2019-15, due care criteria not complied with
Non-straightforward notification, full report of findings, requirement for consultation of an independent physician even if two independent psychiatrists have been consulted.
The patient, a woman in her seventies, was diagnosed with various psychiatric disorders due to traumatic experiences at a young age. At the end of her life she felt worn out and powerless. She experienced poor quality of life and wanted to die with dignity. At the request of the physician, two independent psychiatrists made an assessment.
The first psychiatrist considered the patient to be decisionally competent regarding her request for euthanasia. The second psychiatrist also considered her to be decisionally competent and was of the opinion that she was suffering unbearably and without prospect of improvement.
Afterwards, the physician asked the second psychiatrist, who is also a SCEN physician, to assess to what extent euthanasia in this case would be appropriate within the boundaries and insights provided by the euthanasia legislation. However, the second psychiatrist considered her assessment to be a second psychiatric assessment and emphasised in her report that she was not acting in her role as a SCEN physician. She therefore did not comment on all the due care criteria laid down in section 2 (1) (a) to (d) of the Act. The physician subsequently did not consult another, independent physician, whose task would have been to see the patient and give a written opinion on whether the due care criteria had been complied with.
When questioned about the matter, the physician mentioned several reasons for not consulting another physician. First, in his opinion, which he based on information he had received on two occasions from an experienced psychiatrist, consulting a psychiatrist with specific SCEN expertise meant that the due care criteria had been complied with. The second reason was the fact that the patient had developed an aversion to psychiatrists as a result of her many failed treatments. The procedure proposed by the physician, i.e. assessment by two psychiatrists, had required a great deal of effort on her part. The first psychiatrist’s visit had unsettled her. After speaking with the second psychiatrist, the patient had become even more unsettled. Lastly, the physician questioned whether consulting an independent physician would be necessary in view of the patient’s poor condition and the heavy toll such a visit would take on her. In the physician’s view consulting an independent physician would be nothing more but a formal conclusion of the process. In his opinion he had proceeded with great caution, by consulting two independent psychiatrists about his uncertainty with regard to the psychiatric assessment. Consulting an independent physician would add little, yet would be a burden to the patient. In hindsight the physician realised he should nevertheless have consulted an independent physician.
As concerns the consultation requirement, the committee noted that under section 2 (1) (e) of the Act, before performing euthanasia, a physician must consult at least one other, independent physician who must see the patient and give his opinion on due care criteria (a) to (d) of the Act. The purpose of the independent consultation is to ensure that the physician’s decision is reached as carefully as possible. It helps the physician ascertain whether all the due care criteria have been met and reflect on matters before granting the request and performing euthanasia.
If contact with both an independent physician and a psychiatrist poses an unacceptable burden on the patient, it may be sufficient to consult an independent (SCEN) physician who is also a psychiatrist. In that case the physician must realise that the independent physician will give both a psychiatric assessment and his opinion on due care criteria (a) to (d) of the Act (Euthanasia Code 2018, p. 43).
The committee established that the physician did not consult one other, independent physician, whose task would have been to see the patient and give a written opinion on whether the due care criteria had been complied with. The fact that he acted on the basis of what turned out to be incorrect advice from the first psychiatrist does not relieve him of his responsibility to act in accordance with the due care criteria laid down in the Act.
In accordance with article 9, paragraph 5 of the Guidelines on the working procedures of the regional euthanasia review committees (21 November 2006) the committee asked the physician for further information in order to ascertain whether an independent opinion had been formed. If the physician were able to present facts proving that that was the case, the committee could find that the due care criteria had been complied with. In this case, however, the physician was unable to present any facts that pointed to an independent opinion having been formed.
The committee was satisfied that it was the physician’s intention to help the patient, whom he had known very well for many years and whose medical situation was very complicated, with respect and the highest degree of professional care. It appreciated the fact that the physician took it upon himself to deal with a complicated case, as well as the conscientious way he treated the patient.
However, because the physician did not consult at least one other, independent physician who saw the patient and gave a written opinion on due care criteria (a) to (d) of the Act, the committee had no alternative but to find that the due care criterion laid down in section 2 (1) (e) of the Act had not been complied with.
The other due care criteria were complied with.