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Jeanne Smits, Paris correspondent

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Netherlands court acquits doctor who euthanized unwilling dementia patient

Jeanne Smits, Paris correspondent

ANALYSIS

September 17, 2019 (LifeSiteNews) – The recent acquittal in the first-ever euthanasia trial in the Netherlands since the deliberate killing of patients on request was decriminalized in 2002 has opened new perspectives in that country, giving doctors extra elbow room when faced with a living will previously made by a person who is now suffering from dementia.  

A court in The Hague ruled last week that it is not necessary to obtain confirmation of the request when a patient is no longer able to express his or her wishes. In one of the most disturbing euthanasia cases to date in the Netherlands, the ruling is revolutionary – but it certainly looks like this revolution is a perfectly controlled one.

The progressive liberalizing of medical “mercy-killing” has crossed a new threshold. Limits have increasingly been crossed over the years without any other check than an occasional remark on the part of the regional review committees required to assess every euthanasia act  reported to them. But besides being increasingly lenient – often, nothing is said against euthanasia for the mentally ill or for patients who are in the first stages of dementia – the committees’ decisions had never until now led to public prosecution and a full-fledged trial.

This means that more than 60,000 deliberate killings of patients by their doctors in the Netherlands since the law came into effect have for all intents and purposes been deemed legal insofar as they respected its six “stringent” conditions, which include deep and hopeless suffering and the absence of objective hope that the patient will improve. Of these, some 15 were performed on deeply demented patients.

Euthanasia is, however, still a penal offense and counts as murder when the euthanizing doctor is proved not to have followed the conditions set by law.

In the case of Dr. Catherina A., a number of troubling elements were pinpointed by the regional committee and received wide media attention. Most disturbing was the fact that her patient, a 74 year-old woman, was too far demented to be able to realize what was going to happen to her, and that during the act she struggled to prevent the doctor from giving her the lethal injection.

Following these reports in the media, especially when the public prosecutor decided a trial would take place, a certain reticence to provide euthanasia was remarked on among doctors.

The whole affair started with a written request for euthanasia on the part of a woman in her 60s, who had herself seen her mother live for 12 years with a hereditary neurodegenerative disease in a specialized institution. In her very explicit advance directives, the woman refused to find herself in the same situation and asked for euthanasia as a “right” should she be affected by the same illness.

However, her written instructions, which were repeated several times through the years, did contain some ambiguities, especially in the light of what was to follow. For example, she refused to be placed in a care institution for demented persons, requesting that euthanasia be “given” before that should happen. In a later directive, the patient’s “dementia clause” referred to “the dignified farewells” she wanted to be able to make to her relatives before obtaining euthanasia, “when I myself shall judge that the time has come,” she wrote.

Following a diagnosis of dementia in 2015, the patient experienced a rapid deterioration in her condition. At first, her husband who took care of her, but as her condition became more severe, she agreed to spend one day a week in a care home for people with dementia. She was finally placed there permanently, apparently without protesting, at the end of 2015.

However, when the implementation of her request for euthanasia was proposed to her in this institution by its leading doctor, with the approval of her husband and daughter, she replied several times: “No, not yet.”

However, she was disoriented, banging herself against the walls and shouting up to 20 times a day: “I want to die!” She no longer recognized herself in a mirror, she was totally incontinent and moreover, as the judge who presented the sentence of acquittal of the doctor who killed her would reveal, she caused real problems for the medical and nursing staff at the home because of her behavior.

Faced with this situation, Catharina A., the doctor in charge of the specialized institution – now retired – thought that it might be necessary to take action, all the more since her patient’s husband and daughter agreed. The doctor took all the steps required by law, including consulting two doctors specializing in euthanasia request evaluations  -- “SCEN” doctors, who agreed that the patient could be euthanized. But she refrained from putting the question to the patient herself, and had done well to not do so, to avoid possible “agitation,” the judges noted in their decision.

On the woman’s fateful day, Catherina A. gave the patient a sedative in her coffee – something the law does not provide for. Everything seemed to be going smoothly when the woman who was going to be put to death suddenly woke up, and seeing her doctor approaching with a syringe, began to struggle vigorously. Her husband and daughter came to the rescue to immobilize the demented woman, who was duly injected with lethal drugs and promptly died on April 22, 2016.

As required by law, in order to avoid any further proceedings, Dr. Catharina A. called the municipal forensic officer to establish the death and register the euthanasia, with a view to forwarding the file to the regional evaluation commissions, which subsequently judge the conformity of each such act.

Clearly, the victim had struggled, without having had the opportunity to accept or refuse her own killing. The regional commission raised a number of questions and finally, in December 2018, the Dutch public prosecutor decided to order a court trial. The doctor, for her part, repeatedly stated that a written request for euthanasia can be applied if well-defined circumstances are met, and that it remains valid even in cases of severe dementia. She added that in this situation, it was totally useless to ask the patient for her opinion, because in any case she could no longer reasonably express it.

It should be noted that the vast majority of Dutch doctors, even if they are generally in favor of the law decriminalizing euthanasia, are more than reluctant to put to death a patient who is unable to understand what is happening or to verbally reiterate advance directives at the supreme moment. As noted before, this reluctance has increased on the part of doctors since the 2016 case, which had been widely publicized, and more and more patients are being referred to the End-of-Life clinic that specializes in difficult cases.

This situation is certainly not agreeable to those who are looking to manage the difficult and socially costly problem of great dementia through euthanasia. If the number of public reunions held in Dutch towns to inform the population about the possibility of euthanasia in case of dementia can be considered to be a clue, there is certainly pressure in that direction.

On the one hand, the Dutch association for the "right" to euthanasia, the NVVE, has long argued, basing itself of the letter of the law, that there is no legal requirement that the request for euthanasia be repeated at the time of its administration since the law itself allows for advance directives. The “problem” comes from the refusal of doctors. These directives increasingly put demented people to death “in advance,” so to speak, while there is still time to obtain their informed consent before their condition is expected to worsen beyond control. This type of euthanasia has been increasingly performed in the Netherlands for the past decade.

As mentioned earlier, there have been about 15 known cases of euthanizing people with advanced dementia in more recent years. In this situation, euthanasia is generally administered by a doctor from the “End-of-Life Clinic,” which recently was renamed “Euthanasia Expertise Center.” One of its doctors - Constance de Vries, who has administered more than 100 euthanasia injections – explained before the trial that she is ready to “give euthanasia” to people who can no longer give their consent, provided that she has been personally able to verify that they are unhappy and suffering. If they are not visibly suffering, she told the media, she would not implement their advance directives.

The commissions for the evaluation of euthanasia, for their part, called for greater clarity and legal certainty, in an approach in which it is difficult not to see a desire to make the use of euthanasia even more commonplace by giving doctors more “security” when performing such an act.

In fact, while the prosecution decided to try Catharina A. for her controversial act, it was stated from the outset that no penalty would be demanded against her.

The Hague Court did “better” – from the point of view of those who support the murder of the elderly, the handicapped, the suffering, the mentally ill – in that it entirely agreed with the doctor. Yes, the Court judged, it would have been absurd to require that she had a conversation with a patient who would not have understood anything about it anyway. By asking her relatives, by observing her own behavior, by personally deciding that the suffering of this patient was hopeless, she perfectly fulfilled the requirements of the law, the judges said – even if that meant sedating the patient and then pinning her down.

There is “no legal obligation to verify the present living or death wish” of the patient, the ruling said. It is enough that the death wish was “clearly and seriously” expressed in the past. The doctor “should then form his or her judgment on the grounds of the patient’s medical file and concrete situation,” while also consulting the patient’s near and dear ones and former health carers, the judgment read.

In practical terms, this boils down to saying that a deeply demented person who no longer understands what “euthanasia” and perhaps even “death” really mean can be killed if in his or her doctor’s opinion unbearable suffering is present. In the current case, the fact that the victim (but the judgment never uses the term) showed resistance is considered immaterial since she had no understanding of the situation in any case.

While administering a sedative is not provided for within the law, the judges decided that if that is what it takes to administer euthanasia “in the most comfort possible for the patient,” the euthanasia act will still be considered “careful,” especially when “unrest, agitation or aggression” is to be expected.

Could this lead to abuse? If the mainstream media in the Netherlands are to be believed, everything is fine now and at last doctors have more clarity about the law, which, according to the judgment, was lacking in precision and needed to be completed. Only a  handful of politicians condemned the decision.

The judges also openly regretted that Catherine A., who had acted “conscientiously,” going to great lengths in order to fulfill the “careful euthanasia” requirements, should have been put through the pain of a legal trial.

All this means that a deeply demented person is legally no longer considered as being him or herself. No right of self-expression is recognized, and it is up to the doctor to determine the degree of suffering that will justify, or not, the administration of a lethal dose of drugs. Here a human being is in fact being treated as an empty envelope whose animal reactions are observed to decide whether or not to put “it” down.

As to the meaning of human suffering, it has been completely set aside.

The regional review commissions reacted favorably, noting that the decision will from now on lead them to “contextualize” their assessments rather than to focus on advance directives.

To date, the public prosecution has not appealed the decision.

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