The Dutch Procedure for Mercy Killing and Assisted Suicide by Physicians in a National and International Perspective
| DOI | 10.1177/1023263X9500200102 |
| Author | Jürgen Wöretshofer,Matthias Borgers |
| Published date | 01 March 1995 |
| Date | 01 March 1995 |
| Subject Matter | Article |
Jurgen Woretshofer *
Matthias Borgers **
The Dutch Procedure for Mercy Killing and Assisted
Suicide by Physicians in a National and International
Perspective
§1. Introduction
The Dutch policy on euthanasia and other forms of mercy killing is controversial and
leads to passionate reactions. IAfter a discussion lasting several years 2about
whether, and if so how, the question of euthanasia should be (legally) regulated, a
special legalized procedure for mercy killing by physicians came into force on lst June
1994. 3This procedure is called the 'reporting procedure' or 'registration procedure'
(or 'meldingsprocedure'y, and involves a procedure for physicians to acknowledge that
a mercy killing has been carried out, and to answer questions about this killing. The
'reporting procedure' is connected to the Corpses (Disposal) Act (Wet op de
Lijkbezorging).
The introduction
of
this new legal procedure seems to be an opportune moment to
document the actual facts about mercy killing by physicians in the Netherlands. The
discussion outside the Netherlands about the Dutch policy on mercy killing, and its
**
I.
2.
3.
4
Senior lecturer at the Open University, Heerlen (NL). lnfonnation included in this article is based on
data available in December 1994.
Student-assistant at the Open University, Heerlen (NL).
See for c.g. opponents C.F. Gomez, Regulating death: euthanasia and the case in the Netherlands,
(Free Press, 1991), especially 135-139 and
w.
Bohmer, 'Rechtliehe Uberlegungen im Grenzbereich
von Leben und Tod', in E. Matouschek (ed.), Artz und Tad: Yerantwortung,
Freiheiten
und Zwdnge,
(Schattauer, 1989),61. See for c.g. proponent M. Pabst Battin, 'Holland and home', in
A.a.A.
Smook
and B. de Vos-Schippers, Right to self-determination, (VU University Press), 1990, 121.
See for a short review: A. Kors, 'Euthanasic', Ars Aequi (1994), 594.
Law of 2nd December 1992. Staatsblad 643 and Decree of 17th December 1993. Staatsblad 668. See
also R.J .M. Dillman and J. Lecgemate, 'Euthanasia in the Netherlands: the state of the legal debate',
European Journal
of
Health (1994), 81.
MJ 2 (1995)
Jiirgen Woretshofer IMatthias Borgers
relevance to the development
of
policy in those countries, has been hampered by
misunderstandings.
Our original intention was to write a comparative article. We were however forced to
conclude that this subject is not suitable for a comparative study. Two main reasons can
be given: first, in the Netherlands the public discussion about mercy killing by
physicians (hereafter 'mercy killing') has been very open; and second, the way mercy
killing is regulated in the Netherlands differs fundamentally from the way in which
mercy killing is handled in other countries.
Accordingly in the first part
of
the paper we shall consider the Dutch mercy killing
policy in general. We will discuss the meaning
of
the word 'euthanasia' in the Nether-
lands, and other forms
of
mercy killing which are connected to euthanasia; the history
of
the political discussion about mercy killing; the relevant criminal offences and the
connected prosecution policy; and finally, the 'reporting procedure'.
It is only a physician who is - under certain circumstances - permitted to perform a
mercy killing and be excused punishment. Therefore when we speak about (the different
kinds of) mercy killing, we are always referring to a killing by a physician or a suicide
in which a physician has assisted.
In the second part of this paper we shall discuss the relationship of the 'reporting
procedure' to Article 2 European Convention
of
Human Rights (hereafter ECHR), in
which the right to life is guaranteed. We shall also discuss the so-called
onemo
tenetur'
principle (right to silence). This principle holds that a suspect may not be obliged to
convict himself. The 'nemo tenetur' principle is part of Article 14 United Nations
Covenant on Civil and Political Rights and can also be read in Article 6 ECHR, which
guarantees -inter alia -a fair trial.
In the last section we will concentrate on the latest developments .in the Netherlands.
PART I
§2. The Different Meanings
of
Several Kinds of Mercy Killing, and
Euthanasia in Particular
A. INTRODUCTION
For the last few years a distinction has been made in the Netherlands between several
kinds
of
mercy killing. 4The term 'euthanasia' is reserved only for intentional mercy
4. See for an overview of the several concepts: J. Woretshofer, Vo/gens de regelen van de kunst, (Gouda
Quint, 1992). 150-159.
MJ 2 (1995) 5
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