Abstract The Belgian Euthanasia Act of 2002 decriminalizes the practice of Voluntary Euthanasia in Belgium.1,2 It grants legal authorization to a patient to request to be euthanized by a physician if the former is suffering from unbearable physical or mental illness with no hope of recovery and if certain legal, medical, and ethical requirements are met. Concurrently, it decriminalizes the practice of Voluntary Euthanasia by a physician, to depart from the transcendental first do no harm role of the Hippocratic physician to become a ‘for hire to either cure or to kill’ role of the pre-Hippocratic physician.3,4 Although The Act axiomatically upholds the drafters’ original intent to allow for the lawful practice of Voluntary Euthanasia, certain pertinent sections in The Act are problematically uncertain and unpredictable, allowing for arbitrary interpretations of the law. The paper will highlight the fatally flawed pertinent sections followed by proposals for reform. Rudimentary justice requires that those subject to the law must have the means of knowing what it prescribes. Antonin Scalia, The Rule of Law as a Law of Rules5 INTRODUCTION The Belgian Euthanasia Act of 2002 (The Act) was enacted in 2002. It authorizes the practice of Voluntary Euthanasia. For the purposes of The Act, Voluntary Euthanasia is defined as the intentional termination of life of a patient by a physician, at the patient’s explicit request.6 More than a decade after legalizing Voluntary Euthanasia, Belgium has been proclaimed as a country with the most relaxed approach to Voluntary Euthanasia in the world, extending it from physical infirmity to mental infirmity, to children without age limit7 and felons. The paper, however, notes that although a request by a felon was considered by the country, the request itself was later turned down due to doctors treating him concluding that he should not be euthanized, but should be transferred to a ‘Dutch specialist center for the therapeutic care of long-term prisoners’.8 Why the most liberal in the whole world? Compared to other countries, Belgium is currently the only country which has legalized minors to be euthanized without any age limit. In neighboring Netherlands for instance, there is an age limit on minors, where it can only be performed if the minor is over 12. In Luxembourg, the patient must obtain the authorization of his or her parents or legal guardian if he or she is between the ages of 16 and 18. Outside of Europe, in Oregon, for instance, only adults aged 18 and over can request Euthanasia and the law only allows physician-assisted suicide. International media paints morbid9 portrayals of Belgium as a country where physicians abound who perform Voluntary Euthanasia on patients like it were an administration of a simple aspirin. Patients abound citing insufferable physical and mental anguish to simply losing a desire to live, brought upon by the loss of loved ones.10 Academic journals abound, accusing Belgium of allowing liberal Voluntary Euthanasia laws and practices to thrive, encouraging death over life. An academic paper in one such journal, The Journal of Medical Ethics (JME), claimed Belgium allows its physicians to abuse their powers as medical professionals by ‘intentionally shortening lives of patients without their explicit request’.11,12 The paper will explore some of the sections contained in the decade old Act, along with the Minor Act of 2014 (The Minor Act) as integrated.13 It will show how despite the ethical aspirations behind the original intent of the drafters of The Act, certain sections allow for arbitrary interpretations, rendering its original intent inept. LEGAL METHODOLOGY The paper will apply one of the fundamental rules of European Union law, The Rule of Law’s Legal Certainty Rule, to demonstrate how certain sections contained in The Act have become legally vulnerable to the very wrong it aims to prevent, societal and medical abuse. UNANIMOUS RECOGNITION OF THE RULE OF LAW AS THE FOUNDING PRINCIPLE INHERENT IN ALL CONSTITUTIONAL SYSTEMS OF EU MEMBER STATES The Rule of Law is an internationally recognized fundamental legal principle of EU Law. It mandates that the law should govern a nation, and that no person should be above the law, not even the drafters themselves. In Benelux, of which Belgium belongs, the rule of law is referred to as ‘rechtszekerheid’14 and ‘sécurité juridique’.15 One of the core principles of The Rule of Law is The Legal Certainty Rule. Under the Legal Certainty Rule, laws and decisions must be made public; laws and decisions must be definite and clear; the decisions of courts must be regarded as binding; the retroactivity of laws and decisions must be limited; and legitimate interests and expectations must be protected.16 The paper will focus on two elements inherent in The Rule of Certainty, namely, definite and clear rules and that legitimate interests and expectations must be protected. The necessity for definite and clear rules stems from the unequivocal need for the law to be certain in order to avoid confusion, which in turn affects the legitimate interests and expectations of the people for whom the law was enacted to protect. After all, the quintessential role of law in a society is to protect and guide those who are subject to it, not to confuse them. Any law that departs from this basic rule is guilty of having committed a breach of trust against a nation it was enacted to protect, rendering it incompatible with the rule of law. The Act is divided into 6 chapters with 16 running sections. VOLUNTARY EUTHANASIA AS THE INTENTIONAL TERMINATION OF LIFE BY EXPLICIT REQUEST—GENERAL PROVISIONS, SECTION 2 Under this chapter, Voluntary Euthanasia is defined as the intentional termination of life by someone other than the person concerned, at the latter’s request.17 Section 2 does not fulfil the rule of certainty requirement. Although it is clear that the drafters intended to approve Voluntary Euthanasia as evidenced by the phrase ‘at the latter’s request’, it is not clear as to who is authorized to request or practice Euthanasia. The phrase: ‘someone other than the person concerned’ is uncertain, and unpredictable, as it does not specifically refer to a patient or a physician. If read literally, the phrase ‘someone other than the person’ could precariously refer to anyone other than the patient or the physician. Therefore, the language calls for speculation and doubt instead of certainty and predictability. The original intent of the legislation needs to be clear, concise and not open to multiple interpretations. Further, the phrase seems to infer that anyone who is not suffering unbearable pain can ask anyone other than the physician (and including the physician) to terminate his or her life. This seems to imply a classic situation where a husband helps a terminally ill wife by euthanizing her and not be subject to a criminal offence.18 This is not what the original intent of The Act is or should lawfully be. An argument could be made that subsequent sections refer only to patients requesting their physicians to perform Voluntary Euthanasia on them, nothing else; therefore, it should be presumed that if one were to read the entire Act in context, there is no uncertainty or unpredictability. This argument, however, will fail as section 2 is the commencing section and needs to set the stage and be certain and predictable on this pertinent fact that only Voluntary Euthanasia as requested by a patient, and as performed by a physician, is authorized in Belgium, nothing else. The law should not merely be understood from the context of the entire legislation. Each and every section needs to be certain and predictable as opposed to being understood against the backdrop of a larger context. It needs to fulfil the requirement of certainty and predictability as opposed to implications, as such speculative language can and will open a flood gate of precariously arbitrary interpretations of the law. Further, the law should not allow for arbitrary language that allows for an ordinary person to make conjectures about it. Therefore, this section is fatally flawed. PROPOSAL The Act must reflect the original intent of the drafters with certainty and predictability. The original intent is to grant a patient the right to request Euthanasia, that is, to request to terminate his or her own life, and not be subject to a criminal offence; and concurrently, the law grants a physician the right to perform Voluntary Euthanasia, that is, to intentionally terminate his or her patient’s life at the latter’s request, and not be subject to a criminal offence. Therefore, the paper proposes the following language: Voluntary Euthanasia is defined as the intentional termination of life of a patient, who is suffering from unbearable physical or mental suffering with no hope of recovery, by his or her physician or another qualified physician, at the patient’s request, if certain legal, ethical, and medical prerequisites are met. CONDITIONS AND PROCEDURES TO BE FOLLOWED BY THE PHYSICIAN IN QUALIFYING HIS OR HER PATIENT FOR VOLUNTARY EUTHANASIA—CHAPTER II: CONDITIONS AND PROCEDURE, SECTION 3 This section explains the compliance procedure to be followed by the Attending Physician (AP) so as not to be held criminally liable for practicing Euthanasia.19 This section violates the rule of certainty in its use of many problematic phrases and words that violate the certainty rule. For instance, the AP must ensure that the patient’s request is: ‘voluntary, well-considered and repeated, and is not the result of any external pressure’.20 In this sentence, the word, ‘well considered’ and ‘not the result of any external pressure’ is vague and uncertain as it calls for speculation. What is meant by a well considered request? Does the patient consult family and friends and come to a collective decision? What timeline is needed to consider a request ‘well considered’? What is meant by external pressure? People, places, forces of nature? Also, the AP must ensure that the: ‘Patient is in a medically futile condition of constant and unbearable physical or mental suffering that cannot be alleviated, resulting from a serious and incurable disorder caused by illness or accident’.21 Here, although a subjective standard could be applied to the element of unbearable physical or mental suffering, since one’s pain is fundamentally subjective in nature, a physician must diagnose the patient as suffering from unbearable physical or mental pain using objective medical standards. Also, the words, ‘medically futile condition’ and ‘cannot be alleviated’ are problematic as they do not offer a sound, objective medical standard by which to evaluate the request for Euthanasia. The idea that someone may be suffering unbearable physical or mental pain is their own solitary and subjective experience. However, the elements of ‘unbearable suffering’ and ‘medically futile condition…that cannot be alleviated’ are the responsibility of a physician who should be held to the highest standard of medical care in coming to such an irreversibly fatal decision, using objective standards. The law, in providing guidelines so as to allow for a physician to practice Voluntary Euthanasia in a legally, medically, and ethically sound means, must set out clear objective standards in order to evaluate the condition of medical futility and the absence of alleviation as such. The Act is precariously silent on this issue. This is not only in serious violation of the certainty rule, it also gives arbitrary discretion to both the patient and the doctor to allow for personalized diagnosis that could well favor or provide a disservice to one or both parties in the absence of objective standards. Perhaps, the most disconcerting part of this section are the use of words ‘belief’ and ‘reasonable period of time’: He or she must possess the belief, together with the patient, that no reasonable alternative is available to the patient and ensure that the patient voluntarily requests the decision to be euthanized. Consequently, the AP must ensure that: the seriousness of the patient’s mental and physical suffering is understood by the patient, that the request is of a ‘durable nature’, and must conduct observation of the patient’s condition over a ‘reasonable period of time’. The law simply states along with the patient; the AP must come to the belief that no reasonable alternative to Voluntary Euthanasia exists. This is arbitrary in nature in the sense that the law in providing guidelines, gives too much discretionary power to the doctor who if pushed by a patient in agony or is mentally depressed, may be forced to come to the ‘belief’ that this is what the patient wants ultimately, with no regard to objective legal, medical, or ethical standards. In the same vein, the law also gives the patient too much power to force a physician to come to the ‘belief’ that the request to be euthanized is proper. Also, what is a reasonable period of time? There is no objective guideline as to what is objectively feasible reasonable period of time is. If it is impossible to say how long a reasonable period of time can or could be, there should at least be strict, clear, and predictable guidelines as to in what situations, and under what medical conditions, should the doctor observe a patient and in what timelines to ensure the observation is valid, correct, and medically and ethically sound. The law is vague here as it leaves to the imagination of an ordinary person what a reasonable time is. It should be a reasonable objective standard, and not a subjective standard. And certainly, it should not be left to the discretion of a physician and a patient to come to such a decision. The law should not allow those subject to it to make conjectures about it. It will call for arbitrary interpretations, medical and societal abuse, and unauthorized practice of Euthanasia. Therefore, the language calls for speculation and doubt instead of certainty and predictability. The original intent of the legislation needs to be clear, concise, and not open to multiple interpretations. If read literally, the section seems to imply that it is up to the patient and the physician to come to the belief that Voluntary Euthanasia is the right decision in the specific situation unique to them. This is not what the original intent of the law is or should be. An argument could be made that it is up to the patient and the doctor depending on the ailments unique to the patient and as observed by the physician of his patient, utilizing his medical intelligence. But this is a precariously weak argument indeed in that the law will then enable patients and physicians to abuse the law for their own advantage or disadvantage. In the absence of objective guidelines, the interested parties who are meant to be protected by the law will end up abusing the law for their own precariously self-serving purposes. A patient will choose death over life just because he or she has no purpose to go on living or a doctor may be forced to euthanize a patient in a society which may condemn him or her for not allowing his or her patient the right to death. And worse, a doctor may decide to end the life of a patient who he feels has no purpose in living and no social utility due to his or her futile condition. The law should not merely be understood from the context of the entire legislation. Each and every section needs to be certain and predictable as opposed to being understood in the larger context. It needs to fulfil the requirement of certainty and predictability as opposed to implications, as such precariously speculative language can and will open a flood gate of precarious interpretations of the law. Further, the law should not allow for arbitrary language that allows for an ordinary person to make conjectures about it. Therefore, this section is fatally flawed. The Act must reflect the original intent of the drafters with certainty and predictability. The original intent is to grant a patient the legal right to request Euthanasia, that is, to request to terminate his or her own life, and not be subject to a criminal offence; and concurrently, the law grants a physician the right to perform Voluntary Euthanasia, that is, to intentionally terminate his or her patient’s life at the latter’s request, and not be subject to a criminal offence if certain legal, ethical, and medical requisites are met. PROPOSAL Therefore, the paper proposes the following considerations: Well considered: The patient must be required to consult several medical practitioners independently of his or her own physician, who are experts in the field in which the patient’s particular diagnosis is involved, and must hold a mandatory conference with his or her family, including any person or persons the patient considers to be his or her loved one, in coming to the decision to be euthanized. External pressure: ‘External pressure’ must refer to a situation where the patient is under an obligation to terminate his or her life due to pressure from his or her own physician, family, or friends, not to be a burden. The paper notes that there is a significant disparity between a right to die with dignity and an obligation or duty to die with dignity. The decision to end one’s life should be based on the first and not the second criteria, that is, a patient should not choose euthanasia, and therefore death, due to a feeling of duty or obligation to not be a burden to loved ones or the society at large. Forcing one to end their lives is equal to murder if specific intent is proved. Encouraging one to end their live will satisfy the specific intent, an essential element for a murder offence. The Law therefore needs to be clear on what constitutes ‘External Pressure’. Medically futile condition...[that]… cannot be alleviated: The paper notes that although the elements of unbearable physical suffering is based on the patient’s own subjective experience, the standard by which to measure it so as to ensure one is not in a medically futile condition [that] cannot be alleviated must be based on an objective standard of care.22,23According to Professor Fink of Baylor University, the criteria to follow is WILDA, where words, intensity, location, duration, and aggravating and/or alleviating factors are objectively assessed by medical professionals in order to assess the degree of pain as unbearable or not.24 This is a good guideline to follow.25 The Act has no such criteria listed anywhere in the entire legislation. Therefore, could it be assumed that physicians are able to use any standard as befits the situation? If so, may a doctor in Belgium come to the conclusion that his or her patient is suffering unbearable physical or mental pain according to his or her own biases and prejudices or any medical standard as befits the situation? If so, the law will be assumed to have granted too much discretionary power to physicians to be able to come to such a life or death decision. An important reminder here is if the physician diagnoses the patient as being in a medically futile condition that cannot be alleviated, it qualifies the patient to be a candidate for Euthanasia, and therefore termination of life, an irreversible decision to end life. Therefore, absence of an objective criteria is in serious violation of the Rule of Certainty. Simply stating a patient is in a medically futile condition [that] cannot be alleviated is uncertain, unpredictable and open to precarious interpretations. Although The Act refers elsewhere to ‘current state of medical science’,26 a mere reference to acceptable medical standard will not suffice here. Belief: The paper takes the position that the use of the word ‘Belief’ is a subjective construction if a doctor adopts this state of mind, together with the patient, without measuring the patient’s unbearable physical or mental suffering objectively. If on the other hand, if a doctor takes the position that a patient is suffering unbearable physical or mental pain, based on objective standards, the word ‘belief’ should then be replaced with ‘Knowledge based on objective medical standards’. Reasonable period of time: A better legal construction here would be ‘an objective evaluation period’, mandated by the nature and seriousness of each patient’s health condition, and the creation of specific timelines. A case by case analysis documented with medical precision. RECENT LEGISLATIVE CHANGE TO THE ACT: THE MINOR ACT OF 2014 (AS INTEGRATED INTO THE ACT)—CHAPTER II: CONDITIONS AND PROCEDURE, SECTION 3 The Minor Act came into effect on 13 February 2014 and amended The Act of 2002. The only section that is affected by the Minor Act is section 3 under chapter II, Conditions and Procedure. The specific sections affected are 3.1, 3.2.7, 3.4, and 3.4.1. Under section 3.1, a physician is not guilty of a criminal offence if he or she performs Voluntary Euthanasia on: ‘a minor with the capacity of discernment…[who] is in a medically futile condition of constant and unbearable physical suffering that cannot be alleviated and that will result in death in the short term, and that results from a serious and incurable disorder caused by illness or accident’.27 The paper takes issue with the use of the phrase ‘capacity of discernment’ as applied to a minor patient and finds the term in serious violation of the certainty rule’s protection of legitimate interests and expectations. Discernment simply means the ability to judge well.28 While it is reasonable and acceptable to find adult patients to have the capacity of discernment, especially when there is no hope of recovery, how is it possible to find a minor patient to have the same capacity of discernment is an unbearably painful inquiry. While The Minor Act was intended to provide a way for anyone without age limit to have the freedom to request Euthanasia, having no limit on this freedom is precarious considering how parents who no longer wish to care for a sick child might abuse the right and pressure physicians to come to the ‘belief’ that a minor patient has the capacity of discernment. Or a minor patient may attempt to abuse the right to request Voluntary Euthanasia in the wake of the first challenge he or she faces, such as a failed relationship, which when one is at such a fragile age, will be an unbearable mental pain to bear. Mental depression which is unbearable to that minor patient who has the capability of discernment according to The Act is all that is needed so as to allow an AP to diagnose the minor patient as a candidate for euthanasia. If so, how is this a protection of the legitimate interests and expectations of the minor patient? The paper, however, notes that under section 3.2.7, the Minor Act provides for a child psychiatrist or a psychologist to be consulted in coming to the belief that a minor patient is indeed in a medically futile condition in order to be able to request to be euthanized. And it also notes that under section 3.4, the request of the minor patient to be euthanized must be accompanied by ‘an agreement of the legal representatives’ and finally under section 3.4.1, after the physician has treated the request of the minor patient, that ‘the persons concerned are offered the possibility of psychological assistance’.29 Here, although there are additional precautions and safeguards in place to ensure a minor patient is conscious of his or her decision to be euthanized, and therefore demonstrates capability of discernment, it is still precarious to have no age limit. Unlike abortion laws where an unborn child is unable to choose to live or die, the minor patient at every stage of his or her life, because of the elimination of age limits, is now able to choose to live or die as per the Minor Act. However, the question is how discernible are they to make irreversible decisions such as death. PROPOSAL A minor patient, who without age limits, should not feel it is his or her duty, be under an obligation, or be subject to peer, familial, or societal pressure to decide regarding Voluntary Euthanasia. To be in a medically futile condition with no hope of recovery is an ordeal; in fact, it could be deliverance, to end pain and suffering to be able to choose Voluntary Euthanasia. However, the paper notes that a patient who is already suffering through the ordeal of being in a medically futile condition with no hope of recovery, must go through another ordeal in having to choose between life or death. The law, in this respect, should allow for the freedom in its entirety, to the patient, to choose life or death, never through compulsion. The Act is an epitome of this rule as evidenced by chapter VI, Special Provisions, section 14, where it states with absolute clarity that no patient, physician or ‘other person’ shall be pressured to make an irreversible decision regarding Voluntary Euthanasia. Further, an Act should not, by its enactment, subject its people to such an ordeal. In line with the certainty rule’s objective to protect the legitimate interest and expectations of the minor patient, the paper proposes that if a minor patient is in a medically futile condition with no hope of recovery, he or she should be able to have access to all possible palliative care with or without curative intent or along with curative intent, as long as it takes to sustain life of the minor patient if this is what the patient and his or her family desires. As such, the paper urges the Minor Act of 2014, as integrated into The Act of 2002, to include and emphasize the need for palliative care with or without curative intent or along with curative intent to sustain and nourish life and not be seen as enablers or promoters of death over life.30 THE ADVANCE DIRECTIVE UNDER ACCEPTABLE MEDICAL STANDARDS—SECTION 4 This section allows for the drafting of Advance Directives (AD).31 It applies in situations where a legally competent adult or emancipated minor can draft an AD, directing a physician to perform Voluntary Euthanasia provided three conditions are fully met. These are that the patient must suffer from serious and incurable disorder caused by illness or accident; that the patient must be unconscious and incapable of rendering consent; and finally, patient’s condition is irreversible, applying: ‘current state of medical science’.32 As noted in chapter II, a mere reference to an acceptable medical standard will not suffice here. Therefore, this section violates the rule of certainty and the same arguments presented in chapter II will apply here. The section further states that the AD is replaceable in the event of: ‘refusal, hindrance, incompetence and death’,33 Although the words ‘incompetence’ and ‘death’ are clear and certain, the use of the words ‘refusal’ and ‘hindrance’ are problematically uncertain, and therefore violate the rule of certainty. What will be an event where refusal will suffice to render an AD replaceable? What will be an event where hindrance will suffice to render an AD replaceable? Since these questions are necessarily raised due to the obscurity of the words ‘refusal’ and ‘hindrance’, the language calls for speculation and doubt instead of certainty and predictability. The original intent of the legislation needs to be clear, concise, and not open to multiple interpretations. The Act must reflect the original intent of the drafters with certainty and predictability. The original intent is to grant a patient the right to replace his or her AD if certain conditions are met. The Act therefore needs to explain what is meant by ‘refusal’ and ‘hindrance’. PROPOSAL The paper proposes the following language: Refusal: Refusal in this context may refer to the following situations: refusal of patient to pursue Euthanasia; refusal of physician to qualify a patient for Euthanasia; refusal of patient to appoint designated persons to draft AD on his or her behalf Hindrance: Hindrance in this context refers to the following situations: the patient’s request to be euthanized is refused by his or her doctor; the patient’s request to be euthanized is hindered by his or her family’s strong opposition to Euthanasia SUBMISSION OF THE REGISTRATION FORM AFTER THE PERFORMANCE OF VOLUNTARY EUTHANASIA—CHAPTER IV: NOTIFICATION, SECTION 5 This chapter concerns the submission of the Registration Form (RF) which a physician ‘who has performed Euthanasia’ has to fill out and send to the Federal Control and Evaluation Commission (The Commission). Here, the paper takes issue with the timeline in which the submission of the RF takes place which violates the element of protection of legitimate interests and expectations contained in the Rule of Certainty.34 The physician ‘who has performed Euthanasia’ fills out and sends the RF after the act of Voluntary Euthanasia has been performed and not before. Since the rule of certainty mandates that rules are enacted to protect those it was enacted to protect, the idea that evaluation of whether the guidelines as contained in The Act were followed takes place only after a patient has been euthanized stands in stark contrast to the element of protection that the rule stands for. Rules exist to protect those they were established to protect, that is, in this case, the patient who is requesting to be euthanized. Sending a RF after the performance of Euthanasia is in fact not protection of this request. This is equal to kill first, ask questions later. PROPOSAL The paper focuses on the phrase ‘has performed Euthanasia’35 and poses the necessary inquiry as to why the RF is sent after a physician ‘has performed Euthanasia’ and not before. The idea that The Commission is established to implement The Act must necessarily mean that The Commission must evaluate whether Voluntary Euthanasia will be ‘performed in accordance with the conditions and procedures stipulated’36 in The Act before and not after the patient has in fact been euthanized. Therefore, the paper proposes that the RF be sent before a patient is euthanized so that in line with the objective of The Commission to implement The Act, it shall evaluate whether the physician will perform ‘in accordance with the conditions and procedures stipulated’ to enable and qualify him or her now to perform the act of Voluntary Euthanasia on a qualifying patient. THE FEDERAL CONTROL AND EVALUATION COMMISSION’S IMPLEMENTATION AND CONTROL FUNCTION—SECTION 7 This chapter is perhaps the most critical of all the sections in the entire Act by its very existence, to not only implement The Act,37 but by implementing The Act, to police the practice of Voluntary Euthanasia in Belgium to prevent and penalize abuse therein. As such, the paper takes a very grave approach to the obscurity of the process as evidenced in certain sections of this chapter. The chapter begins by describing the composition of The Commission. Academic, cultural, language, and gender issues are given significant consideration in the appointment of the sixteen members, who comprise of four physicians, four lawyers, four professors, and the final four who are drawn from groups that deal with incurable illness suffered by Euthanasia patients.38 Since The Act has perspicuously described the appointment process and further, in line with the objective of this paper, the actual technicalities of the process of appointment is deliberately omitted. In its place, certain pertinent facts about the internal regulations mandate focus. The Commission establishes its own internal rules to implement The Act.39 Under section 7 of the said chapter, The Commission is responsible for drafting and maintaining the RF, a form which needs to be filled out by a doctor who: ‘has performed Euthanasia’.40 The RF consists of two parts. Part 1, which contains the identity of the patient, and the insurance information of the AP and all physicians consulted by the AP, is kept in anonymity to preserve an objective evaluation. The Commission uses the Part 2 in evaluating whether Voluntary Euthanasia was ‘performed in accordance with the conditions and procedures stipulated’ in The Act.41 This is so as to avoid a subjective evaluation. Part 2 describes the pertinent facts necessary for an objective evaluation such as patient’s sex, date of birth, birthplace, date, time, and place of death and description of serious and incurable condition suffered by patient. Part 2 also includes information about the description of constant, unbearable suffering, reasons why pain cannot be alleviated, that the request was voluntary, well considered, repeated, with no external pressure and with the expectation that patient’s death was imminent, and within foreseeable future, the competency of the physicians involved, the capacity of persons consulted, and finally, the manner in which Voluntary Euthanasia was performed including the pharmaceuticals used.42 The Commission then based on the second part draws conclusions of the compliance procedure of Euthanasia. Where non-compliance is detected, a simple majority allows revocation of anonymity and examination and review of first part of the RF. The confidential nature of Part 1 is clear and certain since patient’s anonymity is a prerequisite to making an objective evaluation of the manner in which Voluntary Euthanasia was performed. The Commission makes an evaluation based on Part 2 which has the necessary information to make an objective evaluation of whether the physician was compliant. Although the original intent of the process is clear and certain and does not violate the rule of certainty, the paper takes issue with the timeline in which the evaluation takes place which violates the element of protection of legitimate interests and expectations element contained in the Rule of Certainty.43 The Commission evaluates a case after a patient is euthanized and not before. This is evidenced by the preceding chapter, where the phrase: ‘Any physician who has performed Euthanasia is required to fill in a registration form’ indicates time in the past where the RF will be filled out only after a physician ‘has performed Euthanasia’, not before. Why would a Commission made responsible for implementing the practice of Euthanasia, which is irreversible in nature, only evaluate a case after the patient is euthanized? This is a question that demands responses from The Commission. It is only logical to evaluate whether the guidelines as set out in The Act have been followed before the patient is euthanized. This makes even more sense because an evaluation before will also mean the physician has complied with all the procedures and therefore should be given the green light by The Commission to allow for the practice of Euthanasia. This would be an effective implementation of The Act. After a patient is euthanized, what will be the necessary objective of The Commission to evaluate whether a physician has followed the guidelines? Or whether a patient qualified as a candidate? The only objective seems to be to prosecute a physician who has not followed the guidelines properly. This actually would mean that the patient who was euthanized was indeed not qualified to be euthanized. This would amount to an effective unauthorized practice of Euthanasia. Since evaluation takes place after a patient is euthanized, it seems to be that the objective of The Commission is not to prevent unauthorized practice of Euthanasia, but to prosecute a non-compliant physician. As such, the law stands in stark contrast to the traditional role it should and must play in society, that is, to protect its citizens, before harm is committed. This is also in line with the kill first, ask questions later theory propounded above.44 PROPOSAL In line with the arguments already presented in the preceding chapter, the paper proposes the act of implementation to be held prior to the irreversible performance of the act of Euthanasia.45 CONCLUSION …but in this world nothing can be said to be certain, except death and taxes. Daniel Defoe, The Political History of the Devil, 172646 Life is a cleansing act. It is a cleansing cycle of birth, life, death, and everything in between life and death, which at best is a process of uncertain conjecture. Hélas, two things are indeed certain, Death and Taxes!47 There is nothing we can do about taxes but to pay them! But we can do something about death if life becomes unbearable to bear. We can end it with dignity when we find ourselves unable to live life with dignity. Therefore, the paper takes the position that one should not be deprived of the fundamental freedom to live, as one should also not be deprived of the fundamental freedom to live with dignity, which when lost due to unbearable physical or mental agony, renders life an agony in its entirety. The Act supports this argument that one should live and die with dignity and should not be deprived of the freedom to choose death over life, in the presence of unbearable physical or mental suffering, just as they should be able to choose life over death in the absence of unbearable physical or mental suffering. Hence, the paper congratulates the efforts of the Belgian government in enabling its people to lead their lives with dignity by providing a legal means to do so. However, the paper cautions the physicians who practice Voluntary Euthanasia to be cognizant of the difference between the subjective standard of unbearable physical or mental pain as experienced by patients versus the objective standard of unbearable physical or mental pain to be applied by physicians in their medical diagnosis of their patients. A physician’s duty is to be in compliance of The Act’s guidelines, to qualify a patient only if the latter is suffering unbearable pain, as measured objectively in all cases of Voluntary Euthanasia in Belgium. This goal must be brought to the fore with vigor and the highest of ethical responsibility to the patient in the practice of Euthanasia. Further, the paper recommends the drafters of The Act to reconsider the element of uncertainty and unpredictability in certain words and phrases as contained in The Act, and appeals to them to bring forth clarity to the original intent for which The Act was enacted, to allow for lawful and ethical medical practice of Voluntary Euthanasia in Belgium. Finally, in line with the highest of ethical responsibility to the patient, the paper optimistically anticipates, in highlighting some of the fatally flawed sections in The Act, by employing one of the fundamental rules of European Union Law, The Rule of Certainty to those sections, and in prescribing some proposals in conjunction with those fatally flawed sections, that the Belgian Government, the people (subjects) of the kingdom of Belgium, the legal and medical community, and, most importantly, the patient who wants to choose the path of Voluntary Euthanasia, be able to influence, amend, and perfect The Act so as to be able to use it for ethically necessitated medical reasons rather than abuse it for non-ethical, non-medical reasons. Footnotes 1 LOI – WET (n.d.), available at http://eol.law.dal.ca/wp-content/uploads/2015/06/Law-of-28-May-2002-on-Euthanasia-as-amended-by-the-Law-of-13-February-2014.pdf (accessed 14 November 2016). 2 H Nys ‘The Belgian Act on Euthanasia of May, 28th 2002’ [June 2002] Ethical Perspect 9, 182–8. 3 J Patrick Hippocrates and Medicine in the Third Millennium (n.d.), available at http://www.augustinecollege.org/papers/JP_Hippoc.htm (accessed 10 November 2016). 4 RF Kidd The Hippocratic Oath (n.d.), available at http://rfkidd.com/hippocratic.htm (accessed 10 November 2016). 5 A Scalia The Rule of Law as a Law of Rules (1989), available at http://lawreview.uchicago.edu/ (accessed 7 October 2016). 6 Section 3, ‘The Belgium Act on Euthanasia of May, 28th 2002’ [June 2002], available at http://www.ethical-perspectives.be/viewpic.php?TABLE=EP&ID=59 (accessed 19 September 2016). 7 A Higgins Belgian Senate Votes to Allow Euthanasia for Terminally Ill Children (12 December 2013), available at http://www.nytimes.com/2013/12/13/world/europe/belgian-senate-votes-to-allow-euthanasia-for-terminally-ill-children.html (accessed 30 January 2017). 8 B Waterfield Belgian Serial Rapist Will Not Be Euthanised (n.d.), available at http://www.telegraph.co.uk/news/worldnews/europe/belgium/11327541/Belgian-serial-rapist-will-not-be-euthanised-as-planned.html (accessed 30 January 2017). 9 R Bartunek Belgium Surprised at International Euthanasia Backlash (14 February 2014), available at http://www.reuters.com/article/us-belgium-euthanasia-idUSBREA1C0UF20140214 (accessed 30 January 2017). 10 R Eddie Elderly Woman, 85, Reveals How She Decided on Euthanasia Five Minutes after Her Daughter Died as Documentary Follows Her Journey to Death (2015), available at http://www.dailymail.co.uk/news/article-3234917/Elderly-woman-85-reveals-decided-euthanasia-five-minutes-daughter-died-documentary-follows-journey-death.html (accessed 13 September 2016). 11 R Cohen-Almagor ‘First Do No Harm: Intentionally Shortening Lives of Patients without Their Explicit Request in Belgium’  J Med Ethics Journal of Medical Ethics 41, 625–9. doi:10.1136/medethics-2014-102387. 12 D Steve (Social Affairs Correspondent for the Daily Mail) Belgian GPs ‘Killing Patients Who Have Not Asked to Die’: Report Says Thousands Have Been Killed Despite Not Asking Their Doctor (11 June 2015), available at http://www.dailymail.co.uk/news/article-3120835/Belgian-GPs-killing-patients-not-asked-die-Report-says-thousands-killed-despite-not-asking-doctor.html (accessed 30 January 2017). 13 See n 1. 14 Legal certainty in Dutch. 15 Legal certainty in French. 16 JR Maxeiner ‘Some Realism about Legal Certainty in the Globalization of the Rule of Law’ in S Mortimer and T Tadeusz (eds) The Rule of Law in Comparative Perspective (Springer Netherlands) 41–55. Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1230457 (accessed 31 October 2016). 17 Ibid, section 2. 18 C Luo Man, 70, Deemed Murderer by Court after Killing Sick Wife in Euthanasia Case (13 August 2013), available at http://www.scmp.com/news/china-insider/article/1296322/man-deemed-murderer-court-after-killing-sick-wife-euthanasia-case (accessed 10 November 2016). 19 Ibid, section 4. 20 Ibid, section 3.1. 21 Ibid, section 3.1. 22 R Fink Pain Assessment: The Cornerstone to Optimal Pain Management ((July 2000), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1317046/ (accessed 16 October 2016). 23 Figure 1. 24 Fink (2000), see n 22. 25 See n. 22. Available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1317046/figure/F1/. 26 Ibid, ch. III, The Advance Directive. 27 See n 1. 28 Oxford Living Dictionaries_Discernment (n.d.), available at https://www.oxforddictionaries.com/search/?direct=1 (accessed 19 November 2016). 29 Ibid, section 3.4.1. 30 The paper notes that if the patient does not desire possible palliative care with or without curative intent or along with curative intent, then the same law allows them to refuse treatment and instead, to choose Voluntary Euthanasia. Finally, the participation of family may be important to a patient in a medically futile condition with no hope of recovery to be able to have the support and encouragement of family or loved ones to decide to choose Voluntary Euthanasia or not. Although there is no mention in the law itself of family participation or approval in order for the patient to make his or her decision to choose Voluntary Euthanasia, and a patient and his or her family or loved ones do not need to agree regarding the decision to choose Voluntary Euthanasia, the paper proposes, with the patient’s approval, the involvement of a family member or a loved one, to afford the patient the freedom to be able to decide independently of the attending and or consulting physician regarding Voluntary Euthanasia. The paper, however, cautions how undue influence and manipulation of a loved one could also sabotage this proposal in the way of influencing the patient to decide to die because of a duty and obligation instead of for medically futile conditions with no hope of recovery. 31 Ibid, section 4. 32 Ibid, section 4.1. 33 Ibid, section 4.1. 34 Maxeiner (2010), see n 16. 35 Ibid, section 5. 36 Ibid, section 8. 37 Ibid, section 6. 38 Ibid, section 6. 39 Ibid, section 6.3. 40 Ibid, section 5. 41 Ibid, section 8. 42 Ibid, section 7. 43 Maxeiner (2010), see n 16. 44 Ibid, ch. 5. 45 Ibid, ch. 5. 46 D Defoe, J Mullan and WR Owens The Political History of the Devil (1726) (Pickering & Chatto London 2005). 47 This statement has been challenged by biogerontologists who claim that death is not inevitable. Also, the paper notes that some corporations do not require their employees to comply with tax obligations. © The Author(s) 2017. Published by Oxford University Press. This is an Open Access article distributed under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs licence (http://creativecommons.org/licenses/by-nc-nd/4.0/), which permits non-commercial reproduction and distribution of the work, in any medium, provided the original work is not altered or transformed in any way, and that the work is properly cited. For commercial re-use, please contact email@example.com
Statute Law Review – Oxford University Press
Published: Oct 11, 2018
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