Testimony of Hendrik Reitsema For U.S. Senate Judiciary Subcommittee on the Constitution, Civil Rights and Property Rights

May 25, 2006

Senators, thank you for the privilege of testifying today.

It was January of 1996 that my Dutch grandfather was euthanized in an old peoples home in the North of the Netherlands. My family has never quite been the same since then. Realize that policy relating to life and death issues have massive and far reaching consequences. Since that event in 1996 I have made it a practice to keep abreast of developments surrounding this topic in the Netherlands which is also my home. I hope to share with you a snapshot of what the developments relating to euthanasia policy in the Netherlands have been and how they have effected normal people like myself.

I was visiting my grandfather at the beginning of the week that he was killed unaware – as was also the rest of the family – that a “treatment” of morphine overdose and starvation1 was being applied to him. My ‘Opa’ as I called him, being a rather stubborn individual and a very devout Christian man, had had a stroke a couple of years prior to this moment, which resulted in his being partially paralyzed on one side. This resulted in his needing the kind of care that was only available in a home for the elderly. My grandmother who lived two street blocks from the old peoples home visited him every day. Opa was very much the patriarch of our rather sizeable family and was frequently visited by all of us cousins, he was fun to be around. It is very unlikely that this man who loved life so much and was mentally still very much ‘with it’, would have expressed the desire to die. And yet the medical staff surrounding him was working providing a speedy, dignified and painless death for him as they saw it. By the mid 1990’s this kind of procedure when requested by ailing patients was not at all uncommon in Dutch medical facilities, even though it was not formally legal. Both euthanasia and assisted suicide have been widely practiced in the Netherlands since 1973 although they were against the law until 2002 One needs to understand the Dutch system of professional agreements by specific professions in society with the department of justice so that things can be allowed and monitored even though they are strictly taken illegal.

The Dutch situation between 1973 and 2002 was an accumulation of a series of court decisions and medical association guidelines, beginning with a 1973 District Court case in which Geertruida Postma, a Dutch physician, was convicted of the crime of euthanasia after she ended the life of her seriously ill mother.2 The case led to the reconsideration of the laws against assisted suicide3 and euthanasia.4 Though the court found her guilty, they imposed only a one-week suspended sentence and a week’s probation. The District’s medical inspector in this case set forth certain conditions under which the average physician thought euthanasia should be considered acceptable. Inclusion of those conditions formed the basis for subsequent acceptance of euthanasia and assisted suicide in the Netherlands. These criteria broadly speaking function as the guiding light for the euthanasia legislation in the Netherlands to this day.

The criteria for whether a doctor has acted with due care are as follows5 :

They must:

a. be satisfied that the patient’s request is voluntary and well-considered;

b. be satisfied that the patient’s suffering is unbearable and that there is no prospect of improvement;

c. inform the patient of his or her situation and further prognosis;

d. discuss the situation with the patient and come to the joint conclusion that there is no other reasonable solution;

e. consult at least one other physician with no connection to the case, who must then see the patient and state in writing that the attending physician has satisfied the due care criteria listed in the four points above;

f. exercise due medical care and attention in terminating the patient’s life or assisting in his/her suicide.

My grandfather’s case clearly did not meet these criteria very well. The primary reason being that what happened in his treatment was not really being considered euthanasia anymore by the doctors involved, the use of these terms has been a shifting tide. In December of 1995 he was sent to a local hospital for a biopsy on a bump on his gums. The results came back at the beginning of January indicating Non-Hodgkin’s lymph cancer. (my sister who is a physician surmised at this point that his prognoses given the age of 80 years old was probably for about 3 years of life). When my grandfather asked for help with pain relief in his thrombotic leg in the following week the house doctor decided to instigate the “treatment’ of progressively increased morphine application and subsequent withholding of food to expedite a ‘dignified death’ and save him from the inevitable suffering which was to come. When I visited him that week I was surprised at how lethargic he was and how lacking his comprehension was. Later that week one of my aunts was visiting him and helping him get some water in when one of the nurses came buy and told her not to do so because it was prolonging the process of dying. This was the first moment that the family realized what was happening. All hell broke loose but we were not successful in reversing the damage done. My grandfather died the next day of pneumonia, which is also the cause of death that the doctors listed on his death certificate. We were not successful to litigate. The impact on all of our family was massive to the degree that it is hard to quantify.

My grandmother felt pressured into agreeing with something she did not comprehend but entrusted into doctors hands as the best treatment, as she had always had much respect for a doctors opinion (research suggests that in 50 % of the cases of euthanasia this is suggested by the physician to the patient.6 ). Moreover my grandfather did not make an explicit request to be killed but asked for help with pain (even the governments own studies7 show that about 900 cases of euthanasia take place without explicit request.) Also the fact that the logic of the euthanasia protocol is now being applied to infants via the Groninger Protocol8 which has been taken over by the National Society for Pediatrics and has been agreed to by the ministry of justice, shows that informed consent is not a must in the mind of Dutch physicians. This is a logical consequence of prioritizing the duty to alleviate suffering as the primary task of physicians rather than protecting life.

The fact that his cause of death was not fully reported was also not unique. Although reporting is legally required, almost half of these deaths goes unreported. Moreover because of the distinction between terminal sedation and euthanasia the number of people where physicians actively aid the dying process is much higher than that which is being called euthanasia in these reports.9 The legalization of euthanasia10 which took place fully in April 2002 did not measurably increase the willingness to report. There was actually a drop in reported cases until 2005 while there is not conclusive evidence that there were fewer people killed this way.11 The catch 22 that the Dutch legal system has gotten itself into is that if they don’t lessen the risk of reporting (i.e. by promising immunity to the physicians) that reporting will not sufficiently take place while not strictly evaluating and applying sanctions means that it is not sufficiently controlled. Moreover the controlling happens after the process of killing has been completed, and this can hardly be considered careful procedure when death which is an irreversible given from the perspective of most of us has already taken place. A policy which does not do better than 40 or 50% reporting rate can hardly be called successful and safe.

I thank you for listening.

1 This is sometimes called ‘versterving’ in Dutch but this term is most often applied to the cessation of artificial feeding with resultant death for patients who suffer from serious dementia. A research report by E. Fischer of the Free University in Amsterdam which included 276 deaths, indicated that in the three years prior to1997, 46% of the patients with dementia in that North-Holland nursing home died this way and 22% of the rest.

2 Nederlandse Jurisprudentie 1973, no. 183, District Court of Leeuwarden, 21, February 21, 1973; translation in Walter Lagerway,

3 Issues in Law and Medicine 429, 439-42 (1988).

3 Penal Code of the Netherlands, §294..

4 Penal Code of the Netherlands, §293

5 Euthanasia: A guide to the Dutch Termination of life on Request and Assisted Suicide (Review Procedures) Act. To be found on the website of the Netherlands department of foreign affairs.

6 Herbert Hendin, “Euthanasia and physician-assisted suicide in the Netherlands,” New England Journal of Medicine, vol. 336, no. 19 (May 8, 1997), p. 1385, citing van der Maas et al, Euthanasia and other medical decisions concerning the end of life, (Elsevier, 1992)

7 In an effort to determine the frequency of assisted suicide and euthanasia, two national studies were undertaken. To obtain the most complete and accurate information, physicians were granted both immunity and anonymity related to their responses. The first study released by the Dutch government on September 10, 1991, found that physician-induced deaths accounted for more than 9.1 percent of annual deaths. Of those deaths, 2,300 were from requested euthanasia, 400 were assisted suicide and 1,040 (an average of approximately 3 per day) died from euthanasia which was administered without the patients’ knowledge or consent. Similar results were found in a follow up study five years later: Commissie Onderzoek Medische Praktijk inzake Euthanasie, Medische Beslissingen Rond Het Levenseinde, Sdu Unitgeverij Plantijnstraat (1991), vol. 1, p. 13. The study is popularly known as the “Remmelink Report.”

Paul J. van der Maas, et al, “Euthanasia, physician-assisted suicide, and other medical practices involving the end of life in the Netherlands, 1990-1995,” New England Journal of Medicine, vol. 335, no. 22 (November 28, 1996), pp. 1699-1705.

8 The Groningen Protocol – Euthanasia in Severely Ill Newborns NEJM 352:959-962

9 Dutch doctors are sedating many terminally ill patients until death, in some cases without artificial feeding or hydration. Researchers estimate that terminal sedation occurred in about 10% of the total of deaths in the Netherlands per year, that is 14 000 deaths in 2001 (Annals of Internal Medicine 2004;141:178-85). Tony Sheldon Dutch doctors choose sedation rather than euthanasia BMJ 2004;329:368 (14 August), doi:10.1136/bmj.329.7462.368-e

10 Euthanasia (termination of life on request and assisted suicide) is still a criminal offence, but the Criminal Code has been amended to exempt doctors from criminal liability if they report their actions and show that they have satisfied the due care criteria formulated in the Act. The actions of doctors in such cases are assessed by review committees (appointed by the Minister of Justice and the Minister of Health, Welfare and Sport), which focus in particular on the medical and decision-making procedures followed by the doctor. Where a doctor has reported a case and a review committee has decided on the basis of his report that he has acted with due care, the Public Prosecution Service will not be informed and no further action will be taken

11 See appendix 1

12 Government-sponsored studies in the 1990s and repeated in 2001 estimated there are 15 to 20 such infant killings in any year. Just 22 cases were reported to the Justice Ministry between 1997 and 2004 – most involving infants with severe damage to the brain and spine from spina bifida – and the ministry decided against prosecuting any of them. See also Ned Tijdschr Geneeskd. 2005 Jan 22;149(4):183-8 Deliberate termination of life in newborns in The Netherlands; review of all 22 reported cases between 1997 and 2004

Source: G. van der Wal e.a., Medische besluitvorming aan het einde van het leven – de praktijk en toetsingsprocedure. pag. 140 Uitgeverij De Tijdstroom – Utrecht 2003 Reported cases by regionale toetingscommissies: 1999 2.216 2000 2.123 2001 2.054 2002 1.882 2003 1.815 2004 1.886 2005 1.933

Source: Jaarverslagen regionale Toetsingscommissies Cases of euthanasia: 1990 2.700 1995 3.600 2001 3.800

Source: J. Visser, Plat vlak – levensbeëindigend handelen blijft in omvang gelijk. In: Medisch Contact jrg. 58 nr. 21 pag 842-844 (2003) G. van der Wal e.a., Medische besluitvorming aan het einde van het leven – de praktijk en toetsingsprocedure. pag. 140 Uitgeverij De Tijdstroom – Utrecht 2003

With these figures it is clear that roughly 40% (and maybe even more of the cases of euthanasia are not reported. This trend is mirrored in the lack of reporting surrounding infanticide in the Netherlands since 199712