Court to determine dementia case

Is it OK to kill a person with dementia who does not want to die?

How vague can an advanced statement regarding euthanasia be and still be relied upon to justify killing a person with dementia?

These are the kinds of questions to which the common sense answers no longer seem to suffice once a jurisdiction normalises euthanasia and assisted suicide.

First prosecution of a doctor for euthanasia 

On 9 November 2018 it was announced by the Netherlands Board of Public Prosecutors that a “nursing home doctor who performed euthanasia in April 2016 on a 74-year-old demented and incapacitated woman, will be prosecuted. The Board of Procurators General has decided this on the basis of a criminal investigation. This is the first time that the Dutch Public Prosecution Service (OM) will prosecute a doctor for euthanasia since the introduction of the Act on Termination of Life on Request and Assisted Suicide in 2002. This case addresses important legal issues regarding the termination of life of dementia patients. To get these questions answered, the OM now presents this specific issue to the court.”

It is very indicative of how euthanasia is treated in the Netherlands that this case - where a woman with dementia was held down by family members after struggling to resist a lethal injection while the doctor killed her – is being prosecuted precisely so the court can answer two legal questions rather than so that justice can be served against the doctor who killed her.

For  Victorians, where assisted suicide is scheduled to become legal from 19 June 2019, it is relevant to consider that the only test of competence under the assisted suicide law will be carried out before the lethal poison is prescribed. There is no test of competence when it is administered and no requirement for a witness. A family member could easily administer the lethal poison to an incompetent or reluctant person - if they struggled who would know?

Review Committees finding

In this case (Case 2016-85) the Review Committees found that the doctor had not acted with due diligence in administering euthanasia to a woman with Alzheimer’s disease. The woman had made a general reference in a living will to wanting euthanasia at the “right time”. At the time the doctor euthanased her she was incompetent to voluntarily request it.

The doctor put medication in her coffee to reduce her consciousness deliberately so as to avoid her resisting being given drugs. Nonetheless she physically struggled against the administration of an intravenous lethal injection. She was physically restrained by family members while the doctor completed the administration of the lethal drugs.

Regional Disciplinary Court for Healthcare judgement

On 13 June 2018 the Regional Disciplinary Court for Healthcare in The Hague considered a complaint against the doctor brought by the Inspectorate for Health Care and Youth. The decision was published on 24 July 2018.

The Court found that the written declaration of intent was not sufficiently clear to justify euthanasia in this case. It also found that the doctor should have tried to discuss the execution of euthanasia with the patient beforehand.

“In view of the irreversibility of termination of life and the ethical aspects connected with the deliberate ending of the life of a fellow human being, a written euthanasia declaration must be unambiguous, not needing any further interpretation.”

The Court did not completely ruled out that ambiguities in a written declaration of intent could be removed (even in the case of a demented patient) if a patient is later unambiguous, consistent and tenacious (verbally or non-verbally) in his statements about wanting death. However, with this patient this was not the case because she sometimes said she wanted to die and sometimes not.

Despite its finding that the doctor had seriously breached the requirements for euthanasia it only imposed a reprimand on the doctor.

Criminal investigation and proposed prosecution

“After extensive investigation, the public prosecutor also came to the conclusion that the nursing home doctor had not acted in accordance with the legal standards. The public prosecutor considers it important that the court assesses whether the doctor was entitled to rely on the living will completed by the woman. In addition, the OM reproaches the physician that she assumed that the woman still wanted to die without verifying this with the woman. Although the woman had regularly stated that she wanted to die, on other occasions she had said that she did not to want to die. In the opinion of the OM, the doctor should have checked with the woman whether she still had a death wish by discussing this with her. The fact that she had become demented does not alter this, because the law also requires the doctor to verify the euthanasia request in such a situation. These two legal questions on the termination of life of people suffering from dementia justify the submission of this case to the criminal court judge.

It is not yet known when the case will be heard by the District Court of The Hague.”