Judgment of unbearable suffering and willingness to grant a euthanasia request by Dutch general practitioners

Abstract

‘Unbearable suffering’ is a pivotal criterion for lawful euthanasia in the Netherlands. The due-care criterion is not defined in the law and could refer to conditions varying from physical pain to psychological forms of suffering. It is unknown, however, what doctors consider ‘unbearable suffering’ and for what kind of suffering they are willing to grant a euthanasia request. We conducted a vignette-study among Dutch general practitioners (n = 115, response 38%). We found high concordance between the classification of a patient's suffering as ‘unbearable’ and the willingness to grant a euthanasia request. Most doctors are only inclined to classify a patient's suffering as ‘unbearable’ when suffering is directly related to untreatable and actual pain or physical symptoms. Doctors’ judgment of suffering varied strongly in cases in which physical symptoms are absent and a patient suffers from a combination of irreversible functional loss and ‘existential’ kinds of suffering. Although some doctors (17%) stick to the idea that physical symptoms are a necessary condition for ‘unbearable suffering’, a majority is willing to occasionally make an exception. When and for which case an individual doctor will make such an exception, is highly unpredictable. Various explanations for the findings are discussed.

Introduction

In the Netherlands euthanasia is defined as termination of life by a doctor at the patient's request. The Dutch Euthanasia Act (2002) allows a medical doctor to grant a request for euthanasia by a patient under strict circumstances The Act does not entail a ‘right to euthanasia’, since doctors may always refuse a request. Neither did the Act change the legal status of euthanasia, which remains a criminal offence except for a doctor who complied with all six statutory criteria for due care (see Box 1).

When a doctor decides to grant a euthanasia request, strict procedures must be followed afterwards. First, the coroner has to be notified. The coroner then reports the case to one of the five regional review committees (RRCs), who assess if the due-care criteria were met. If this is not the case, the public prosecutor is notified who in the end may decide to prosecute the doctor. In the years 2003–2005 the RRCs decided not all criteria were met in 0.3% of all reported cases (15 of 5.634 cases). None of these led to actual prosecution [1].

A pivotal due-care criterion for lawful euthanasia is that the doctor must reach the conclusion that the patient who requests his life to be ended, suffers ‘unbearably’ (‘ondraaglijk’) and hopeless (‘uitzichtloos’). The criterion has not been defined in the law text. Despite its importance, surprisingly little is written about the suffering criterion. The annual reports of the RRCs give some clues about how to interpret it. By application of professional medical expertise a doctor should be able to assess whether suffering is hopeless, meaning that there is no prospect of improvement and no reasonable treatment available. The unbearable part of the formula is considered more complicated. Research shows doctors find this most difficult to apply in practice [1]. The annual reports of the RRC's explain that in order to assess the ‘unbearability’ of suffering, physicians have to be able to know how their patients experience the suffering. There is, however, no specific medical skill or knowledge that enables them to do so. Doctors have to rely on their capacity to empathize with their patients [2].

Some clues about the legal scope of the unbearable suffering criterion can be drawn from case law. Three law cases have been especially important [3]. In the Schoonheim-case (1984) the Dutch Supreme Court explicitly stated that unbearable suffering should be understood to include ‘loss of dignity’. In the Chabot case (1994) the Dutch Supreme Court ruled that unbearable suffering “must be distinguished from its cause, in the sense that the cause of suffering does not detract from the extent to which the suffering is experienced” [4]. The court concluded that also non-somatic psychological suffering in principle falls within the scope of unbearable suffering. In the Brongersma-case (2002) the Dutch Supreme Court restricted the criterion. The Court ruled that euthanasia can only be lawful if the patient's suffering is caused by a medically classified illness and traumatic events or loss of meaning to life by itself do not count as such.

Case law has thus specified the meaning of the suffering criterion somewhat. Still all kinds of situations could fall within its range, the criterion is an ‘open norm’ [5]. The question is: how do doctors interpret this norm in practice? A beginning of an answer can be drawn from literature. Norwood for example showed how various factors such as nature and length of the doctor-patient relationship, may influence the application of the suffering criterion [6]. In an article by Dutch physician Beijk, the author states about ‘unbearable suffering’ that:

“practice shows it is a requirement which is interpreted differently by each individual doctor, each individual client and others that might be involved. It can therefore lead to completely different conclusions” [7]

Beijk however, did not base her statement on empirical study. The main goal of the vignette-study presented here is to shed light on the way doctors actually interpret the unbearable suffering criterion when confronted with a euthanasia request, whether or not this also is associated with actual willingness to grant a request and how this may be related to doctor characteristics.