By: Neal Kok
The issue of euthanasia has long haunted both the courts and Parliament, with different jurisdictions reaching different solutions to the problem of euthanasia. Notably, both the UK [1] and Singapore [2] have legislation making an act of assisting the suicide of another illegal. On the other hand, physician assisted suicide is presently legal in the Netherlands, Luxembourg, Belgium, Switzerland and the states of Washington, Oregon and Montana in the US with the general aim of enabling those with a medically diagnosed hopeless or incurable illness, and who are suffering unbearable pain, to end their lives with dignity [3]. Nevertheless, a common thread that every institution has to address is that of consent. Consent, and its relationship with autonomy, forms the basis of a majority of the arguments supporting the permissibility of euthanasia. Unsurprisingly, this has resulted in difficult cases involving dementia patients to arise. It is not difficult to envisage an instance where a patient, while still at full cognitive ability, may have given express consent that he should be taken to have given advanced consent to euthanasia should a certain set of conditions arise. Such a desire to give advanced consent usually arises out of fear of future suffering or out of concerns for long term care [4]. The difficulty arises when the dementia patient can no longer remember having previously given consent, and may even show signs of resistance at the point of administering the fatal dose. Obviously, this issue can only arise in jurisdictions where euthanasia is permitted. As such, this article will make reference to the solutions that the Netherlands have reached.
A review of Dutch law on Euthanasia
Under the Termination of Life on Request and Assisted Suicide (Review Procedures) Act which took effect in 2002 (commonly referred to as the Euthanasia Act), the Dutch legislature makes an exemption from criminal liability for the physician who, in observance of due care, terminates a life on request or assists in a suicide of another person. Section 2(1) [5] provides that in order for a physician to be permitted to conduct a lawful euthanasia, the attending physician must comply with the due care criteria which is laid out as follows:
the attending physician must
(a) be satisfied that the patient has made a voluntary and carefully considered request;
(b) be satisfied that the patient's suffering was unbearable, and that there was no prospect of improvement;
(c) have informed the patient about his situation and his prospects;
(d) have come to the conclusion, together with the patient, that there is no reasonable alternative in the light of the patient's situation;
(e) have consulted at least one other, independent physician, who must have seen the patient and given a written opinion on the due care criteria referred to in (a) to (d) above; and
(f) have terminated the patient's life or provided assistance with suicide with due medical care and attention.
It is evident from the requirements stated in section 2(1) that the underlying key concerns behind the decriminalisation of euthanasia are autonomy, beneficence and procedural safety.[6] Autonomy is evident in the requirement of the patient having given a voluntary, carefully considered and informed request (requirements (a) and (c)); beneficence is seen in the requirement that the patient’s suffering be unbearable and that there was no reasonable alternative (requirements (b) and (d)); and procedural safety is demonstrated through the requirement that another physician concur with the first physician’s opinion and that the procedure be carried out with due medical care (requirements (e) and (f)). It may also be implied from the caution with which physicians are required to act that there are countering considerations of the value of life and the symbolic meaning such legislation has – the message it sends to those terminally ill patients about the value of their lives.
Dementia cases
With these considerations in mind, we may now turn to its application in dementia patient cases. Section 2(2) of the Euthanasia Act [7] further provides for the use of a written declaration prepared in advance requesting that one’s life be terminated in cases where the patient is no longer capable of expressing his will. This raises several issues with respect to the aforementioned considerations. Firstly, with respect to autonomy, there is an inherent knowledge gap at the time of giving the advanced request stipulated in section 2(2). It is unclear whether one can say that the consent given in advance, even though given while the patient was still capable of making a reasonable appraisal of his own interests, was fully informed. It is difficult for one to be capable of fully knowing how a future state of himself may respond to a particular set of stimuli, or how the set of stimuli may even evolve. Another issue with autonomy arises where the patient shows signs of resistance at the point of administration despite all the conditions set out in the advance request having been satisfied -- this raises the issue of whether one’s past voluntary act should restrict their future self’s contrary voluntary act. This was one of the issues that arose in the Dormicum case [8] in the Netherlands. The patient in question had been deemed by both his physicians as suffering unbearably, but showed signs of resistance at the point of administering the fatal dose. The physicians took the patient’s signs of resistance as merely a symptom of the disease and not an expression of the patient’s will. The Supreme Court of the Netherlands found that the physicians had acted with appropriate due care, agreeing with the physician that the signs of resistance were merely a symptom of the disease and not an expression of the patient’s will. This appears to be a bold disregard by the court and the physicians of the patient’s expression of his wishes in favour of an earlier expression of will.
Turning then to the issue of beneficence, it is argued that suffering should be understood as being on a scale, with tolerance levels varying according to individuals. This similarly varies according to the state the individual finds himself in, and it is difficult to anticipate this. This becomes a problem when the patient, in his advance request, sets out the conditions under which he would want to be euthanised, anticipating that this would be unbearable and that there would be no reasonable alternative that he would be satisfied with. Although this is ultimately something to be interpreted by the physicians [9], there is a foreseeable possibility that the consideration of beneficence may not be satisfied in each case because the perceived relief of suffering may not be the same as what was anticipated at the time of the advance request. With the acknowledgement that the justification of beneficence may not be satisfied in cases involving demented patients, there is an argument that the advanced request should no longer be considered binding. As such, greater caution should be taken when handling issues involving advanced requests, and section 2(2) should not be taken as an absolute mandate given to physicians to act as they please.
It is helpful to turn to Dworkin’s reflection on autonomy at this point. Dworkin argues that the purpose of respecting an individual’s right to autonomy is to acknowledge one’s right to a life structured by his own values even when these values are not ours [10]. The implication of this finding is that where a demented patient’s choices and demands, no matter how firmly expressed by him, systematically contradict one another, or reflect no coherent character whatsoever, or are radically discontinuous with the values of his previous life, then he has presumably lost the capacity that warrants a right to autonomy. If that is the case, then his decisions while in his demented state do not necessarily warrant respect. This in turn means that, to Dworkin, an advanced request for euthanasia by a competent person has to be respected even if there are signs of resistance, unless the signs of resistance are displayed at a point where the patient may be considered to be still in charge of his own life. The issue, however, with Dworkin’s argument is that he begins with the premise that the personal identity of an individual survives even the most serious dementia. This may however be questioned on the following grounds.
The most fundamental issue underlying this discussion is that dementia cases bring up problems of personal identity, which asks to what extent it can be said that the person giving the advanced consent is the same person as the person suffering in his state of dementia. The consequence of the conclusion to this problem has implications on the degree of consent that may be said to have been given in the advanced request. There are different theories to this problem, with an emphasis on different aspects of a person to identify what constitutes the essence of a person, such that the alteration of which will constitute a change in the person. On Locke’s account, personal identity depends on consciousness, such that if one’s consciousness of present thoughts differs from his consciousness of past and future thoughts and actions, it would constitute a change in the person’s identity [11]. If this is the case, then it would mean that the person who gave the advanced request would be considered someone different from the person in his state of dementia, and his advanced request should not be considered binding on him. If on the other hand the moral self-hypothesis holds true, then moral traits are essential to the identity of a person, and whether the dementia patient may be considered to be the same person as he was when he gave the advanced request depends on any change in his moral character [12]. On this account, the validity of the consent given in advance depends on the effect the disease has on his moral character. Despite the different conclusions that the various theories may lead to, it is intuitively clear that there is difficulty in binding someone to what he had previously consented to, but which he has forgotten about and which has little detrimental effect on those around him.
Implication on the law
It is thus clear from the difficulty in defining both the extent of autonomy expressed in the advanced request, as well as the degree of good it would do to the patient that the justifications of consent and beneficence are not fully expressed in cases involving dementia patients. With that in mind, the risk in carrying out an unjustified procedure is very high. As it has been suggested by McCann [13], this perhaps warrants a risk relative approach, where what may be considered as due care is based on the risk that the procedure may be unjustified at the point of administering the fatal dose. By varying the care with which the physician is required to act with according to the particular factors that render the procedure potentially unjustified, the law would be able to set a higher expectation and obligation on physicians when faced with such a morally ambiguous situation. Moreover, it is argued that one’s expression of resistance should not be dismissed as merely a symptom of the disease, but rather at the very least as an indication of a lack of full consent or a sign that the consent that had been given in advance was not fully informed.
Although this discussion has been confined to the jurisdiction of the Netherlands, the scope of the discussion forms a good platform for other jurisdictions to consider reforms in this area of the law. In Singapore, the current law prohibits euthanasia, as clearly reiterated in section 17(2) of the Advance Medical Directive Act 1996 [14], which states that “to avoid doubt, it is declared that nothing in this Act condones, authorises or approves abetment of suicide, mercy killing or euthanasia.” However, as evident from the decriminalisation of attempted suicide in the Criminal Law Reform Act 2019 [15], there has been greater considerations for factors beyond the value of life, such as freedom of choice and relief of suffering. Should Singapore consider legalising euthanasia, it should look to countries such as the Netherlands to learn lessons from the cases that have arisen and to firmly decide where it stands on the related issues concerning demented patients. The Singapore Parliament will thus have to decide not only the standard by which it shall define unbearable suffering, but also to what extent demented patients’ autonomy should be considered as informed and whether it may even be considered as being given by the same person. Collectively, its decisions should always be guided by the considerations of beneficence, autonomy and procedural safety.
References
[1]: Suicide Act 1961, s 2(1)
[2]: Penal Code 1871, s 306
[3]: Chief Justice Sundaresh Menon, ‘Euthanasia: A matter of life or death?’ The Straits Times (Singapore, 24 March 2013)
[4]: Institute of Social and Preventive Medicine (ISPM), ‘Suicide assisted by right-to-die associations: a population based cohort study’ (February 2014) International Journal of Epidemiology 1-9.
[5]: Termination of Life on Request and Assisted Suicide (Review Procedures) Act, s 2(1)
[6]: Adam McCann, Assisted Dying in Europe
[7]: Termination of Life on Request and Assisted Suicide (Review Procedures) Act, s 2(2)
[8]: ECLI:NL:HR:2020:712
[9]: Buijsen, M. (2022). Mutatis mutandis. On Euthanasia and Advanced Dementia in the Netherlands. Cambridge Quarterly of Healthcare Ethics, 31(1), 40-53. doi:10.1017/S0963180121000475
[10]: Dworkin R, ‘ Autonomy and the demented self.’ (1986) The Milbank quarterly, 64 (Suppl. 2), 4–16.
[11]: John Locke, ‘An Essay Concerning Humane Understanding’ Volume I
[12]: Strohminger, Nina; Nichols, Shaun (2014). "The Essential Moral Self"
[13]: Dr Adam McCann, “Euthanasia and advanced dementia: lessons from the Netherlands.” Medical Law and Ethics Discussion Group Seminar Series
[14]: Advance Medical Directive Act 1996, s 17(2)
[15]: Criminal Law Reform Act 2019, s 84