Current euthanasia law in the Netherlands
Previously, because euthanasia was prohibited in the Penal Code,
the physician had to prove that he/she had fulfilled the
requirements. Under the new arrangements, the Public Prosecutor
has to prove that the physician has not fulfilled the
requirements, in order to start prosecution. This is a
Euthanasia has been known to be regularly practised in the Netherlands
since 1973, even though Article 293 of the Penal Code provided that a
person who takes the life of another person at that person's 'express
and serious' request was punishable by imprisonment for a maximum of 12
years or by fine. To justify what is admittedly an offence, courts in
the Netherlands may decide that it is acceptable for a doctor, faced
with the alternatives of leaving a patient in pain or of giving relief
by taking life, to take the 'compassionate' option known as 'force
majeure' or necessity, by taking life, provided the required euthanasia
guidelines have been observed. That is what has been regularly done.
The official guidelines require that the patient's decision is
voluntary, well considered and persistent, in the presence of unbearable
pain without hope of improvement. The decision should be made by more
than one doctor, and the doctor and patient should agree that euthanasia
is the only reasonable option. Over the years, much evidence has
accumulated to show that these guidelines are commonly disregarded in
part or in whole, and that some of them cannot underpin a consistent
legal interpretation. Yet others have been watered down by courts to the
point where no physical suffering, indeed no physical illness at all,
was required. A case was reported in 2000 where a doctor assisted in the
suicide of an 86 year old man, simply because his life had become
meaningless. He was later charged with murder, but given a token
penalty. Additionally, underreporting and life-taking without patient
request have dogged Dutch euthanasia for many years.
The rate of reporting euthanasia by doctors has been known since 1990
to be low and even after special regulations were introduced to improve
this, it is still reported on less than half the actual occasions.
Doctors commonly falsify death certificates after euthanasia to make it
appear that death was due to natural causes, though such falsification
is itself a criminal offence. Some doctors have declared they would
never report euthanasia, no matter what the government decided.
Medical life-taking without patient consent is also common. Since the
Dutch define euthanasia only as 'life-taking by a doctor on the
patient's request', the entity of non-voluntary euthanasia (NVE) is not
officially recognised. Instead, an innocuous-sounding acronym is used —
LAWER, for 'life-terminating acts without explicit request'. This
practice was first discovered by an official survey in 1990, yet when
this survey was repeated five years later all that could be concluded
was that 'life-taking without the patient's explicit request seems to
have decreased slightly'. In two test cases in different courts in 1995,
doctors were exonerated after taking the lives of deformed new-borns,
though such victims were of course incapable of consent.
About two years before the practice of NVE had been revealed, the
Royal Dutch Medical Association had stated in 1987, in the preamble to
its Guidelines for Euthanasia: 'If there is no request from the patient,
then proceeding with the termination of his life is juridically a matter
of murder or killing, and not of euthanasia'. When it was found that
precisely this practice was already occurring, no condemnation issued
from the authorities, nor did they ever take direct action to outlaw it.
Official references to it retreated from the candour of 1987, to imply
now that NVE was just a variant of VE in particular circumstances, with
no special moral or legal differentiation.
What has happened since 1996?
The Dutch government thought that the low level of euthanasia
reporting was probably associated with the fear of some doctors that
their actions would bring the law down on them, though in fact they had
little to fear if they had complied with the guidelines. So, the
reporting regulations were again altered in 1998, but a year later,
little had changed in the rate of reporting. A further change at that
time was to have voluntary euthanasia (VE) reported separately from NVE,
whereas previously they were reported on the same form. This did not
mean that NVE was no longer acceptable, but that its justification would
be more closely assessed. Such a regulation will, of course, have no
influence on doctors who do not presently report euthanasia, for their
own reasons. Thus, it can hardly be expected that this new regulation
will influence either the real incidence of NVE or improve the
government's knowledge about it.
The new law
After about 18 months of public discussion of its new draft bill, in
late 2000 the Dutch government introduced its proposal to legalise
euthanasia into the Second Chamber of the parliament, where it passed
easily. It was introduced into the First Chamber in early 2001, where it
also easily passed, and was then proclaimed. Its provisions include:
- Euthanasia must be performed in accordance with 'careful medical
practice', that is, the previously listed official guidelines are to
continue to be observed. (These have not been altered, despite their
often miserable public record in practice).
- All cases will be evaluated by a legally constituted regional
review committee, composed of a lawyer, a doctor, an ethicist and
- Euthanasia and assisted suicide will not be punishable if
carried out by a doctor who has complied with the guidelines, and
reported it to a local medical examiner.
- After satisfying himself that the required procedures had been
carried out, the examiner is to send his report to the regional
committee and to the prosecutor.
- Children between 12 and 16 must normally have their parents'
consent before they may request euthanasia. However, in
'exceptional' cases — those involving serious and incurable disease
or intolerable and unrelenting suffering — a doctor may agree to
such a child's request even without parental request. Requests by
children aged 16 -17 do not require parental consent, though parents
should be involved in decision making.
- Competent patients may request euthanasia, by way of an advance
directive, to be later consulted in the event that they have become
Regarding provision 3 above, it should be noted that, as is the case
at present, euthanasia will also not be punishable if carried out by a
doctor who has complied with only some, or perhaps none, of the
guidelines, and who has then falsified the death certificate after
euthanasia to make it appear that death was due to natural causes.
What are the likely effects of the changed
The present law contains some radical changes but also retains many
of the shortcomings of the previous law. The new proposal is ominous
because its appearance of safety obscures certain underlying
difficulties. It will not adequately safeguard the public, in light of
the common practice of NVE, since the authorities have not done what
would have been necessary to stop it. If there were genuine concern for
good practice and the safety of all the seriously ill, they would have
obliged all doctors to expose all their euthanasia practices to legal
scrutiny, especially as it is reasonable to presume that doctors avoid
scrutiny most often where the guidelines have not been followed.
Article 293 of the penal code has been radically restructured to
permit doctors, for the first time anywhere in the world, to take
innocent human life intentionally, for reasons that depend on personal
and subjective claims, which cannot be verified by objective evidence.
Despite the fact that some Dutch lawyers have for many years noted the
impossibility of such descriptors of suffering as 'persistent,
unbearable and hopeless' being able to sustain any consistent legal
interpretation, the expression is still in common use in regard to the
The removal of legal penalties for the intentional killing of their
patients by doctors constitutes, in itself, a serious violation of a
government's responsibility to protect the lives of all its innocent
citizens, without exception. This law is in violation of the United
Nations' Universal Declaration of Human Rights, where the most
fundamental human right is declared to be the right of every innocent
person to the integrity of his/her life, a right that should be
protected by law. That right is declared to be equal, inherent,
inviolable and inalienable — its integrity is not to be made dependent
on its quality at a particular time, and the right should neither be
taken away nor given away.
The following are some of the possible or probable effects of the
Legalisation will lead to a broader acceptance and increased
incidence of euthanasia, so changing the nature of the
patient/physician relationship, and further empowering doctors who
have already gained wide degrees of control over patients' lives by
their actions outside the law. Previously it was the courts that
found a way to excuse the common practices of doctors, in defiance
of the criminal statutes.
Now, the government itself has taken the final step, not of
requiring doctors to observe the same criminal laws as are in force
the world over, but of conforming the criminal law to the previously
illicit medical practices.
will undermine the efforts and creativity of those committed to
providing and further developing palliative care. This seems
inevitable in a health care system characterised by increasing costs
and the need to make decisions about resource allocation, as is now
the case in most countries. For a population of 16 million people in
Holland, there are 84 palliative care beds in the country. Dutch
medical students are taught about euthanasia, but not about pain
management or symptom control. The message of palliative care is
that whatever the disease, however advanced it is, whatever
treatments have already been given, there is always something which
can be done to improve the quality of the life remaining to the
Legalised euthanasia is incompatible with the fundamental role of
the physician as healer. Since the role and extent of a physician's
competence is regulated by law, such a fundamental change in
competence ought not to be considered as a private matter to be
decided by physician and patient alone.
is likely to increase the pressure on a doctor to terminate a
patient's life when he/she has become demented, especially when the
family insists on it. The distinction between voluntary and
non-voluntary euthanasia may then be further blurred.
Once euthanasia becomes a legal option, a patient with terminal
illness or poorly relieved suffering may have to justify not asking
Accepting the euthanasia of minors 12 years of age and older
seriously overestimates the capacity of such persons to evaluate the
meaning and consequences of a request to be killed. It places an
unacceptable burden on these young people.
Legalising an advance euthanasia declaration, designed to permit a
competent patient to receive euthanasia should he/she later become
incompetent, is likely to foster a broadening of the requirement of
'unbearable suffering' to 'loss of dignity'. Advance declarations
are notorious for the doubts they raise about medical actions when
the precise new circumstances of illness, as they subsequently
develop in a particular patient, could not have been envisaged when
the declaration was originally signed.
case of the man whose assisted suicide was legally permitted,
because he felt his life had become meaningless, demonstrates the
elasticity of the requirement of unbearable suffering, carrying the
risk that a substantial number of people could become vulnerable to
Dutch doctors opposed to euthanasia will find themselves in a
difficult position, and will possibly find it difficult to obtain
jobs in certain areas of health care. Dr Krijn Haasnood, spokesman
for the Dutch Physicians Association, has said: "There is much
pressure on doctors to practise euthanasia. Up to now a doctor who
did not want to carry out euthanasia could say that it was against
the law, but now it will be the right of the patient to request it.
It will be part of the job of the doctor. We are going into a new
area and we don't know where it will end. It is a total change in
the role of the doctor if killing patients becomes part of the job."
Whenever the review committee rules favourably on a case by deeming
an act of killing to be legal, the Public Prosecutor's ability to
monitor the physician's conduct will be compromised because the
Prosecutor will not then even see the doctor's report.
Cases in which the guidelines have not been followed will continue
to go unreported.
Previously, because euthanasia was prohibited in the Penal Code
though it was commonly practised, the physician had to show, if
required, that he/she had fulfilled the requirements, in order to claim
the defence of necessity. Under the new proposal, the Public Prosecutor
has to prove that the physician has not fulfilled the requirements, in
order to start prosecution. This is a significant shift. It may now be
harder for prosecutors to proceed in doubtful cases, and effective
control of euthanasia and the successful prosecution of unacceptable
practices will become even more difficult and so, likely to be more
Currently, about 10,000 people in the Netherlands carry
anti-euthanasia cards, in case they are in need of urgent admission to
hospital. The 'declaration of life' cards read: 'I request that no
medical treatment will be withheld on the grounds that the future
quality of my life will be diminished....I request that under no
circumstances a life-ending treatment be administered because I am of
the opinion that people do not have the right to end life'. These
people, and others of like mind, will now be less certain that their
wishes will always be respected.
Even if some of the adverse outcomes of the new Dutch law outlined
above do not eventuate, there can be no doubt that some, perhaps most,
will. It will be a responsible task therefore to closely monitor the
euthanasia scene as it develops in the Netherlands as a result of this
law, to assess its efficacy and above all, its safety. Fortunately, the
Dutch are likely to be helpful in providing data, as they have been in
recent years, since they realise they are being scrutinised on all
sides. In the meantime, a prudent observer who had at heart the
well-being of all the sick, not just some of them, would refrain from
advocating blind acceptance.
A video made in Holland about the new Dutch law was screened on TV in
Sydney, Australia, on 2 February 2002. One of the participants was Dr
Gerrit Van der Wal, a doctor in the Department of Public Health at
Erasmus University, who has been a prominent advocate of Dutch
euthanasia practices for many years. He expressed his view that the new
law was a step into the unknown and therefore was taking a risk. He was
fearful, because euthanasia was now supported by the authorities, that
the elderly would be forced into decisions they did not really want.
I wish to acknowledge my indebtedness, for much of the
information and the insights in this paper, to Dr Henk Jochemsen,
director of the Lindeboom Institute for Medical Ethics and holder of the
Lindeboom Chair for medical ethics in Amsterdam, who has given
permission for their use.
Pollard, Dr. Brian. "Current euthanasia law in the Netherlands."
NSW Website (2003).
Published by permission of Dr. Brian Pollard.
Dr. Brian Pollard is a former anaesthetist (anesthesiologist) who
founded and directed, from 1982, one of Australia's first palliative
care services. Dr. Pollard is the author of The Challenge of
Euthanasia and is involved in active opposition to legalised
euthanasia in Australia.
Copyright © 2003 NSW Right to