Appendix "A"

Full Text

A1.    Netherlands

A1.1    Consensual homicide and assisted suicide continue to be prohibited by the Penal Code in the Netherlands. The Dutch Termination of Life on Request and Assisted Suicide (Review Procedures) Act does not actually authorize either physician-assisted suicide or euthanasia, but provides a defence to criminal charges for physicians who adhere to its requirements.1 In this respect, it is analogous to the provisions of the Canadian Criminal Code on therapeutic abortion from 1969 to 1988, and to the exemptions offered in the Carter decision.

A1.2    One of the requirements of the Dutch law is that the physician must believe that the patient's request is "well-considered." Another is that the physician must believe that the patient's suffering is "lasting and unbearable." A physician who did not actually believe one or both of these things and who killed a patient or helped a patient commit suicide or aided or abetted either act would have no defence to a charge of murder or assisted suicide.

A1.3    Physicians who object to euthanasia and assisted suicide for reasons of conscience usually do not believe that a request for either can be "well-considered." Moreover, they may not believe that a patient's suffering is "lasting and unbearable," particularly if the suffering can be relieved. On both points, the available defence requires actual belief; doubt is insufficient to provide a defence to a criminal charge.

A1.4    Since the legal prohibition of homicide and assisted suicide is not displaced in such circumstances, there can be no obligation on the part of objecting physicians to provide or refer for euthanasia or physician-assisted suicide. They have no obligation to commit or cooperate in the commission of a criminal offence.  The Royal Dutch Medical Association makes this clear:

Physicians are never lawfully required to fulfil a request for euthanasia. If, for whatever reason, they object to euthanasia they are not required to cooperate.2

A1.5    There is no duty to participate in or refer for euthanasia or assisted suicide in the Netherlands.

A2.    Luxembourg

A2.1    A physician who refuses to perform euthanasia or assisted suicide must notify a patient of his refusal and the reasons for it.

The doctor who refuses to respond to a request for euthanasia or assisted suicide shall be obliged, on the request of the patient or of the person of trust, to send the patient's medical file to the doctor appointed by the latter or by the person of trust.3

A2.2    This is a patient-initiated transfer of medical records.

A3.    Belgium

A3.1    A physician who refuses to perform euthanasia or assisted suicide must notify a patient of his refusal and the reasons for it, and, at the request of the patient, transfer the medical file to another physician.4

A3.2    The obligation to notify the patient and transfer records upon request are identical to those found in the law in Luxembourg. What is described here is a patient-initiated transfer of medical records.  

A3.3    Moreover, consensual homicide continues to be prohibited in Belgium. Like the law in the Netherlands, the Belgian Act on Euthanasia of May 28, 2002, does not actually authorize euthanasia, but provides a defence to criminal charges for physicians who adhere to its requirements.5 In this respect, it is analogous to the provisions of the Canadian Criminal Code on therapeutic abortion from 1969 to 1988 and to exemptions offered in the Carter decision.

A3.4    One of the requirements of the Belgian law is that the physician must ensure that the patient's request is "well-considered." Another is that the physician must ensure that the patient is in "a medically futile condition of constant and unbearable physical or mental suffering that can not be alleviated." A physician who did not actually ensure all of these things and who killed a patient or aided or abetted homicide would have no defence to a charge of murder.

A3.5    Physicians who object to euthanasia for reasons of conscience usually do not think that they can ensure that a request for it is "well-considered." Moreover, they are unlikely to think that a patient's condition can be described as "medically futile," and may well believe that suffering can be alleviated. On both points, the available defence requires a firm conclusion; doubt is insufficient to provide a defence to a criminal charge.

A3.6    Since the is a legal prohibition of homicide is not displaced in such circumstances, there can be no obligation on the part of objecting physicians to provide or refer for euthanasia. They have no obligation to commit or cooperate in the commission of a criminal offence.

A4.    Oregon

A4.1    A physician who is unable or unwilling to provide assisted suicide must, at the request of the patient, transfer the medical file to another physician. This is a patient-initiated transfer of medical records like that required in Luxembourg and Belgium.

A4.2    The Oregon Death with Dignity Act allows health care facilities to prohibit "participation" in assisted suicide on their premises. In that particular situation - when a physician wants to refer a patient for assisted suicide - the law provides that "participation" does not include referral. Thus, the health care facility may prohibit the provision of a lethal drug on its premises, but may not prohibit a referral by a willing physician to an external source.6

A4.3    The special definition of "participation" to exclude referral in this particular situation confirms that the term would normally be understood to include referral; a special definition would otherwise be unnecessary.

A5.    Washington (state)

A5.1    A physician who is unable or unwilling to provide assisted suicide must, at the request of the patient, transfer the medical file to another physician. This is a patient-initiated transfer of medical records like that required in Luxembourg, Belgium and Oregon.

A5.2    The Washington Death with Dignity Act allows health care facilities to prohibit "participation" in assisted suicide on their premises. In that particular situation - when a physician wants to refer a patient for assisted suicide - "participation" does not include referral. Thus, the health care facility may prohibit the provision of a lethal drug on its premises, but may not prohibit a referral by a willing physician to an external source.7  The provision is identical to that in Oregon's Death with Dignity Act.

A5.3    The special definition of "participation" to exclude referral in this particular situation confirms that the term would normally be understood to include referral; the special definition would otherwise be unnecessary.

A6.    Vermont

A6.1    Vermont's Patient Choice and Control at the End of Life Act is not silent on the subject of referral. It imposes a duty of referral only on physicians who wish to provide assisted suicide [§ 5283.a(7)].8 The statute does not impose a duty of referral on physicians who refuse to participate in assisted suicide.

A6.2    Instead, the statute states that "a physician, pharmacist, nurses or other person shall not be under any duty, by law, or contract, to participate in the provision of a lethal dose of medication to a patient." [§ 5285(a). Emphasis added] Note particularly that the statute nullifies any duty that might be said to exist at common law or through the operation of another statute.

A6.3    Since, in Vermont, only physicians can prescribe a lethal does of medication and only physicians or pharmacists can dispense it, the extension of protection to nurses or other persons indicates that the term "participate" is used in the statute in its normal sense, to encompass other acts that may contribute to the provision of lethal medication, such as referral.

A7.    California

A7.1    California's assisted suicide law provides that health care providers may refuse to "participate" in any way in the provision of assisted suicide.  They may refuse "to inform a patient regarding his or her rights" to assisted suicide, and they may refuse to refer to a physician who provides assisted suicide.9

If a health care provider is unable or unwilling to carry out a qualified individual's request under this part and the qualified individual transfers care to a new health care provider, the individual may request a copy of his or her medical records pursuant to law.10

A7.2    Facilities may prohibit employees, contractors or others working within the scope of their employment on their premises from participating in assisted suicide,11 as long as it first provides notice of its policies.12 Having given notice, they may take action for policy violations.13  However, they may not prohibit employers, contractors, etc. from participating in assisted suicide elsewhere.14

A7.3    Facilities may not prohibit employees, contractors or others on their premises from performing a diagnosis or assessment (even if it could be used for the purpose of facilitating assisted suicide), informing a patient of the diagnosis, prognosis, etc. advising a patient about the availability of assisted suicide elsewhere, or, upon the patient's request, providing a referral to another health care provider for assisted suicide.15  The provision is analogous to laws in  Oregon (A4.2) and Washington (A5.2).

A7.4    In the particular situation described in A7.3, when a physician wants to refer a patient for assisted suicide, "participation" does not include referral.  The special definition of "participation" to exclude referral in this particular situation confirms that the term would normally be understood to include referral; the special definition would otherwise be unnecessary. 

Notes:

1.  Termination of Life on Request and Assisted Suicide (Review Procedures) Act (Accessed 2015-07-24).

2.  Royal Dutch Medical Association, Euthanasia in the Netherlands (Accessed 2015-07-24).

3.  Euthanasia and Assisted Suicide: Law of 16 March, 2009 - 25 Questions, 25 Answers. Appendix 1: Law of 16 March, 2009 on euthanasia and assisted suicide, Chapter VIII, Article 15. Grand Duchy of Luxembourg, Ministry of Health, Ministry of Social Security (June, 2010) (Accessed 2015-07-24).

4.  Kidd D. (Trans.) "Belgian Act on Euthanasia of May 28, 2002" Section 14. Ethical Perspectives 9 2002 (2-3) p. 182. (Hereinafter "BAE")(Accessed 2016-01-14).

5.  BAE, Section 3.

6.  Oregon, Death with Dignity Act, Section 5(3)d(B)iii (Accessed 2015-07-26)

7.  Washington, Death with Dignity Act, 70.245.190(2)d(ii)C (Accessed 2015-07-26)

8.  Vermont, Act 39- Patient Choice and Control at the End of Life Act (Accessed 2015-04-25)

9.  An act to add and repeal Part 1.85 (commencing with Section 443) of Division 1 of the Health and Safety Code, relating to end of life (Hereinafter "California HSC") 443.14 (e)2

10.  California HSC 443.14 (e)3

11.  California HSC 443.15 (a)

12.  California HSC 443.15 (b)

13.  California HSC 443.15 (c)

14.  California HSC 443.15 (d)

15.  California HSC 443.15 (f)3

Prev | Next