Thus the current legislation simply ratifies what Dutch practice has been, but with a few new elements. There are two general provisions: first, that the physician reports the death to the coroner with the cause listed as euthanasia or PAS. The case can then be reviewed to determine if the proper procedure has been followed. Second, the physician must practice due care, the requirements of which are identified as follows: the physician has the conviction that the request is voluntary and well considered and, further, is convinced that the patient is facing interminable and unendurable suffering; the patient is informed of this situation; both physician and patient are convinced that there is no other reasonable solution; other physicians have been consulted and have validated the process in writing; the physician has helped the patient to die with appropriate medical care.
Of these requirements, two are of particular interest. The first represents a shift from previous criteria in that the traditional criterion of a terminal illness is now eliminated. The new phrasing is “interminable and unendurable suffering.” While suffering has always been among the criteria, it has been understood to be a consequence of terminal illness. The significance of this shift is critical, for now the door is open for euthanasia or PAS on psychiatric grounds. Thus someone whose unendurable and interminable suffering comes from a mental condition is as qualified for euthanasia or PAS as is someone dying from cancer. Of course this is not new in the Netherlands. The new legislation just formalizes current practice. The issue of the competence of a patient in such cases is left unresolved.
A second requirement has to do with consent. What is to be done with minors who request euthanasia or PAS? The legislation identifies the age of 18 as the legal age of consent. But the legislation fine-tunes this in two ways. First, while it recognizes that children aged 16 and 17 can make their own decisions, parents must be involved in the decision-making process. Second, for children 12 to 16, parents’ approval of euthanasia or PAS is required. While euthanasia of infants has been documented, this new legislation opens the door for greater application to a younger group.
One issue I find interesting in these developments is that they are occurring in a culture that is still relatively homogeneous and that has an excellent medical system in place. Although the seeds of a pluralistic society are at work in Holland, the culture is still reasonably unified. Anyone who wants a family physician can have one, and one can develop a very good and long-lasting relationship with that physician. These are two critical background conditions that make possible a relatively structured conversation on the topic in Holland—conditions that do not exist in the United States with its pluralistic culture and inadequate health care system.
How would the Dutch system work here? The common assumption in the United States is that the market will solve medical problems—hence the rush to H.M.O.’s. The fact is, such an assumption is wrong—hence the financial marginality of many H.M.O.’s. It might appear utterly cynical to say that euthanasia and PAS in the United States would fit in perfectly with a monetary medical policy driven by cost-benefit analysis. But perhaps, when one reviews the current practice of diagnostic related groups, capitation funding and bonuses for physicians and H.M.O.’s coming in under budget, the observation is not cynical but all too appropriate and alarming. Euthanasia and PAS cannot be discussed in isolation from the crisis in medical care in our country, particularly if these practices will be promoted as medical therapy for psychiatric disorders.
To consider euthanasia and PAS for psychiatric reasons opens many critical and problematic doors. One is the competency of the mentally ill, which raises very difficult questions about theories of mental illness, understandings of competence, the possibility of paternalism and the role of families in decision-making, to name just a few. Then the examination of competency will be extended to adolescents—as it has been in Holland. And then there is the extension of the practice of euthanasia to infants—also as it has been done in Holland. These are topics that have not received much discussion in the United States. The problem of extending euthanasia or PAS to these other groups cannot be separated from the larger discussion of adult use and will complicate the discussion tremendously.
Of course PAS has been legal in the state of Oregon for several years, and a few hundred people have availed themselves of this option. Published reports and studies by the state claim no abuses of the procedure have been discovered. But the availability and status of end-of-life care—not only in Oregon but elsewhere—must be part of the discussion. Is appropriate end-of-life care, such as a visiting nurse program, nursing home or hospice palliative care available to the dying? Or will it become the assumption that euthanasia or PAS will serve as the main form of end-of-life care? It is one sort of ethical question when euthanasia or PAS are part of a much larger system of medical care that includes appropriate end-of-life care, and quite another when they are the default position. While the United States has an excellent system of rescue medicine, the track record on end-of-life care is rather poor. We seem willing to spend millions to delay or prolong death using the most sophisticated medical technologies, but unwilling to put money into hospice care or even appropriate training for pain management. The question of euthanasia and PAS does not stand alone; it is part of a larger discussion of the provision of health care in the country, a debate we continue to avoid.
Unfortunately death comes to us all—by accident, illness or simply from old age. But now death comes by injection or pill, thus blurring the distinction between a healing injection of medication or taking a pill prescribed to cure an illness. The role of the physician is also blurred: healer or killer, the one who seeks to cure or the one who terminates the patient in order to end suffering. The clear and active involvement of the physician in euthanasia or PAS marks a distinct shift in the traditional role of the physician. And while traditional roles should not be upheld for their own sake, we might think a little longer when the consequences of such a shift are indeed lethal.
This is not an argument that a physician must extend life as long as technically possible. The Catholic tradition, for example, presents an extraordinarily wise approach to the dangers of overtreatment and the legitimacy of terminating treatment. The tradition knows that ultimately one must step aside and not prevent the final great transition of life. But this tradition also recognizes the dangers of letting others determine when this is to be. The tradition also knows that such decisions bring with them many value judgments about quality of life and perceptions of the social value of the patient. Death on our own terms is fraught with moral ambiguities. Euthanasia and PAS may be too simple and simplistic a resolution of these problems.