2019-12, due care criteria not complied with
Non-straightforward notification, full report of findings, requirement for consultation of an independent physician, the independent physician must see the patient.
The patient, a woman in her seventies, suffered a severe cerebrovascular accident (stroke) around a month before her death. She immediately lost the use of the right side of her body and had problems with swallowing. She also suffered from global aphasia (a speech disorder). She could no longer speak and appeared to have severe cognitive deficits. As a result no communication was possible. The attending neurologist established that the chance of the patient recovering to the extent that she could lead what she would consider a dignified life was virtually non-existent. The patient’s condition was incurable. She was now in a situation she had previously said that she really did not want to arise.
She had had an advance directive for years, which included a passage on euthanasia in the event of dementia. She had also written a refusal of treatment directive, and had discussed both documents with her general practitioner. In her advance directive she stated that she wanted euthanasia in the event that she was suffering unbearably without prospect of improvement or if she was in a situation in which progressive loss of dignity was to be expected. She also requested euthanasia if her situation was one in which there was no reasonable prospect of a return to what she would consider a dignified life. In addition, in the passage on euthanasia in the event of dementia she stated that she wanted euthanasia if she came to be in a situation in which there was progressive loss of dignity, and in which she was unable to communicate, needed help with day-to-day activities and no longer recognised her family.
The patient’s husband and children asked the physician (the locum for the patient’s general practitioner) to assess the patient’s situation. They discussed her advance directive with the physician and asked him if he would carry out the request she had expressed in it. The physician visited the patient in hospital and tried to make contact with her. At times, the physician observed some response from the patient; she appeared to be able to perform a simple task but shortly after, she could no longer manage to do so. She was unable to communicate directly. After the physician had established what the patient’s situation was, and after further consultation with her family, he said he was willing to assess whether euthanasia was possible on the basis of advance directive.
The physician consulted an independent physician who was also a SCEN physician. The SCEN physician was informed about the patient by the physician and given insight into the relevant medical information. The independent physician then contacted the ward where the patient had been admitted to make an appointment to visit her. A nurse told him that communication with the patient was not possible. This was confirmed during telephone conversations with the ward doctor and thea attending neurologist. On the basis of this and the information he had received from the physician, the independent physician decided not to visit the patient. No useful response was to be expected from her. Instead, the independent physician visited the patient’s husband and children, around a week and a half before the patient’s death. The independent physician wanted to hear from them what the patient’s assessment of her situation would be if she were still able to express it. The patient’s husband and children were convinced that the patient was suffering unbearably due to her current situation and that she would want euthanasia.
The committee asked both the physician and the independent physician to explain the fact that the independent physician had not visited the patient. The physician explained that the independent physician’s decision not to visit the patient had not been made in consultation with him. He had understood previously that it was not strictly necessary for the independent physician to visit the patient. Afterwards it occurred to the physician that he should have told the independent physician to visit the patient.
The independent physician said that he had understood that the patient was no longer able to communicate, but did have a clear advance directive. He said that he was aware that in principle he should visit the patient. However, the physician and several medical professionals treating the patient had all emphasised that no form of communication whatsoever was possible with the patient.
It was clear to the independent physician what the patient meant in her advance directive. He had become convinced that she was suffering unbearably because she was now in a situation that she had not wanted to experience. In fact, her situation was even worse than what she had described in her advance directive. There was no way whatsoever for her to confirm this. Visiting the patient would not have provided any additional information because it was unclear whether she was able to understand what was being said.
When questioned on the matter, the independent physician said that he had thought carefully about whether he should see the patient. He was convinced, however, that this would not have helped him in forming his opinion. Various people had tried on various occasions to make contact with the patient, but to no avail. The independent physician considered that there was nothing he could have contributed to that. In his opinion it would have been a pointless, purely ritual gesture to visit the patient. He did not feel it left a gap in his ability to form an opinion. The independent physician stressed that he would have visited the patient if he had thought it would contribute something to his forming an opinion.
The committee asked the independent physician whether he had discussed this with the physician. The independent physician replied that he had not. As concerns the consultation requirement, the committee noted that the physician had consulted an independent SCEN physician, who concluded that the due care criteria had been complied with. Although the independent physician clearly substantiated his conclusion, he did not visit the patient.
Section 2 (1) (e) of the Act stipulates that the independent physician must see the patient. The legislative history includes the following quote from the government on this matter: ‘the independent physician must apprise himself of the patient’s medical situation and wish to die, by visiting and if necessary examining the patient in person. This requirement is apparent from the use of the term “see”. In practice, situations sometimes occur in which, due to the stage of the patient’s condition, such a visit may appear superfluous, or in which the patient and the family may consider the visit an intrusion into the intimate atmosphere of the patient’s deathbed. From the point of view of due care, however, it is desirable for an unequivocal norm in this respect to be laid down in the Act.’ (Parliamentary Papers, House of Representatives, 1998 -1999, no. 3, p. 10.)
The independent physician must form an opinion on the due care criteria, including the criterion that the patient must be suffering unbearably. In this case the independent physician formed his opinion on the basis of the case file, including the advance directives, and conversations with the physician, the patient’s family and those who were treating her. Whereas he stated that a visit would contribute nothing to his forming an opinion, the committee found that a visit would have supported that process. He would, at a glance, have received confirmation of his view.
The added value of visiting the patient would have lain in that confirmation. Despite the fact that communication with the patient was no longer possible, the independent physician should have gone to see her for himself. Merely seeing the patient can reveal a great deal. For instance, he could have seen for himself if there were signs of suffering, or at least himself have established the patient’s level of awareness, thus confirming his opinion.
The committee found that, because the independent physician did not see the patient, the required consultation did not take place in accordance with section 2 (1) (e) of the Act.
The other due care criteria were complied with.