May 21st 2016

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Articles from this issue:

COVER STORY It's a queer theory, with 51 closets to come out of (Part One of two parts)

CANBERRA OBSERVED Labor may find it's not easy to avoid being green

EDITORIAL Double-dissolution trigger may have misfired

ENVIRONMENT Cut tax breaks to wonky green groups: committee

HUMAN RIGHTS Honorary fellow means to dishonourable end

POLITICAL BIOGRAPHY Remembering "populate or perish": Arthur Calwell

EUTHANASIA Belgium: where the devil is refining the details

RESEARCH The scientific objectivity of gender difference (Part Two of two)

MUSIC The muse, leisure and the importance of play

CINEMA Technology and war's cost: Eye in the Sky

BOOK REVIEW Preserving essential social values

BOOK REVIEW Putting postmodernism in its grave



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Belgium: where the devil is refining the details

by Paul Russell

News Weekly, May 21, 2016

For those tempted to the thought that a euthanasia or assisted-suicide law, once passed, is cast in stone, never to be changed, recent events in Belgium should make you think again.

Not only has the statute been subject to continual re-interpretation to the point where euthanasia for psychological reasons is now taking place, the parliament also debated and passed an amendment to the 2002 law only two years ago that removed the lower age limit to now include children. In light of further and more recent events, it seems that change may be just around the corner once again.

How does all this happen? While the words of a statute may stand, the conversation about interpretation never ceases. This is not necessarily evidence of a sinister plot by a person or group continually agitating for change. It is most likely simply the fact that, while the lines may have been drawn at a certain place at a certain time, medical issues are rarely that neat and what may be a clear line in theory may well be somewhat blurred in practice. Add to that the possible sense of pressure on doctors, on the family, on the person themselves, and even the ideal of informed consent will seem less important.

It is simply not possible to construct a law that can defy and resist these pressures. That such pressures are extended and amplified by those whom we might call “euthanasia enthusiasts” adds to the certainty that the story of the Belgian experiment with euthanasia is far from finished.

Consent has been a tricky business in Belgian euthanasia law since the beginning in 2002. Section 4 of the statute deals with making a request for euthanasia via an Advanced Care Directive. As with all advanced directives, the intention is that the document gives directives about a person’s wishes should they ever lose capacity to determine for themselves.

This type of directive has many problems. My primary concern is that the acceptance of such a document circumvents the mandated and most sensible role of the doctor in confirming that a request was made voluntarily, with fully informed consent and with sound mind.

Moreover, the Belgian law sunsets an advanced request for euthanasia after five years. In other words, if the advance request was made in the proper form more than five years ago and the patient now loses capacity, the request for euthanasia cannot be acted upon.

This may be about to change, Former deputy prime minister and minister of social affairs and public health in the Di Rupo government (2011–14) Laurette Onkelinx (Socialist Party) tabled three euthanasia private members bills on February 23. The first bill deals with the issue of advance directives and the five-year sunset clause.

Making a euthanasia request via an advance directive circumvents the very minimal checkpoint of a doctor’s assessment as to capacity at the time the directive is completed. Professor Xavier Dijon, writing in the Belgian press, reflects that the original five-year sunset provision had been intended to provide a point where the person would review their intentions; it was about the patient renewing their “continued willingness”.

Onkelinx contends that it is “cumbersome” to have to conduct a five-yearly review. Without it, however, a doctor may be asked to euthanase based on decisions made decades ago. Onkelinx’s amendments allow for a person to stipulate their own review time period; of course, no time period is included as an option and will quickly become the default, as is the intention.

The second bill is less clear, more objectionable and deliberately subversive. The explanatory clause says: “Amending the act of May 28, 2002, on euthanasia and setting a deadline, for the doctor to answer a patient’s request for euthanasia, and to share, and transmit medical records to a colleague if he refuses to accede to this application.”

The extant provisions (section 14) do not define a time period for the doctor to respond to a person’s request for euthanasia nor for the transmittal of the medical file to another doctor if the first doctor refuses (either on medical or personal grounds). But get this: the law as it stands leaves the finding of an alternate doctor to the patient or their advocate, thereby not putting the first doctor in a situation where he or she might be morally compromised.

Onkelinx’s amendment stipulates that the doctor must respond to a patient request within seven days and, if that response is to refuse euthanasia, he or she must transmit the file to another doctor within four days. This is not unreasonable if one accepts the validity of euthanasia, given that leaving the question unanswered for an extended period of time may create anxiety; or so the argument goes.

However, and again as Dijon observes, the creation of a time limit may well be designed to stop doctors continuing a conversation with their patient with a view to helping them through whatever emotions or difficulties have brought them to request euthanasia and direct them towards options less drastic.

There is also a devil in the detail. Onkelinx’s second amendment does away with the explicit protection of the doctor’s rights to conscientious objection in respect to a referral. Onkelinx’s second amendment reads:

“At paragraph 5, the words ‘to communicate the file patient medical doctor designated by the patient or the person of trust’ is replaced by words ‘transmit within four days of the formulation refused, the patient’s medical record to another doctor acceding to the request for euthanasia’.”

The onus is thereby shifted from the patient, or the patient advocate, to find a doctor who will conduct the euthanasia, to the doctor who has refused. The doctor is thereby cooperating in the act of euthanasia. For many doctors, this will be a compromise that they cannot make. While the amendment stops short of mandating formally that the refusing doctor find a euthanasing colleague, the removal of the phrase “doctor designated by the patient” clearly implies as much and I would be certain that this will be the case.

The third bill confirms suspicions that this is all about knocking down the last remaining resistance to euthanasia in the persons of non-compliant doctors and non-compliant medical service providers.

In December Bishop de Kesel, the new Archbishop of Mechelen-Brussels, created a huge stir in Belgium among euthanasia zealots when he declared that Catholic hospitals and care institutions had the right to refuse to cooperate with euthanasia and abortion. This extended to nursing homes and aged-care facilities in respect to euthanasia.

It seemed at the time that his comments were perhaps philosophical and not anything like a declaration of intent. However, the context was made clear only a few days later when the Belgian press began reporting that the relatives of a woman who was refused euthanasia in a Catholic nursing home are going to court over the matter; the hearing being listed for April.

I commented at the time that I smelled a rat: the euthanasia did ultimately occur in another place, with little or no inconvenience, and the death happened four and a half years ago. So, why all the fuss?

In January, the family’s lawyer, Sylvie Tack (who, incidentally has a close working relationship with pro-euthanasia bigwigs and who is giving testimony in support of this bill to the parliament) told the press: “The new act states that doctors and staff who are involved in the euthanasia, can have conscientious objection. But the health-care institution itself should not interfere with it.”

However, the law, to this point in time, is silent about institutions. Hence Onkelinx’s bill.

Onkelinx’s intention in this third bill is clearly to stop any institution from saying no to euthanasia. But, rather than simply amending the law to reflect this fact (a motion that, I suspect even in Belgium, may not pass) she has flipped the issue on its head.

She says: “To the extent necessary, the authors of this bill clearly state this principle: no doctor can neither be forced nor prevented from performing euthanasia in the law, where he exercises.” In short, if a doctor is approved to practise medicine in a Catholic hospital or nursing home he is free to exercise his conscience by killing his patients in that place and no one can interfere.

Onkelinx asserts that this is “to ensure the conscience clause”. Never mind the fact that in her second bill she clearly intends to undermine recourse to conscience. Never mind that claiming that preventing a doctor from killing a person in a hospital or nursing home causes him or her a conflict of conscience is simply farcical.

These last two bills seem to stand in contrast to Resolution 1763 of the Parliamentary Assembly of the Council of Europe on the right to conscientious objection in lawful medical care: “No hospital, institution or person may be subject to pressure, be held liable or suffer discrimination of any kind for refusing to perform, allow or assist at an abortion, an induced miscarriage or euthanasia, or for refusing to perform any act … whatever the reasons.”

But that alone is no guarantee that these bills will fail; far from it. The only thing for certain is that there is deep outrage among euthanasia enthusiasts that there remain some small pockets of resistance. They will not be satisfied until every last bulwark is destroyed.

Paul Russell is executive director of the network, HOPE: Preventing Euthanasia & Assisted Suicide (, and vice-chairman of the Euthanasia Prevention Coalition International.

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