Crushing resistance - one clause at a time

For those tempted to the thought that a euthanasia or assisted suicide law, once passed, is cast in stone, never to be changed, recent events in Belgium should make you think again.

Not only has the statute been subject to continual re-interpretation to the point where euthanasia for psychological reasons is now taking place, the parliament has also debated and passed an amendment to the 2002 law only two years ago that removed the lower age limit to now include children. In light of further and more recent events, it seems that change may be just around the corner once again.

How does all this happen? While the words of a statute may stand, the conversation about interpretation never ceases. This is not necessarily evidence of some sinister plot by a person or group continually agitating for change. It is most likely simply the fact that while the lines may have been drawn at a certain place at a certain time, medical issues are rarely that neat and what may be a clear line in theory may well be somewhat blurred in practice. Add to that the possible sense of pressure on doctors, on the family, on the person themselves and even the ideal of informed consent will seem less important.

It is simply not possible to construct a law that can defy and resist these pressures. That such pressures are extended and amplified by those whom we might call 'euthanasia enthusiasts' adds to the certainty that the story of the Belgian experiment with euthanasia is far from finished.

Consent has been a tricky business in Belgian euthanasia law since the beginning in 2002. Section 4 of the statute deals with making a request for euthanasia via an Advanced Care Directive. As with all advanced directives, the intention is that the document gives directives about the persons wishes should they ever lose capacity to determine for themselves.

The problem with this type of direction are numerous. My primary concern is that the acceptance of such a document circumvents the mandated and most sensible role of the doctor in confirming that a request was made voluntarily, with fully informed consent and with sound mind. The Belgian law sunsets an advanced request for euthanasia after five years. In other words, if the advance request was made in the proper form more than five years ago and the patient now loses capacity, the request for euthanasia cannot be acted upon.

This may be about to change, Former deputy prime minister and minister of social affairs and public health in the Di Rupo government (2011 – 2014) Ms. Laurette Onkelinx (Socialist Party) tabled three euthanasia private members bills on the 23rd of February. The first bill addresses this issue of advance directives and the five-year sunset clause.

Making a euthanasia request via an advance directive circumvents the very minimal checkpoint of a doctor's assessment as to capacity at the time the directive is completed. Professor Xavier Dijon writing in the Belgian press reflects that the original five year sunset provision had the intention of providing a point where the person would review their intentions; it was about the patient renewing their 'continued willingness'. Onkelinx contends that it is 'cumbersome' to have to conduct a five yearly review. Without it, however, a doctor may be asked to euthanase based on decisions made decades ago. Onkelinx's amendments allow for the person to stipulate their own review time period; of course, no time period is included as an option and will quickly become the default, as is the intention.

The second bill is less clear, more objectionable and deliberately subversive. The explanatory clause says: amending the Act of 28 May 2002 on euthanasia and setting a deadline, for the doctor to answer a patient's request for euthanasia, and to share, and transmit medical records to a colleague if he refuses to accede to this application (my rendering of the French).

The extant provisions (Section 14) do not define a time period for the doctor to respond to a person's request for euthanasia nor for the transmittal of the medical file to another doctor if the first doctor refuses (either on medical or personal grounds). But get this: the law as it stands leaves the finding of an alternate doctor to the patient or their advocate, thereby not putting the first doctor in a situation where he or she might be morally compromised. (The bill says: 'physician designated by the patient')

Onkelinx's amendment stipulates that the doctor must respond to a patient request within seven days and, if that response is to refuse euthanasia, he or she must transmit the file to another doctor within four days. This is not unreasonable if one accepts the validity of euthanasia given that leaving the question unanswered for an extended period of time may create anxiety; or so the argument goes.

However, and again as Dijon observes, the creation of a time limit may well be designed to stop doctors continuing a conversation with their patient with a view to helping them through whatever emotions or difficulties that have brought them to request euthanasia and towards options less drastic.

There is also a devil in the detail. Onkelinx's second amendment does away with the explicit protection of the doctor's rights to conscientious objection in respect to a referral. Onkelinx's second amendment reads (literal translation):

'to paragraph 5, the words "to communicate the file patient medical doctor designated by the patient or the person of trust" is replaced by words "transmit within four days of the formulation refused, the patient's medical record to another doctor acceding to his request for euthanasia. "'

The onus of effort is thereby shifted from the patient or the patient advocate being required to find a doctor who will conduct the euthanasia, to the doctor who has refused. The doctor is thereby co-operating in the act of euthanasia. For many doctors, this will be a bridge too far; a compromise that they cannot make. While the amendment stops short of mandating formally that the refusing doctor finds a euthanasing colleague, the removal of the phrase 'doctor designated by the patient' clearly implies as much and I would be certain that this will be the case.

Dijon's thesis is that this is all about removing the final boundaries to euthanasia in Belgium. The third bill confirms these suspicions that this is all about knocking down the last remaining resistance to euthanasia in the persons of non-compliant doctors and non-compliant medical service providers.

(...) I commented at the time that I smelt a rat: The euthanasia did ultimately occur in another place, there was little or no inconvenience and the death happened four and a half years ago. So why all the fuss?

In January, the family's lawyer, Sylvie Tack (who, incidentally has a close working relationship with pro-euthanasia bigwigs and who is giving testimony in support of this bill to the parliament) told the press that, "The new Act states that doctors and staff who are involved in the euthanasia, can have conscientious objection. But the health care institution itself should not interfere with it themselves." However, the law, to this point in time, is silent about institutions. Hence Onkelinx's bill.

Onkelinx's intention in this third bill is clearly to stop any institution from saying no to euthanasia. However, rather than simply amending the law to reflect this fact (a motion that, I suspect even in Belgium, may not pass) she has flipped the issue on its head saying that: 'To the extent necessary, the authors of this bill clearly state this principle: no doctor can neither be forced nor prevented perform euthanasia in the law, where he exercises.' In short, if a doctor is approved to practice medicine in a Catholic hospital or nursing home he is free to exercise his conscience by killing his patients in that place and no one can interfere. Onkelinx refers to this as, 'to ensure the conscience clause.' Never mind the fact that in her second bill she clearly intends to undermine recourse to conscience. Never mind that claiming that preventing a doctor from killing a person in a hospital or nursing home causes him or her a conflict of conscience is simply farcical.

These last two bills seem to stand in contrast to Resolution 1763 of the Parliamentary Assembly of the Council of Europe on The right to conscientious objection in lawful medical care: "No hospital, institution or person may be subject to pressure, be held liable or suffer discrimination of any kind for refusing to perform, allow or assist an abortion, an induced miscarriage or euthanasia, or submit to, or for refusing to perform any act ...whatever the reasons."

But that alone is no guarantee that these bills will fail; far from it. The only thing for certain is that there is deep outrage amongst euthanasia enthusiasts that there remain some small pockets of resistance. They will not be satisfied until every last bulwark is destroyed.

Paul Russel is Director of HOPE, preventing euthanasia & assisted suicide - Australia