International Trade and Business Law Review
Walter De Bondt
On 28 May 2002, the Belgian Chamber of Representatives passed the so called Euthanasia Act. Previously, namely on 25 October 2001, the Senate had already adopted the new bill. Meanwhile, the statute came into force on 22 September 2002.
According to the Euthanasia Act, the physician who performs euthanasia does not commit a crime if he complies with the substantial and formal statutory requirements.
Taking into account the text of the Act, the preparatory work and the advice of the Belgian Conseil d’état, the present paper tries to sketch an objective picture of the new legislation. Personal interpretations and appreciations of the author are not under discussion.
First, the rationale of the new legislation is dealt with (2), then the structure of the statute is analysed (3) and finally the different provisions of the bill are discussed (4–9).
It was the Senate—this is the so called reflection chamber of the Belgian Parliament, as opposed to the Chamber of Representatives, being the political chamber—which took the initiative for the new legislation. The bill was introduced into Parliament by six senators, who are all part of the governmental majority of liberals, socialists and ecologists. The initiators of the proposal emphasise that the act whereby a physician takes the patient’s life, at the request of the latter, is still legally qualified as murder. Only the application of the legal concept of the state of emergency allows the judge not to condemn the physician. The latter concept, however, is subjective and is established on a case by case basis. This leads to legal insecurity, to semi-secret practices, to the absence of any state control and renders more difficult a genuine dialogue between the patient and the physician.
The new legislation aims for the following objectives:
Structure of the statute
First, the Act defines the concept of euthanasia (Art 2). Then it enumerates the conditions and the procedures the physician has to comply with when he accepts a request for euthanasia (Art 3). Concerning this point, a distinction is made in accordance with the fact whether or not the patient will die within the foreseeable future. If clearly the patient will not die within the foreseeable future, the physician has to observe additional formal requirements and some extra conditions with respect to the content.
Thus, the object of Art 3 is the actual request for euthanasia by a patient who is conscious. Article 4, on the other hand, deals with the situation of the beforehand formulated and registered request for euthanasia (the so called ‘living will’): the facility is created to ask in advance for euthanasia in case one should become unconscious and this situation be irreversible.
By virtue of Art 5, the physician who performs euthanasia has to inform the Federal Commission on Control and Evaluation (hereafter referred to as the Commission). This has to be done by means of a registration document, the content of which is determined by Art 7. Articles 8 and 9 lay down the competences of the Commission. If the Commission is of the opinion that the conditions provided for by the Act are not fulfilled, it sends the file to the Public Prosecutor of the place where the patient has died (Art 8). In the event of Art 8, the Commission fulfils its control function. Besides this, the Commission has an evaluation task. Article 9 prescribes that the Commission has to make a biennial report on the implementation of the Act. On this occasion, the Commission can formulate recommendations which may lead to a legislative initiative or to measures of the executive. A debate on the implementation of the Act has to be organised in the Senate and the Chamber of Representatives within a period of six months after the Commission has presented its first report (Art 13).
Article 14 explicitly states that a physician cannot be compelled to perform euthanasia. According to Art 15, a person who dies as a result of euthanasia is held to have died a natural death.
Finally, Art 16 states that the Act comes into force at the latest three months after its publication in the Belgian State Journal. Since the Act was published on 22 May 2002, it has come into force on 22 September 2002.
Euthanasia is described as an act on purpose, performed by a third person, in order to end the life of a person who has requested this act. This definition implies that the so called ‘medically assisted suicide’ does not fall within the scope of the new legislation. This political choice of the Belgian legislator is questioned by the Conseil d’état. The only objective difference between euthanasia and medically assisted suicide consists in the fact that the actual act which leads to the death is committed by the physician or by the patient himself. The question is whether this sole consideration justifies the absence of a legal regulation. In the opinion of the Conseil d’état, the constitutionally guaranteed principle of non-discrimination requires the legislator either to regulate the medically assisted suicide or to indicate the objective reasons that legally justify the absence of a regulation of this aspect of terminal care.
Only a physician is allowed to perform euthanasia. The doctor who performs euthanasia does not commit a crime when he has ascertained that:
The Act expressly states in Art 3 § 1 that the physician who complies with the conditions of the Act does not commit a crime. An earlier proposal of the Euthanasia Act contained a change of the Penal Code. It stated that the provisions concerning murder were not applicable, when the conditions of the Act were observed. To meet the objection that was raised by some senators that no exceptions can be made to the rule Thou shalt not kill’, the legislator ultimately decided not to change the Penal Code.
Without prejudice to additional conditions which the physician wants to attach to his intervention, he must meet the following information, consultation and examination obligations:
1 Inform the patient about his health condition and his life expectancy, consult with the patient about his request for euthanasia and discuss with him possible remaining therapeutic options as well as the option of palliative care and their outcome. Both he and the patient have to become persuaded that there is no alternative to this situation than euthanasia and that the request of the patient is entirely based on voluntarism.
2 Be certain of the persistent physical or psychological suffering of the patient and of the sustained nature of his request. He will therefore have several talks with the patient which, taking into account the evolution of the medical condition of the patient, will be spread over a reasonable period of time.
3 Consult another physician about the serious and incurable nature of the disorder and convey the reasons for this consultation. The consulted physician assesses the medical record, examines the patient and has to persuade himself of the persistent and unbearable physical or psychological suffering which cannot be alleviated. He draws up a report of his findings. The consulted physician has to be independent vis à vis both the patient and the attending physician and has to be competent to assess the disorder in question. The attending physician will inform the patient of the results of this consultation.
4 Discuss the request of the patient with the nursing staff or members of that team if there is a nursing team which has regular contact with the patient.
5 Discuss the request of the patient with relatives appointed by him if this is the patient’s wish.
6 Be certain that the patient has had the opportunity to discuss his request with the persons he wishes to meet.
If the physician is of the opinion that apparently, the patient will not die within the foreseeable future, he has to observe two additional obligations.
First, he has to respect a period of at least one month between the written request of the patient and the performance of euthanasia.
Secondly, he has to consult a second physician. The latter is a specialist in the disease concerned or a psychiatrist. The physician consulted assesses the medical record, examines the patient and has to persuade himself of the persistent and unbearable physical or psychological suffering which cannot be alleviated. He also has to verify the voluntary, well considered and repeated nature of the request. He draws up a report of his findings. The consulted physician has to be independent vis à vis both the attending physician and the first physician consulted. The attending physician informs the patient of the results of this consultation.
The request of the patient has to be made in writing. This document has to be written, dated and signed by the patient in person. If the patient is not capable of doing this, the request is written by an adult person who is chosen by the patient and has no material interest in the death of the patient.
This person mentions that the patient is not capable of writing the request and gives the reasons for this. In this case, the request will be written in the presence of the physician. The name of the doctor is mentioned in the request. The document has to be added to the medical record.
The patient can withdraw the request at any time. The document is then removed from the medical record and returned to the patient.
All requests formulated by the patient, as well as the interventions of the attending physician and their results, including the report(s) of the physician(s) consulted, are reported in the patient’s medical record on a regular basis.
The beforehand formulated request for euthanasia, in case one should no longer be able to express oneself at a later moment
The regulations discussed so far concern the actual request of a conscious patient. Besides this, the Act also regulates the situation of the unconscious patient, who previously has drawn up a living will in which he expresses a request for euthanasia. This request will be complied with if the following conditions are fulfilled.
First, the person who draws up a living will has to be an adult (or an emancipated minor), who has full legal capacity. Furthermore the physician has to ascertain that:
The living will can be drawn up at any time. It has to be drawn up in writing in the presence of two adult witnesses, of whom at least one has no material interest in the death of the patient. The will has to be dated and signed by the person who makes the statement, the witnesses and, if so desired, by one or more confidants.
If the person who wishes to draw up a living will is physically and permanently incapable of writing and signing the will, he can appoint an adult who has no material interest in the death of the person in question to draw up the request in the presence of two adult witnesses, of whom at least one has no material interest in the death of the patient. The living will mentions that the patient is incapable of signing and explains why. The living will has to be dated and signed by the person who draws up the will, by the witnesses and, if applicable, by the confidant(s). A medical declaration is added to the living will to prove that the patient is persistently incapable of writing and signing the living will.
The living will can only be taken into consideration if it is drawn up or confirmed less than five years before the moment at which the patient can no longer express his will. The living will can be modified or withdrawn at any time.
A Royal Decree will determine how this living will has to be drawn up, registered and reconfirmed or withdrawn, and how it has to be communicated to the attending physicians via the services of the Registry Office.13
The physician who performs euthanasia on the basis of a living will commits no crime if he ascertains that the patient:
1 Consult another physician about the irreversibility of the medical condition of the patient and convey the reasons for this consultation. The physician consulted assesses the medical record and examines the patient. He draws up a report of his findings. If a confidant is appointed in the living will, the attending physician will inform this person of the results of this consultation. The physician consulted has to be independent vis à vis both the patient and the attending physician and be competent to assess the disorder.
2 Discuss the content of the living will with the nursing staff.
3 Discuss the request of the patient with the confidant if such person has been appointed in the living will.
4 Discuss the content of the living will with relatives of the patient who are appointed by the confidant if a confidant is appointed in the living will.
Finally, the Act explicitly states that the physician has the right to attach additional conditions to his intervention, if he thinks fit to do so.14
The living will as well as all interventions of the attending physician and their results, including the report of the physician consulted, are mentioned in the medical record of the patient on a regular basis.
A Federal Commission on Control and Evaluation (hereafter referred to as the Commission) is established.
The Commission consists of 16 members. They are appointed on the basis of their knowledge and experience in the matters falling within the competence of the Commission. Eight members are medical doctors. At least four of them are professor at a Belgian university. Four members are law professors at a Belgian university or practising lawyers. Four members come from circles charged with the problem of incurable medical patients. The members of the Commission are appointed on the basis of a pluralistic representation. The members are appointed by the government on the basis of a double list submitted by the Senate. The Commission can only decide lawfully if two thirds of the members are present. As appears from the name of the Commission, it has a control and an evaluation function.
The Euthanasia Act organises the control task of the Commission by means of a document of registration. This document consists of two parts. The first part has to be sealed by the physician. In principle, the Commission does not read the first part. It contains the identity of the patient, of the attending physician, of the physician(s) consulted, of all persons who were consulted by the attending physician if there is a living will and, if this applies, the identity of the confidant(s).
The second part of the registration document is read by the Commission. It contains the following data:
1 the sex, date of birth and the place of birth of the patient;
2 the date, place and time of death;
3 the nature of the serious and incurable disorder caused by an accident or a disease from which the patient suffered;
4 the nature of the persistent and unbearable pain;
5 the reasons why this pain could not be alleviated;
6 the elements which were taken into account to verify whether the request was voluntary, well considered and repeated and was not made under any external pressure;
7 whether it was conceivable that the patient would die in the near future;
8 whether a living will was drawn up;
9 the procedure which was followed by the physician;
10 the capacity of the physician of physicians consulted, the advice and the dates of these consultations;
11 the persons who were consulted by the physicians and the dates of these consultations; and 12 how the euthanasia was performed and the means used.
The Commission verifies on the basis of the second part of the registration document whether the euthanasia was performed according to the conditions and procedures specified in the Act. If there is any doubt, the Commission can decide by ordinary majority to rescind the anonymity. It will then take into consideration the first part of the registration document. The Commission can request from the attending physician any part of the medical record which deals with the euthanasia. If it is the opinion of the Commission, based on a decision taken by a majority of two thirds, that the legal requirements are not met, it will forward the file to the Public Prosecutor of the place of death of the patient.
The Commission will draw up for the legislative chambers, at first within a period of two years and thereafter every two years:
a statistical report comprising the information which is drawn from the second part of the registration document;
2 a report in which the application of the law is reported and evaluated; and
3 if applicable, recommendations which could lead to a legislative initiative and/or other measures with regard to the application of the law.
In order to accomplish its task, the Commission can request additional information from various governmental bodies and institutions. The information obtained by the Commission is confidential.
The Commission can decide to communicate statistical and purely technical data, but no personal data, to university research teams that have submitted a motivated request for that. It can hear experts.
Within six months after the submission of the first report and, if applicable, of the recommendations of the Commission, there will be a debate within the legislative chambers.
No physician can be forced to perform euthanasia; no third party can be forced to assist in the performance of euthanasia. If the attending physician refuses to perform euthanasia, he has to inform the patient or possible confidant thereof in time and explain the reasons for his refusal. If his refusal is based on a medical ground, it will be mentioned in the patient’s medical record. The physician who refuses to perform euthanasia has to communicate the medical record of the patient to the physician who is appointed by the patient or his confidant at the request of his patient or his confident.
A person who dies as a result of euthanasia performed in accordance with the conditions specified in the Euthanasia Act, is considered to have died from a natural cause with regard to the execution of agreements to which he was a party, and notably, the insurance agreements.
 Professor of Law, University of Ghent and Free University of Brussels; also a member of the Federal Commission on Control and Evaluation on Euthanasia.
 Euthanasia Act, BS, 2002, 28515.
 Ibid, Art 2.
 Advice of the legislative section of the Conseil d’état on the bill on euthanasia, Parl Stukken Senaat, No 2–244/21, 15.
 Euthanasia Act, Art 3 § 1.
 Ibid, Amendements, Parl Stukken Senaat, No 2–244/4, 3–4.
 Ibid, Art 3 § 2.
 Ibid, Art 3 § 3.
 Ibid, Art 3 § 4.
 Ibid, Art 3 §5.
 Ibid, Art 4 § 1, s 1
 One or more confidants, who will inform the attending physician of the will of the patient, can be appointed in the living will in order of preference. Every confidant replaces his or her predecessor mentioned in the will in case of a refusal, hindrance, incapacity or disease. The attending physician of the patient, the consulted physician and the members of the nursing staff cannot act as a confidant.
 Euthanasia Act, Art 4 § 1, ss 2–7.
 Ibid, Art 4 § 2, ss 1 and 2.
 Ibid, Art 4 §2, s 3.
 Ibid, Art 6§ 1.
 Ibid, Art 6 §2.
 Ibid, Art 7.
 Ibid, Art 9.
 Ibid, Art 15.
 Ibid, Art 14.
 Ibid, Art 15.