June 8, 2023

What counts as evidence? a uniquely valuable analysis of a Belgian criminal case involving euthanasia

Marc De Hert, Sien Loos, Sigrid Sterckx, Eric Thys & Kristoff Van Assche, Improving Control Over Euthanasia of Persons With Psychiatric Illness: Lessons from the first Belgian Criminal Case Concerning Euthanasia, 13 Frontiers in Psychiatry (2022).

Determining what is reliable evidence seems particularly politicized and contentious in the context of physician-assisted-suicide [PAS] and euthanasia. In jurisdictions where its legalization is debated, opponents often illustrate critical interpretations of official, largely self-reported data with media-reported cases, which legalization advocates tend to trivialize as “anecdotes.”

Prior to Canada’s rapidly expanded euthanasia practice, data and media reports in Belgium and the Netherlands, which have euthanasia laws going back to 2002, used to be at the center of this debate. Official review committees in those countries rarely if ever identify serious problems with a practice that now involves around 3% (Belgium) to 5% (Netherlands) of overall deaths. Some legalization advocates see this as a confirmation of the practice’s safety.

The “not-guilty” jury-verdict in the only Belgian criminal trial ever launched against doctors for their involvement in a reported euthanasia case could be seen as a vindication of the claim that even in the contentious context of mental illness, the system works. In Improving Control over Euthanasia of Persons with Psychiatric Illness: Lessons from the first Belgian Criminal Case Concerning Euthanasia, Belgian scholars Marc De Hert, Sien Loos, Sigrid Sterckx, Eric Thys and Kristoff Van Assche convincingly show us why this is wrong.

Their analysis is based on evidence presented during the trial, which took place in the Dutch-speaking region of Belgium, and on extensive Belgian media reports. In addition to analyzing the case, the article describes the Belgian euthanasia law and sketches the evolution of the “psychiatric euthanasia” practice in both Belgium and the Netherlands, which took off around 2010.

The case involved a young woman with a history of bipolar disorder who had, following her euthanasia request, been diagnosed with Asperger Syndrome [AS], and shortly after euthanized. The case provoked much debate about euthanasia for mental illness when it was first publicized in 2016. Criminal prosecution was launched against the attending and two consulting physicians only after media exposure and pressure by family members. The case was often invoked as an illustration of how euthanasia practices were going astray in Belgium. The “not-guilty” verdict by a jury in the Ghent Court of Assize seemed to undermine that claim, even though the Court of Cassation annulled part of the verdict as insufficiently motivated, and remanded the case against one physician to a civil court.

The article not only documents problems with the Belgian law and review system, but also illustrates some of the unique challenges of permitting euthanasia for mental illness. It further provides an interesting study of the importance of detailed and critical case analysis in contentious areas of policy making.

The article should interest anyone working on end-of-life law and on mental health law, as well as those more broadly interested in the regulation of high-risk practices that leave much room for discretion to practitioners.

Worth emphasizing is that in euthanasia and PAS cases, the party most directly harmed is dead, making complaints less likely and production of evidence uniquely complex. Family members may be traumatized, with mixed feelings, perhaps even of guilt, for not having resisted and done enough to save their loved ones. Institutions or providers may use privacy laws to shield them from scrutiny, as is happening in Canada. A critical analysis of the very few cases that go to court, as the authors did here, is therefore uniquely valuable.

The authors document remarkable procedural violations not caught or considered problematic by the Belgian federal review committee. For example, the attending physician, who performed the euthanasia, did not have the expertise to determine key access criteria under the law (including the nature of the illness and the presence of irremediable suffering), only met three times with the patient in person, and had virtually no medical documentation on the patient.

The consulted psychiatrist, the authors note, was “among the psychiatrists generally most conducive” towards euthanasia for mental illness, since she was estimated to have been the consultant for one third to half of the psychiatric euthanasia requests in Belgium up to 2015. One can read in this factual statement a concern about forum-shopping and the overzealousness of some physicians.

The authors, who include two psychiatrists, also argue that basic standards of mental health care were not met. The article contains an interesting exploration of the challenge of determining the irremediability of mental illness. The authors discuss, for example, how “no evidence-based treatment whatsoever was tried for [AS],” notwithstanding an explicit legal duty to exhaust all available treatments in the Belgian and Dutch regimes.

This should particularly interest Canadian readers. Indeed, Canada’s “medical assistance in dying” regime, which is scheduled to include mental illness only in the future, but already appears to have provided access to patients because of mental illness, lacks this basic safeguard. The authors reveal how sloppy practices can result in the ending of life of patients who more likely than not would have recovered if alternative treatments had been adequately explored.

The authors’ criticism of the federal review committee is short and to the point. Several of the authors wrote earlier a thorough critique of Belgium’s law and review system, a critique which I have also voiced. Here they briefly describe how the review system works, and then show how it concretely failed.

Perhaps a reflection of how challenging it is to fully step back, once a practice is introduced by law, is how the authors emphasize that “by no means do we want to suggest that the physicians involved should have been condemned for murder.” Physicians who violate the procedural requirements of the euthanasia act will, in the future, even less likely be receiving severe penalties.

The Belgian Constitutional Court found recently, in response to a pre-judicial question in the ongoing civil procedure against one of the physicians, that the euthanasia law’s penalty for procedural violations, which is the same as for violating substantial requirements, is disproportionate and therefore unconstitutional. The authors further offer in their conclusion some examples of better clinical practice guidelines and better prior review, some of which have been developed by psychiatric associations in Belgium, which in their view could prevent such cases in the future.

Beyond documenting problems, the article provides a rebuttal to some of the claims about what counts as reliable evidence in this debate. When legalization of PAS was debated in Australia and New Zealand, one article supportive of legalization strategically advised to counter “media reports” from Belgium and to emphasize instead official data. Another article suggested that in contrast with media reports, court cases should be taken seriously; it placed the evidentiary value of court decisions based on adversarial presentation of evidence on par with the “gold standard” of medical evidence, i.e. at the top of the pyramid of evidence.

This article documents how an official review system failed to identify even the most basic problems; how the family had difficulties in finding support for a criminal prosecution; how media reports can provide important information; and how, as anyone remotely familiar with the use of medical evidence in court already knows, meritorious claims often hit the wall, the quirks of the legal system being what they are.

The authors give us insight, based on the unique evidence of a specific case, into the shortcomings of a system that has inspired other jurisdictions, particularly Canada. Canadians will also be struck about the thoughtful discussion of how failures in mental health care arguably violated legal safeguards under the Belgian euthanasia law. In Canada, which went with its “medical assistance in dying” law in some crucial aspects beyond the Dutch and Belgian euthanasia laws, there would, remarkably, be no legal basis to find fault for failing to exhaust all standard treatments, prior to ending a life.

This article has been republished from Jotwell under a Creative Commons licence.

Trudo Lemmens