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Doc. 9923
23 September 2003
Euthanasia
Opinion1
Committee on Legal Affairs and Human Rights
Rapporteur: Mr
Kevin McNamara, United Kingdom, Socialist Group
I. Conclusions of the Committee
Proposed amendments to the draft resolution:
Amendment A
In paragraph 1 in the second sentence, after the word “condition” replace by the following:
“A small minority of doctors and other medical staff are willing to conduct “voluntary active euthanasia”, that is to terminate the life of the patient at his or her request. Alternatively, they may agree to help a patient to take his or her own life (“physician assisted suicide”). “
Amendment B
Delete paragraph 2.
Explanatory note:
This paragraph is based entirely on supposition.
Amendment C
In paragraph 3 delete the last sentence:
“This gap must be reconciled if respect for the rule of law is to be maintained.”
Amendment D
Replace paragraph 4 by the following:
“The Netherlands and Belgium introduced laws in 2002 allowing doctors who accede to a patient’s request for voluntary active euthanasia or physician assisted suicide following specific and regular procedures to escape prosecution. The law in Belgium has not been in operation long enough to allow for proper evaluation of the operation of the law there. In the Netherlands, euthanasia and physician assisted suicide, although criminal offences until 2002, have been practised for some years on the understanding that doctors would not be prosecuted provided they acted in accordance with a number of criteria. Accordingly, a number of quantative studies of the rate and major characteristics of these practices have been conducted in 19901, 19952 and 20013. These have demonstrated a disturbingly high incidence of euthanasia being carried out without the patient’s explicit request and an equally disturbing failure by medical professionals to report euthanasia cases to the proper regulatory authority.”
________________
1 Van der Maas PJ, van Delden JJM, Pijnenborg L, Looman CWN. Euthanasia and other medical decisions concerning the end of life. Lancet 1991; 338: 669-74; Van der Wal G, van Eijk JT, Leenen HJ, Spreeuwenberg C. Euthanasia and assisted suicide, I: how often is it practiced by family doctors in the Netherlands? Fam Pract 1992; 9: 130-34.
2 Van der Maas PJ, van der Wal G, Haverkate I, et al. Euthanasia, physician-assisted suicide, and other medical practices involving the end of life in the Netherlands, 1990-1995. N Engl J Med 1996; 335: 1699-705; Van der Wal G, van der Maas PJ, Bosma JM, et al. Evaluation of the euthanasia notification procedure in the Netherlands. N Engl J Med 1996; 335: 1706-11
3 G. Van der Wal and P. Van der Maas, Chapter 19 of their report on euthanasia, 2003. See also Dr Bregje D Onwuteaka-Phillipsen et al, ‘Euthanasia and other end of life decisions in the Netherlands in 1990, 1995 and 2001’, The Lancet, 17 June 2003: http://image.thelancet.com/extras/03art3297web.pdf"
Amendment E
Replace paragraph 5 by the following:
“Doctors may also be called upon to decide to withhold or withdraw life-sustaining treatment when it is considered that the burdens of such treatment outweigh the benefits, or where the patient is dying and the treatment would be regarded as unduly intrusive and inappropriate or where the risks of such treatment would be excessive. The legitimacy of such conduct is recognised in medical ethics and by the criminal and civil law in member States. Treatment is withheld or withdrawn for ethically and legally acceptable reasons. It should not be confused with voluntary active euthanasia or physician assisted suicide where the intention is to accelerate or cause death by withholding or withdrawing treatment.”
Amendment F
At the end of the paragraph 6, insert the following:
“The Assembly’s recommendation has subsequently been confirmed by the European Court of Human Rights in the Pretty case.1”
____________
1 Pretty v. United Kingdom Application, No 2346/02; 29 April 2002"
Amendment G
Delete the final sentence of paragraph 7 and insert the following:
“However, to allow patients to ask to be killed fails to protect their dignity and the rights that stem therefrom. Medical professionals working within the palliative care sector have emphasised the fragility of patients’ desire for death and the rapid changes that, in their experience, may occur in response to good symptom control or psychological interventions. The dangers of acceding to rare requests for voluntary active euthanasia and physician assisted suicide should not be underestimated."
Amendment H
In sub-paragraph 9.ii., delete the second part of the sentence as from "in an area too often subject to …"
Amendment I
Replace sub-paragraph 9.iv by the following:
“iv. cnce such evidence has been collected and public discussion concluded, to report back to the Parliamentary Assembly for further consideration.”
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II. Explanatory memorandum
by Mr McNamara, Rapporteur
1. Two articles of the European Convention on Human Rights (ECHR) protect the right to life:
Article 2.1
“Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”
Article 8
“1. Everyone has the right to respect for his private and family life…..
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Recent European Case Law
2. Article 2, as set out above, contains a negative restraint on the State but also requires the State to take active steps for the protection of life. In the case of Osman v United Kingdom2 the European Court of Human Rights stated that:
“The Court notes that the first sentence of Article 2(1) enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. It is common ground that the State’s obligation in this respect extends beyond its primary duty to secure the right to life….”
3. In Pretty v United Kingdom3 the ECHR made it clear that so-called ‘mercy killing’ of the type envisaged by the Patient (Assisted Dying) Bill was legitimately prohibited by the State under Article 2 of the ECHR:
“The consistent emphasis in all the cases before the Court has been the obligation of the State to protect life. The Court is not persuaded that the ‘right to life’ guaranteed in Article 2 can be interpreted as involving a negative aspect…..it is unconcerned with issues to do with the quality of life or what a person chooses to do with his or her life…..nor can it create a right to self-determination in the sense of conferring on an individual the entitlement to choose death rather than life.
“The Court accordingly finds that no right to die, whether at the hands of a third person or with the assistance of a public authority, can be derived from Article 2 of the Convention.”
Furthermore, the ECHR did not consider that the United Kingdom’s blanket ban on assisted suicide is disproportionate in the context of Article 8:
“It does not appear to be arbitrary to the Court for the law to reflect the importance of the right to life, by prohibiting assisted suicide.”
The Way Forward: Parliamentary Assembly Recommendation 1418 (1999)
4. Rather than adopt the draft resolution currently under discussion the Assembly Committee and all member States of the Council of Europe should reaffirm Parliamentary Assembly Recommendation 1418 (1999) on ‘Protection of the human rights and dignity of the terminally ill and the dying’.
5. As this Recommendation noted, the dignity of terminally ill or dying persons is best respected and protected by:
“i. recognising that the right to life, especially with regard to a terminally ill or dying person, is guaranteed by member states . . .
ii. recognising that a terminally ill or dying person's wish to die never constitutes any legal claim to die at the hand of another person;
iii. recognising that a terminally ill or dying person's wish to die cannot of itself constitute a legal justification to carry out actions intended to bring about death.”
6. While recognising the terminally ill or dying person’s right to self determination Recommendation 1418 acknowledges that the obligation to respect and to protect the dignity of a terminally ill or dying person derives from the inviolability of human dignity in all stages of life. Recommendation 1418 calls upon Member States to recognise and protect “a terminally ill or dying person’s right to comprehensive palliative care.” Much remains to done in Member States to secure this right. In these circumstances calls for the decriminalisation of euthanasia as proposed by the draft report of the Assembly Committee are premature.
7. In paragraph 2 of the draft report the Social, Health and Family Affairs Committee alleges that voluntary active euthanasia and physician assisted suicide “are a widely known fact of medical life, but are usually confined to the shadows of discretion, or even secrecy”. The Assembly Committee makes the same allegation in paragraph 2 of the explanatory memorandum. At no point in either the draft report or the explanatory memorandum does the Assembly Committee cite any evidence to back-up these disturbing allegations. It is simply not good enough for the Assembly Committee to make sweeping allegations in this manner. It must substantiate them.
8. Later in paragraph 2, the Assembly Committee argues that “the greatest risk of abuse” is where euthanasia and assisted suicide are practised “beyond any procedures or control”. The Committee ignores the fact that according to the latest official report on euthanasia in the Netherlands4, only 54% of cases of euthanasia are reported to the regulatory authority and that “life terminating treatment without explicit request of the patient is still seldom reported (less than 1%).” Notwithstanding the difficulties in accurately estimating the number of cases that go unreported, this latest report from the Netherlands categorically demonstrates that legalising euthanasia does not necessarily create greater control over the practice.
9. The definition of passive euthanasia in paragraph 5 is misleading (“Doctors may also be called upon to decide to withhold or withdraw life sustaining treatment, again in the knowledge that they are bringing about death.”) Knowledge that a certain course of conduct may bring about death does not automatically constitute euthanasia. Intention or purpose is the key. If treatment is withheld or withdrawn with the purpose of bringing about death this constitutes passive euthanasia and is, in my judgement, unethical. However, it is perfectly legitimate to withhold or withdraw medical treatment when it is considered that the burdens of such treatment outweigh the benefits, or where the patient is dying and the treatment would be regarded as unduly intrusive and inappropriate or where the risks of such treatment would be excessive.
10. In paragraph 7 the Assembly Committee maintains that to legalise euthanasia “does not imply an obligation on any health worker to take part in an act of euthanasia.” The Committee cites the example of abortion, where doctors “are under no obligation to carry out such operations”, to support his argument.
11. However, it is a sad fact that in the European states where abortion has been legalised, there are now very few practising gynaecologists who are opposed to abortion. Abortion is such a standard gynaecological practice that it is nigh impossible to specialise in that field and refuse to carry out abortions. Doctors opposed to abortion have been forced to specialise in other areas where no such ethical conflict arises.
12. If euthanasia and assisted suicide were legalised we would witness a similar phenomenon in geriatric care, in palliative care and in the hospice movement – regardless of whether the legislation contained a conscience clause. Doctors opposed to these practices would gradually be squeezed out.
13. In paragraph 8, the Social, Health and Family Affairs Committee argues that “each human being’s choice is deserving of respect” because “despite remarkable advances, palliative care cannot in all circumstances take away unbearable pain and suffering.” It is important to note that, in the United Kingdom at least, the palliative care and hospice sectors disagree. Regard should be had to a recent briefing paper on euthanasia and physician assisted suicide by the Association of Palliative Medicine.5 I would also cite a recent article in the British Medical Journal in which the authors conclude that “the desire for euthanasia must not be taken at face value”:6
“Rather than focusing on assessing the mental competence of patients requesting euthanasia or determining clear legal guidelines, doctors must acquire the skills for providing good end of life care. These include the ability to ‘connect’ with patients, diagnose suffering, and understand patients’ hidden agendas through in-depth exploration. This is especially important as the tenor of care influences patients’ perception of hope and self worth. There is much to ponder over the meaning of a euthanasia request before we have to consider its justification.”7
14. In paragraph 7 of his explanatory memorandum, Mr Marty maintains that “public opinion polls in several member states show that a majority are in favour of legislation to regulate euthanasia” and that legislators “must somehow respond to this challenge”.
15. In several member states public opinion polls have consistently shown that a majority are in favour of capital punishment. Legislators have not responded to this challenge by acceding to popular opinion but by seeking to inform the public of the dangers associated with state-sanctioned killing, not least the fact that the innocent may be victims.
16. Legislators should respond in the same manner to calls for the legalisation of euthanasia and assisted suicide. Furthermore, it is vitally important that we listen to the voice of doctors who would be the persons responsible for implementing a policy of state sanctioned killing. An independent survey of United Kingdom doctors by the Opinion Research Business (ORB), published on 13 May 20038 revealed the following:
• Almost three out of four doctors (74%) would refuse to perform assisted suicide if it were legalised.
• A clear majority (56%) also consider that it would be impossible to set safe bounds to euthanasia.
• To the question “As a doctor do you agree with assisted suicide?” 25% agreed, 60% disagreed and 13% were undecided.
• The number who rejected euthanasia was higher – 61% as compared with 22% in favour and 14% undecided.
• Not one palliative care doctor who responded to the survey would practice either euthanasia or assisted suicide.
• 66% of doctors considered that the pressure for euthanasia would be lessened if there were more resources for the hospice movement.
17. The latest empirical evidence from the Netherlands contained in the official report by Van der Wal and Van der Maas9 notes that the frequency of ending of life without the patient’s explicit request has shown no decline over the years studied, 1990, 1995 and 2001. In 2001, the most recent year for statistics are available, 900 out of 3,800 cases of euthanasia or assisted suicide (approximately one-quarter) were without the patient’s explicit request.
18. This disturbing trend is compounded by the statistics from Flanders, Belgium cited by Mr Marty in paragraph 25. “Of the 4.4% of all deaths resulting from the use of lethal drugs, 1.1% were cases of euthanasia, 0.1% physician-assisted suicide, and 3.2% ending of life without the patient’s explicit request. “(emphasis added).
19. Empirical evidence from the Netherlands and Belgium reinforces the argument that it is impossible to set safe bounds to euthanasia so as to ensure that only those who have expressed a persistent, voluntary and well-considered request are put to death.
20. The poll data in paragraph 27 has been superseded by more recent data from the aforementioned independent survey of doctors by ORB. This survey explodes the idea that people are clamouring for euthanasia. In response to a question asking how many patients had requested euthanasia during the past three years nearly half (48%) of the doctors said not one; 37% quoted less than five; 11% gave numbers between 5 and 10 patients; only 2% gave figures of more than ten. In their comments doctors said that in their experience requests for euthanasia were often “cries for help that have been resolved with good symptom control…they almost invariably want relief from distress”.
21. The number of requests from relatives for euthanasia was even lower than from patients themselves. 68% of doctors said that none had approached them in the last three years; 22% quoted less than five such experiences; 5% quoted figures between 5 and 10; and 1% gave numbers of more than ten. 3% said they did not know or that the question was not applicable to them.
22. Nonetheless, a substantial minority of doctors were concerned about possible pressures from families and colleagues if euthanasia and assisted suicide were legalised. Nearly half (47%) felt that if euthanasia and assisted suicide were made legal they would not be confident of being able to exercise their judgment without pressure from relatives. 29% were confident and 24% did not know.
23. In paragraph 28, Mr Marty suggests that his empirical evidence gives us “brief glimpses of medical reality”. Certainly, the medical reality in the Netherlands and Belgium is that in addition to voluntary euthanasia, non-voluntary and involuntary euthanasia are being carried out. In addition, the ORB survey provides a far more accurate ‘glimpse of medical reality’ than anything Mr Marty provides. Further details from the ORB survey can be provided upon request.
24. Mr Marty makes great play of the fact that euthanasia and assisted suicide must be notified to the municipal pathologist “in all cases” (paragraph 34). As we said earlier, this is not being done. Only 54% of euthanasia cases are officially reported to the Dutch authorities. According to a press reports, the low notification rate is because doctors wished to avoid the “administrative hassle” 10of reporting a euthanasia case and were concerned they might have breached the regulations.
25. The Dutch situation demonstrates that legalizing euthanasia and assisted suicide, far from introducing greater controls, simply introduces more euthanasia and more assisted suicide.
* * *
Reporting committee: Social, Health and Family Affairs Committee
Committee for opinion: Committee on Legal Affairs and Human Rights
Reference to committee: Doc. 9170, Reference No. 2648 of 25 September 2001
Opinion approved by the committee on 18 September 2003
Secretaries to the committee: Ms Coin, Mr Schirmer, Mr Ćupina, Mr Milner
1 See Doc 9898 tabled by the Social, Health and Family Affairs Committee.
2 (1998) 29 EHRR 245
3 Application No 2346/02; 29 April 2002
4 G. Van der Wal and P. Van der Maas, Chapter 19 of their report on euthanasia, 2003. See also Dr Bregje D Onwuteaka-Phillipsen et al, ‘Euthanasia and other end of life decisions in the Netherlands in 1990, 1995 and 2001’, The Lancet, 17 June 2003: http://image.thelancet.com/extras/03art3297web.pdf
5 The Patient (Assisted Dying) Bill: A joint briefing paper by the Association for Palliative Medicine and the National Council for Hospice and Specialist Palliative Care Services – May 2003. Presented in the House of Lords on 3rd June 2003.
6 Mak, Y.Y.W. Elwyn, G. and Finlay, I.G. ‘Patients’ voices are needed in debates on euthanasia’, BMJ 2003; 327:213-215; (26 July 2003)
7 Ibid.
8 Survey on Euthanasia and Assisted Suicide Prepared for ‘Right to Life’ lobby group. Results from 986 interviews 26 March – 9 April 2003. Opinion Research Business, 9-13 Cursitor Street, London, EC4A 1LL; www.opinion.co.uk
9 G. Van der Wal and P. Van der Maas, Chapter 19 of their report on euthanasia, 2003. See also Dr Bregje D Onwuteaka-Phillipsen et al, ‘Euthanasia and other end of life decisions in the Netherlands in 1990, 1995 and 2001’, The Lancet, 17 June 2003: http://image.thelancet.com/extras/03art3297web.pdf
10 Report from the Expatica news website on 23 May 2003; www.expatica.com