On Regulating Death

In January 1989 the Hastings Centers Reports Special Supplement on euthanasia carried an article by Dr. Richard Fenigsen, a Dutch cardiologist, that was scathingly critical of the law and practice of euthanasia in the Netherlands. Fenigsen alleged there was ample evidence of the practice of euthanasia without consent and that it was both "widely accepted" and "openly supported." He concluded: "Those who contends that it is possible to accept and practice |voluntary' euthanasia and not allow involuntary totally disregard the Dutch reality." By contrast, in a following article the director of the Dutch Health Council, Henk Rigter, sought to defend the Dutch euthanasia experience. He maintained that euthanasia was regulated by "strict" guidelines which had been "precisely defined" by the courts and elaborated upon by the Royal Dutch Medical Association (KNMG) and that there was simply no evidence of the practice of involuntary euthanasia. Moreover, in a letter to the Report's editors the following November, a number of Holland's leading experts in medicine, law, and ethics asserted that Rigter's assessment was correct, berated Fenigsen's paper as "completely misplaced," and deplored its publication. What, then, is the reality of the Dutch experience of euthanasia? Carlos F. Gomez's Regulating Death: Euthanasia and the Case of the Netherlands should help to provide a reliable answer.(1) The book presents the results of his substantial study, involving empirical research in the Netherlands. This article examines Regulating Death and attempts to determine the extent to which it provides an accurate assessment of the situation in the Netherlands. Gomez's Critique Eschewing the wider philosophical debate generated by euthanasia, Gomez, an American doctor, addresses the narrower issue of how permissible euthanasia would operate in practice and how it would be controlled. "How," he asks, "will we assure ourselves that the weak, the demented, the vulnerable, the stigmatized - those incapable of consent or dissent - [will] not become the unwilling subjects of such a practice? (p.xiv). He notes that although the Netherlands is often cited as a model of how euthanasia can safely be permitted, there is a dearth or research into the Dutch system and thee efficacy of its regulatory mechanisms. Seeking to remedy this deficiency, he aims "to describe and assess the practice of euthanasia in the Netherlands" and, more specifically, to consider "how the Dutch courts, legislature and professional medical organizations have responded to the need to control a practice that even its most ardent supporters concede carriers many dangers" (p.xv). The first chapter addresses the tension between accommodating a patient's desire for euthanasia and protecting thee vulnerable. Private acts, he stresses, can have public consequences; private acts involving public institutions, such as the medical profession and the institutions in which it works, necessarily have public limits. He argues that a private claim on a public good needs a fuller justification than is contained in a simple expression of preference. "At the very least," he maintains, "we have to demonstrate that our claim does not interfere with the equally valid claims of others on the good or, alternatively, that by meeting our private claim, a public institution does not diminish or damage its ability to serve the broader needs of others" (p.10). The extent to which the Dutch have formulated a public policy that permits euthanasia while protecting both the interests of patients as a whole and thee bond of trust between doctor and patient is the subject of the following chapters. Chapter two traces thee gradual development by the courts of the criteria for permissible euthanasia, beginning with the decision of a district in 1973 and calculating in a decision of the Supreme Court in 1984 in the Alkmaar case. Gomez points out that while the courts have held it an offense contrary to Article 293 of the Penal Code to kill a person at his request, a doctor charged under this article can successfully plead the defense of necessity (overmacht), contained in Article 40. …