Every once in a while, a bioethics article appears which is so powerful an indictment of injustice that it sends shivers up the spines of its readers. In 1949 Leo Alexander published “Medical Science under Dictatorship” in the New England Journal of Medicine, about Nazi medicine. In 1966 Henry K. Beecher published “Ethics and Clinical Research”, also in the NEJM, whose bland title belied its searing message about ethical catastrophes in contemporary American medicine.
“Euthanasia in Belgium: Shortcomings of the Law and Its Application and of the Monitoring of Practice” just published in the The Journal of Medicine and Philosophy may not be as sensational as these landmark articles, but it gives them a run for their money.
Since 2002 euthanasia in Belgium and the Netherlands have been models for legal reform. Canada has followed it. Portugal is about to. In Belgium it accounts for an estimated 2.4% of all deaths, and much more in Flanders, the Dutch-speaking section of the country.
Yet the authors of the JMP article basically argue that Belgian euthanasia is broken ethically, administratively and legally. Its scope is ever-widening and the safeguards are failing. The commission in charge of overseeing doctors’ compliance with the law is ineffective or even complicit in a pro-euthanasia agenda. To document its stunning claims, it draws not on newspaper scandals but on thoroughly researched academic research over the past 20 years and the reports of the control commission itself.
The authors, Kasper Raus, Bert Vanderhaegen, and Sigrid Sterckx, all associated with Ghent University, make three main assertions.
“First, the scope of the Euthanasia Law has been stretched from being used for serious and incurable illnesses to being used to cover tiredness of life.” Under the 2002 Belgian law, euthanasia for “tiredness of life” is not permitted. But doctors can circumvent the law by diagnosing “polypathology”– a jumble of ailments which nearly every elderly person has. – and this is sufficient for euthanasia. This represented 19.4% of all reported euthanasia cases in 2019 and a “staggering” 47% of all reported nonterminal cases.
“Second, the obligatory consultation of one or two independent physicians may fail to provide a real safeguard. Their tasks are quite limited, and, more importantly, their advice is not binding anyway. The final authority to perform euthanasia lies with the attending physician who can perform it even against the (negative) advice of the consulted physicians.”
Here is one example of how the system can be gamed. If euthanasia is requested for a psychiatric condition, a psychiatrist should be consulted. However, if the patient has another condition, it can be redefined as “polypathology” and a GP can approve it, eliminating the need for a psychiatric consultation.
Third, “The Commission is unable to check the fulfilment of various legal criteria, and it has substantial authority to (re) interpret the Euthanasia Law as it sees fit.” In fact, “the Commission does not seem to act as a filter between physicians who perform euthanasia and the Public Prosecutor, but instead as a shield that prevents potentially problematic cases from being referred.”
Conflict of interest is baked into the composition of the 16-member evaluation committee. Eight of them must be doctors and many of them, including the chairman, Wim Distelmans, perform euthanasia regularly. So they end up checking each other’s files for irregularities. They are supposed to recuse themselves if one of their own cases comes up – but they don’t.
Nothing illustrates the ineffectiveness — or connivance — of the Commission better than its track record. In the 18 years since legalisation, it has only referred one case to the Public Prosecutor. And this case had been filmed by an Australian broadcaster and was so obviously in breach of the law that referral was needed to keep up appearances. The doctor was acquitted.
The Commission consistently defends the smooth operation of the law, asserting that despite glitches here and there regarding “non-essential’ features, the “essential conditions” are being upheld. But the authors point that there is no legal ground for this distinction. The Commission is arrogating to itself legislative powers which it does not have.
Policy-makers and politicians in Belgium ought to be horrified by the abysmal working of their country’s euthanasia law documented by these academics. But the authors are not optimistic. They conclude by saying that whether anyone will take them seriously remains to be seen.
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