Two test cases in Holland clarify law on murder and palliative care
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《英国医生杂志》
Legal judgments in two test cases against doctors in the Netherlands accused of killing their dying comatose patients have clarified the differences between palliative care and murder.
In the first case, which has lasted seven years, the Supreme Court finally rejected a doctor抯 appeal against a charge of murder. The court said that the dose of 50 mg of the anaesthetic drug alcuronium chloride (Alloferin) he gave his patient could not be considered a form of palliative care. Neither was it euthanasia, as the patient had not made a request to die. The appeal had been made by Amsterdam GP Wilfred van Oijen, who appeared in a 1994 television documentary on euthanasia, Death on Request (BMJ 2001;322:509).
In the second case a court in Breda acquitted a 31 year old junior hospital doctor. His use of 20 mg of morphine and 5 mg of the sedative midazolam was accepted as "palliative pain relief." In agreement with the patient抯 family, the on-duty casualty doctor, known as V, had offered only palliative care to a 77 year old man who was dying after a large cerebral stroke.
He was given 5 mg of morphine an hour, but he was having serious difficulties breathing. V increased the dose of morphine and, as his condition worsened, gave him midazolam. Shortly after the patient died V was taken into police custody, where he spent nine days before being charged.
The court accepted that the use, quantities, and combination of morphine and midazolam adhered to the goals of palliative pain relief, was not excessive, and was normal medical treatment. It was accepted that these drugs could shorten the patient抯 life but were not intended to.
He could still face a medical disciplinary board but has continued to work. His lawyer, Cees Korvinus, has described the decision to prosecute as "absurd."
In the van Oijen case, the 84 year old patient was in a coma and was expected to die within 48 hours. Her condition was described as "very exceptionally degrading." Dr van Oijen injected 50 mg of alcuronium, and soon after she died. He argued that this "help with dying" was part of palliative treatment.
The Supreme Court rejected this argument, along with his defence that he had faced an emergency because of his patient抯 extremely urgent condition. It judged that because his patient was in a coma she was not suffering unbearably.
The courts have accepted that Dr van Oijen acted out of "compassion" but that with no request for euthanasia from the patient such "life ending" treatment remained murder. His punishment was a one week prison sentence suspended for two years.
Dr van Oijen continues to practise. His appearance before a medical disciplinary board in 1998 resulted only in a warning. His lawyer, B閚閐icte Ficq, argued that such "palliative care" should not be judged in the criminal courts. "This is not murder," she said.
Johan Legemaate, coordinator of legal policy at the Dutch Medical Association, said a conviction in the Breda case would have had a "major impact on the medical profession," drawing a great deal of normal palliative care into criminal law. The association wants cases such as Dr van Oijen抯 to be judged first by multidisciplinary committees of doctors and lawyers.(Utrecht Tony Sheldon)
In the first case, which has lasted seven years, the Supreme Court finally rejected a doctor抯 appeal against a charge of murder. The court said that the dose of 50 mg of the anaesthetic drug alcuronium chloride (Alloferin) he gave his patient could not be considered a form of palliative care. Neither was it euthanasia, as the patient had not made a request to die. The appeal had been made by Amsterdam GP Wilfred van Oijen, who appeared in a 1994 television documentary on euthanasia, Death on Request (BMJ 2001;322:509).
In the second case a court in Breda acquitted a 31 year old junior hospital doctor. His use of 20 mg of morphine and 5 mg of the sedative midazolam was accepted as "palliative pain relief." In agreement with the patient抯 family, the on-duty casualty doctor, known as V, had offered only palliative care to a 77 year old man who was dying after a large cerebral stroke.
He was given 5 mg of morphine an hour, but he was having serious difficulties breathing. V increased the dose of morphine and, as his condition worsened, gave him midazolam. Shortly after the patient died V was taken into police custody, where he spent nine days before being charged.
The court accepted that the use, quantities, and combination of morphine and midazolam adhered to the goals of palliative pain relief, was not excessive, and was normal medical treatment. It was accepted that these drugs could shorten the patient抯 life but were not intended to.
He could still face a medical disciplinary board but has continued to work. His lawyer, Cees Korvinus, has described the decision to prosecute as "absurd."
In the van Oijen case, the 84 year old patient was in a coma and was expected to die within 48 hours. Her condition was described as "very exceptionally degrading." Dr van Oijen injected 50 mg of alcuronium, and soon after she died. He argued that this "help with dying" was part of palliative treatment.
The Supreme Court rejected this argument, along with his defence that he had faced an emergency because of his patient抯 extremely urgent condition. It judged that because his patient was in a coma she was not suffering unbearably.
The courts have accepted that Dr van Oijen acted out of "compassion" but that with no request for euthanasia from the patient such "life ending" treatment remained murder. His punishment was a one week prison sentence suspended for two years.
Dr van Oijen continues to practise. His appearance before a medical disciplinary board in 1998 resulted only in a warning. His lawyer, B閚閐icte Ficq, argued that such "palliative care" should not be judged in the criminal courts. "This is not murder," she said.
Johan Legemaate, coordinator of legal policy at the Dutch Medical Association, said a conviction in the Breda case would have had a "major impact on the medical profession," drawing a great deal of normal palliative care into criminal law. The association wants cases such as Dr van Oijen抯 to be judged first by multidisciplinary committees of doctors and lawyers.(Utrecht Tony Sheldon)