Liselotte Postma graduated from Erasmus School of Law with her dissertation titled: ‘Maybe it was too early’. In her dissertation, published by Boom Juridisch, Postma investigates whether the regulation of art. 2 paragraph 2 (Wtl) is an adequate modality for the termination of the life of a patient who is now incompetent, by a doctor based on a written advance will.
Euthanasia is punishable unless it is executed by a doctor with observance of the six due care criteria included in the Wtl, and the doctor reports his actions.
Competent versus incompetent
Since 1 April 2002, in addition to the ‘standard situation’; termination of life at the request of an incapacitated patient who is suffering hopelessly and unbearably from a somatic illness, it has also been legally possible for doctors to comply with a written request for euthanasia from a patient that is no longer capable to communicate his will in the form of a previously prepared written statement. The due care requirements from the standard situation apply to this by analogy.
The question, however, is whether the doctor can still meet the due care requirements in the event of euthanasia for the patient in this situation, such as the conviction that the request is voluntary and will-considered, of unbearable suffering and the determination ‘in consultation that reasonable other solutions are involved. Postma examined this friction within the law from the perspective of criminal consequences based on the drafting history and assessment practice (including the ‘koffie-euthanasie’ case).
Legislative change to protect both doctor and patient
The investigation shows that for euthanasia based on a written statement, the current designation ‘applicable by analogy’ in art. 2 paragraph 2 Wtl is insufficient. Regulation and application of the advance directive euthanasia require rules and standard that are tailored to the situation. "Euthanasia based on a written advance directive can remain possible based on the law, but it will have to make do with the ‘presumption of an explicit and serious desire to end life’ at the time of termination of life". According to Postma, "this may be legal from a legal point of view, but it does entail requirements and criteria that are missing from the current law."
Postma concludes that this scenario deviates from the ‘standard situation’ to such an extent that it requires alternative rules and procedures to bridge the core problem; the absence of consultation with the patient about the due care criteria. Not only to support the doctor but also to guarantee the protection of the fundamental right to life of the vulnerable patient who is not or barely able to express his will.
- More information
Read the complete study here.
