A liberalized view of euthanasia
CANADIAN OPPONENTS of federal ban on assisted suicide look to the Netherlands, where ‘slippery slope’ argument has proven false
AMSTERDAM – Six “mobile euthanasia units” will become available in the Netherlands, starting March 1, to zip around this tiny and remarkably liberal country to help Dutch citizens facing an “unbearable” and “hopeless” medical situation die in their homes.
A group of prominent citizens, meanwhile, has been lobbying since 2009 for a major expansion in the scope of Dutch assisted-death laws, allowing older people who are “tired of living” but have no serious medical problem to end it all without the involvement of a physician.
To social conservatives around the world, including in Canada where court challenges in B.C. and Quebec seek to declare the euthanasia ban unconstitutional, these are but two of the many examples of a dangerous “slippery slope” for any country that opens the door even a crack on this touchy matter.
Some go as far as to compare the mobile units to the notorious Nazi “gas vans” – sealed vans or trucks used to kill Jews, Roma, the mentally ill and other perceived enemies during the Second World War – before more efficient death camps were established.
Yet experts, ordinary citizens, and even some Dutch opponents of the euthanasia law say opponents are exaggerating in their criticism of the Dutch experience with legalized euthanasia.
“We’ve been studying euthanasia and other end-of-life decision-making ever since 1990 ... and so far, we have no indication of a slippery slope,” said Dr. Johannes van Delden, a Dutch physician and ethics specialist who has provided expert testimony at the B.C. Civil Liberties Association’s court challenge to Canada’s prohibition against euthanasia and assisted suicide.
Polls have shown a majority in Canada and many other western countries support liberalized laws.
But there is no hint of interest among Canadian political leaders to take on the issue.
The House of Commons defeated a Bloc Québécois bill, 228-59, in 2010 and, with a Tory majority since last May, the political opposition in Ottawa will remain overwhelming to any change.
But opponents of the current law are gambling they can turn Canada’s death laws upside-down through the courts, a strategy that almost worked in 1993, when the Supreme Court of Canada rejected Sue Rodriguez’s appeal for the right to assisted suicide by just a 5-4 margin. The B.C. Civil Liberties Association has initiated a case now before the B.C. Supreme Court, with a judgment expected this spring.
The BCCLA, on behalf of several plaintiffs, asserts that the current Criminal Code restriction violates the constitutional rights of people who are “grievously and irremedi- ably ill patients” but are denied the ability to end their lives.
The B.C. case has inspired a second legal front in Quebec involving Ginette Leblanc, 47, who, like Rodriguez did, is suffering from amyotrophic lateral sclerosis.
Leblanc will go before the Quebec Superior Court this spring, where she will try to convince the high court to strike down the federal law that calls for the imprisonment of someone for up to 14 years for counselling or aiding someone to commit suicide.
The plaintiffs in both cases argue that, among other concerns, Canada’s ban violates Section 7 of the Charter of Rights and Freedoms, which says all Canadians have “the right to life, liberty and security of the person.”
And in both cases, the challenges will rely on the well-documented experience in the Netherlands, the best-known of seven jurisdictions – the others are Belgium, Luxembourg, Switzerland, Oregon, Washington state and Montana – that have liberalized assisted death under varying circumstances.
The Netherlands emerged during the postwar period as one of the most liberal countries in the world, taking steps to effectively legalize soft drug use, prostitution, abortion and, starting in 1973, assisted death.
That year, a Dutch physician, Geertruida Postma, helped her mother end her life.
Postma was found guilty of murder but given a one-week suspended sentence, with the court opening the door to a more liberal view of euthanasia by acknowledging that a physician shouldn’t always have to keep a deteriorating patient alive when faced with “pointless” suffering.
The legal regime evolved in the 1980s as politicians, bureaucrats and doctors worked together in various commissions and committees to determine a uniform policy.
At the same time, high-profile court cases led to judges spelling out circumstances when euthanasia and assisted suicide could be acceptable.
By 2002, legislation was passed that formalized what was already in practice, permitting euthanasia
“In the last 20 years, the number of cases of euthanasia have not significantly increased; they have remained relatively stable.” EXPERT JAMES KENNEDY
and physician suicide under certain criteria.
Two independent doctors must agree that the patient’s request to die is “voluntary and well-considered,” that the patient’s suffering is both “unbearable” and hopeless in terms of prospects for improvement; the patient is fully informed of their prognosis; and there is joint agreement there are no other “reasonable” options.
The Dutch government, before agreeing to the legislation, insisted on conducting exhaustive studies, starting in 1990,of death certificates, and interviewing, on a promise of anonymity, all physicians attending deaths that may have been involved in an “end-of-life” decision.
Those four studies, conducted every five years from 1990 to 2005, have shown no apparent evidence of a slippery slope.
In the first study, 1.7 per cent of the 128,824 deaths involved voluntary euthanasia; 0.2 per cent assisted suicide; and 0.8 per cent were “life-terminating acts without explicit request of the patient” (referred to as LAWER); for a total of 2.7 per cent of all deaths.
In 2005, when the doctors’ response rate was above 80 per cent, the percentage of euthanasia deaths was the same, 1.7 per cent; the percentage of assisted suicides fell to 0.1; and LAWER deaths to 0.4 per cent; for a total of 2.2 per cent of the 136,402 deaths.
Critics of the Dutch regime acknowledge that these figures contradict some of the more outrageous attacks from people like Republican presidential candidate Rick Santorum, who caused a furor here this month with his wildly inaccurate allegation that 10 per cent of Dutch deaths involve euthanasia and half that total isn’t voluntary.
James Kennedy, an American specialist in Dutch history who teaches at the University of Amsterdam, said he’s opposed to euthanasia but “not because I think it’s a Nazi-style plan or that this is somehow a form of murder. That’s not how I see it.”
Kennedy, who has written a book on the history of euthanasia here, said the slippery slope argument can be made only on certain points.
While the scope of the law hasn’t changed, the interpretation of it has, he noted.
It is now seen as covering people suffering from mental, as well as physical, ailments, as well as for individuals with dementia, as long as their will to die has been written in an advanced directive and regularly expressed to the doctor while the patient is still lucid.
But Kennedy also sees arguments against the slippery-slope theory.
“In the last 20 years, the number of cases of euthanasia have not significantly increased; they have remained relatively stable,” Kennedy said.
“And also what we see is that doctors remain quite reluctant to practise euthanasia.”
Two relatively recent developments have fuelled the slippery slope debate.
In 2009, a group of prominent citizens representing politics, science and culture launched the high-profile Of Free Will campaign in hopes of expanding the law to allow people who have lived a “completed” life to die and not necessarily with a doctor’s involvement.
While the issue was debated in the Dutch Parliament in January, the government has deferred a decision and few expect it will act.
“I don’t think this current Parliament will approve of the demands of the Of Free Will group,” Dutch MP Anouchka van Miltenburg told Postmedia News.
“Their demands are an expression of a group that is rapidly expanding in numbers, but I think that broadly, politicians feel that the demands are easy to express, but much more difficult to put into a good and just law.”
Of more immediate concern is the March 1 launch of the mobile euthanasia units, involving six teams each made up of a doctor and a nurse.
They are to travel to the homes of people who fulfil the criteria under the law, but who are unable to follow through because their family doctor refuses on principle to partake in assisted death. The units, being organized and funded by the Dutch Right to Die Society, are required to follow the same guidelines on both procedure and reporting and don’t represent a change or expansion in the current law, according to a spokesperson for Dutch Health Minister Edith Schippers.
“If a physician failed to comply with the due care criteria the case is reported to the Public Prosecution Service and the Health Inspectorate, and measures may be taken,” Inge Freriksen told Postmedia News in an email.
But this latest development has prompted concern even among people such as van Delden, who has played a lead role in many of the most important studies on the matter here. “I don’t like it,” van Delden said. “Euthanasia should not be an easy way out. It should be the least of the bad things you can imagine.”