Belgium’s notorious euthanasia law is unconstitutional, says high court. It’s not permissive enough.

Nearly 2,700 people were euthanised in Belgium in 2021, according to figures from the national euthanasia commission -- an increase of 10 percent over the previous year. Euthanasia has become normalised -- about 1 death in 50 is due to euthanasia.

However, over the past couple of years Belgian doctors have realised that they can still get in legal hot water over these deaths.

A Belgian man, Tom Mortier, whose mother was euthanised in 2010, took his complaint about her death all the way to the European Court of Human Rights. A few weeks ago the Court found in favour of the Belgian government, even though it gave it a slap on the wrist for poor governance.

In a widely-reported case in 2020, three doctors went on trial for “poisoning” Tine Nys, a 38-year-old woman, in 2010. Her sisters had pursued them through the courts for a decade. The doctors were acquitted.

However, the court acknowledged that there was a “reasonable doubt” that the doctor who actually performed the euthanasia had not complied with the conditions and procedures set down by the law. This left him exposed to legal action for civil damages.

And after the Tine Nys case, there has been a new development which has gone unnoticed in the international media. Christophe Lemmens, a health law specialist and a member of Belgium’s euthanasia commission, told the Belgian magazine Knack last year that families often oppose requests for euthanasia and engage lawyers to dispute the issue. Mr Lemmens says that there are not “hundreds” of cases -- but even a few dozen are probably enough to spook doctors.

The threat of prosecution for murder is very intimidating. According to Dr Wim Distelmans, who is both Belgium’s leading euthanasia doctor and the co-chair of the Federal euthanasia commission, 78 percent of euthanasia doctors are less willing to perform euthanasia or even give advice nowadays, especially for psychiatric disorders.

Most of the threats involve patients who want to be euthanised because of “unbearable” psychological suffering. Their relatives believe that the doctors’ assessment is wrong -- and it is very difficult to prove either way -- which makes for a lawyer’s breakfast.

Now Belgium’s Constitutional Court has come to the rescue to shield doctors from complaints about their decisions regarding euthanasia. Instead of making the legally-required safeguards stricter, it is making them more permissive.

The Court noted last week that Article 3 of the euthanasia law implies that violation of “procedural” conditions for legally ending someone’s life is punishable by the same standards as the violation of so-called “fundamental” conditions. In other words, doctors can go to jail whether they euthanised someone without consent or whether they only make “mistakes” in the paperwork.

This, said the Court, is intuitively unreasonable and also unconstitutional, because it violates the principles of equality and non-discrimination enshrined by Articles 10 and 11 of the Belgian Constitution. It decreed that the law should be amended.

This is an early Christmas present for Belgium's euthanasia industry. The only thing more popular amongst doctors than declaring war on red tape would be ordering parliament to abolish taxes. Paperwork is the bane of doctors’ lives. A survey by the magazine Medical Economics earlier this year found that the biggest challenge that American doctors faced in 2021 was “administrative burdens” – red tape. No doubt Belgian doctors feel the same.

But when the issue is euthanasia, an “administrative burden” seems more than justifiable. Killing an innocent person is still murder in Belgium no matter how benevolent the killer is. The 2002 law permitting euthanasia simply carved out a solitary exception for doctors. But they still have to fulfil certain conditions. And that’s what the red tape is all about: proving that a case of euthanasia is a “mercy killing” and not medical homicide.

There’s a lot at stake here. Killing will always be a temptation for some doctors; they have the know-how and they have the poisons. At the merciful end of the spectrum, a doctor in Western Australia pleaded guilty this week to the attempted murder of a disabled six-year-old girl at the request of her harried mother. At the serial killer end of the spectrum there’s the English doctor Harold Shipman, who murdered an estimated 250 of his patients.

Red tape is the price doctors must pay for the awful privilege of killing innocent people. Otherwise, "safeguards" are just smoke and mirrors.

A well-known bug in Belgium’s euthanasia system is that a large proportion of euthanasia cases are not reported at all to the Commission fédérale de contrôle et d’évaluation de l’euthanasie. A BMJ article in 2010 estimated that it was as many as half. But who knows?

Some of the doctors who thumb their noses at the statutory paperwork could be Harold Shipmans. But instead of demanding more scrutiny of euthanasia cases, the Constitutional Court seems happy to make do with less. Since when does a doctor's constitutional right to ignore red tape trump a vulnerable patient's constitutional right to life?

Don’t Belgians care?


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