Title:

A role for doctors in assisted dying? An analysis of legal regulations and medical professional positions in six European countries

Authors:Georg Bosshard MD, MAEa, Bert Broeckaert PhDb, David Clark PhDc, Bert Gordijn PhDd, Lars Johan Materstvedt PhDe,c, H Christof Müller-Busch MD, PhDf

a Institute of Legal Medicine, University of Zurich, Switzerland

b Interdisciplinary Centre for Religious Studies, Catholic University of Leuven, Belgium

c International Observatory on End of Life Care, Lancaster University, United Kingdom

d Department of Ethics, Philosophy and History of Medicine, Radboud University Nijmegen Medical Centre, The Netherlands

e Department of Philosophy, Norwegian University of Science and Technology, Trondheim, Norway

f Department of Palliative Medicine, Gemeinschaftskrankenhaus Havelhöhe, University Witten/Herdecke, Berlin, Germany

Correspondence:Dr Georg Bosshard, Institute of Legal Medicine, Winterthurerstrasse 190 / Bau 52,8057 Zurich, Switzerland.Phone: +41 44 635 56 27, Fax: +41 44 635 68 51, Email: bosh@irm.unizh.ch

Copyright and exclusive licence: The Corresponding Author has the right to grant on behalf of all authors and does grant on behalf of all authors, an exclusive licence (or non exclusive for government employees) on a worldwide basis to the BMJ Publishing Group Ltd and its licensees, to permit this article (if accepted) to be published in JME and any other BMJPG products and to exploit all subsidiary rights, as set out in BMJ Publishing Groups’ licence (http://jme.bmjjournals.com/misc/ifora/licenceform.shtml)

Key words: end of life; euthanasia; assisted suicide; professional role

Word count main part: 2780 words (without abstract, tables, references); web extra: 2400 words

1

Abstract

Objectives: To analyse legislation and medical professional positions concerning the

doctor’s role in assisted dying in western Europe, and to discuss their implications for

doctors.

Method: This paper is based on country-specific reports by experts from European

countries where assisted dying is legalised (Belgium, Netherlands), or openly practiced

(Switzerland), or where it is still illegal (Germany, Norway, UK).

Results: Laws on assisted dying in the Netherlands and Belgium are restricted to

doctors. In principle, assisted suicide (but not euthanasia) is not illegal in either Germany

or Switzerland, but a doctor’s participation in Germany would violate the code of

professional medical conduct and might contravene of a doctor’s legal duty to save life.

The Assisted Dying for the Terminally Ill Bill proposed in the UK in 2005 focused on

doctors, whereas the Proposal on Assisted Dying of the Norwegian Penal Code

Commission minority in 2002 did not.

Professional medical organisations in all these countries except the Netherlands

maintain the position that medical assistance in dying conflicts with the basic role of

doctors. However, in Belgium and Switzerland, and for a time in the UK, these

organisations dropped their opposition to new legislation. Today, they regard the issue

as primarily a matter for society and politics. This “neutral” stance differs from the official

position of the Royal Dutch Medical Association which has played a key role in

developing the Dutch practice of euthanasia as a “medical end-of-life decision” since the

1970s.

Conclusion: A society moving towards an open approach to assisted dying should

carefully identify tasks to assign exclusively to medical doctors, and distinguish those

possibly better performed by other professions.

2

INTRODUCTION

There has been extensive debate on assisted suicide and euthanasia in westernised

countries during the last twenty years. At the same time, we have seen an increase in

the acceptance of assisted suicide and euthanasia (hereafter: “assisted dying” to cover

both phenomena) among the general public in most western European countries.1 In

several of them, corresponding political attempts have been made to change the penal

code.2 3 4 5 Such attempts have succeeded in the Netherlands and Belgium.6 7

An open practice of assisted suicide has developed in Switzerland over the last two

decades, based on the non-penalisation of unselfish assistance with suicide that exists

under Swiss law.3

The medical profession has traditionally maintained a clear distance from euthanasia

and assisted suicide. However, since there is active debate in many European countries,

and proposed or even enacted legislation in some places, it has become increasingly

difficult to justify such distance by simply referring to the law or to common sense

arguments against any assistance in dying. It does not make it any easier for doctors

that discussions in the media, courts, and legislatures often assume assistance in dying

to be exclusively a physician’s task.5 6 7 In order to avoid being overtaken by

possible political developments, doctors are challenged to either give specific reasons

why they should not be involved, or work out the role they could conceivably play if need

be.

This paper analyses legislation and, in particular, medical professional positions on the

doctor’s role in assisted dying in certain Western European countries. It follows their

development and discusses the implications for the doctors themselves.

3

METHOD

To provide an overview of the possible positions in the field, an approach taking

”country” as the entity for comparison was considered appropriate. Not only legal

regulations, but also medical ethical positions seem to develop in ways that are highly

country-specific. The country is still the most important predictor of doctors’ attitudes and

practices in the field of end-of-life decisions in Europe.8

We included countries where assisted dying has been legalised or is openly practiced

(Belgium, the Netherlands, Switzerland), and countries where it remains illegal or

otherwise banned from practice (Germany, Norway, the United Kingdom). An expert in

the field of assisted dying familiar with both the legal situation and the medical

professional position from each country was invited to join the research team. These

representatives do not necessarily agree on whether assisted dying should be allowed

or on the possible role of doctors.

Each participant was asked the following key questions:

(1) Is assisted suicide and/or euthanasia unpunished/legal in your country, or is there

any attempt to make it unpunished/legal? What is the (envisaged) role of the doctor in

this (proposed) law?

(2) What is the official position of the medical profession on assisted dying and on a

possible role of doctors in these practices? Has this position changed in any way in

recent years?

In this study, the term “assisted dying” includes both euthanasia and assisted suicide; in

keeping with common usage, “euthanasia” means only voluntary euthanasia.9

4

RESULTS

Legal situation with regard to assisted dying (table 1)

Although euthanasia and assisted suicide were illegal in the Netherlands until recently

(articles 293 and 294 of the Dutch penal code), both practices were tolerated by the

courts from the early 1970s. The Netherlands eventually became the first country in

Europe to formally depenalise assisted dying by a law (Review Procedure Act) that

came into force in April 2002.6 Belgium, where no relevant case law and no

established or regulated euthanasia practice similar to that of the Netherlands existed,

followed suit in September 2002, after having enacted a euthanasia law in May the same

year.7

In Switzerland, assisted suicide (but not euthanasia) is not illegal according to the 1918

penal code, provided assistance is given without any motives of self-interest.3 The

legal situation is similar in Germany where assisted suicide (but not euthanasia) is not

illegal in principle.2 However, unlike in Switzerland, in Germany assisted suicide may

legally conflict with a doctor’s or a relative’s obligation to save life. Both euthanasia and

assisted suicide are prohibited under the Norwegian Penal Code (articles 235 and 236)

dating back to 1902.4 The same holds true for the UK where even suicide was a crime

in England and Wales until 1961.5 The Suicide Act then decriminalised suicide but

retained the criminal prohibition of aiding and abetting.

Group targeted as assistants in dying by legislation or proposed bills (table 2)

Both the Dutch Review Procedures Act and the Belgian Euthanasia Law are restricted to

doctors by exempting these professionals from penal liability for assistance in dying,

provided certain criteria of due care are met.6 7

The non-penalisation of assisted suicide in the German and Swiss Penal Codes differs

in that it applies to everyone, be they doctors or not. In 2001, the Swiss Federal

Parliament confirmed both the current legal situation the activities of Swiss right-to-die

societies, in which both doctors and non-physicians participate in suicide assistance.3

In Germany, a group of legal experts recently proposed that doctors assisting patients in

suicide should not be censured or prosecuted, which in fact would mean that the legal

5

situation with respect to assisted suicide would become similar to that in Switzerland,

both in general and for doctors in particular.2

The most important attempt in the UK to change the legal situation, the Assisted Dying

for the Terminally Ill Bill proposed in the UK in 2005 and rejected by the House of Lords

in 2006, focused on doctors.5 10 In contrast, the 2002 minority Proposal on Assisted

Dying of the Norwegian Penal Code Commission – turned down by the Norwegian

Parliament in an unanimous vote in May 2005 – made no specific mention of doctors but

proposed a requirement that the patient be “terminally ill”.4

Medical professional positions (table 3)

The Royal Dutch Medical Association played a key role in developing the Dutch

euthanasia model from the very beginning, without expressing any major concerns as to

the compatibility of this practice with medical professional ethics.6 11 Allowing a role

for non-doctors was hardly ever seriously considered. An inquiry commissioned by the

Royal Dutch Medical Association recently concluded that individuals with no illness at all

could also qualify for assistance in dying, and that even in these cases doctors should

be the only ones to decide whether the “suffering through living” is great enough.12

In contrast, the Belgian National Council of Physicians found it difficult to establish an

adequate position when confronted with the rapid and radical legal changes in the field

of euthanasia in Belgium in the early 2000s. The reality of the new Belgian law was

finally accepted in an Advice of March 2003.13 Art. 95 of the Code of Medical

Deontology, which previously prohibited doctors from providing any assistance in dying,

was changed only in March 2006.14 In the revised Art. 95-98, the Code now mentions

the duty of the physician, on receiving a question regarding the end of life, to inform the

patient of the initiatives that the latter can take (including writing a living will covering

euthanasia) and includes a somewhat ambiguous statement that a doctor should provide

any medical and moral assistance required.

The Swiss Academy of Medical Sciences took a different route towards adopting a

“neutral” stance. The Academy maintains the basic incompatibility of assisted dying with

the role of the doctor, but today respects assistance in suicide as the doctor’s personal

decision in the individual case.15

Medical associations in Germany, Norway and the UK continue to strongly condemn

assisted dying in any form.5 16 17 In the UK however, the fact that both the British

6

Medical Association and the Royal College of Physicians of London for a time adopted a

neutral position to the Assisted Dying for the Terminally Ill Bill, but later backtracked and

again took a stance against legislation, shows how controversial the subject is, even

amongst doctors in this country.18 19

More details on the legislation and medical professional positions and their development

in the various countries, including additional references, can be found on

jme.bmjjournals.com.

7

DISCUSSION

Doctors between resistance and acquiescence

Faced with increasing public acceptance of assisted dying in Europe, corresponding

attempts to change the penal code, and actual changes of the law in some countries, the

medical profession mostly strives to prevent or to slow down the process. What is

occurring may be described as a power struggle: society wants the option of physician-

assisted death to be available, while the overwhelming majority of medical organisations

continue to view such assistance as incompatible with their codes of professional ethics.

Even so, there is no unanimity within the medical profession.20 Those specialists who

are most likely to be entrusted with assisting in death (e.g. oncologists, palliative care

doctors) are those who oppose the legalisation of assisted dying most strongly. In other

words, the conflict is essentially between those who want the option of assisted dying to

be available, and those who would be responsible for implementing it.2122

So far, doctors have been able to prevent any opening up in Germany, Norway, and the

UK. Nevertheless, the campaign debate for the Assisted Dying for the Terminally Ill Bill

in the UK was powerful enough to cause the British Medical Association and the Royal

College of Physicians of London to waive their opposition for a while.1819 And at the

moment there is considerable pressure on the German Medical Association arising from

the proposal of a group of legal experts that doctors assisting patients in suicide should

neither be prosecuted under criminal law nor censured by medical professional ethics.2

In the last few years, Swiss and Belgian doctors gradually acquiesced in what had

already been legally condoned or established as a new legislation in a democratic

process, respectively. The process of acquiescence is particularly impressive in

Belgium, where legal changes made in direct opposition to the official medical ethical

position presented the medical profession with a fait accompli. The Belgian National

Council could do nothing more than state: “When in a democratic state a law [on ethical

issues] is established and this law respects the freedom of conscience of each

physician, the existence of this law cannot be ignored by a public institution such as the

Order of Physicians.”13 In Switzerland, too, the Swiss Academy of Medical Sciences

was forced to moderate its statement that “assistance in suicide is not a part of a

doctor’s activity” so that assistance in suicide in individual cases now has to be

8

respected as the doctor’s personal decision.14

Only in the Netherlands do we find almost complete symmetry between what the law

conceives as the medical profession’s role in assisted dying and the official view of the

profession itself. However, evidence from the Netherlands suggests a continuing

unwillingness of doctors to report cases of such assistance to the authorities, and a

return to practices such as terminal sedation that are accepted as normal medical

practice and do not need to be reported to the authorities.23

9

Keeping out or being the experts?

Open regulation of assisted dying brings doctors into a basic conflict. On the one hand,

many doctors do not wish to have anything to do with a practice that they regard as

incompatible with professional ethics. On the other hand, once opening up seems

inevitable, they want to introduce the safeguards they deem necessary. The more they

get involved in these discussions, however, the more they are drawn, albeit unwillingly,

into the role of experts in a field that extends far beyond medicine. Utilisation of that

exclusive expertise is exactly what is presupposed in much legislation and proposed

bills.5 6 7

Should this role be taken on without modification by the medical profession, it would lead

in the direction of the Dutch model where euthanasia and assisted suicide have been

socialised within the medical profession as just another “medical end-of-life

decision”.24 However, such a role for the medical profession seems particularly

inappropriate if, as has happened in the Netherlands, the indications for assisted dying

are progressively extended.12 Requests to die in cases of “suffering through living” can

be seen either as a strictly personal matter or as a social issue, i.e. something that

society has a duty to deal with. But as these individuals do not suffer from any medical

condition at all, or at least not from any severe illness, it is difficult to justify the view that

their plight is a medical matter. There is hardly any argument why doctors should have

more expertise in such cases than other professionals.

However, it has been suggested that open regulation of assisted dying could also be

implemented by establishing a suicide service outside clinical care, run by a designated

interdisciplinary team.25 This model, in which non-penalisation of assistance in dying

would be restricted to these specialised services rather than to any one profession,

could ensure competent assessment of the person wanting to die according to standard

regulations agreed on by the public through a political process. Any role conflict for

clinicians faced with a patient’s request for assistance in dying would thereby be

avoided, as their role would be clearly confined to openly discussing the situation,

indicating possible treatment or palliative care options, and offering further support in this

respect. Nevertheless, no state has yet shown great interest in engaging in a field in

which it is extremely difficult to establish appropriate decision criteria but, at the same

time, any wrong decision has far-reaching and irreversible consequences.

10

An interdisciplinary approach?

Against the background of our analysis, it is apparent that, if society is willing to make

assisted death an available option, the responsibility for such decisions must be spread

as widely as possible, i.e. borne by society as a whole [25]. It is not enough that the law

and ethical guidelines lay down limits for doctors who assist in dying and that the

observance of these conditions is monitored by lawyers and – as is the case in the

Netherlands – ethicists. Much rather, these two groups, together with other professionals

such as clergy, nurses, pharmacists, social workers, and any “lay people” who have

sufficient experience of life, should be prepared to bear joint responsibility for specific

cases, e.g. when a particularly difficult decision has to be taken. Whether or not a state-

run service for assisted dying, as outlined above,25 is the most appropriate instrument

is another question altogether, as this might be too bureaucratic and impersonal to meet

the expectations and needs of the individuals wanting to die and their families.

What doctors can do at this stage is to identify where medical expertise is essential in

this field and to define those questions to which medical knowledge provides no answer.

Given the fact that most professional medical organizations decline even to consider the

subject at the present time, official positions of doctors in this field are scarce. However,

a Consensus Panel of the University of Pennsylvania Center for Bioethics succeeded in

bringing together a number of acknowledged experts in this field.26 The panel

identified communication of information about diagnosis, prognosis, and the full range of

treatment options as clearly within the doctor’s expertise. Concomitant factors such as

depression would, of necessity, have to be assessed by a doctor. According to the

panel, tasks such as addressing questions of coercion, spiritual issues, and even

symptom control, are often better performed by nurses, social workers, and clergy or

other spiritual advisors. These experts also raised the question whether it would be

better to assign a non-physician to coordinate and supervise the overall process.

Interestingly, these suggestions, although developed independently in a different cultural

and health-care context, correspond closely with the position of the Swiss Academy of

Medical Sciences on assisted suicide, as outlined in their medical-ethical guidelines on

the care of patients at the end of life.15 According to SAMS, exclusively medical tasks

are to establish that the patient is approaching the end of life, to discuss the medical

condition and its consequences and, if desired, to implement alternative options for

11

treatment and palliative care. On the other hand, ascertaining that the patient is capable

of making the decision and that the wish to end life is well-considered, persistent, and

arrived at without external pressure is not exclusively a medical task – for this reason,

the person providing a second opinion on these points must not necessarily be a doctor.

12

Conclusions

Against the background of increasing public acceptance of assisted dying in Europe, the

fundamental question of the appropriate role for doctors in an area that goes beyond

medicine remains contentious. A society striving for an open approach towards assisted

dying should carefully identify the tasks that should be assigned exclusively to medical

doctors and separate out those that might be better performed by other professions.

___________________

13

Authorship declaration: All authors listed on page 1 of this manuscript made a

substantial contribution to all three of the following:

- conception and design, or analysis and interpretation of data

- drafting the article or critically revising it for important intellectual content

- final approval of the version to be published.

All authors confirm that no other person fulfils the criteria but has not been included as

an author.

Contributorship and guarantorship declaration: The idea for this paper arose during

Georg Bosshard’s and Bert Gordijn’s sabbaticals in the UK working together with David

Clark and Lars Johan Materstvedt at the International Observatory on End of Life Care

(IOELC) at Lancaster University. Each country-specific contribution to the results

(including the literature search) was written by the coauthor from that country. Georg

Bosshard compiled, revised and partly completed the country-specific contributions, and

wrote the first draft of the article. All coauthors made important contributions to this and

the subsequent drafts.

Georg Bosshard is the guarantor and accepts full responsibility for the finished article.

Competing interests: All authors declare that the answers to the questions on your

competing interest form <bmj.com/cgi/content/full/317/7154/291/DC1> are all “No” and

therefore they have nothing to declare.

Acknowledgement: Georg Bosshard and Bert Gordijn thank the teams of both the

Centre for the Economic and Social Aspects of Genomics (GESAGen) and of the

International Observatory on End of Life Care (IOELC) at Lancaster University for their

outstanding hospitality and friendship.

All authors are indebted to Dr Meryl Clarke for translating parts of the text into English

and for critically revising the whole manuscript.

14

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17

Table 1. Assisted suicide and euthanasia in six European countries – current legal situation (bold), and developments since 2000

Allowance of assisted suicide (AS) and/or

euthanasia (E)

Statutory regulation

Belgium no yes (E)Separate Act Concerning Euthanasia

(Criminal Code remains unchanged)1

Germany (yes) (AS)

no (E)

(No specific regulation in German Penal Code)2

(Art. 216 German Penal Code)

The Netherlands

(no)3 yes Amendment of the Dutch Criminal Code Art.

293 (killing on request) and Art. 294

(assisted suicide)

Norway no Art. 235 and Art. 236 Norwegian Penal Code

Switzerland yes (AS)

no (E)

(Art. 115 Swiss Penal Code)4

(Art. 114 Swiss Penal Code)

United Kingdom

no Section 2 Suicide Act

for England and Wales 1961

Unless specified, all statements refer to both assisted suicide and euthanasia. Italics: developments since 20001 The legal status of assisted suicide in Belgium is unclear. 2 Physician-assisted suicide may legally conflict with a doctor’s obligation to save life 3 Although illegal until 2002, both assisted suicide and euthanasia were tolerated in the

Netherlands from the early 1970s.

4 Assisting in suicide is not illegal as long as there are no motives of self-interest.

18

Table 2. Assisted suicide and euthanasia in six European countries: target group (bold) of legislation or proposed bills

Target group of (proposed) legislation

According to statutory regulation or proposed legislation

Belgium doctors onlyAct Concerning Euthanasia, May 2002:

Conditional decriminalisation of euthanasia

performed by a physician1

Germany not specified Non-penalty of assisted suicide holds for

everyone2

The Netherlands

doctors only Review Procedure Act, April 2002: exemption

for doctors from penalty of assisted suicide and

killing on request

Norway not specified Penal Code Commission, minority proposal, no

mention of doctors; rejected in May 2005 by the

Norwegian Parliament

Switzerland not specified Non-penalty of assisted suicide without motives

of self-interest holds for everyone

United Kingdom

doctors onlyAssisted Dying for the Terminally Ill Bill

targeted at doctors only; rejected in May 2006

by the House of Lords

Unless specified, all statements refer to both assisted suicide and euthanasia. Italics: bill / proposal1 The legal status of (physician-)assisted suicide – not regulated by the euthanasia law -

is unclear. 2 Physician-assisted suicide may legally conflict with a doctor’s obligation to save life

(“Garantenpflicht”). Current legal developments aim at exempting doctors from a particular “Garantenpflicht”.

19

Table 3. Assisted suicide and euthanasia in six European countries – current official medical professional positions (bold), and developments since 2000

Allowance of doctors’ involvement

According to

Belgium no neutral1 Code of Medical Deontology of the Belgian

National Council of Physicians, position

modified in March 2006

Germany no Principles of the German Medical Asso-

ciation, position maintained in May 2004

The Netherlands

yes Guidelines of the Royal Dutch Medical Asso-

ciation, position maintained in April 2002

Norway no Ethical Rules of the Norwegian Medical Asso-

ciation, position maintained in June 2002

Switzerlandno neutral (AS)

no (E) Medical-ethical Guidelines of the Swiss

Academy of Medical Sciences, position

modified in December 2004

United Kingdom

no neutral

Official view of the British Medical

Association, June 2000 (confirmed by a BMA

representative vote, July 2006)2

Unless specified, all statements refer to both assisted suicide and euthanasiaItalics: developments since 20001 Concerns both euthanasia and assisted suicide as long as requirements of the

euthanasia law (including presence of a physician) are met.2 Abolishing an earlier BMA representatives’ vote in July 2005 in favour of a neutral

stance

20

WEB EXTRA: Country-specific information in detail

Belgium

Until recently, as far as euthanasia is concerned, Belgium was a very ordinary country.

According to Belgian criminal law, a doctor who actively killed a patient, even at the

latter’s explicit request, was guilty of manslaughter (Art. 393), murder (Art. 394) or

poisoning (Art. 397). There was no relevant case law and no established or regulated

euthanasia practice.w1

The situation changed dramatically after the Christian Democrat parties suffered a

historic defeat and entered into opposition. In May 2002, Belgium became the second

country in the world to have a euthanasia law. As under Dutch law, only doctors can

legitimately perform euthanasia. When complying with the conditions and procedures in

the Act, they do not commit a criminal offence. No doctor can be compelled to perform

euthanasia. When refusing to perform euthanasia, doctors must inform the patient of this

fact in a timely manner and explain the reasons for refusal. The new law deals only with

euthanasia; the legal status of assisted suicide in Belgium remains unclear.w2

Until March 2006, Art. 95 of the Code of Medical Deontology of the National Council of

the Order of Physicians stated that “the doctor is not allowed to deliberately cause the

death of a patient nor allowed to help him to kill himself”.14 Although this article

remained unchanged until quite recently, the Order of Physicians felt compelled to revise

its position gradually. As early as in January 2000, the National Council reacted to the

euthanasia bill proposal. It recognised that in exceptional circumstances a state of

necessity could justify the killing of the patient, but gave no indication whatsoever of

accepting or supporting the proposed law.w3 In November 2001, after the euthanasia

bill had been passed by the Belgian senate, the National Council commented that it was

no solution for the vast majority of patients asking to be spared from hopeless and

unbearable suffering, and argued for prior consultation with a general practitioner and an

expert in palliative care.w4 After the law had come into force, the National Council

repeated these concerns and recommendations (March 2003) but at the same time

stated that it could not ignore the existence of the new law.13 According to the Council,

there is no deontological difference between assisted suicide and euthanasia provided

both practices respect the requirements of the euthanasia law and include the presence

21

of a physician, whereas other forms of assisted suicide are unacceptable.13 In March

2006, Art. 95-98 entitled “the approaching end of life” were finally changed. The

sentence (Art. 95) that explicitly forbade euthanasia and physician assisted suicide was

removed and replaced by a few sentences concerning the information that a physician

can give on the initiatives that may be taken by the patient (including writing a living will

covering euthanasia) and on the medical assistance (a general and vague term that can

include euthanasia and/or physician assisted suicide but is certainly much broader) that

he or she is willing to offer at the end of life [14].

Germany

Euthanasia and physician-assisted suicide are not subject to explicit legislation in

Germany. In specific instances it is checked whether cases of assisted dying fall under

certain sections of the Criminal Code (StGB) Article 211 (murder), Articles 212 and 213

(manslaughter), or Article 216 (killing on request). Suicide is not an offence under

German law, and assisting with suicide is also not punishable in principle. However, if

assistance in suicide is given by a doctor or close relative, the crucial question is

whether this person has a legal obligation (“Garantenpflicht”) to save the life of someone

wanting to commit suicide, as an omission may also be considered an indictable

offence.w5

In the late 1980s and 1990s, the discussion in Germany focussed on the question

whether physician-assisted suicide and euthanasia in certain circumstances should be

exempted from punishment along the lines of the Dutch model. These discussions were

based on a report presented by legal and medical experts in 1986 – a report that was

never actually pursued as an initiative for legislation.w6 In contrast, a successor group

recently proposed that Article 216 (killing on request) should not be changed but that

doctors assisting patients in suicide should neither be prosecuted under criminal law nor

censured by medical professional ethics.2 Were it to become law, this proposal – which

was supported by a clear majority of the German Jurists’ National Conference in

September 2006 – would mean the legal situation with respect to assisted suicide in

Germany would become similar to that in Switzerland.w7 The German National Ethics

Council also believes that killing on request should always be punished.[w8] A minority

of the Council argues that doctors should be allowed to be involved in assisted suicide.

22

However, both of these proposals to open up assisted suicide in Germany were sharply

criticised by both the German Medical Association and the churches.w7 w9

In the 2004 “Principles of the German Medical Association (GMA) on medical end-of-life

care”, the “deliberate shortening of life by measures which cause death or accelerate

dying” is rejected as “active euthanasia” and thus “not permitted and liable to

prosecution”.16 The “participation of a doctor in suicide is contrary to medical ethics

and may be punishable by law”. The rejection of euthanasia and assisted suicide by the

GMA is shared by other medical professional organisations as well as by most individual

doctors, although they acknowledge that the majority of German people would like

legislation on assisted suicide and euthanasia and that the number of proponents of

such legalisation has increased in recent years.w10 However, the GMA is convinced

that demands for allowing assistance in dying will lose their fervour if palliative medicine

is promoted.w11

The Netherlands

Although euthanasia and assisted suicide were illegal in the Netherlands until recently

(articles 293 and 294 of the Dutch penal code), both had been tolerated since the early

1970s, under conditions developed in case law. A doctor who observed the

corresponding “requirements of carefulness” would not be prosecuted.

In April 2002, a new law on assisted dying came into force and transformed this

tolerance into a legally codified practice. The new law focuses on doctors: only they are

exempt from punishment, and then only in certain circumstances. Doctors have to

comply with the requirements of carefulness and notify the authorities about the

assistance given.6

In 1984, the Royal Dutch Medical Association (RDMA) first stated its official position on

euthanasia and assisted suicide w12. According to this professional organisation both

acts are acceptable in particular circumstances: (1) there should be a voluntary,

competent and enduring request on the part of the patient; (2) the request should be

based on full information; (3) the patient should be in a situation of intolerable and

hopeless suffering (either mental or physical); (4) there should be no acceptable

alternatives; (5) the doctor should consult another doctor before performing euthanasia

23

or assisted suicide.w11 These requirements later played an important role in the Dutch

debate that finally led to the new law.

In April 2002, the RDMA published a new position, taking into account the changed legal

situation.11 Assistance in dying is still regarded as an exceptional medical act. Unlike

normal medical decisions, such acts have to be publicly justified, so transparency and

notification are of pivotal importance.

Under Dutch law, patients do not have a right to assistance in dying, although they do

have a right to ask for it. Doctors have, however, no legal duty to grant patients’

requests. When there is a choice between euthanasia and assisted suicide, the RDMA

holds the latter to be preferable, as it maintains the patient’s proper role and

responsibility. The RDMA concurs with the new law in holding that only doctors should

be allowed (in certain circumstances) to perform these acts. After all, only doctors have

the expertise to assess the medical situation, the options for improving the condition or

relieving the patient’s suffering, and whether the request to die is not really an appeal for

help.11

Norway

Euthanasia is, in effect, prohibited under Section 235 of the Norwegian penal code,

which refers to a person consenting to being killed. This section also states that mercy

killing of a hopelessly ill person is unlawful. Assistance with suicide is illegal under

Section 236, which is directed at persons who explicitly co-operate in the suicide of

another. The penal code dates back to 1902.w13 w14 Neither section makes any

reference to doctors; these prohibitions are general and apply to everyone.

A penal code commission (“Straffelovkommisjonen”) appointed by the government

recently suggested that the law remain unchanged as far as euthanasia and assistance

with suicide are concerned.4 However, a minority (two of the five members)

recommended that the law be changed to allow the defence of necessity for persons

assisting with dying. There is no mention of doctors but a proposed requirement that the

patient be “terminally ill”. The Norwegian parliament’s Committee on Justice discussed

these legislative proposals in April 2005 and supported the commission’s majority. The

Norwegian Parliament followed suit in May 2005. By an unanimous vote, it decided to

uphold the current legal status, i.e. with a clear ban on assisted dying.

24

The Norwegian Medical Association (NMA) is entirely against physician-assisted dying

and has been so for many years. Section 5 of its ethical rules states that at the end of a

patient’s life, the doctor must respect the patient’s right to self-determination; that

euthanasia may not be used; that physician-assisted suicide is prohibited; and that

withholding or withdrawing medically futile treatment is not considered assisted

dying.17

In 1996, a general practitioner associated with a Norwegian right-to-die society turned

himself in to the authorities after performing euthanasia on a seriously ill patient suffering

from multiple sclerosis. The action was intended to be a test case, with the aim of getting

the law changed. The NMA reacted by expelling the GP for having violated its ethical

rules and for publicly rejecting them. Finally, in 2000, the GP was sentenced (albeit very

mildly) by the Supreme Court.w16 Furthermore, in the aftermath of a much-publicised

case of a palliative care doctor accused of misusing terminal sedation as a hidden form

of (slow) euthanasia, the NMA in 2001 formulated comprehensive and detailed

guidelines for what it calls “palliative sedation in the (imminently) dying”.w17

Switzerland

In Switzerland, euthanasia (killing on request) is a criminal offence (Penal Code Article

114).w18 Assistance in suicide, however, is a crime only if it is carried out with motives

of self-interest. This holds for any citizen, be they doctor or lay person.w19 In the

1980s, this open legal situation became the starting point for the activities of the Swiss

right-to-die societies that provide assistance in suicide to members suffering from

incurable disease.3 In 2001, the Swiss Parliament explicitly confirmed the current legal

situation and rejected an initiative aimed at restricting the activities of these societies. At

the same time, members of parliament rejected another initiative, in this case to exempt

euthanasia from penalty under certain conditions.3 Currently, against the backdrop of

increasing “suicide tourism” to the city of Zurich, the Swiss Federal Ministry of Justice is

working out a concept to restrict assisted suicide to people resident in Switzerland.w20

Medical-ethical guidelines of the Swiss Academy of Medical Sciences (SAMS) are

crucial for the position of the medical profession. Until recently, their statement that

“assisted suicide would not be a part of a doctor’s activity” was usually taken to mean

that doctors should not provide any assistance in suicide. In their revised “Medical-

25

ethical Guidelines for the Care of Patients at the End of Life”, the SAMS upholds this

statement because “the ending of life would be in contradiction to the goals of

medicine”.15 Nevertheless, the Academy recognises that some patients who find their

situation intolerable ask for help in committing suicide and persist in that wish. In this

situation, the doctor faces “a dilemma which calls for a personal decision in accordance

with his/her conscience and which has to be respected as such”. According to the

SAMS, the following minimum requirements should be met: (1) the patient is nearing the

end of life; (2) alternative options have been discussed and, if desired, have been

implemented (3) the patient is capable of making the decision, the wish to end life is

well-considered, persistent, and arrived at without external pressure. The last-mentioned

must have been checked by a third person, not necessarily a doctor. The guidelines

insist that “the final act in the process leading to death must always be undertaken by

the patient him/herself” and clearly reject euthanasia in any situation.15

United Kingdom

Unlike most countries in continental Europe, suicide was a crime in England and Wales

until 1961. The Suicide Act then decriminalised suicide but retained the criminal

prohibition of aiding and abetting.w21 Any prosecutions for assisted suicide as well as

for euthanasia will most likely be based, in England and Wales, on a charge of

manslaughter, or, in Scotland, of culpable homicide. But the willingness of the authorities

to prosecute health professionals for assisted suicide is sometimes limited, and actual

court decisions have been criticised for being inconsistent if not downright

contradictory.w22

In a 1994 report, the House of Lords Select Committee on Medical Ethics decided

unanimously to oppose any change in the law in the United Kingdom to permit

euthanasia.w23 However, in 2004/2005, when a Lords’ Committee again had to deal

with a proposal for a bill to legalise assisted dying, the Lords concluded that the issue

should undergo detailed examination by both the House of Lords and the House of

Commons.5 In October 2005, Lord Joffe, the peer who introduced the initial bill,

presented the House of Lords with a number of amendments with regard to the doctor’s

role in assisted dying, in particular that doctors would be allowed only to prescribe lethal

drugs and not to administer them.w24 However, in May 2006, after adamant opposition

from several religious and disability groups to a bill that they felt would convey the

26

message that certain kinds of life are not worth living, the House of Lords rejected the bill

by 148 to 100.10

Until recently, the British Medical Association (BMA) clearly opposed the legalisation of

assisted dying, regarding such a measure as conflicting with the basic role of doctors,

and holding that such a change would bring about a fundamental shift in social attitudes

to those who suffer long-term illness or disability and who require substantial healthcare

resources.w23 Similarly, the Association for Palliative Medicine of Great Britain and

Ireland is adamantly against both assisted suicide and euthanasia, reinforcing the view

that meticulous palliative care and not therapeutic killing is the appropriate solution to

distress at the end of life.w25

In their evidence papers submitted to the House of Lords in summer 2004, both

associations maintained a clear position against both assisted suicide and euthanasia.5

However, the Royal College of Physicians of London took a neutral stance, saying that

the bill is essentially a matter for society as a whole to decide and that the college should

not assume a position for or against.18 In July 2005, the BMA followed these

arguments and decided not to oppose legislation any longer. However, one year later

both the Royal College of Physicians and the BMA withdrew from this neutral position,

reverting to their former opposition to changes in the current law.19

w1 Broeckaert B: Belgium: Towards a Legal Recognition of Euthanasia. European

Journal of Health Law 2001;8:95-107.

w2 Schotsmans P, Meulenbergs T (eds.): Euthanasia and Palliative Care in the Low

Countries. Leuven – Paris – Dudley: Peeters, 2005.

w3 Advies van de Nationale Raad van de Orde der Geneesheren betreffende de

medische betrokkenheid bij het naderende levenseinde – euthanasia [The

National Council of the Order of Physicians, advice on medical assistance at the

end of life – euthanasia], January 2000.

http://195.234.184.64/web-Ned/nl/a087/a087001n.htm (Dutch) or

http://195.234.184.64/web-Fr/fr/a087/a087001f.htm (French) (accessed 04

August 2006)

w4 Nationale Raad van de Orde der Geneesheren, Euthanasie [The National

Council of the Order of Physicians on euthanasia], November 2001.

http://195.234.184.64/web-Ned/nl/a094/a094007n.htm (Dutch) or

27

http://195.234.184.64/web-Fr/fr/a094/a094007f.htm (French) (accessed 21 04

August 2006)

w5 Die Rechtslage zur Sterbehilfe in Deutschland. Antwortschreiben des

Bundesministeriums der Justiz [The legal position on euthanasia in Germany.

Written response of the German Ministry of Justice], July 2002.

http://home.tiscali.de/sterbehilfe/Rechtslage_D.htm (accessed 04 August 2006)

w6 Baumann J, Bochnik HJ, Brauneck AE, Calliess RP, Carstensen G, Eser A et al.

Alternativentwurf eines Gesetzes über Sterbehilfe Alternative blueprint of a law

on assisted dying. Stuttgart: Georg Thieme, 1986.

w7 Arens C. Deutscher Juristentag: Patientenverfügungen als verbindlich

anerkennen German National Jurists’ Conference: Accepting advance directives

as binding. Deutsches Ärzteblatt 2006;103:A-2518.

w8 German National Ethics Council. Stellungnahme zu Selbstbestimmung und

Fürsorge am Lebensende Opinion on autonomy and beneficence at the end of

life, July 2006.

http://www.ethikrat.org/stellungnahmen/stellungnahmen.html (accessed 04

August 2006)

w9 Samir, R. Nationaler Ethikrat: Expertenstreit um Sterbehilfe [German National

Ethics Council – Experts divided over medical assistance in dying]. Deutsches

Ärzteblatt 2006;103:A-2008)?

w10 Schröder C, Schmutzer G, Klaiberg A, Brähler E: Ärztliche Sterbehilfe im

Spannungsfeld zwischen Zustimmung zur Freigabe und persönlicher

Inanspruchnahme - Ergebnisse einer repräsentativen Befragung der deutschen

Bevölkerung Conflicts in liberalisation and utilisation of physician-assisted dying

– results of a representative survey of the German public. Psychother Psych

Med 2003;53:334-343.

w11 Grundsätze der Bundesärztekammer zur ärztlichen Sterbebegleitung –

Statement des Präsidenten [Principles of the German Medical Association on

medical end-of-life care – the president's statement], May 2004.

http://www.bundesaerztekammer.de/30/Ethik/50Sterben/

40SterbebegleitungHoppe.html (accessed 04 August 2006)

w12 KNMG, Standpunt Hoofdbestuur inzake euthanasia [The main board’s position

on Euthanasia], 1984. http://knmg.artsennet.nl/vademecum/files/VI.07.html

(accessed 04 August 2006)

28

w13 Husabø E: Rett til sjølvvalt livsavslutning? [Right to choose to die?]. Oslo: Ad

Notam Gyldendal, 1994.

w14 Straffeloven [Norwegian Penal Code]. http://www.lovdata.no/all/hl-19020522-

010.html (accessed 04 August 2006)

w15 Syse A: Uutholdelige liv – et rettslig perspektiv [Intolerable lives – a legal

perspective]. In Herrestad H, Mehlum L, eds.: Uutholdelige liv. Om selvmord,

eutanasi og behandling av døende [Intolerable lives. On suicide, euthanasia and

treatment of the dying]. Oslo: Gyldendal Akademisk, 2005; pp. 84-107.

w16 Norges Høyesterett. Dom av 14.4.2000 i sak lnr. 25/2000, snr. 47/1999.

[Norway’s Supreme Court. Verdict of 14 April 2000].

w17 Den norske lægeforening. Rådet for legeetikk. Retningslinjer for lindrende

sedering til døende [The Norwegian Medical Association. Council of Ethics.

Guidelines for palliative sedation in the dying].

http://www.legeforeningen.no/index.db2?id=3942 (accessed 21 October 2005)

w18 Hauser R, Rehberg J: Schweizerisches Strafgesetzbuch [Swiss Penal Code]

Zurich: Orell Füssli; 1986.

w19 Hurst SA, Mauron A. Assisted suicide and euthanasia in Switzerland: allowing a

role for non-physicians. BMJ 2003;326:271-273.

w20 Brotz S: Schweiz will kein Sterbehilfeparadies mehr sein [Switzerland is no

longer willing to be a paradise for assistance in dying]. SonntagsBlick

27 March 2005

w21 Suicide Act. Amendment to the law of England and Wales, 3 August 1961.

w22 Huxtable R: Assisted suicide. We need to clarify the current legal compromise

but preserve the lenient attitude. BMJ 2004;328:1088-1089.

w23 British Medical Association. End of life decisions - views of the BMA (June 2000).

http://www.bma.org.uk/ap.nsf/Content/Endoflife~euthanasia (accessed 04 August

2006)

w24 O’Dowd A. Joffe will amend role for doctors in new bill on assisted dying. BMJ

2005;331:863.

w25 Finlay I, Gilbert J, Randall F: Regulating Physician-Assisted Death. New England

Journal of Medicine 1994;331:1656-1658.

29