Uitspraken

On 11 September 2012 the geriatrician diagnosed the patient with dementia, type Alzheimer. On 2 October 2012 the geriatrician informed the patient about this.4 The patient is married and has an adult daughter with her husband.5

On 20 October 2012 the patient signed a request for euthanasia (here after also: the request for euthanasia)6 that conforms to the model of the Dutch association for voluntary termination of life [Nederlandse Vereniging voor een Vrijwillig Levenseinde] (hereafter also NVVE) of 2011. To the request for euthanasia the patient also added a hand written and signed dementia clause of the same date (hereafter also: the dementia clause of 2012).7 On that same day she signed a power of attorney regarding medical decision-making and decisions, in which she appointed her husband as her authorized representative and her daughter as substitute authorized representative.8 On that same day she also signed a prohibition to treatment.9

The request for euthanasia reads, in as far as relevant:

‘(…) When I shall be in a state in which my suffering is unbearable and hopeless or when there is no reasonable prospect to return to a state of life dignified for me or further loss of dignity for me is to be expected, I explicitly request my physician to administer to me or to provide me with the substances to terminate my life. (…)

Acceptance of risk

This request for euthanasia shall remain in force, regardless of the time that might have passed after signing it. It is very clear to me that I can withdraw this request for euthanasia. By signing this request for euthanasia I therefore consciously accept the possibility that a physician might comply with the request, about which I might have come to think differently in my present state of mind’.(…)

As explanation the under the heading ‘Personal addition’ the model form reads:

‘(…) If you whish to do so you can add here, or in an attachment, a personal complement to your request for euthanasia. In this regard you might think of a few lines about what is important to you in life and what you consider to be a dignified end of it. This personal complement is certainly not mandatory, but it might make your request more clear, more personal and stronger. Also without this complement your physician has to evaluate your request for euthanasia very seriously.(…)’

There is a handwritten remark here: ‘(…) see dementia statement.(…) 10

The dementia clause of 2012 reads, as far as it is relevant:

‘(…) I want to exercise the right to have voluntary euthanasia performed on me when I am still slightly mentally competent and no longer able to live at home with my husband. I definitely do not want to be placed in an institution for demented elderly persons. I want a dignified parting from my husband and my dear friends. My mother was nursed for 12 years in an institution for demented persons before she died, so I have first hand experience of what it’s like. So I know what I am talking about. I really do not want to go through this. It has seriously traumatised me and caused the entire family a lot of grief.

I trust that, by the time the quality of my life has ended up in the situation mentioned before, I can be voluntarily euthanized.(…) 11

On 28 November 2012 the patient visited her general practitioner with her husband where the request for euthanasia and the dementia clause of 2012 were discussed. In the notes on this conversation the general practitioner wrote down, as far as it is relevant, about this:

‘(…) Thought very well about it an discussed with her daughter she also supports the request, mrs experienced it with her mother who suffered from dementia, does not want to go through this and burden environment with it, mrs has a whish when she becomes totally dependant of her husband and she has to go to a nursing home, she wants euthanasia, has clearly written down in statement herself and also signed herself, coherent, focused and attention could be attracted well and could be kept, says what she herself wants to say and what she expects from her ‘ha’ (the court understands: huisarts [general practitioner]) expects and wishes (…) talk with the couple explanation about position ‘ha’, received the statement and explained how it goes if it would come to this’ 12

On 17 (17/10/2013, the court understands: 17/012013) January 2013 the patient talked with her geriatrician in the presence of her husband, The geriatrician writes about this in a letter to the general practitioner dated 22 January 2013, as far as it is relevant:

‘(…) There is dementia type Alzheimer with probably a familiar basis. (…) Patient told that the wishes euthanasia if she would have to be admitted to a nursery home. She can explain this and understands my information that this would require that she would have to be mentally competent when that time comes. It is striking that the patient seems calm. She says she appreciates her husband who takes over the direction when she becomes overburdened. She submits a euthanasia statement, a form prohibiting treatment in case of a condition of hopeless suffering, which according to her also includes serious dementia, and a power of attorney by which she authorizes her husband (…) to take decisions on her behalf. At this moment the patient is mentally competent regarding the decisions mentioned above. I understand that she already consulted you about euthanasia when the time comes and the

couple intends to build up a file to make this wish possible.(…)’13

On 13 January 2015 the patient signed a revised dementia clause related to the request for euthanasia (here after also: the revised dementia clause of 2015). This clause reads as follows, as far as is relevant:

‘(…) I want to exercise the legal right to have voluntary euthanasia performed on my when I am slightly mentally competent and no longer able to live at home with my husband. I definitely do not want to be placed in an institution for demented elderly persons. I want a dignified parting from my husband and my cherished loved ones. My mother was nursed for 12 years in an institution for demented persons before she died, so I have first hand experience of what it’s like. So I know what I am talking about. I really do not want to go through this. It has seriously traumatised me and caused the entire family a lot of grief.

I trust that, by the time the quality of my life has become so bad, euthanasia can be applied at my request. (…) 14 ’

On 19 January 2015 the patient visited her general practitioner with her husband and discussed the dementia clause of 2015. In the notes on this conversation the general practitioner wrote down, as far as it is relevant, about this:

‘Patient wants to update the euthanasia clause and wants to add something, does not want to be nursed, does not want to be placed in an institution, wants to be able to part with dear people who she is still able to recognise.’15

On 21 January 2016 patients’ husband spoke with her general practitioner. In her notes on this conversation the general practitioner wrote, as far as it is relevant:

‘(…) mrs is deteriorating rapidly, is often restless especially at the end of the day constantly says she wants to die but after 5 minutes she says not now,(…)’16

On 28 January 2016 the patient visited her general practitioner with her husband and discussed the dementia clause of 2015. In the notes on this conversation the general practitioner wrote, as far as it is relevant:

‘(…) To questions if she knows what euthanasia is she doesn’t after explanation she thinks this goes too far, after more explanation about being admitted to a vph (the court understands: verpleeghuis [nursery home]) when her condition deteriorates she says okay maybe then”17

On 23 April 2018 the general practitioner was heard as a witness by the examining magistrate. Regarding the euthanasia statement and the dementia clause the general practitioner states, as far as it is relevant:

‘(…) She did not want endless suffering and she did not want to be admitted to a nusrsery home if the dementia would deteriorate and she also did not want to be totally dependant on her husband. 18 (…) You ask me if I was able assess on that day (the court understands: 28 November 2012) if she knew what she had drafted. Yes absolutely, she knew what she had drafted. You ask me if she was able to express it clearly. Yes, definitely.

During the consultation she told everything herself. 19 That she would not be hospitalized for years in a nursery home like her mother. This was for her the most important point of all. 20 (Patient) then came to see me regularly for blood pressure checks, about every three months. (…) You ask me if euthanasia was also discussed then. Yes, briefly and her answer was: ‘I absolutely do not want to be hospitalized. You ask me if I thought that she still knew what this meant when she told me this. Yes. (…)’ 21

Regarding the revised euthanasia clause of 2015, the general practitioner states, as far as it is relevant:

‘(…) She wanted to add and change something. She said: “I do not want to be nursed, I do not want to be hospitalized in an institution and I want to be able to part with my loved ones’. That (after reading the witness clarifies: No hospitalization in a nursery home) was important to her.(…) You ask me if it was clear to me what had changed, ad been revised or added. I did not give that much attention to the revised version because at that time it was clear to me. So, I did not really compare them. For me the story was the same as the first time. For me it was clear that she didn’t want this.(…) The public prosecutor asks me if I can remember the condition she was in at the time of this conversation on 19 January 2015 and how her health was. (…) she was a bit more quiet, gave shorter answers and looked for confirmation from her husband. But when we spoke about euthanasia she was clear.(…)22

Regarding her last contact with the patient on 28 January 2016, the general practitioner states, as far as it is relevant:

‘(…) She was close to admittance. I wanted to know how she was and what she thought about this. I asked her how she was doing and she says: “I’m doing well”. I then asked about the admittance and euthanasia. She did not know what that was, the euthanasia. I explained it to her and at that moment she said: “no, I don’t want that”. I explained her that she would be admitted and that she then had to stay there and that she earlier had expressed that she didn’t want that and then I started about euthanasia. She said: “yes, I might want it then but not now”. You ask me what my impression of her was, if she still understood. No (…) for me that was the moment that she didn’t know exactly what euthanasia meant. You ask me if I was under the impression that she did understand me after I explained to her what euthanasia meant. Yes, because I explained her. Because of her reaction to it I thought that she understood what I meant.(…) The lawyer asks me if (patient) was mentally competent on this day, 28 January 2016, regarding euthanasia. As far as I can assess she wasn’t. You, examining magistrate asks me to explain why not. Before my explanation about euthanasia she didn’t know what it meant. I had to go so far that I told her she would get an injection and would not wake up any more. Only then she said: “no, no”. For it meant that she was incapacitated. The lawyer asks me if I can recall the moment she began to slide regarding the legal capacitation for euthanasia. To me this was gradually. However, for me this was the moment she was no longer mentally competent.(…) 23

The summary of the oral explanation by the general practitioner on 30 August 2016 before the Regional Review Committee Euthanasia Zuid-Holland and Zeeland [Regionale Toetsingscommissie Euthanasie Zuid-Holland en Zeeland] states, as far as is relevant:

‘(…) Patient had expressed in her written living wills of 2012 and January 2015 that she wanted to have euthanasia applied on her, when she would no longer recognise her family and relatives and would be dependent on care and would have to be admitted to a nursing home. When these wills were drafted she was mentally competent regarding the subject of euthanasia.(…) When asked the general practitioner states that, when the patient at the start of 2016 several times told her environment that she wanted to die, she already had become incapacitated. According to the general practitioner the turning point from mentally competent regarding an eventual wish for euthanasia to incapacitated was somewhere in 2015. (…) 24

On 19 March 2018 the husband of the patient was heard as a witness by the examining magistrate. He states, as far as relevant:

‘(…) Then it was established that she was in the early stage of Alzheimer’s.(…) We then immediately drafted a euthanasia statement.(…) You ask me if we had talked before about euthanasia. Yes sure. When her mother started developing dementia in the early seventies she spend 12 years in an institution. That is really really a lot to take. My wife was determined that she didn’t want that. In her euthanasia statement she wrote how she felt about it.(…) We joined the euthanasia society and we talked a lot about it between us.(…). She wanted to have euthanasia before she got admitted. The public prosecutor asks if we discussed that together. Yes, definitely, every day. (…) You ask me why the second euthanasia statement in 2015 was drafted.(…) I tell you: this is in fact a repetition of the first statement.(…) This is in fact transcribed from the original euthanasia statement. (…) The main point for her was that she would not be admitted to a nursery home and could practice euthanasia. That was her wish, it is laid down in all her statements.(…) You ask me what the reason was that it was put in writing. All my life I have had to promise her that she would not end up in a nursery home. She said: “then you should give me a pill”. I then said that we would do it officially and we would put it in writing. For years this was a topic in our family and it was part of our life. Because her aunts had Alzheimer’s and all of her brothers and sisters got it, they were all admitted and that was where we were heading. They all died, except for (…) 25

On 19 March 2018 the daughter of the patient was heard as a witness by the examining magistrate. She states, as far as is relevant:

‘(…) Her mother also got Alzheimer’s, she was afraid she would also get it. And she said that when the time comes and I am to be admitted to a nursery home, I don’t want that, I do not want to go on then. You discuss this with each other, and you take note of this, in my early years (…) You ask me what my mother told me about her ‘will’ when after she was diagnosed. (…) She explicitly did not want to be like a vegetable in a nursery home for years, like her mother had been. She wanted to prevent that. She did not want to go there.(…) 26

From July 2015 onwards the condition of the patient deteriorates and she starts going to the day-care one day a week to relieve her husband in the care for the patient. From December 2015 the patient goes to the day-care five days a week.27 On 3 March 2016 the patient was admitted to the nursery home where the accused was working as nursery home doctor (geriatric specialist).28

When the patient was admitted to the nursery home her husband discussed the request for euthanasia, the dementia clause of 2012 and the revised dementia clause of 2015 (the last two hereafter also: the dementia clause) for the first time with the accused. On this basis he accused started her investigation if euthanasia was possible based on the request for euthanasia and the dementia clause.29

According to the medical file of the patient the accused has had contact with the patient several times and observed her several times for a longer period. The patient was also filmed (with authorization of the husband and the daughter) to record her behaviour. Furthermore the accused reviewed the general practitioners’ medical file of the patient, including inter alia, specialist reports of the patients’ geriatrician. The accused also consulted the general practitioner of the patient, the nursing staff of the nursing home, the husband and the daughter, the patients’ psychologist and with a consultant of the ‘end-of-life clinic’. On 29 March 2016 this consultant had contact with the patient and observed her and concluded based on this that the patient had no awareness of illness and was not mentally competent. The consultant also checked the due care criteria for euthanasia with the accused. Furthermore the accused consulted a SCEN physician [SCEN= support and consultation for euthanasia in the Netherlands] and a SCEN physician internist (hereafter also: the SCEN physicians) independently of each other.30

The medical file states about the contact between the accused and the patient on 8 March 2016 and 10 March 2016, in so far as relevant, the following:

‘(…) 8 March 2016, (…) mrs. finds it terrible but can’t say what.(…) Does not know where she is. Has to leave every time to look for her husband, her children and all kinds of people. Does not recognise her reflection in the mirror and the people in the mirror tell her to do all sorts of things. During physical examination she relaxes for a moment. When she again says that she finds it terrible I ask her if she knows she has dementia. She seems to recognise this. I ask her if she wants to continue to live with this: yes she wants to, she does not want to die. She repeats this several times.(…)’

‘(…) 10 march 2016 (…) Then I ask she minds having dementia. She does not recognise this word. I ask her further if it bothers her that her memory is not so good and if she minds that. She answers that she has had that, but that it’s better now already, fortunately. Then I ask her if she would rather be dead: yes, if I fall ill then I would, but not now though! (…)’ 31

From the medical file of the patient, containing observations of the nursing staff and the accused and the (partly described), the following image of the patient comes across. During the larger part of the day the patient shows signs of agitation, unrest, stress, anxiousness, sorrow, anger and panic. She cries a lot, often says that she finds it horrible and that it is breaking her down and says every day (up to 20 times a day) tat she want to die. Her day and night rhythm is disrupted and she wanders over the hallways almost daily, also at night. She bangs on the windows and doors until her hands hurt. She accosts random people believing that they are acquaintances. This often leads to physical conflicts with fellow residents. There is also a physical loss of dignity of her person, by large dependency and incontinence.32

In their written overview of the life cycle of the patient the husband and the daughter independently describe that they see the patient suffer in the nursery home.33

Both the SCEN physicians have had contact with the patient on different moments in April 2016 and have observed her and independently came to the conclusion that the request for euthanasia of the patient complies with the legal criteria for due care.34

On 22 April 2016 in The Hague, the accused terminated the life of the patient by administering medicine for euthanasia. The accused reported the death to the municipal coroner pursuant to article 7, second paragraph, of the Burial and Cremation Act and attached the euthanasia report and the written living will (the request for euthanasia and the dementia clauses) of the deceasedto it.35 At the time of the termination of the life of the accused the accused was a physician (geriatric specialist/nursery home doctor) and currently still is a physician.36

Article 293 of the Penal Code (hereafter also: Pc) reads as follows:

“1. A person who intentionally takes the life of another person at that other person’s express and earnest request is liable to a term of imprisonment of not more than twelve years or a fine of the fifth category.

Article 2, first and second paragraph, of the Tla reads:

“1. The criteria for due care, referred to in article 293, second paragraph, Penal Code, state that the physician:

The primary charge against the accused is that she (as geriatric specialist) at the explicit and serious desire terminated the life of the patient by administering medication for euthanasia.

In the legislative history of article 293 Pc the following was considered about the term ‘explicit and serious desire’:

‘(...) The German legislator also rightly required in § 216, that the court will firmly determine that the desire, for the article to be applicable, was explicitly expressed and seriously meant. The desire should be more than a slight passing impression of the moment, maybe incited artificially by the murderer.(...) 37

In the legal literature the following was said about the meaning of the term ‘explicit and serious desire’.

Noyon/Langemeijer/Remmelink describe it as follows:

‘(...) It must be plausible that the desire really existed and that he positively knew the desire. This is evident from the words ‘at his desire’. Not only should there be a relation between the act and the desire but this desire has to have determined the act. (...)

Of course the seriousness of the request can only be assessed based on the apparent behaviour of the requester and on what is actually known about the requester. Often his true opinion can’t be verified. When the perpetrator is involved with a young child or a mentally ill person the request, although subjectively experienced as serious, can’t qualify as serious from a legal viewpoint. Finally the court will have to decide if there was an explicit and serious desire. If the court finds that the accused has wrongly assumed this, even excusable, application of article 293 Pc is impossible. Nevertheless it is my opinion that the court will also have to apply article 293 Pc if an explicit and serious desire did really exist and was also expressed, to which the defendant agreed without giving it much thought. The question if the defendant has conducted a conscientious and careful examination into the nature of the desire is irrelevant in such a case.(…)

The word explicitly indicates and apparent feature of the desire. As a contraction of ‘explicitly expressed’ it requires not just some chat or the sole consenting answer of a question, but an independent frank and unmistakable act of the other person.(…) It comes down to the unmistakable intention.(…) In my view the state of affairs should be at least that one can believe the seriousness of the desire.38

Wöretshofer concludes in his thesis on this point as follows:

‘(…) In articles 293 and 294 Pc the legislator of 1881 has criminalised termination of life at request and assisted suicide. “request” is understood to be unambiguously expressing of the serious wish to be killed by another person. This expression of will can be verbal or non-verbal.(…)’39

In the jurisprudence the term “explicit and serious desire” is understood as the unambiguous expression of a serious well deliberated and enduring will, verbal or non-verbal by a person who is not mentally confused. A desire that is expressed only once is not sufficient in this respect.40

The court establishes that the request for euthanasia and the dementia clauses were the bases for the termination of the life of the patient by the accused.

Furthermore the court agrees with the Public Prosecutor and the lawyer that the patient herself drafted and signed the request for euthanasia, the dementia clause of 2012 and the revised dementia clause of 2015, that she was mentally competent at the time of these statements and that her wish was serious, well-considered and enduring. This is evident from the statement of the general practitioner who discussed the request for euthanasia and the dementia clauses with the patient (in the presence of her husband), shortly after the drafting of the statements and repeatedly afterwards 41 and the letter of the geriatrician, who on 17 January 2013 discussed the request for euthanasia and the dementia clause of 2012 with the patient (in the presence of her husband).42 The husband and the daughter, with whom the patient discussed her wish many times over the years, also confirm that the menstioned statements were the personal, explicit and enduring wish of the patient.43 The patient was aware, more then any other person, what would be facing, in view of the fact that both her mother and her brothers had been hit by Alzheimer’s.44 Independent from each other the SCEN physicians come to the conclusion that the patient was mentally capacitated at the time the mentioned statements were drafted.45

It is a fact that the patient never revoked the request for euthanasia, the dementia clause of 2012 and the revised dementia clause of 2015.

The court also agrees with the Public Prosecutor and the lawyer that in the course of 2015 the patient became incapacitated and that she was very demented at the time of the termination of life. This is concluded by the general practitioner, who saw and spoke to the patient for the last time on 28 January 2016 and who has observed her46 and the consultant of the life-end clinic who had contact with the patient on 29 March 2016 and who has observed her.47 Also the both SCEN physicians who had contact with the patient on different moments and have observed her, independently from each other come to the conclusion that the patient is incapacitated at that moment. They conclude that the patient is suffering from advanced dementia, is no longer capable to express her will in a way which is clear to another person and not able to formulate a request for euthanasia because she lost the understanding and the grip of it.48 The accused consulted these three physicians and the consultant of the life-end clinic on this point and it is the opinion of the court that, based on her own findings as an appropriately qualified physician, she could come to the conclusion that the patient was incapacitated and very demented at the time of the termination of life.

Furthermore the court agrees with the Public Prosecutor and the lawyer that the request for euthanasia and the dementia clauses were unambiguous about the wish for euthanasia in case of admittance to a nursery home because of very advanced dementia. The court therefore considers the following.

It is the opinion of the court that in the present case the texts in the dementia clauses regarding the control over the moment of euthanasia (‘when I am slightly mentally competent’, ‘when I think the time is right for it’ and ‘at my request’) do not rule out euthanasia when admitted to a nursery home in case of incapacity.

In the dementia clause of 2012 as well as in the revised dementia clause the patient unambiguously expressed that she definitely did not wanted to be admitted to a nursery home. In that case she wanted euthanasia anyhow. She constantly repeated when the request for euthanasia and the dementia clauses where discussed at the general practitioner and also during the (quarterly) health checks at the general practitioner. Also the husband and daughter of the patient, with whom she has discussed her wish for euthanasia in case she would be admitted to a nursery home, confirm this interpretation of the dementia clauses.

Furthermore the dementia clauses should be read in conjunction with the request for euthanasia. The request for euthanasia states her request should be taken completely serious by a physician, even without additions (meaning the dementia clauses) and that her request remains in force despite the time that might have past since it was signed, whereby the patient consciously accepts the fact that a physician might her respond to her request, about which she might have come to think differently in her present state of mind. The court finds that this clearly means that the patient wanted to transfer her control over the moment of euthanasia in case she was admitted to a nursery home, to a physician

In case of a different interpretation, namely that the patient only wanted euthanasia as long as she herself was able to determine the moment herself, her written living will would loose every meaning and be just an announcement of a request at a later moment. It transpires from the above that this was explicitly not the intention of the patient.

In the light of the above it is the opinion of the court that the accused, based on the findings of the general practitioner, the geriatrician, the two SCEN physicians, the husband, the daughter and her own findings as an appropriately qualified physician that the patient was mentally competent at the time she drafted the request for euthanasia and the dementia clauses and that those statements unambiguously express the serious, well-considered and enduring wish of the patient for termination of life in case of admittance to a nursery home because of very advanced dementia.

The Public Prosecutor states that the terms ‘explicit and serious desire’ which is used in article 293, first paragraph Pc, and ‘voluntary and well-considered request’, which is laid down as the first requirement for due care in article 2, first paragraph, under a, Tla, are identical and coincide

Furthermore the Public Prosecutor states that- according to the legislative history of the Tla- the due care requirement of article 2, first paragraph, under a, the Tla entails that a written statement still has to be verified, as long as a incapacitated patient is still able to express a concrete (coherent) wish to live or to die. Since the patient has made statements at some time that can be taken to mean that she thought euthanasia went too far and that she did not want to die yet, the accused could not euthanize the patient without a further and consistent confirmation of her wish to die to the accused. The accused failed to do this, and therefore could not come to the conclusion that the patient had made a voluntary and well-considered request. Since the terms ‘explicit and serious desire’ and ‘voluntary and well-considered request’ are identical there is also no ‘explicit and serious desire’, according to the Public Prosecutor. This, according to the Public Prosecutor, means that there is no proof for the primary accusation, termination of life at the explicit and serious desire and that this is a case of homicide, as is charged in the alternative.

The lawyer has mounted a defence against this.

The court considers the following.

Article 293, first paragraph, Pc, was included in the Penal Code at the end of the nineteenth century. It is evident from the explanatory memorandum that the legislator intended to impose a considerable lighter penalty to a person who complies with an explicit and serious desire of a person to take his life than a person guilty of a common homicide. The consent cannot override the criminal liability of the termination of life, but she does give a completely different character to the act. The law no longer punishes the attack on the life of a certain person but the violation of the respect we owe human life in general. The offence against the life remains, attack against the person is cancelled.49

The article refers to any person who terminates the life of another person and not only to physicians.

In a legislative amendment of 12 April 2001 (effective from 1 April 2002) article 293 Pc was changed, in the sense that the second paragraph of article 293 was added, in which the special statutory defence for physicians was laid down, in case they complied with the criteria for due care as referred to in article 2 of the Tla. In the first paragraph of article 293 Pc only the term ‘takes the life’ was changed in ‘terminates the life’. The term ‘explicit and serious desire’ remained unchanged in the legislative amendment. For the due care requirement of article 2, first paragraph, under a of the Tla, the following wording was chosen: ‘voluntary and well-considered request’.

It seems that the legislator has therefore tried to deliberately express that it is about different concepts and with different review criteria. The court finds that this is right. Because if a physician wants to be successful in relying on the special statutory defence, he has to comply with some due care criteria. It is logical that to this (the due care criteria) higher standards have to be set, than for complying with the criteria applied to conclusive evidence for (the criminal offence as laid down in) the description of the criminal offence of article 293, first paragraph, Pc.

Because of the structure of article 293 Pc, for a physician to rely on the statutory defence, it first must be proved that there is a termination of life at the explicit and serious desire, before the due criteria can be reviewed. The criteria for due care explicitly do not form part of the description of the criminal offence of article 293, first paragraph, Pc.

Besides, in the legislative history relating to article 293, first paragraph, Pc, nor in the jurisprudence on this, we can find leads that verification of the present wish to live or to die in a incapacitated very demented patient would form part of the assessment if there is an ‘explicit and serious desire’.

Moreover the legislative history50 relating to the above mentioned legislative amendment does not show that the legislator sought to change the original interpretation of ‘explicit and serious desire’ nor that the legislator intended to let the concepts ‘explicit and serious desire’ and ‘voluntary and well-considered request’ coincide, on the contrary.

The legislative history shows the following: ‘(…) The independent responsibility of the Prosecution Service for the decision to prosecute entails that it, partly on the basis of the judgment that was passed in the specific case, assesses the actions of the physician to the applicable legal standard and its relevant jurisprudence. The judgment if the actions of the physician fall under the special statutory defence or under the description of the criminal offence of article 292, first paragraph or 294, first paragraph, Penal Code, ultimately rests with the Prosecution Service and to court to which this particular case is submitted. (…)51

It is the opinion of the court that this means that the legislator in principle envisaged that the termination of life by a physician based on a statement of living will would fall under the description of the criminal offence laid down in article 293, first paragraph, Pc.

The fact that it is in many cases the same statement of living will (particularly the request for euthanasia and the dementia clauses) is the source document for an assessment of ‘explicit and serious desire’ as well as in case of assessment of ‘voluntary and well-considered request’, doesn’t change this.

Finally the court considers that -although the law for the assessment if there is an ‘explicit and serious desire’ doesn’t have a legal obligation to verify the present desire to die of a incapacitated very demented patient – it doesn’t seem meaningful and therefore not necessary to do this. On this basis the court doesn’t see a reason to improve the standards for ‘explicit and serious desire’ in this respect.

In view of the above considerations the court finds that the standards, which according to the legislative history, the legal literature and the jurisprudence, are applied to ‘explicit and serious desire’, are met. Since it has also been established that the accused on 22 April 2016 in The Hague terminated the life of the patient by administering euthanasia medication 52 there is legal and convincing proof for the primary charge.

The defect of the due care requirement of a voluntary and well-considered request - specifically failing to verify the present wish to live or to die of a incapacitated very demented patient – will be addressed in the next chapter when the criminality of the proven facts is evaluated.

Article 2, second paragraph of the Tla: written statement for termination of life

Pursuant to article 2, second paragraph of the Tla, if a patient of over 16 years of age is no longer capable to express his will, but before he entered this state of mind was assumed to be capable of a reasonable valuation of his interests pertinent to the situation, and has made a written statement, being a request for termination of life, the physician can respond to this request.

As indicated above it has been established that the patient (who was 74 of age at the time of the termination of life) at the time of the termination of life was no longer mentally competent and very demented. Since, as was found earlier, it has also been established that the patient was mentally competent at the time she drafted the request for termination of life (specifically the request for euthanasia and the dementia clauses), the accused could respond to this.

Pursuant to article 2, second paragraph of the Lta the due care criteria of article 2, first paragraph of the Tla apply accordingly.

The interpretation of the words “accordingly apply” has been examined when the draft law was discussed.

In the Memorandum on the further report the ministers declare:

‘(…) To justify the granting of the request for termination of life laid down in the living will of a patient who in the mean time became incapacitated, like a patient who is in a deep coma or very demented, the corresponding due care criteria from the first paragraph are required. The chosen wording means that the due care criteria mentioned in the first paragraph must be observed in so far as there are similarities in the first and the second paragraph. The specific position of the incapacitated patient entails that the oral verification of his wish and his suffering is not possible. In fact, as the members will understand, such a patient cannot make a request. Therefore the physician will have to obtain the necessary conviction that all the due care criteria have been met, on the basis of his own assessment of the situation, consultation with other healthcare providers who were or are in a treatment relationship with the patient and consultation with family and friends. He can be convinced of the voluntary and well-considered nature of the request if this findings do not prompt him to assume the contrary.(…)’ 53

In their reply to the memorandum the ministers argued the following about this:

‘(…) If the patient is incapacitated at the moment when it is decided to take actions to terminate life, the due care criteria laid down in the present regulation also apply if there is a written living will that was drafted before there was a state of incapacitation. In that case the due care criteria have to be applied in so far as the actual situation allows this. Since the patient is no longer capable of a reasonable valuation, the physician will have to obtain the required conviction that the due care criteria have been met based on his own

assessment of the medical file and the specific situation of the patient, consultation with other care professionals, who have or had a treatment-relationship with the patient and consultation with family and relatives.

He can be convinced that the request is voluntary and well-considered if his findings do not lead him to assume the opposite. It is important that the content of the statement is discussed between patient and physician in response to the statement and on the moment the statement is drafted. This way the physician can be convinced, if he has to face this decision, that the will laid down in the statement corresponds to the situation in which the patient has ended up in such a case, and that the expression of the will was voluntary and well-considered.(…)’ 54

Taking this explanation into account the court will now further discuss the due care criteria and check if the accused has complied with them.

Article 2, first paragraph, sub a, Tla: voluntary and well-considered request

Did the accused become convinced that there was a voluntary and well-considered request of the patient?

The court refers to what she has already before established about the explicit and serious desire of the patient. Taking this into account it is the opinion of the court that the accused has also become convinced and could have become convinced that the request for euthanasia was expressed voluntary and well-considered when the patient was still capable of a reasonable assessment of her interests in this respect. The court also considers here that according to the legislative history the physician in case of legal incapacitation and profound dementia of the patient – which occurs in the present situation- has to obtain the required conviction that there is a voluntary and well-considered request, based on his own assessment of the medical file and the specific situation of the patient, consultation with other care professionals, who have or had a treatment-relationship with the patient and consultation with family and relatives since oral verification of his wishes and suffering is not possible.

For her conviction that there was a voluntary and well-considered request of the patient, the accused has taken cognizance of the medical file of the patient, containing inter alia professional communications with the geriatrician of the patient. The accused also consulted the general practitioner of the patient, with the (authorized) husband and the daughter. Furthermore the accused has consulted the SCEN physicians independently of each other.55

Verification of the current wish to live or die?

As stated before, the Public Prosecutor concludes from the legislative history of the Tla that the due care requirement of article 2, first paragraph, under a, entails that a written living will has to be verified, as long as a incapacitated patient is still able to express a specific (coherent) wish to live or die. Since the patient at some point in time made statements that can be taken to mean that she thought euthanasia went too far and that she did not want to die yet, the accused was not allowed to practice euthanasia on the patient without a further and consistent confirmation of her wish to die.

According to the Public Prosecutor the accused could not become convinced that there was a voluntary and well-considered request, because she failed to do this.

It is the opinion of the court that, in view of the state of profound dementia the patient was in, the accused did not have the obligation to obtain information from the patient about her present wish to live or to die. This is a requirement, which is not laid down in the law. The specific situation of the incapacitated patient leads to the fact that an oral verification of his wish to live and his suffering is impossible.56 Setting this requirement would be detrimental to the living will of the patient, which is specifically intended for the situation in which the person who drafted the living will ends up in a state of unbearable and hopeless suffering and is no longer able to express his will.57

In a letter dated 6 March 2013 to the chairman of the Second Chamber of Parliament, the Minister of Public Health, Welfare and Sports, at the request of the permanent commission on Public Health, Welfare and Sports, gives a reaction to the report of KPMG regarding euthanasia and a reaction to the possibilities for euthanasia in case of dementia in the existing Law on Euthanasia (the court understands: the Tla). The Minister writes, also on behalf of his colleague of Safety and Justice:’(…) However, a written living will can also replace an oral request, pursuant to article 2, paragraph 2 of the Law on Euthanasia. This article establishes that when a patient is no longer capable to express his will, but before he entered into this state was believed capable of a fair assessment of his interests in this respect, and made a written living will containing a request for termination of life, the physician can respond to this request. This article is important for example when a patient with a request for euthanasia in the mean time has become incapacitated. A written living will is essential, in case of a patient with such problems, to determine if there is a voluntary and well-considered request. At this point it can reinforce he opinion of the physician if the statement has been discussed several times and thoroughly when the patient was still able to express his or her will and if the statement has been updated and signed several times. 58

In the memorandum on the report the ministers remark: ‘(…)The actual consequences of this written living will, referred to in article 2, second paragraph, are that the physician can consider such a statement as being in accordance with the will of the patient. The statement has (…) the same status as an actual request for termination of life. The presence of either of these constitutes justification for the physician, while observing the due care criteria mentioned in the draft law, to respond to the request of the patient.(…)’59

The Minister of Public Health, Welfare and Sport states the following in a letter dated 4 July 2014 to the Chairman of the Second Chamber of Parliament, under the heading ‘written will as an actual request’: ‘(…) The will laid down in the living will can, on the moment that the situation which was described occurs, be considered as the present will. This means that if the patient is no longer able to express his will, the written living will can be considered as the present will. The question is how behaviour that is not in line with the behaviour described in the living will should be validated and how it should be interpreted. The approach found in the judgment of the review boards regarding later behaviour, seems to align with the words used in the originally proposed legal condition on the written living will: the physician can take the written living will as a point of departure <<unless he has solid grounds not to respond to the request>> According to the recommendation of the

investigators this can be taken as a general point of departure for evaluation.(…) 60

From what the ministers have remarked in the memorandum the report it can not be concluded that the accused would have to ask this patient again about her present will: ‘(…) Our reaction to the position that was referred to, that more importance should be given to what the patient suffering from dementia wants at the specific moment than what he wrote down earlier, is that there will be no reason for the physician to respond to the request if a demented patient, who is still able to express his will, indicates that he doesn’t want this. The living will can be, as we have explained, mainly a guideline for the physician if it is about a patient who is already so demented that expressing a will in a coherent manner is no longer possible. (…)’

And furthermore:’(…) we confirm that we assume that a patient, who has drafted a living will and after this enters into a state of hopeless and unbearable suffering, has to confirm his wish orally as long as this is possible.(…) 61

In this memorandum the ministers further state: ‘(…) Indeed it is never possible to say with certainty if the patient, when the situation described in the living will occurs, still has the same wish, specifically the termination of life. The patient should be aware of this when he drafts the statement, and the physician, with whom the patient discusses this statement can also confront the patient with this. In this respect we again emphasize the fact that a living will can always be revoked by the patient, as long as the patient is capable to do this. However if the statement leaves no room for doubt on the circumstances under which the patient wants, if he has become legally incapable, his life to be terminated, then responding to this request is in accordance with the criteria set in this draft law, in our opinion to be considered as termination of life at explicit request. (…)62

As set out earlier, the patient was very demented. She no longer had any notion or understanding of her illness, she no longer knew what euthanasia meant, she also no longer recognised her own image in the mirror and although she still spoke no sense could be made of what she said, as the court also concluded based of the footage that was made. She was therefore no longer able to communicate her own will in a coherent way. In this respect the court interprets ‘coherent’ in the way it is defined in Van Dale’s [Dutch] dictionary, which is ‘clear and consistent’ and therefore meaningful. If the patient is still able to form and pronounce actual words but because of her legal incapability no longer understands the actual meaning of those words and can’t be believed capable of a fair assessment of her interests, a coherent expression of the own will does not occur. The court therefore does not share with the Public Prosecutor the opinion that the same meaning should be given to ‘coherent’ and ‘specific’. Pursuant to the Lta an incapacitated person cannot make a legally valid request for euthanasia since a well-considered request is not possible. It is the opinion of the court that it would be contrary to the scope of the Tla that a person who has become incapacitated would be able to revoke a legally valid request for euthanasia that he made earlier.

The court is familiar with the fact that in the medical world standards have been designed about medical actions in case of euthanasia, where the position is taken that the attending physician should try to verify the position of the patient over his present wish for euthanasia.

However this position, as is apparent from the legislative history quoted before, is stricter than the law. Bearing in mind the due medical care it might be recommended to speak about the actuality of a wish to die which was expressed years ago and has been updated regularly since, even with a person who is absolutely not able to understand the importance of this. However, the court does not see the necessity of this, let alone that there would be a legal obligation to do so. The court also finds that, in view of the fact that the patient was no longer able to coherently express her will, the accused didn’t have to see a contra indication in the contradictory expressions of the patient about her wish to live or to die.

The SCEN physicians consulted by the accused shared the accused’s view that there was a voluntary and well-considered request63

It is the opinion of the court that the accused has the physician after careful consideration and taking into account all the relevant circumstances, concluded that there was a voluntary and well-considered request. On this basis the accused has obtained and could have obtained the conviction that the request was voluntarily and well-considered and communicated when the patient was still capable of a reasonable assessment of her interests and in this regard.

The court concludes that this due care requirement has been complied with.

Did the accused become convinced that the patient’s suffering was hopeless and unbearable?

During the debate in parliament about the Tla the issue was raised several times that dementia, whether or not in the form of Alzheimer’s disease, in itself can’t be a reason for termination of life on request.64Allthough there is always the requirement of hopeless and unbearable suffering, this is difficult to establish in this type of illness. The establishment if there is hopeless and unbearable suffering requires a medical-professional judgment, therefore this establishment is the preserve of the physician. 65 Evaluation ex-post that the suffering was hopeless and unbearable means a marginal assessment if the physician could reasonably arrive at the conclusion that there was unbearable suffering.66

In this case the accused arrived at the conclusion that the suffering of the patient was hopeless and unbearable based on the talks with the husband and the daughter, her own observations of the patient, the footage and findings of the medical team and the findings of the consultant of the life-end clinic.

It was observed that the patient during the larger part of the day showed signs of agitation, unrest, stress, anxiousness, sorrow, anger and panic. She cried a lot, often said that she found it horrible and that it was breaking her down and said every day (up to 20 times a day) that she wanted to die. Her day and night rhythm was disrupted and almost every day she wandered over the hallways, also at night. She banged on the windows and doors until her hands hurt. She accosted random people believing that they were acquaintances. This often led to physical conflicts with fellow residents. There was also a

physical degradation of her person, by large dependency and incontinence.67

The SCEN physicians consulted by the accused also shared the opinion of the accused in this respect. For the sake of completeness the court points out that the opinion of the court is also shared by the regional review committee euthanasia and the disciplinary boards for which she had to answer. The court can only marginally review and finds that the professional opinion of the accused was formed with due care.

This due care requirement has been complied with.

Article 2, first paragraph, sub c, Tla: counselling

Has the accused counselled the patient about the situation in which she found herself and about her prospects?

As far as this due care requirement is concerned, it applies in so as far as the actual situation allows it. The patient was incapacitated and very demented when the accused first had contact with her. Since the patient was no longer capable of making a reasonable assessment in this respect, the accused herself has not been able to inform the patient about her situation and prognoses. The accused has had to obtain the required conviction that the due care criteria has been complied with based on her own judgment of the medical file and the actual situation of the patient, consultation with other medical professionals who have or had a treatment relationship with the patient and consultation with family and friends.68

From the medical file and the examination in court it as been established that the accused has taken cognizance of the medical file of the patient of the general practitioner, containing inter alia the specialised communications of the patients geriatrician. These messages show that the diagnose of dementia type Alzheimer’s was made by the geriatrician, who later also saw the patient for a health check and who recorded what was discussed regarding this point in the medical file. The geriatrician remarked that she believed that the patient was mentally competent at the time. Furthermore the accused consulted with the general practitioner, with whom the patient has spoken at length in the context of the request for euthanasia and the dementia clauses, and also later during the (quarterly) health checks in between. The general practitioner also believed the patient to be mentally competent. Because of the request for euthanasia and the dementia clauses and because of the conversations the accused had with the husband and the daughter of the patient it could also become clear to the accused that the patient knew very well what she was facing. On this bases the accused may very well have become convinced that the care providers have informed the patient about her situation and her prospects when she was still mentally competent.

The SCEN physicians who were consulted by the accused share the opinion of the accused in this respect.

The court finds that this care requirement has been complied with.

Article 2, first paragraph, sub d, Tla: no other reasonable solution

Has the accused arrived with the patient at the conclusion that there was no reasonable other solution for the situation she found herself in?

Again, this due care criterion must be applied as far as is possible in the actual situation. The patient was incapacitated and profoundly demented when the accused first had contact with her. Since the patient was no longer capable of a reasonable assessment in this respect, the accused was not able to become convinced with the patient that there was no reasonable other solution for the situation she was in. The accused had to obtain the required conviction that the due care criteria had been complied with based on her own judgment of the medical file and the actual situation of the patient, consultation with other medical professionals who have or had a treatment relationship with the patient and consultation with family and friends.69

The court finds the fact that there is no cure for Alzheimer’s a fact of general knowledge. The report of a written consultation shows that the question if there is a realistic perspective for treatment can be approached according to objectified medical standards. ‘A perspective for treatment is realistic if (a) there is a prospect for improvement in case of adequate treatment according to current medical understanding, (b) within a reasonable term, (c) with a reasonable relation between the results to be expected and the burden of the treatment for the patient. On the bases of the above elements for example admission to a nursery home only for the further care can’t be qualified as a realistic prospect for treatment.70

When she was interrogated by (what was at the time) the inspection for health care and during the examination in court the accused declared that she tried to alleviate the patient’s suffering by administering medication. However this did not bring solace.71 Psychosocial intervention also failed to produce effect.72 The psychiatrist consulted by the accused, who was also SCEN physician, indicated in her consultation report that the also saw no alternative options for treatment.73

Article 2, first paragraph, sub e, Tla: consulting at least one independent physician

Did the accused consult at least one other independent physician who has seen the patient and has give a written opinion about the due care criteria, referred to in pints a up to d?

The accused has, because of her expertise, a psychiatrist, who was also SCEN physician and a SCEN physician (internist). Both of these physicians have seen the patient and have given their opinion in writing. This opinion is that the due care criteria for euthanasia have been complied with.74

The court finds that this care requirement has been complied with.

Article 2, first paragraph, sub f,Tla: performance with due medical care

Did the accused perform the termination of life or assisted suicide with due medical care?

The accused was informed about the standards of the Royal Dutch Medical Association [Koninklijke Nederlandse Maatschappij ter bevordering van de Geneeskunst] (KNMG) and the Royal Dutch Pharmaceutical Association [Koninklijke Nederlandse Maatschappij ter bevordering der Pharmacie] (hereafter also: RDPA) regarding a performance with due care, that were in force at the time.75 The accused discussed the manner in which the euthanasia would be performed with the patient’s family76 and consulted with a pharmacist about the dosage of the pre-medication.77 She discussed the procedure for sedation (the court understands: administering premedication) with the SCEN physician (internist).78 The fact that the accused used pre-medication, doesn’t make the method used to preform the euthanasia careless. The patient wanted euthanasia and of this has to be applied as an ultimate measure then it has to happen in the most confortable way for the patient. The expert- anaesthesiologist [name of the expert], who was appointed by the examining magistrate, gave as his expert opinion that premedication can be advisable when there are indications in case of a patient who is not mentally competent (as in this case), that unrest, agitation and aggression might occur when the actual euthanasia act of euthanasia is performed.79

Like the Public Prosecutor the court does not see why the patient would have had to consult with this incapacitated and profoundly demented patient about the specific moment and the way in which the euthanasia would be performed. Such a conversation would not only be pointless because the patient did not have the understanding about these subjects, but might have also caused more agitation and unrest. During the examination in court the accused explained that she experienced this before with this patient, when in conversations she tried to pull the patient into reality.80

According to the expert [name expert] the physical and verbal reactions that the patient showed when the euthanasia was performed are spasmodic reactions the patient was not consciously aware of.81 The court has no reason to doubt the experts’ opinion.

The court agrees with the Public Prosecutor and the lawyer that the euthanasia has been performed with due care.

Conclusion

The conclusion of the court is that the accused has complied with all due care criteria laid down in article 2, first paragraph. The court furthermore establishes that the accused reported the termination of life in the statutory manner, pursuant to article 7, second paragraph, of the Burial and Cremation Act.82 This report is a component of the statutory defence laid down in article 293, second paragraph, Pc.

Considering all the guarantees for termination of life on request established in the Tla, also if it concerns the termination of life of a person who is incapacitated, there is no violation of article 2 of the European Convention on Human Rights and the fundamental freedoms.

This means that the fact stated to be proven is not a criminal offence and that the accused will be discharged of criminal prosecution.

In view of the remarks of the Public Prosecutor during the examination in court about this subject, this judgment means that the court doesn’t have to come to a judgment about the alternative charge of voluntary manslaughter or unlawful manslaughter. In this respect the court wants to observe that it must be very difficult for the accused to find herself confronted with an accusation of voluntary manslaughter while she – in the eyes of the Public Prosecutor- has complied with almost all of the applicable due care criteria and she can, according to the Public Prosecutor, only be partly blamed for violating one important due care requirement since this requirement was not laid down sufficiently clear and knowable in the law. Under such circumstances an accusation of voluntary manslaughter does not do justice to the integrity and transparency of the actions of the accused.