Improving control over euthanasia of persons with psychiatric illness: Lessons from the first Belgian criminal court case concerning euthanasia

Abstract

BackgroundBelgium is one of very few countries that legally allow euthanasia for suffering caused by psychiatric illness. In the first criminal trial in Belgium of physicians involved in euthanasia, three physicians recently faced the accusation of “murder by poisoning,” for allegedly having failed to comply with several requirements of the Belgian Euthanasia Law in granting the euthanasia request a woman suffering from psychiatric illness. Although all three physicians were acquitted, the case generated much debate among policy makers, medical professionals, and the general public.MethodWe use this trial as the starting point for a critical analysis of the adequacy of the three-level control system established in the Euthanasia Law, as it is applied in the evaluation of euthanasia requests from persons who suffer unbearably from a psychiatric illness. This analysis is based on information presented during the criminal trial as well as information on the euthanasia that was published in the press.ResultsOur analysis highlights substantial problems in the assessment and granting of the euthanasia request. The patient was euthanized without it having been substantiated that her psychiatric illness had no prospect of improvement and that her suffering could not be alleviated. The three-step control system enshrined in the Law and promoted by the Federal Control and Evaluation Commission for Euthanasia appears to have failed at each level.ConclusionTo evaluate requests for euthanasia for mental suffering caused by psychiatric illness, the requirements of the Belgian Euthanasia Law should be complemented by mandating the advice of two psychiatrists, and face-to-face discussions between all physicians involved. In parallel with the process of evaluating the euthanasia request, a treatment track should be guaranteed where reasonable evidence-based treatments and recovery-oriented options are tried.

Externalist argument against medical assistance in dying for psychiatric illness

“…Indeed, professional psychiatric associations have recognised the above as a serious problem. Notably, following a criminal trial in Belgium where three physicians were accused (and subsequently acquitted) of ‘murder by poisoning’ for allegedly providing psychiatric MAiD to a patient without establishing irremediability, recommendations were made to ensure that biological, psychological and social interventions have been attempted before judging that there is no prospect of improvement 41. Likewise, the guideline in the Netherlands recommends that state of the art treatment protocols must have been applied, including biological, psychological and social interventions 42.…”

Managing the many intrusions of death in forensic mental health services

“…In the event of ‘unbearable mental suffering’ caused by mental disorder euthanasia is now legal in four European countries: Belgium, Luxemburg, The Netherlands and Spain. Physician‐assisted suicide has been legalised in other European countries, among them Switzerland (De Hert M et al., 2022). In 2020, the German and Austrian Constitutional Courts held that penalisation of assisted suicide is unconstitutional as it interferes with the basic right of self‐determination.…”

“…Even without considering the UK's serial killing doctor, an immediate concern is that law legalising euthanasia or assisted dying turns us into killers. In January 2020, such concern led to trial for ‘murder by means of poisoning’ for three Belgian physicians after a woman in her 30s, who had been diagnosed with borderline personality disorder and autistic spectrum disorder, was euthanised on 27 April 2010 (De Hert et al., 2022). The physicians have been acquitted, but the complexities are evident from the fact that the ramifications of this case are ongoing.…”

Euthanasia of a person with a psychiatric disorder does not violate the European Convention on Human Rights (Mortier v. Belgium [no. 78017/17])

“…Although euthanasia numbers have been increasing over the years, the percentage of cases involving people with a primary psychiatric diagnosis has remained stable (between 1 and 2%). For these cases, the Belgian and Dutch Euthanasia Laws operate similar due care criteria: a well-considered, repeated, and voluntary request from a legally competent adult; a medical condition without prospect of improvement; constant and unbearable suffering that cannot be alleviated; consultation of two independent physicians, including a psychiatrist; and a posteriori evaluation and control [ 1 – 3 ].…”

“…Consequently, the Court held that there had been a violation of Article 2 of the ECHR on account of the possible lack of independence of the Commission. It should be noted that the global functioning of the FCECE and its procedures have also been questioned in recent papers [ 1 , 10 ]. As a result of the ruling of the ECtHR, the Belgian legislature will be obliged to amend the a posteriori control procedure provided in the Euthanasia Law.…”