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Netherlands: Precedent Set in Case of Son-Assisted Suicide

(June 17, 2015) On May 13, 2015, a Dutch appeals court in Arnhem cleared Albert Heringa of all criminal responsibility in assisting his 99-year-old mother to commit suicide in 2008. Although doctor-assisted suicide has been legal in the Netherlands since 2002, the case purportedly sought to create a precedent because suicide assisted by a friend or relative is still not lawful. (Dutch Court Clears Son Who Helped His 99-Year-Old Mother Take Her Own Life, Sets Precedent, AP (May 13, 2015); Euthanasia: A Continent Divided, BBC NEWS (Feb. 11, 2009) [scroll down to section on the Netherlands]; Hof’s-Arnhem-Leeuwarden 13 mei 2015, Zaaknummer 21-008160-13, ECLI: NL: GHARL: 2015: 3444 [Appeals case], DE RECHTSPRAAK.)

Background on the Case

Albert Heringa had seen his mother suffer for some time by 2008; after giving her, with her concurrence, a fatal dose of pills mixed in with her food and killing her, he was found guilty by a trial court of Gelderland (Case No. 06-950537-10, Oct. 22, 2013). The court did not mete out a punishment, however. (Dominic Yobbi, Dutch Court Clears Man Who Assisted in Dying Mother’s Suicide, PAPER CHASE (May 14, 2015); Hof’s Gelderland, 22 oktober 2013, Zaaknummer 06/950537-10, ECLI:NL:RBGEL:2013:3976, DE RECHTSPRAAK.)

The judicial investigation of the death had been opened in response to the broadcast on February 8, 2010, of a television documentary entitled “The Last Wish of [the mother’s nickname]: A Self-Directed Death,” which brought out the fact that the mother had been helpful in the realization of her desire to end her life. Counsel for Heringa brought the documentary to the attention of the Public Prosecutor. (Appeals case, supra.)

Among other actions indicating her desire to end her life, the defendant’s mother had consulted a physician, who, however, showed reluctance to assist; had written to request life-ending medication; and, through the son, had contacted the Dutch Association for a Voluntary End of Life (Nederlandse Vereniging voor een Vrijwillig Levenseinde). (Id.) During the same period, Heringa bought the publication of the Scientific Research Foundation for Careful Suicide (Wetenschappelijk Onderzoek naar Zorgvuldige Zelfdoding, WOZZ), Information on Meticulous Life Termination. Heringa told the court that he used this booklet to assist him in preparing for the suicide of his mother. Mother and son also discussed how the assisted suicide would be carried out. (Id.)

Some Defense Arguments

In its decision overturning the 2013 trial court ruling, the appeals court said that Heringa should not be prosecuted for helping his mother die and noted that decide between obeying the law against assisting suicide and his “unwritten moral duty” to help his mother die in the manner she wished for. (Dutch Court Clears Son Who Helped His 99-Year-Old Mother Take Her Own Life, Sets Precedent, supra; Appeals case, supra.)

In the appeals court case, defendant Heringa invoked force majeure in the form of emergency in his defense, contending, as the lower court had acknowledged, that he had had to choose between conflicting interests and duties, namely, the duty to the law (under article 294, paragraph 2, of the Criminal Code, on six requirements for due care) on the one hand and the unwritten moral obligation /societal duty/duty of care to his 99-year-old mother to help to realize her desire for a painless, peaceful and dignified death, and that the latter obligation had prevailed. (Appeals case, supra; Wetboek van Strafrecht (Mar. 3, 1881, as amended), art. 293 ¶ 1; Relevant Provisions Dutch Criminal Code (Official Translation), University of Cambridge Faculty of Law website (last visited June 11, 2015).)

The defense also submitted as a possible ground for dismissal from prosecution that article 294, paragraph 2, of the Criminal Code was contrary to article 8 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, on the right to respect for private and family life, and should be declared inapplicable in this case. (Appeals case, supra; Convention for the Protection of Human Rights and Fundamental Freedoms [Nov. 4, 1950] as Amended by Protocols No. 11 and No. 14 [with hyperlinks to Protocols No. 15 & 16], Council of Europe website.)

In particular, the defense stressed the judgment of the European Court of Human Rights (ECHR) in the case of Pretty v United Kingdom, which held that a person’s “personal autonomy” falls under the protection of the Convention’s article 8 (“private life “) and includes the right to self-determination in wishing to end (future) physical and mental suffering through self-imposed termination of life. (Appeals case, supra.) However, prosecutors contended that “[a]ssisting suicide according to the conditions laid out in the euthanasia law is and remains, in the view of the prosecution office, exclusively a task for a doctor,” and they were planning to review the appeals court ruling to see whether it should be appealed. (Id.)

Johan Legemaate, a professor of health law at the University of Amsterdam, did not expect the ruling to have any immediate effects, but found it significant that the Arnhem court did not formulate new criteria for assisted suicide by relatives. He commented that the ruling will lead to a “proper public debate” and that while the debate was already there, “now the question will become even more pointed as to whether the law should be extended.” (Wim Kunst, De zaak Heringa zal blijken ‘baanbrekend’ te zijn [The Heringa Case Will Prove to Be ‘Groundbreaking’], OUDEREN JOURNAAL (May 14, 2015) [cut and paste title if link does not work].)

Legemaate added that the ruling by the court that assisted suicide by non-physicians is acceptable in exceptional circumstances breaks the closed system that only allows physicians to help perform assisted suicide and euthanasia. (Id.) Nevertheless, he expressed concern that, while it would be all right if in other situations assisted suicides were carried out in the same way as in the Heringa case, “the problem is that this does not always happen” and said “this is a potentially worrying development,” because it may mean that the family takes too swift action and there is the danger of abuse. (Id.)

(For a discussion of a European Court of Human Rights decision on a French case of discontinuation of treatment, see Nicolas Boring, European Court of Human Rights;France: Ruling on French Case of Discontinuation of Treatment, GLOBAL LEGAL MONITOR (June 17, 2015).)