Euthanasia

Euthanasia

Euthanasia is arbitrarily defined here as the administration of pharmacological products to a patient by their caregivers with the aim of causing death.

This is therefore a procedure completely different from the principle of therapeutic withholding or the administration of sedatives and analgesics at the end of life (even in cases where they may hasten death), which have long been accepted in Belgium. Similarly, it is different from the procedures of "assisted suicide" in force in some countries. The confusion between these different concepts is common, especially in countries like France that have not legislated in favor of euthanasia or assisted suicide.

The participation of doctors in (extra)judicial executions using pharmacological products, as practiced in the United States, does not fall within the scope of a care process (doctors performing these procedures cannot reasonably be considered as "caregivers") and is therefore obviously excluded from our discussion.

Provisions on euthanasia in Belgium

Belgium has legislated in such a way that euthanasia, under certain conditions, is considered an act of care and not a homicide (similarly to the case of voluntary termination of pregnancy, euthanasia is not truly "legalized" in Belgium but "partially decriminalized").

These provisions are defined by the 2002 law amended in 2014 (extension to minors). Each of the steps and the various reports must be recorded in the patient's medical record.

In any case, any doctor is free, without having to justify themselves, to refuse (as with any medical procedure that is not an emergency) a request for euthanasia from a patient. In case of refusal, the patient is free to reiterate their request with another doctor to whom the medical record will be transferred.

Likewise, no one, regardless of their profession and status, is obliged to participate in any way in euthanasia.

The case of conscious patients

The request must be spontaneously made by the patient to a doctor.

The doctor is free, without having to justify themselves, to either accept or refuse (as with any medical procedure that is not a medical emergency) a request for euthanasia by a patient. In case of refusal, the patient is free to reiterate their request with another doctor. In the event that this request is accepted by a doctor, the following must be ensured:

• The patient (or if they are unable, a designated adult who has no material interest in their death) and, if applicable, their legal representatives, must document the request for euthanasia in writing.
• Verify that the patient meets the legal criteria:
  • Adult patient, emancipated minor, or "capable of discernment" minor (in this last case, after psychological or child-psychiatric expertise, and with the informed consent of their parents or legal guardians).
  • Request made voluntarily, thoughtfully, and repeatedly (at several intervals within a reasonable period) after information and consultation.
  • No external pressure.
  • Constant and unbearable physical or psychological suffering resulting from a serious and incurable accidental or pathological condition (psychological suffering is only taken into account for adult patients or emancipated minors).
  • Hopeless medical situation.
  • If the patient is a "capable of discernment" minor, the death must be estimated to occur "in the near future".

If these criteria are met, the doctor must consult an independent colleague, who is not involved with the patient, to assess, based on the medical record, the seriousness and incurability of the condition. They must also consult any potential healthcare team in contact with the patient. If the patient requests it, the doctor must also meet with the designated relatives.

If the patient is an adult or emancipated minor, and their death is not estimated to occur "in the near future", the doctor must consult a new independent colleague who is a specialist in the relevant condition, to pronounce on the compliance with the previous criteria, after reviewing the medical record and examining the patient themselves. In addition, euthanasia cannot occur in this case before one month following the patient's written request.

The procedure can be canceled at any time by the patient.

The case of unconscious patients: advanced declaration

There is also a procedure for an "advanced declaration" of a request for euthanasia, open to adults and emancipated minors. It consists of recording in writing one's will for a doctor to perform euthanasia if they determine: a serious and incurable accidental or pathological condition, unconsciousness, and that this state is deemed "irreversible according to the current state of science". This declaration can designate one or more trusted persons (who cannot be the treating doctor, a consulted doctor, or members of the healthcare team) responsible for informing the treating doctor of its existence, and must be drawn up in the presence of two adult witnesses who have no material interest in the patient's death. It must be dated and signed by the declarant, the witnesses, and, if applicable, the trusted persons.

This declaration can be withdrawn at any time by the declarant. It can be registered with the municipal administration.

When this request is transmitted to a doctor, by the trusted person or the national registry services, they must, to proceed with it, ensure that:

• The above conditions are met.
• The patient has a serious and incurable condition and is unconscious in an irreversible manner.
• The declaration is not more than 5 years old.

They must then consult an independent colleague who is competent in the condition, who will pronounce after reviewing the medical record and examining the patient. They must also consult any potential healthcare team and trusted persons.

After euthanasia

The doctor who performed the euthanasia must report it using a registration document within 4 working days to the federal control and evaluation commission (composed of 8 doctors, 4 university law professors, and 4 "representatives from the circles dealing with the issue of patients with an incurable disease").

This commission will make a decision on the regularity of the procedure within two months. If it finds, by a two-thirds majority, that the procedure was irregular, the case is sent to the competent Prosecutor. Otherwise, the death is considered "natural".

Limits of the law and its results...

Principle Issues

The adoption of the principle of euthanasia responds to a widely shared demand from both the social and medical community in Belgium. However, four major problems are posed:

1. Contrary to a widely held belief, euthanasia as such is not truly "legalized" but, to use the jargon of our legal experts, "partially decriminalized." Each euthanasia therefore always constitutes a homicide. Under the law, the competent commission examines each case - generally after the fact - and decides whether or not to refer it to the prosecutor. Therefore, every doctor who has performed euthanasia exposes themselves to a charge of homicide if the commission or a relative of the patient concerned brings the facts to the attention of the Prosecutor.
2. The criteria set by the legislator are broad and subject to very subjective interpretation, particularly regarding the concept of "unbearable suffering," leaving a heavy responsibility on the doctor. How can one objectify "unbearable" suffering? When does "psychological suffering" become "unbearable"? Will the commission and, if applicable, the justice system have the same assessment?
3. Conversely, the procedure is extremely codified, cumbersome, and complex, requiring constant vigilance from the doctor (except for the advance declaration procedure where part of the procedural burden rests on the patient) to ensure its compliance and a significant investment of time in administrative work, under penalty for the doctor of facing legal proceedings for voluntary homicide.
4. Finally, the 2014 provisions (extension of the 2002 law to minors) were adopted without real societal debate. Thus, the Chamber of Representatives opened debates on the bill on February 12, 2014, and the law was passed... on February 13, 2014. Medical associations were not consulted by the representatives. Open letters signed by a total of more than two hundred pediatricians asking the President of the Chamber not to "rush the debate," to allow time for reflection, and to engage in consultation with the doctors of the country were simply ignored. Finally, the public "debate" was so discreet that the vast majority of the population only became aware of these provisions after the vote... and may still be unaware of them today. It is likely (based on surveys) that the majority of the population was not only in favor of the 2002 law but also of its extension to minors. However, the deplorable conditions under which the latter was adopted raise not only questions about the concerns of social consensus among our representatives but, above all, about their inability to understand a fact that is nonetheless simple: ultimately, the correct application of such laws depends on both information and the adherence of the medical community, which is supposed to inform patients, conduct the procedure, and perform euthanasia. Ignoring this fact risks the emergence of erratic practices.

Results

A few mixed observations can be drawn from the application of the 2002 law (it is too early to evaluate those of the extension to minors):

• The principle of euthanasia itself is undoubtedly approved by the vast majority of the medical community and the population and has not been significantly questioned.
• Officially, 1 to 2% of annual deaths now result from euthanasia, steadily increasing. By definition, and contrary to rumors spread by various associations or media, it is obviously impossible to know the number of "clandestine" euthanasias, whether before or after the law.
• About 80% of reported euthanasias concern the Dutch-speaking population. However, they represent only 60% of the country's population... and, moreover, due to socio-economic geographical disparities, overall morbidity and mortality are higher among the French-speaking population. Practices are therefore very uneven, for whatever reasons (conservatism? philosophical convictions? differences in information? of patients? of doctors?).
• Over 95% of euthanasias concern conscious patients. The advance declaration is rarely used. Lack of foresight? Denial regarding the prospect of one's own death? Public little or not informed? Public put off by the administrative aspect specifically in this case? Resistance from the medical community?
• Nearly half of euthanasias take place on an outpatient basis, indicating good adaptation by general practitioners and outpatient palliative care facilities.
• While nearly 80% of cases are motivated by cancer, the "specialist in the condition" consulted as a second opinion is not an oncologist in over half to three-quarters of cases in any given year, which seems disproportionate. Does this indicate that the first-line doctor desires more to reassure themselves about the temperament of their patient than to ensure the condition is "serious and incurable"? Or is it a maneuver by "somatic" doctors to unload their moral responsibility onto their psychiatrist colleagues?
• "Psychological suffering" is frequently mentioned but rarely in isolation (from 1 to 7.5% of cases depending on the year). However, this percentage tends to increase. Since the files are confidential, it is impossible to draw further conclusions from this.
• However, one particular case made headlines. It concerned a recognized prisoner suffering from "psychological disorders" imprisoned for 26 years for rape and murder. Believing he was not receiving the necessary care in his penitentiary, he had requested to be transferred to a prison with the appropriate facilities. His request was denied by the Minister of Justice, and having exhausted all recourse, he then made a request for euthanasia, deeming his psychological suffering unbearable due to his incarceration conditions. This request was validated by his doctor and a consulting doctor, and a euthanasia date was set. Subsequently, more than twenty inmates made similar requests. The Minister of Justice initially confirmed his refusal. However, following the outrage of both a part of the public and many doctors, as well as the League of Human Rights (whose statement explicitly mentioned a "disguised death penalty") and the realization of the global media uproar that such a procedure would entail, the minister finally agreed to transfer the detainee, who withdrew his request for euthanasia, to a prison with a psychiatric wing. This case is obviously quite exceptional. However, it recalls the problem of the ambiguity surrounding "unbearable psychological suffering" and raises the issue of social inequalities in the face of medicine, which appear particularly stark in the context of euthanasia. Beyond this emblematic case, there have been several cases of patients who made requests for euthanasia for physical and/or psychological suffering... and withdrew them when an improvement in their social conditions could be achieved (more comfortable housing, human assistance, etc.). Therefore, medicine once again appears as a palliative for serious socio-political shortcomings.
• Regarding the experience of healthcare providers, there are obviously no statistics. While specialists or general practitioners and paramedical staff seem to be well aware of their rights, some cases of doctors in training beginning their practice seem problematic. In some services, they are indeed faced with seniors who completely offload the procedure onto them, refuse to take part, and do not inform them of their own right to refuse. This is totally unacceptable both legally and ethically.
• The commission directly approves about 80% of the submitted cases. However, in nearly 20% of cases, it decides to lift anonymity in order to better inform itself from the responsible doctor about procedural errors. In 2015, for the first time, the commission referred a case to the Prosecutor, who opened an investigation for homicide (see below).

Criminal Cases

Legal cases are rare but instrumentalized both by associations advocating for the extension of existing euthanasia criteria and even for their outright abolition, as well as by those opposed to the very principle of euthanasia. However, the Belgian public seems, for now, to remain indifferent. They generally concern euthanasias where the main reason is depression.

Following Complaints from families

Following a family complaint, three doctors were prosecuted by the federal prosecutor for homicide following the euthanasia of a 38-year-old woman for depressive disorders within the framework of an autistic syndrome in 2010. The popular jury of a court acquitted the three doctors in 2020.

In 2022, the European Court of Human Rights condemned Belgium for a procedural defect following a complaint from a patient's son. The 64-year-old patient had been euthanized in 2012 for "incurable depression" by Dr. D. Since the Belgian prosecutor did not follow up on the patient's son's complaint, he brought the case to the ECHR. The ECHR partially sided with the complainant by condemning the Belgian State for failing to control the procedures, on the grounds that Dr. D., who performed the euthanasia, was also the president of the Control Commission that validated the file.

Following a Denunciation by the Control Commission

In October 2015, the control commission, for the first time, referred a case of euthanasia to the prosecutor, who opened a judicial inquiry for homicide. The euthanasia in question was carried out on June 22, 2015, on an 84-year-old woman in a nursing home in Antwerp by her treating physician, Dr. M. V. H., who was also the president of the association Recht op waardig sterven (Right to a dignified death), advocating for an extension of the existing law's framework. The information provided to the public mentions a euthanasia procedure filmed (and broadcast) by an Australian television channel as part of a documentary (Allow me to die). The reason for this euthanasia was "reactive depression" following the death of the patient's daughter.

Author(s)

Dr Shanan Khairi, MD