)(2)(1987); Cal. Penal Code & 401 (West 1988); Colo. Rev. Stat. & 18-3-104 (1988); Conn. Gen. Stat. && 53a-56 (1985); Del. Code Ann. tit. 11, & 645 (Supp. 1990); Fla. Stat. Ann. & 782.08 (West 1976); Ill. Ann. Stat. ch.38, 12-31 (Smith-Hurd Supp. 1992); Ind. Code Ann. & 35-42-1-2.5 (Burns 1993); Kan. Stat. Ann. & 21-3406 (1988); Me. Rev. Stat. Ann. tit. 17-A, & 204 (1983); Mich. Pub. Act 270 of 1992, 1992 Mich. Legis. Serv. P.A. 270 (H.B. 4501) (West); Minn. Stat. Ann. & 609.215 (West 1987); Minn. Stat. Ann. & 147.091 (W), 151.06 (a)(7)(xii)(West Supp. 1993); Miss. Code Ann. & 97-3-49 (1972); Mont. Code Ann. & 45-5-105 (1989); Neb. Rev. Stat. & 28-307 (1989); N.H. Rev. Stat. Ann. & 630:4 (1986); N.J. Stat. Ann. & 2C: 116 (West 1982); N.M. Stat. Ann. & 30-2-4 (1978); N.Y. Penal Law && 120.30, 125.15(3) (McKinney 1987); Okla. Stat. Ann. tit. 21, && 813-818 (West 1983); Or. Rev. Sat. & 163.125(1)(b) (1990); Pa. Stat. Ann tit. 18, & 2505 (Purdon 1983); S.C. Code Ann. & 16-1-10 (Law Co-op 1976); S.D. Codified Laws Ann. && 22-16-37 & 38 (1988); Tex. Penal Code Ann. & 22.08 (West 1989); Wash. Rev. code & 9A.36.060 (West 1988); Wis. Stat. Ann. & 940.12 (West 1982), cited in Kathryn L. Tucker, "Physician Aid in Dying: A Constitutional Right", at p.1 (February 1995) [unpublished]. For a detailed discussion of the state treatment of suicide assistance, see Catherine D. Shaffer, "Criminal Liability for Assisting Suicide" (1986) 86 Columbia Law Review 348. > Those states which do not proscribe assisted suicide by unique statutes treat such conduct as murder or manslaughter under general criminal law statutes.<$F See Shaffer, Criminal Liability for Assisting Suicide, p. 350.>
All forms of euthanasia are classified as murder in every state, even when performed at the victim's request or with the victim's consent.<$F Dana Elizabeth Hirsch, "Euthanasia: Is It Murder or Mercy Killing? A Comparison of the Criminal Laws in the United States, the Netherlands and Switzerland" (1990) 12 Loy. L.A. Int'l & Comp. L.J. 1990 821 p. 839.> For example, the California Penal Code provides that "Murder is the unlawful killing of a human being with malice aforethought".<$F Cal. Penal Code & 187(a) (West Supp. 1988).> It is first degree murder if the killing is "wilful, deliberate, and premeditated".<$F Cal. Penal Code & 189 (West Supp. 1988).> The consent of the victim in no way vitiates the crime, and the fact that the victim was terminally ill or that the actor was motivated to act out of compassion will not excuse the crime nor will it be considered as a mitigating factor.<$F Euthanasia: Is It Murder or Mercy Killing?, op. cit., 833; Mustafa D. Sayid, "Euthanasia: A Comparison of the Criminal Laws of Germany Switzerland and the United States" (1983) 6 Boston College International & Comparative Law Review p. 547.>
In various states, the prohibitions against assisted suicide have been challenged in the courts under the Fourteenth Amendment to the United States Constitution. In Quill et al. v. Koppell,<$F Civil No. 94-5321 (TPG) slip op. (SDNY Dec. 15, 1994).> the U.S. District Court in New York City held that physician assisted death is not constitutionally protected and that the New York prohibition against assisted suicide does not violate the equal protection clause. Judge Griesa writes at 84:
Self-destruction is surely not conduct to be encouraged or taken lightly. The fact that penal sanctions will prove ineffective to deter the suicide itself does not mean that the criminal law is equally powerless to influence the behaviour of those who would aid or induce another to take his own life. Moreover, in principle it would seem that the interests in the sanctity of life that are represented by the criminal homicide laws are threatened by one who expresses a willingness to participate in taking the life of another, even though the act may be accomplished with the consent, or at the request of the suicide victim...For these reasons, the court holds that the type of physician assisted suicide at issue in this case does not involve a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment.
And later at 85:
It is hardly unreasonable or irrational for the State to recognize a difference between allowing nature to take its course, even in the most severe situations, and intentionally using an artificial death-producing device. The State has obvious legitimate interests in preserving life, and in protecting vulnerable persons. The State has the further right to determine how these crucial interests are to be treated when the issue is posed as to whether a physician can assist a patient in committing suicide. Clearly in the present public debate there are sincere and conscientious advocates for and against the concept of physician assisted suicide. Under the United States Constitution and the federal system it establishes, the resolution of this issue is left to the normal democratic processes within the State. For these reasons the court holds that the plaintiffs have not shown a violation of the Equal Protection Clause of the Fourteenth Amendment.
The United States District Court of Washington took the opposite view with respect to the constitutionality of the Washington assisted suicide prohibition. In Compassion in Dying, et al. v. State of Washington et al.,<$F 850 F. Supp. 1454 (W.D. Wash. 1994).> the plaintiffs were a coalition of three terminally ill patients, five physicians and Compassion in Dying, a right to die organization. They sought a declaratory judgment striking down the State of Washington's criminal prohibition against assisted suicide<$F RCW 9A.36.060. Subsection (1) of this statute provides that "Any person is guilty of promoting a suicide attempt when he knowingly causes or aids another person to attempt suicide". Promoting a suicide attempt is a class C felony punishable by imprisonment for a maximum of five years and a fine of up to ten thousand dollars: see RCW 9A.36.060(2) and 9A.20.020(1)(c).> as unconstitutional and injunctive relief barring the defendants, the State of Washington and the Washington Attorney General, from enforcing the statute. Both the plaintiffs and defendants moved for summary judgment.
The United States District Court of Washington granted summary judgment to the plaintiffs holding that competent, terminally ill patients have a constitutionally protected right to choose to hasten death with physician assistance. The Court further held that Washington's assisted suicide statute is unconstitutional under both the Liberty and Equal Protection Clauses of the 14th Amendment. Judge Rothstein held at 1461 to 1462:
The liberty interest protected by the Fourteenth Amendment is the freedom to make choices according to one's individual conscience about those matters which are essential to personal autonomy and basic human dignity. There is no more profoundly personal decision, nor one which is closer to the heart of personal liberty, than the choice which a terminally ill person makes to end his or her suffering and hasten an inevitable death...The court concludes that a competent, terminally ill adult has a constitutionally guaranteed right under the Fourteenth Amendment to commit physician-assisted suicide.
And later at 1467:
This court is not persuaded that the distinction between "natural" and "artificial" death justifies disparate treatment of these similarly situated groups. The distinction between the terminally ill patient who requests that her physician remove the life support systems necessary to maintain her life, and the terminally ill patient whose condition does not require life support systems but who seeks physician-administered aid to end her life, is not a narrowly-drawn classification tailored to serve a compelling state interest. Both patients may be terminally ill, suffering pain and loss of dignity and subjected to a more extended dying process without some medical intervention, be it removal of life support systems or the prescription of medication to be self-administered.
The Court concluded, at 1467, as follows:
The court declares RCW 9A.36.060 [Washington State's assisted suicide statute] unconstitutional because it places an undue burden on the exercise of a protected Fourteenth Amendment liberty interest by terminally ill, mentally competent adults acting knowingly and voluntarily, without undue influence from third parties, who wish to commit physician-assisted suicide. The court further declares RCW 9A.36.060 unconstitutional because it violates the right to equal protection under the Fourteenth Amendment by prohibiting physician-assisted suicide while permitting the refusal or withdrawal of life support systems for terminally ill individuals.
It is important to note that the above-noted decisions are lower court decisions. Compassion in Dying v. State of Washington was, in fact, appealed to the Ninth Circuit Court of Appeals on December 7, l994.<$F Appeal docketed, No. 94-35534 (9th Cir. 1994).> A decision is forthcoming in the spring of 1995. It is expected that Quill v. Koppell will be appealed as well.
In addition to the foregoing cases, which were both decided at the federal level, the Michigan State courts have confronted similar issues in various challenges to Michigan laws prohibiting assisted suicide. In December 1994, the highest Michigan State court held that the federal constitution provides no right to physician-assisted death.<$F People v. Kevorkian, Nos. 99591 and 99674, consolidated with Hobbins et al. v. Michigan, No. 99752, slip op. pp.22-44 (Mich. Dec. 13, l994).>
Proposed Amendment Initiatives
A number of unsuccessful formal proposals that sought to legalize euthanasia and/or assisted suicide were introduced in various states. They are as follows:<$F Cheryl K. Smith and Michele A. Tropkowski, eds., Aid-In-Dying Legislative Proposals 1990-1993 (Oregon: The Hemlock Society U.S.A., 1993; Russel Ogden, Safeguarding Euthanasia: Legislative Proposals in Canada and in the United States (for the 46th Annual Conference of the American Society of Criminology, 1994) [unpublished] p. 10-12.>
Washington Initiative 119 (1991): The Initiative for Death With Dignity would have permitted voluntary euthanasia for competent, terminally ill adults with fewer than six months to live. A number of specific safeguards were outlined in the legislation. This Act was defeated in a state referendum by a vote of 54 to 46 per cent.
California Proposition 161 (1992): The Death With Dignity Act would have legalized both euthanasia and physician-assisted suicide by recognizing the right of mentally competent, terminally ill adults, with a life expectance of less than six months, to give written authorization for a physician to terminate life in a "painless, human and dignified manner". This legislation was defeated in a state referendum by a vote of 54 to 46 per cent.
Iowa Senate File 2066: The Assistance in Dying Act would have provided a means for conscious, mentally competent adults who are terminally ill and expected to die within six months to receive voluntary euthanasia through a written declaration.
Maine Legislative Document No.2257 (1992): This Act dealing with "medically assisted death" would have permitted voluntary physician assisted euthanasia for competent, terminally ill adults who are expected to die "within a relatively short time".
Michigan House Bill 5415: The Death With Dignity Act 1992 would have permitted competent adults to authorize or reject aid in dying. This Act would have required counselling for the patient, a 60 day waiting period, video-taping of the implementation of the directive and reporting of aid-in-dying procedures.
New Hampshire House Bill 395: The Death With Dignity Act would have allowed mentally competent, terminally ill adults to request assistance in suicide, but not active euthanasia. The Act would have required that the attending physician consult with a medical ethics committee regarding the patient's prognosis, competence, and the voluntariness of the request.
Oregon Senate Bill 1141: This Bill would have permitted voluntary euthanasia for competent, terminally ill adults with fewer than six months to live. It also contained an option for patients in a permanent coma or vegetative state. It would have allowed patients to make an advance declaration requesting euthanasia in the event of permanent coma or a persistent vegetative state.
Texas Senate Bill 1301 (1993): This Bill would have allowed competent, terminally ill persons, including minors, to petition a probate court for a medically assisted death. The assisted death would have to be witnessed by at least two adults.
New York Article 49 (1994): This Article would have provided for competent, terminally ill adults with fewer than six months to live to request aid in dying. It outlined a number of safeguards and required reporting of all aid in dying procedures.
To date, the only proposal to permit a form of aid in dying in the United States that has been successful is Measure 16, filed in the State of Oregon by ERGO, Euthanasia, Research & Guidance Organization. This measure is a state-wide citizens' initiative that allows qualified patients to request prescriptions for medication to end their lives provided that certain conditions are met.<$F The state-wide initiative process is a constitutionally valid method of passing legislation in the State of Oregon. One of its advantages is that it provides an alternative to proceeding by way of the legislature and enables the population to more actively participate in the legislative process.> This Measure, entitled the Oregon Death With Dignity Act, was formally passed on November 8, 1994 by a vote of 51 to 49 per cent. However, the initiative was challenged on constitutional grounds prior to its coming into force by two physicians, four terminally ill patients, a residential care facility and individual operators of residential care facilities.<$F Lee et al. v. State of Oregon, et al., No. 94-6467-H0 (D.Or.).> The plaintiffs brought a motion for a preliminary injunction postponing the implementation of the legislation until the constitutional issues were resolved. Judge Hogan of the United States District Court for the District of Oregon granted the injunction as of December 27, l994.
It should also be noted that several states have appointed "Blue Ribbon" task forces to analyze and make recommendations to the state legislatures. The Task Forces have split on the issue. For example, the task force established in New York recommended against legislative reform, while that in Michigan favoured legislative reform.<$FTucker, "Physician Aid in Dying: A Constitutional Right", p. 13.> For a complete list of the recommendations of the New York State Task Force, see Appendix N to this Report.
There is no specific provision prohibiting assisted suicide in the French Penal Code. An assisted suicide may, however, be treated as a failure to assist a person in danger, pursuant to section 63 of the Code. This section provides:
Without prejudice to the possible application of the harsher punishments provided for in this Code or other specific legislation, every one who, without risk to himself or another, by taking immediate action, could prevent an act that is a crime or that is an offence against the physical integrity of a person and wilfully refrains from doing so, is liable to three months to five years' imprisonment and a fine of 360 F to 20,000 F or to either of these punishments.
A person who wilfully refrains from assisting a person in danger where, without risk to himself or another, he could provide assistance, either by his own action or by summoning help, is liable to the same punishments provided for in the preceding paragraph.
In 1988 in order to counter a self-help suicide book, the government enacted two new sections to the Code prohibiting the provocation of suicide. Provoking a suicide is, therefore, distinguished from assisted suicide in France.
The National Assembly preferred "provoking suicide" to the concept of "inciting and assisting" suicide used in the private bill passed by the Haute Assemblée. The deputies did not wish to use the private bill to deal with the sensitive issue of euthanasia.<$F Report on behalf of the commission on constitutional laws, legislation, universal suffrage, regulations and general administration concerning the private bill amended by the National Assembly prohibiting the provocation to suicide, No. 172, first ordinary session of 1987-1988, Senate, annex to the proceedings of the December 16, 1987 sitting, p. 11.>
The sections are now found in the revised Penal Code and they provide:
223-13 Provoking the suicide of another is punishable by three years' imprisonment and 300 000 F in fines where the provocation has been followed by suicide or attempted suicide.
The punishment increases to five years' imprisonment and 500 000 F in fines where the victim of the offence set out in the preceding paragraph is a minor of fifteen years.
223-14 Propaganda or publicity in any form on behalf of products, objects or methods recommended as means of suicide is punishable by three years' imprisonment and 300.00 F in fines.
223-15 Where the offenses provided for in articles 223-13 and 223-14 are committed by means of the print or the audiovisual media, the specific legal provisions governing these matters apply with respect to the determination of the persons responsible.
The above noted sections do not apply to assisted suicide but are limited to cases of provoking another's suicide.
Acts of euthanasia are considered homicide in the French Penal Code.
Sections 295 and 296 of the Code deal with homicide. They read as follows:
295. Voluntary homicide is murder.
296. A murder committed with premeditation or by ambush is assassination.
In addition, sections 221-5 and 221-6 of the revised Penal Code provide:
221-5 The murder of another through the use or administration of substances capable of causing death is poisoning [...] and is punishable by 30 years' imprisonment.
221-6 Causing the death of another through clumsiness, carelessness, lack of attention, negligence or failure to observe a statutory or regulatory duty of safety or caution is involuntary homicide, punishable by three years' imprisonment and 300.000 F in fines.
It should be noted that the motive of the accused or the request of the victim will not provide an excuse under the law and will not mitigate the crime.
However, as a result of the revision of the Penal Code in 1986, the doctrine of "état de necessité" was codified in the new article 122-2, which provides:
122-2 A person who acted under the influence of force or duress, which the person was unable to resist , shall not be punished.
The professional magistrature applies in a fairly strict manner the provisions of the Penal Code to cases of euthanasia. However, the "Cours d'Assises", generally competent to hear these cases, are very lenient and acquit accused persons almost systematically. At a minimum, the extenuating circumstances will be considered.<$FEuthanasia, European affairs services, comparative legislative section, Senate, Paris, January 1991, p. 18.> The jury, in these cases, is only required to give a " yes" or "no" answer with respect to the
question of culpability and is not required to provide reasons for its decision. Âs such it is difficult to ascertain the applicable legal principles regarding euthanasia cases.
With respect to section 63 of the Penal Code dealing with the failure to assist a person in danger, the case law suggests that individuals can be found guilty of such an offence if they have failed to prevent a suicide or failed to intervene in time to prevent the completion of the act.<$FEuthanasia, European affairs services, comparative legislative section, Senate, Paris, January 1991, p. 18.>
The highly publicized case of M. Le Bonniec dealt with section 63 paragraph 2. Le Bonniec was one of the authors of the self-help book on suicide. A person who had read the book had written to the author on two occasions indicating his suicidal intentions and asking for advice on methods of commiting suicide. The author gave him information on the dose needed to commit suicide. The person went on to commit suicide. The author was charged with failing to assist a person in danger. He was found guilty at his original trial.
On appeal, the Court of Appeal confirmed the judgment of the lower court based on the following reasons:
First, because the author, from reading the letters (of his correspondent), "was unable to doubt the determination (of his correspondent) to implement his plans to kill himself" and because of "the imminent danger" to which the latter was exposed. Second, "because, on the evidence, immediate intervention was required to prevent continuing and imminent mortal danger to Michel Bonnal whose psychological distress and vulnerability were known to Yves Le Bonniec". Next, "because the author could have used his influence or alerted a prevention association". Finally, and above all, "because by providing to the desperate person the information he had requested, he made it possible for the person to carry out his suicidal intentions." The Court, noting the failure to assist a person in danger, substantially increased the punishments and sentenced Le Bonniec to six months' imprisonment, with a stay, 10,000 F in fines and civil damages.<$F Jacques Borricand, La répression de la provocation au suicide: de la jurisprudence à la loi [criminalizing provocation to suicide: from judicial decisions to legislation], La Semaine Juridique, Ed. G. no. 46, #3359.>
The "Chambre criminelle" affirmed this decision.<$F Cass. crim. 26 avril 1988: Bull. crim. n. 178.>
Proposed Amendment Initiatives
An unsuccessful bill was introduced in the Senate in May 1989 which would render legal a declaration of volition to die in dignity<$FPrivate bill no. 312, rectified, legalizing a declaration of a wish to die in dignity and amending article 63 of the Penal Code. Paris, Senate, 18 May 1989, introduced by Mr. Boeuf and Mr. Laucournet.>. The proposition provides that:
Any person having reached the age of majority who is suffering from a disease that the person considers disabling, incurable, irreversible, pathological or intolerable may make a declaration:
requesting that all possible means be used to alleviate his suffering, even if the only means that are still effective could shorten his life...
The declaration of volition would have to be in writing and signed by the declarant. The declaration would need to be renewed every five years and could be revoked at any time. The declarant could name an agent to ensure that his wishes were carried out. The bill states that it would not be a crime or a tort to help a person die if the person is acting pursuant to the patient's request or pursuant to the request of his agent acting under the declaration. The bill would also modify section 63 of the Penal Code in order that doctors or other health care providers can allow the person to benefit from euthanasia without criminal consequences.
Another bill <$FPrivate bill legalizing a declaration of a desire to die in dignity, no. 999, National Assembly, introduced by Mr. Bernard Charles.> was introduced in December 1989 in the National Assembly identical to that presented in the Senate. This proposition expired with the change of the National Assembly in 1993.
Yet another bill entititled, "Proposition de résolution sur l'assistance aux mourants," was presented to the European Parliament in April 1991 and would have permitted euthanasia in certain circumstances in hospitals and palliative care centres. The Comité National Consultatif d'Ethique and the Conseil National de l'ordre des médecins in France disapproved of this resolution. It was not adopted by the European Parliament.
While Australia is a federal state, the administration of the criminal justice system is primarily a matter of individual state and territory responsibility.<$F Margaret Otlowski, "Mercy Killing Cases in the Australian Criminal Justice System" (1993) 17 Criminal Law Journal 10 p. 11.> There are three sources of criminal law in Australia: the criminal codes of Queensland, Western Australia, the Northern Territory, and Tasmania; the common law which applies with little legislative interference in Victoria and South Australia; and the Crimes Act 1900 which applies in New South Wales and the Australian Capital Territory.<$F Ian Temby, "Euthanasia - Is it Murder" (1988) 21:1 Australian Journal of Forensic Sciences 2 p. 3.>
Assisted suicide is an offence in all Australian jurisdictions. In the Australian Capital Territory, New South Wales, South Australia and Victoria, it is an offence for a person to incite, counsel, aid or abet another to commit suicide or attempt to commit suicide. <$FCrimes (Amendment) Ordinance (No.2) 1990 (A.C.T.), s.17(1),(2); Crimes Act 1900 (N.S.W.), s.31c(1),(2), as amended by the Crimes (Mental Disorder) Amendment Act 1983 (N.S.W.); Criminal Law Consolidation Act 1935 (S.A.), s.13 (a) (5),(6),(7), as amended by the Criminal Law Consolidation Act Amendment Act 1983 (S.A.); and Crimes Act 1958 (Vic.), s.6B(2).> Under the Codes in the Northern Territory, Queensland and Western Australia, it is an offence to "procure" or "counsel" another to kill himself or "aid" another killing himself.<$FCriminal Code 1983 (N.T.), s.168; Criminal Code 1899 (Qld), s.311; Criminal Code 1913 (W.A.), s.288.> In Tasmania, it is an offence to "instigate or aid another to kill himself".<$FCriminal Code 1924 (Tas.), s.163.> The penalties provided for assisted suicide vary from jurisdiction to jurisdiction. For example, in the Australian Capital Territory, the penalty for such conduct is imprisonment for 10 years. <$FCrimes (Amendment) Ordinance (No.2) 1990 (A.C.T.), s.17(1),(2).> By contrast, in New South Wales, a distinction for punishment is drawn between aiding, abetting and inciting, or counselling suicide. The former carries a penalty of up to 10 years while the latter is punishable by up to 5 years. <$FCrimes Act 1900 (N.S.W.), s.31c(1),(2), as amended by the Crimes (Mental Disorder) Amendment Act 1983 (N.S.W.)> In South Australia, the penalty is more severe if the suicide was successful. <$FCriminal Law Consolidation Act 1935 (S.A.), s.13(a)(5),(6)(7), as amended by the Criminal Law Consolidation Act Amendment Act 1983 (S.A.).>
The circumstances surrounding the offence, the condition of the person wishing to commit suicide, a request for assistance in committing suicide, and the motivating factors for the offence are all irrelevant in establishing the elements of the offence of assisted suicide. <$FMargaret Otlowski, "Mercy Killing Cases" p. 12.>
Some states have specific statutory provisions dealing with suicide pacts. In Victoria, for example, where a person is acting pursuant to such a pact and either kills the other or is party to the other being killed by a third person, he or she is guilty of manslaughter. <$FCrimes Act, 1958, section 6B(1),(3),(4).> By contrast, in New South Wales, the survivor of a suicide pact is not guilty of murder or manslaughter, but may be found guilty of the offence of aiding, abetting, counselling or inciting suicide. <$FCrimes Act, 1900, s.31B cited in Sharma, "Euthanasia in Australia" p. 138.>
The law with respect to euthanasia is fairly uniform throughout Australia. Under existing criminal law principles in both criminal code <$FTasmania, Queensland, Western Australia and the Northern Territory.> and common law jurisdictions, <$FVictoria and South Australia. In New South Wales, the criminal law is primarily contained in the Crimes Act 1900 (N.S.W.). This Act also applies in the Australian Capital Territory by virtue of s.6(1) of the Seat of Government Acceptance Act 1909.> any act deliberately undertaken to bring about the death of a person is treated as murder. <$FOtlowski, "Mercy Killing Cases" p. 12 and Temby, "Euthanasia" p. 3.>
It should be noted that, for the purpose of establishing criminal liability, it is irrelevant that the person killed was terminally or incurably ill, that a request to die was made on the part of the deceased <$FIt should be noted that in all jurisdictions, the consent of the victim is irrelevant with respect to homicide. For example, section 53(a) of the Tasmanian Criminal Code provides:No person has a right to consent to the infliction (a) of death upon himself;... and any consent given in contravention hereof shall have no effect as regards criminal responsibility. All the other criminal code states have similar provisions. In the common law states, the case law provides that a person cannot consent to his or her own death. See Sharma in "Euthanasia in Australia p. 133.> or that the offender acted out of compassion for the deceased. As one author writes:
The fact that the administering physician might be acting out of compassion and from the highest motives does not change the characterization of the offence as murder. The requisite mens rea or mental element of the crime that of an intention to kill would be present, as would the actus reus, the performance of the criminal act. Motive is not taken into account, nor is it relevant that the patient requested his own death, or that death from natural cause may have been imminent. <$FK.M. Sharma, "Euthanasia in Australia" (1986) 2 Journal of Contemporary Health Law and Policy 133. Also see Otlowski, "Mercy Killing Cases" p. 12.>
In the past, life imprisonment was the mandatory sentence for murder in all Australian jurisdictions. This was replaced by a maximum sentence of life imprisonment in some states. The sentence for murder is now discretionary in the Australian Capital Territory, New South Wales and Victoria. Life imprisonment is still mandatory for murder in the following jurisdictions: Northern Territory, Queensland, South Australia, Tasmania and Western Australia. <$FOtlowski, "Mercy Killing Cases" p. 18.>
In Australia, prosecutions in cases of assisted suicide and euthanasia are rare.<$FOtlowski, "Mercy Killing Cases" p. 13 and Temby, "Euthanasia" p. 6; Sharma, "Euthanasia in Australia" p. 142.> An example of a discontinued prosecution is a case in 1983 that occurred in the Australian Capital Territory. The facts involved a woman who had killed her terminally ill sister, the latter of whom had previously expressed a wish to die. The Commonwealth Attorney General decided not to prosecute despite the fact that a prima facie case of murder was found to have been established. The reason given for this decision was that the evidence was largely circumstantial and a jury would be unlikely to convict. <$FDue to a suppression order made by the court, the name of the defendant may not be published. For a description of the case, see: Otlowski, "Mercy Killing Cases" p. 15-16 and Sharma, "Euthanasia in Australia" p. 141.>
One example, however, of a prosecution and conviction is the 1983 R. v. Larkin case. A nurse had administered a fatal dose of insulin to her partner, a manic depressive who had, on a number of occasions, threatened to commit suicide. The deceased had taken an overdose of tablets while the accused was at work. When she returned home, the deceased once again expressed his wish to die and attempted to inject himself with a fatal dose of insulin. The accused responded to his plea by administering the fatal injection. The Victorian Supreme Court placed the nurse on a three-year good behaviour bond after she pleaded guilty to a charge of aiding and abetting suicide.<$FSharma, "Euthanasia in Australia" p. 141 and Otlowski, "Mercy Killing Cases" p. 25.>
The Barnes decision, an unreported case of the Supreme Court in New South Wales, involved a nurse's assistant who was charged with attempted murder after allegedly administering an unauthorised dose of pethidine to an elderly patient. He then proceeded to adminster an overdose to himself in an attempt to take his own life. The patient survived the overdose but died some time later from natural causes. The accused admitted to having administered the drug in order to kill the patient but claimed that she had been in severe pain and that he acted out of merciful motives. He pleaded not guilty to the charge of attempted murder. At trial, he denied having administered the overdose and said he could not recall what had happened that night. Evidence was put forward that he had been receiving psychiatric treatment. The jury returned a verdict of not guilty. <$FFor a more detailed discussion of this case, see Otlowski, "Mercy Killing Cases" p. 20.>
Proposed Amendment Initiatives
A number of jurisdictions in Australia have undertaken initiatives for reform with respect to the current laws on euthanasia and/or assisted suicide. The most significant of these initiatives have occurred in the Northern Territory, South Australia, and the Australian Capital Territory where bills have been introduced that would legalize some form of aid in dying.
On February 21, 1995, a private members' bill entitled the Rights of the Terminally Ill Act 1995, was introduced by Chief Minister of the Northern Territory, Marshall Perron. The Bill was passed on May 25, 1995 by the 25 member Northern Territory Assembly. The Act gives terminally ill persons the right to request assistance from a medically qualified person to voluntarily terminate their lives. Terminal illness is defined as one which "in reasonable medical judgment will, in the normal course, without the application of extraordinary measures of treatment unacceptable to the patient, result in the death of the patient". Assistance may be given to a patient by a medical practioner only if a number of conditions are met. They include the following:
The patient must be at least 18 years of age;
The medical practitioner must be satisfied that the patient is suffering from a terminal illness, that there is no medical measure acceptable to the patient that can reasonably be undertaken in the hope of effecting a cure, and any available treatment is confined to relief of pain, suffering and/or distress;
The patient must have undergone examination by a second medical practitioner who has confirmed the first practitioner's diagnosis and prognosis;
The illness must be causing the patient severe pain, suffering, and/or distress;
The medical practitioner must have informed the patient of the nature of the illness, its likely course, and the medical treatment available, including palliative care, counselling, psychiatric support, and extraordinary measures;
The patient must be of sound mind as attested to by a medical practitioner;
The patient must make a request in writing and sign it. Two medical practitioners must witness the patient's signature. If the patient is unable physically to sign the form, any person 18 or over (other than the medical practitioners) may, at the patient's request and in his or her presence, as well as in the presence of both witnesses, sign the request on the patient's behalf; and
The medical practitioner must himself or herself provide the assistance and/or remain present while the assistance is given and until the death of the patient.
The Voluntary Euthanasia Act 1995 was recently introduced by M.P. John Quirke in the South Australian Parliament. This Act allows assistance in dying for patients who are terminally ill and who have made a request. Any person over 18 years of age who is terminally ill and diagnosed as likely to die within 12 months may make a request for voluntary euthanasia or assisted suicide. The conditions to making such a request include the following:
The terminally ill person must be of sound mind and this condition must be attested to by the witnesses to the request;
The person must be competent to make the decision and must in fact make the decision. A third party has no authority to do so.
The diagnosis of the terminal illness and the prognosis of the case must be confirmed by two medical practitioners: one involved in the case management and the other having confirmed the diagnosis and prognosis, having examined the patient thoroughly, and not having been involved in the day to day management of the particular case;
The request must be made in writing and signed by the terminally ill person. It must be witnessed by a medical practitioner and one other adult witness. An oral request may be made if the person is unable to write. In this latter case, the request may be written by the witnesses and, if practicable, a videotape recording of the making of the request by the terminally ill person must be made; and
The medical practitioner must fully inform the patient of the diagnosis and prognosis of the forms of treatment available including their risks, side affects and likely outcome and the proposed euthanasia procedure, the risks associated with the procedure and feasible alternatives.
In the Australian Capital Territory, draft legislation dealing with euthanasia is being considered by Parliamentary Counsel and is expected to be tabled in June of this year. Michale Moore will introduce the Voluntary and Natural Death Bill 1993 which, if passed, would allow a person of sound mind who has attained the age of 18 years and suffering from a terminal illness to request that extraordinary measures not be applied or that a drug be administered for the purpose of inducing death. Section 3 of the Bill defines terminal illness as:
Any illness, injury or degeneration of mental or physical faculties such that
(a) death would, if extraordinary measures were not undertaken, be imminent; or
(b) there is an absence of thought or perception;
from which there is no reasonable prospect fo a temporary or permanent recovery, even if extraordinary measures were undertaken.
The Voluntary and Natural Death Bill sets out a series of conditions and requirements, similar to those set out in the other bills, that must be met in order to be eligible to make a request to obtain assistance in dying. The following are some examples: the request must be witnessed by 2 persons and these must not be either relatives of the person making the direction or persons entitled to a portion of the estate of the terminally ill person; a medical practitioner must inform the person of the nature of his or her illness, alternative forms of treatment, and the consequences of remaining untreated; and the medical practitioner must not comply with the request unless he or she has consulted a second medical practitioner who has not been a treating physician and who agrees with the granting of the request.
There is no specific provision prohibiting assisted suicide in the German Penal Code. The active participation of one individual in the suicide or attempted suicide of another is not criminalised and is not punishable, provided that the person who committed suicide was in control of the act of suicide pursuant to the doctrine of the "Tatherrschaft" that has been developed by the German courts. This doctrine involves being capable of exercising control over one's action and also acting freely, responsibly and without coercion.<$FSee Stephanie Weinhold, "The Right to Die with Dignity in the Federal Republic of Germany and in Canada" (Unpublished) University of Heidelberg, Faculty of Law, 1994 (original in German) p. 27-28; see also Adolf Schoenke and Horst Schroeder, Strafgestzbuch: Kommentar, 24th ed., (Munich: C.H. Beck 1991) p. 1552; Ulfried Neumann, "Die Strafbarkeit der Suizidbeteiligung als Problem der Eigenverantwortlichkeit" in Juristische Arbeitsblaetter 1987, 244 p. 245; Johannes Wessels, Strafrecht - Besonderer Teil - 1 23rd ed., (Heidelberg: C.F. Mueller, 1993) p. 9, 36.> As such, while assisting in the suicide of a disturbed, depressed or demented person or one coerced by external forces, would not be permitted under German law, aiding an informed person who voluntarily chooses death, is permitted.<$FMargaret P. Battin "Assisted Suicide: Can We Learn from Germany?" (March-April 1992) Hastings Centre Report 44 p. 45.>
It is fundamental, in order to be exempt from liability, that the final act that causes death be committed by the person desiring death. The justification for the great emphasis placed on the agent of the act is the need to preserve, as much as possible, the availability of the option of reversing the process at any time by the person wishing to die. This control is germane to the doctrine of the "Tatherrschaft": unless the person who seeks death undertakes the final act that brings about the death, there is a lack of control over one's actions.<$FWeinhold, "The Right to Die with Dignity" p. 23, 27-28; Schoenke/Schroeder, "Strafgestzbuch" p. 1514.>
The aiding and abetting provisions do not apply in cases of assisted suicide because these offences involve assisting in the commission of an illegal act. Since suicide is not illegal, assisted suicide cannot be an offence under sections 26 and 27(1).<$FWeinhold, "The Right to Die with Dignity p. 23; Johannes Wessels, Strafrecht p. 9.>These sections read:
26. Accessory before the fact
Anyone who intentionally causes another to deliberately commit an illegal act shall be punished as if he/she were a perpetrator.
27. Aiding and abetting
(1) Anyone who intentionally helps another to deliberately commit an illegal act shall be treated as an abettor.
It has, however, been argued by many German legal scholars that there is an apparent inconsistency in the fact that assisted suicide is not illegal but that there may be a duty imposed upon specific parties standing in certain professional or personal relationships to other persons (e.g. the doctor/patient relationship) to rescue a suicide in progress, pursuant to sections 13 and 323c of the Code.<$FWalter Gropp, "Suizideteiligung und Sterbehilfe in der Rechtsprechung" in Neue Zeitschrift fuer Strafrecht 1986 p. 97; Ulf Bade, Der Arzt an den Grenzen von Leben und Recht (Luebeck: Schmidt-Roemhild, 1988) p. 147. For a detailed discussion of the German courts' application of sections 13, 323c and 216 of the German Penal Code, see Weinhold, "The Right to Die" p. 31-34.>These provisions provide:
13. Commission through omission
(1) Anyone who fails to prevent an outcome which constitutes one of the elements of a criminal offence according to a penal Act shall be punishable under that Act only if he/she is legally responsible for ensuring that the outcome in question does not occur, and if the omission is equivalent to actively committing the criminal offence. [Translation]
323c Failure to provide assistance
Anyone who fails to provide assistance in the case of an accident or common danger or an emergency, even though such assistance is required and the person in question could reasonably be expected in the circumstances to provide such assistance, especially if he/she can do so without any considerable personal risk and without violating any important obligations, shall be punished by the imposition of a fine or a term of imprisonment up to one year.
These sections establish a positive duty to intervene in certain circumstances. Their effect is to curtail the physician's role in suicides and insulate the patient from physician aid in dying.<$FFor a more detailed discussion regarding the role of physicians in Germany and the attempt to exclude the medical establishment from assisted suicides, see Battin, "Assisted Suicide" p. 45-46.> As one author writes, "[A]lthough the physician is not prohibited from giving a lethal drug to a patient, once that patient has taken the drug and becomes unconscious, the physician incurs a duty to resuscitate him or her".<$FSee Battin, "Assisted Suicide" p. 45-46; see also the Wittig decision, BGH, 3. Strafsenat, July 4, 1984.>
Indeed, some courts have applied these provisions in combination with section 216 [homicide at the request of the person] in order to erode the immunity from criminal prosecution for assisted suicide.<$FSee Battin, "Assisted Suicide" p. 45-46; see also the Wittig decision, BGH [Federal Court of Appeal], 3. Strafsenat., July 4, 1984.>
The Wittig decision illustrates this point. In that case, a doctor found one of his patients in a state of unconsciousness after she had attempted to commit suicide. He did not undertake any action in order to revive the patient because he was aware of her clearly expressed intention to commit suicide and he assumed she could not be resuscitated without permanent damage. One author expressed the holding in this decision as follows:
The Court [Federal Court of Appeal] held that there was a special relationship between a physician and her/his patients. Moreover, it is a criminal offence according to [sections] 13 and 323c of the German Penal Code to omit helping when faced with an accident and when capable of providing help. The Court utilized the doctrine of "Tatherrschaft" and stated that, upon Dr. Wittig's arrival, there was a change as to who was in control of the last act before the patient's death. The Court acquitted Dr. Wittig based on the weak argument that he made a "medical decision of conscience" in not reviving the patient because he believed that she had already suffered severe brain damage when he arrived.<$F Weinhold, "The right to Die with Dignity" p. 4.>
This decision has been criticized:
This interpretation of the "Tatherrschaft" doctrine significantly undermines the view that assisted suicide is not a criminal offence. Unless death occurs immediately, the situation arises whereby the person giving assistance has to "save" the person wishing to die as soon as that person has lost consciousness. Walter Groop gives the analogy that a person may give the person wishing to die a rope but s/he has to cut the rope as soon as the person wishing to die has lost the capability to act. In essence, the courts are turning the threat of punishment in [section] 216 into an authorization for forced treatment.
Furthermore, the application of [section] 323c of the German Penal Code depends upon there being an "accident". It is questionable whether every attempted suicide can be viewed as an accident.<$FWeinhold, "The Right to Die with Dignity" p. 5.>
In Germany, acts of euthanasia could potentially fall under one of three categories: murder, manslaughter or homicide at the request of the person killed. The act of killing is considered murder if it is undertaken without the victim's consent and where the motives behind the act are "selfish" or "base". Section 211 of the German Penal Code provides:
(1) A murderer shall be punished by being imprisoned for life.
(2) A murderer is anybody who, maliciously or cruelly, or using means that endanger the public at large, or in order to permit the commission of or to cover up another crime, kills a human being out of the simple love of killing, or to satisfy a sexual urge, or out of greed, or for some other base motives.
The provision dealing with manslaughter is applicable in cases where the facts involve the killing of a person without his or her consent but in the absence of a "base motive".<$FMustafa D. Sayid, "Euthanasia: A Comparison of the Criminal Laws of Germany, Switzerland and the United States" (1983) 6 Boston College International & Comparative Law Review 533 p. 550.> Section 212 provides as follows:
(1) Anybody who intentionally kills a human being in a manner not amounting to murder shall be punished for manslaughter by being imprisoned for a term of not less than five years.
(2) In especially serious cases, the punishment shall be imprisonment for life.
Furthermore, section 213 of the Code mitigates the penalty for manslaughter in the case of "extenuating circumstances". It reads:
213. If the person charged with manslaughter was provoked into a fit of anger, without fault of his own, by a battery or serious insult, committed by the deceased against the defendant or one of his relatives, and the defendant was prompted instantly to commit the deed, or if other extenuating circumstances are present, the punishment shall be imprisonment for a term of not less than six months.<$FSayid, "Euthanasia: A Comparison of the Criminal Laws" p. 551.>
The motive distinguishes murder from manslaughter. Indeed, the German Penal Code considers motive as an important element in determining culpability and is considered in both the grading of the offence and the sentencing of the crime. One author, in referring to the German Code, wrote:
Once the judge considers the motive of the actor, the character and personality of the criminal becomes apparent...The personality of the actor encompasses "the character of the actor, his dangerousness or harmlessness, [and] the probability or improbability of his repeating the crime". Thus, in a prosecution for euthanasia, the judge would direct his attention to the total personality of the actor and not merely to a partial view of the homicide. Under this approach, the judge can better view the entire incident and thus be better prepared to render a fair and equitable sentence.<$FSayid, "Euthanasia: A Comparison of the Criminal Laws" p. 547-548.>
The more widely applied provision in euthanasia cases is section 216, homicide at the request of the victim. This provision allows the courts a certain amount of discretion in terms of sentencing where an express wish to die is articulated in some way. In other words, a communication must be made, either through words or gestures, that the person desires death.<$FUncle case, BGH, decision of November 25, 1986 can be located in Neue Juristische Wochenschrift 18 p. 1092; see Weinhold, "The Right to Die with Dignity" p. 25.> The demand must be "serious" and "earnest"; this means that the person wishing to die must be competent and able to freely make the decision.<$F See Eduard Dreher and Herbert Troendle, Strafgesetzbuch und Nebengesetze (Munich: C.H. Beck, 1993) p. 1199. Schoenke/Schroeder p. 1501; Weinhold, "The Right to Die with Dignity" p. 25.> Section 216 of the Code stipulates:
216. Homicide at the request of the person killed
(1) If a person kills another after having been expressly and earnestly requested to do so by the person killed, the punishment shall be imprisonment for a term of not less than six months but not exceeding five years.
(2) The attempt is punishable.
Although the issue of whether there is a constitutional right to "active euthanasia" has been raised at the lower court level and has been decided in the negative,<$FDaniela case (VG Karlsruhe [Administrative Court of Karlsruhe], decision of December 12, 1987, can be located in Neue Juristische Wochenschrift 1988 p. 1536. For a detailed discussion of the Daniela case, see Weinhold, "The Right to Die with Dignity" p. 66-68.> to date, the German Constitutional Court has declined to settle the question.
Proposed Amendment Initiatives
Several unsuccessful proposals to amend section 216 of the German Penal Code have been made by German physicians and criminal law scholars. A 1986 initiative offered the following amendment:<$F This proposal is referred to as Alternativentwurf eines Gesetzes ueber Sterbehilfe (Alternative draft of a law on aid-in-dying) and was developed by a working group of professors of criminal law and of medicine. For a discussion of the proposal, see: Astrid Muschke, "Gesetzliche Regelung der Sterbehilfe" (Dissertation in Giessen, Germany, 1988) p. 152-153; Heinz Schoeck, "Menschenwuerdiges Sterben und Strafrecht " in Zeitschrift fuer Rechtspolitik 1986 p. 236; and Weinhold, "The Right to Die with Dignity" p. 93-94. For the proposal itself, see Albin Eser and Hans-Georg Koch, Materialien zur Sterbehilfe: Eine Internationale Dokumentation (Freiburg im Breisgau: Max-Planck-Institut fuer Auslaendisches und Internationales Strafrecht, 1991) p. 153.>
Under the conditions set forth in paragraph 1, the court may waive punishment if the killing has put an end to extreme suffering that could no longer be borne by the person in question and that could not have been eliminated or alleviated in any other way.
A second amendment, proposed in 1989, would have read as follows:<$FLaw Library of Congress, Euthanasia in Foreign Countries, 1994/5 p. 7.>
Consent does not eliminate the unlawfulness of the killing unless, due to an incurable illness of the person, a continued life is contrary to the interest of the person, and the act is carried out by a physician.
The German Society for Humane Dying (Deutsche Gesellschaft fuer Humanes Sterben (hereafter DGHS),<$FDGHS was founded in 1980 to facilitate suicide for those who are terminally ill. For a detailed discussion of its proposed changes, see Weinhold, "The Right to Die with Dignity" p. 94-96; Muschke p. 161; Jutta Detering "Forum: Paragraph 216 und die aktuelle Diskussion um Sterbehilfe" in Juristische Schulung 1983 p. 418. As to the proposal itself, see Albin Eser and Hans-Georg Koch, Materialien zur Sterbehilfe: Eine Internationale Dokumentation (Freiburg im Breisgau: Max-Planck-Institut fuer Auslaendisches und Internationales Strafrecht, 1991) p. 154-155.> which advocates the decriminalization of euthanasia, has proposed the following amendment to section 216:
Under the terms set forth in section 216, consensual killing is not a criminal offence if:
(a) the person killed was undergoing extreme suffering which he/she could no longer endure;
(b) that person's wish to die was shown to have been lasting;
(c) the person killed was physically unable to kill him/herself; and
(d) there was no pressure exerted on any of the participants.
The Swedish Criminal Code does not contain an express provision dealing with assisted suicide.<$F Euthanasia in Foreign Countries, 1994/95, p. 20.> However, an act of assisted suicide could result in a charge under the murder or manslaughter provisions of the Code. If the charge is murder or manslaughter in an assisted suicide case, the courts will rarely impose the normal punishments for such offences. The imposition of a more lenient sentence in murder and manslaughter cases is possible under Swedish criminal law because the Criminal Code contains various provisions permitting a certain amount of discretion in the sentencing process in specified circumstances.<$F Chapter 23 of the Criminal Code as cited in Euthanasia in Foreign Countries, Ibid. p. 20.> One provision of the Code provides that a court may impose a more lenient sentence for a crime if the underlying motive for the commission of the offence involves "profound human compassion".<$F Euthanasia in Foreign Countries, 1994/5, p. 20-21.> The relevant provisions are found in of Chapter 23 of the Criminal Code. They provide:
Section 1. In view of a uniform administration of justice, punishments shall be determined within the framework of a scale relevant to the crime or the culpability of the total criminality.
When culpability is appraised, special attention shall be paid to the damage, offensiveness or danger brought about by the act, and to the accused person's perception or expected perception about this, as well as to his intentions or motives.
Section 3. When culpability is appraised, the following points - in addition to those that are applicable to certain cases - shall be especially regarded as mitigating circumstances:
1. whether the crime was brought on by someone else's grossly offensive behaviour;
2. whether the accused had, as a result of psychological disturbance or excited state of mind or some other reason, a severely impaired ability to control his actions;
3. whether the conduct of the accused was related to his obviously impaired development or experience or ability to judge; or
4. whether the crime was brought about by powerful compassion for fellowman.
Lighter sentences than those prescribed for the crime may be imposed, should the crime's culpability indicate this.
Therefore, according to subsection 4 of section 3, a court may impose a lighter sentence if the underlying reason for the commission of the offence was compassion for the victim.
All acts of euthanasia are dealt with under the murder and manslaughter provisions of the Swedish Criminal Code. They provide as follows:
Section 1. A person taking another person's life is sentenced for murder to imprisonment for a term of 10 years or for life.
Section 2. If a crime indicated is s. 1 is regarded as less serious considering the circumstances leading to it or otherwise, it is subject to a sentence for manslaughter, with imprisonment for a term not less than six years and not exceeding ten years. <$F Criminal Code, Ch.3, ss. 1 & 2 (Sveriges Rikes Lag, 1994 cited in Euthanasia in Foreign Countries, , 1994/5 p. 20.>
However, as was already noted above, there are certain provisions in the Swedish Criminal Code that permit the courts to sentence an accused to a less severe penalty than what the law normally requires for each crime. These provisions are generally invoked in cases involving acts of euthanasia.<$F Euthanasia in Foreign Countries, 1994/5, p. 21.>
In a leading Swedish case, a journalist was charged with manslaughter for ending the life of a handicapped person, who was almost completely paralysed, on the latter's request. The accused journalist had complied with the wishes of the disabled person by lethal injection and by administering tablets. It was not possible to determine whether the cause of death was due to the injection or the tablets or a combination of both. The death was caused, however, by the administration of these substances. The medication was provided by a physician who did not actively participate in the final act that brought about the death of the disabled person, beyond providing the necessary dosage of medication.<$F Ibid, p.20> The journalist argued that she had only assisted in a suicide and such action was not punishable. The doctor, who was charged with being an accessory to manslaughter, also argued that he had only assisted in a suicide and, thus, no punishment should be imposed.<$F Case No. 139 (1979) Nytt Juridisk Arkiv (I: 1979) cited in Euthanasia in Foreign Countries, 1994/5, p. 20.>
The District Court of Stockholm, did not accept the argument that both accused had only assisted in a suicide. While accepting that the journalist had acted with compassion and respect for human dignity in complying with the deceased's request, the Court held that since she had actively participated in terminating a life without having any expertise in the field of medicine, she had nonetheless violated the law. Consequently, she was found guilty of manslaughter. However, in light of the circumstances of the case, and the testimony of several witnesses corroborating the statements made by the accused journalist to the effect that the deceased had no desire to continue living, the Court applied the discretionary sentencing provisions for manslaughter and sentenced the accused to a punishment of eight months' imprisonment.<$F Ibid., p. 20.> The doctor was found guilty of being an accessory to manslaughter and also received a prison sentence. The Court based its decision on the following reasoning:
Hedeby [the journalist] placed, with intention to end Handberg's life, a lethal dose of sleeping drugs in his mouth and administered liquid to his mouth so that he could swallow the tablets and injected into the bend of his elbow a lethal dose of insulin. These measures, which caused his death, must be regarded as parts of one act. Through this act, Hedeby deprived Handberg of his life, regardless of that he himself had swallowed the sleeping drug...By assisting in the manner alleged by the prosecutor, Toss [the doctor] became guilty of being accessory to manslaughter. [...] STR [Stockholm District Court] does not think that Toss was in a situation that could justify discharge from liability on grounds of emergency.<$F Case No. 139 (1979), Nytt Juridisk Arkiv (I: 1979), pp. 802-817.>
Both the prosecution and the accused journalist appealed the decision of the District Court. The Court of Appeal confirmed the finding of the District Court judge that the accused journalist had acted on humanitarian grounds. However, the Court concluded that since she had actively participated in bringing about the death of the deceased, it was in the public interest to demonstrate a clear denunciation of the conduct of the accused by imposing a more severe punishment. As such, the Court increased the prison term from eight months to one year. The Court stated:
On the other hand, it has to be noted that the act indicates a serious deviation from the judicial concepts characterizing the Penal Code's provisions, which are based on respect for human life, even in a case where life's value may seem doubtful to a person seriously ill. To leave such deviations without appreciable sanctions could lead to complicated consequences. Existing principles can not be surrendered and euthanasia accepted without relevant legislation or at least some orienting guidelines with a necessary anchorage in society. Therefore, the Appeal Court finds that in consideration of general obedience to the law, it is essential that Hedeby receive a prison sentence which emphasizes the seriousness attached by the Penal Code to the act. The punishment should be more severe than indicated in STR's judgment.<$F Ibid. >
The decision of the Court of Appeal was upheld by the Swedish Supreme Court. The Supreme Court found as follows:
In accordance with the contents of the Appeal Court's verdict, pursuant to the valid legislation it is a criminal act to deliberately take a person's life, even if this is done at the request of the latter. In principle, however, an action that can not be designated otherwise than as complicity in suicide is not punishable. The drawing of the boundary between perpetration and complicity is therefore critical for whether Hedeby's actions are to be considered criminal. This must be evaluated in accordance with general principles concerning liability for complicity within penal law...
On Handberg's request, Hedeby had promised to take measures with the intent that Handberg would die. These measures, performed with the intent mentioned, were included in an action plan drawn up by her in advance and carried out as a practically uninterrupted sequence. With regard to liability, the measures must therefore be regarded as one single act. By swallowing the barbituric acid tablets, Handberg participated actively in a moment included in the act. The course of the act - at the later stages, in which Handberg did not participate at all - was characterized, however, by such independent action by Hedeby that her participation has to be judged as perpetration. Thus, Hedeby has to be considered to be the perpetrator causing Handberg's death, whether this happened because of the administration of barbituric acid or insulin or a combination of these substances.<$FIbid.>
Proposed Amendment Initiatives
To date, no initiatives have been undertaken to amend the current legal situation with respect to euthanasia and assisted suicide in Sweden.<$FEuthanasia in Foreign Countries, 1994/5.>
Pursuant to section 115 of the Swiss Penal Code, inducing or assisting someone to commit suicide is punishable with up to five years' penal servitude or with three years' imprisonment, if the perpetrator acted with a selfish motive and the suicide was attempted or completed. A selfish motive has been held to include financial gain and the desire to be freed from caring for a person. In the absence of a selfish motive, assisting in the suicide of another is not criminal.<$FIbid.> Section 115 provides:
115. A person who, for selfish motives, persuades or assists another person to commit suicide will be punished, in case of completed or attempted suicide, with penal servitude up to five years or with imprisonment.
Section 114 of the Swiss Penal Code creates a separate crime for "homicide upon request" that carries a lighter sentence than murder. The section provides that anyone who kills with a compassionate motive and upon the earnest and urgent request of the victim is punishable by up to three years' imprisonment. Section 114 of the Code stipulates as follows:
114. A person who ends another person's life for estimable motives, namely for pity, at the serious and urgent request of that person will be punished with imprisonment.
Acts of euthanasia that do not involve an explicit request on the part of the person who is killed are treated as murder or manslaughter, depending upon the circumstances of the case.<$FIbid.>
Thus, under the Swiss Penal Code, the actor's motive is the primary consideration in determining the actor's culpability. One author writes:<$F"Euthanasia: Is It Murder or Mercy Killing? A comparison of the Criminal Cases in the United States, The Netherlands and Switzerland," (1990) 12 Loy. L.A. Int'l & Comp. L. J. p. 839. Also see Russel Ogden, "The Right to Die: A Policy Proposal for Euthanasia and Aid in Dying" (1994) XX:1 Canadian Public Policy 1 p. 10-11.>
Under the Swiss Penal Code, the actor's motive is the essential factor in determining the actor's culpability. The motive which caused the actor to commit the crime is relevant to determining the actor's dangerousness and in predicting whether or not he will repeat the crime. The theory is that one who kills to gain a reward or a financial benefit will do so again, while one who kills out of mercy or compassion is unlikely to repeat the act.
To date, there has been no leading case dealing with assisted suicide or euthanasia in Switzerland.
Proposed Amendment Initiatives
At present, no reform initiatives have been undertaken in Switzerland with respect to the laws regarding assisted suicide and/or euthanasia.<$F Euthanasia in Foreign Countries, 1994/5.>