Assisted Suicide in the Netherlands: The Chabot Case
| Date | 01 March 1995 |
| DOI | http://doi.org/10.1111/j.1468-2230.1995.tb02006.x |
| Published date | 01 March 1995 |
CASES
Assisted Suicide
in
the Netherlands: The
Chabot
Case
John Griffiths
*
In earlier decisions the Dutch Supreme Court has recognised a defence of
‘necessity,
’I
under narrowly-defined circumstances, to a charge of performing
euthanasia.2 Its most recent decision deals with assistance with suicide in the case
of a person whose suffering is not of somatic origin. The case is of general interest
and has been widely (and not always accurately) invoked in discussions outside the
Netherlands. It therefore seems useful to make the Court’s decision itself available
in English.
The decision of the Supreme Court
is
presented below. All but some purely
formal passages have been translated directly and in full. Direct translation is
indicated by quotation marks. All footnotes have been added. The statement of
facts is taken from the decision of the Court of Appeals.
The translation is followed by some comments on the decision itself and on some
of
the reactions to it, ending with a brief reflection on the question: what
is
slipping
from where to where on the notorious ‘slippery slope’?
Office
of
Public Prosecutions
v
Chabot3
Supreme Court
of
the Netherlands, Criminal Chamber,
21
June
1994,
nr
96.972.
Judges Haak (Vice-president), Mout, Davids, Van
Erp
Taalman Kip-
Nieuwenkamp and Schipper
[Nederlandse Jurisprudentie
1994,
nr
656;
Tijdschrifl
voor
Gezondheidsrecht
1994196,
nr
471.
1
Procedure
The appeal4 is from the Court of Appeals, Leeuwarden
(30
September
1993),
which (like the District Court, Assen,
21
April
1993)
found the defendant not
*Faculty of Law, University of Groningen.
1 There is a translation difficulty in connection with the legal concept
noodroesfand.
The technically
correct translation is ‘(situation
of)
necessity,’ and the defence of necessity is, in general terms, the
same in Dutch law as in the common law. However, in the case of euthanasia the ‘necessity’ which has
been recognised by the Dutch courts is not a general necessity but a specifically
medical
one, measured
in terms of the state of medical knowledge and the professional norms of doctors, and it seems clear
that no one but a doctor can successfully invoke it. There is, therefore, an argument to be made
for
translating the term as ‘medical necessity.’
2
For current Dutch law on the subject,
see
Griffiths, ‘The Regulation of Euthanasia and Related
Medical Procedures that Shorten Life in the Netherlands’ (1994)
1
Med Law Int 137-
158;
Griffiths,
‘Recent Developments in the Netherlands Concerning Euthanasia and Other Medical Behavior that
Shortens Life’ (1994)
1
Med Law Int 347- 386, referred to in subsequent notes as Griffiths 1994a and
Griffiths 1994b respectively.
3 In the translation of this judgment I have had the invaluable critical assistance of several highly
qualified Dutch experts.
4 Technically, request for cassation. The facts as found by the court below are taken as established and,
when the prosecution appeals, only those issues specifically presented in the request for cassation are
considered by the Supreme Court.
In
general, if the judgment below is found legally incorrect, the case
is assigned to a different Court of Appeals for a new decision.
0
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232
March
19951
The Chabot Case
guilty5 of the offence charged: ‘intentionally assisting another person to commit
suicide’ as prohibited by Article 294 of the Criminal Code.6 The Court of
Appeals found the defence of necessity well-founded and the question on appeal is
whether the Court’s interpretation of the scope of the defence was legally correct
and whether the facts as found support the decision.
The appeal was brought by the Solicitor General of the Court
of
Appeals.
E.Ph.R. Sutorius represents the accused. The brief of the Advocate General of the
Supreme Court, L.C .M. Meijers, recommends rejecting the appeal.
2
Facts
The following facts were established by the Court of Appeals.’
The defendant is a psychiatrist who on 28 September 1991 supplied to Mrs
B,
at
her request, lethal drugs which she consumed in the presence of the defendant, a
family doctor* and her friend Mrs
H.
She died half an hour later. The defendant
reported her death the same day to the local coroner as a suicide which he had
assisted. He included what the Court of Appeals characterises as an ‘extensive
report’ of the case, with ‘a very detailed account of the discussions with Mrs
B
(and her sister and brother-in-law), a report of the psychiatric investigation and the
defendant’s diagnosis, his considerations concerning Mrs
B’s
bereavement process
and her refusal of treatment.
’
Mrs
B
was
50
years old. She had married at the age of
22
but the marriage was,
from the beginning, not a happy one. She had two sons, Patrick and Rodney. In
1986 her older son, Patrick, committed suicide while in military service in
Germany. From that time on her marital problems grew worse and the relationship
more violent, and her wish to end her life began to manifest itself. According to
her own statements, she only remained alive to care for her other son Rodney.
These circumstances led to a brief admission to the psychiatric ward of a local
hospital in October 1986,9 followed by polyclinical psychiatric treatment, neither
of which had an effect on her situation: according to the psychiatrist at the time,
she was not open to any suggestion of working towards an acceptance of Patrick’s
death.
In December 1988, shortly after the death of her father, Mrs
B
left her husband,
taking Rodney with her; the divorce followed in February 1990. In November
5
Dutch criminal procedure distinguishes between two acquittal verdicts:
vrijspraak
is based on failure
of the prosecution to prove the facts charged; if the facts charged are proved,
onrslag
van
rechrsvervolging
may nevertheless follow, either because the facts charged do not amount to an
offence
or
because the defendant successfully pleads an excuse
or
a justification. The judgment of the
Court of Appeals
-
as of the District Court
-
was an acquittal of the last sort.
6
Article
294:
‘He who intentionally incites another to commit suicide, assists him to do
so,
or
provides
him with the means of doing
so,
is liable, if the suicide takes place, to a prison term of at most three
years.
’
7
In Dutch criminal procedure, a Court of Appeals conducts a full trial of the case and makes its own
findings of fact. More detail is known about the case than the facts as established by the Court of
Appeals (see eg Chabot,
Zelfbeschikr
(1993),
of which an English translation is being prepared under
the title
Chosen
Fare).
The following statement is, except where noted, limited to the facts as found by
the Court of Appeals, which formed the basis of its judgment and that of the Supreme Court.
8
From the findings of the Court of Appeals, one might assume that this was
her
family doctor. I am
informed by Chabot that this was not
the
case:
Mrs
B did not want her family doctor to know when the
suicide was to take place, because he was also her former husband’s doctor and the latter was opposed
to her plans. The family doctor present was a friend of Chabot’s, asked by him to be present ‘to ensure
that what
I
did was proper, in the technical medical sense’ (letter BC to
JG,
21
August
1994).
9
According to Chabot, the hospital chart shows an admission from Monday
6
(not
3,
as stated in the
decision of the Court of Appeals) through Monday
20
October, of which two weekends were spent at
home,
so
that a total of
13
days were spent
in
the hospital (letter BC to
JG,
12
October
1994).
0
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1995
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