Filosofie & Praktijk - Volume 45, Issue 1, 2024

Defences of assisted dying typically rely on two supporting values for the practice: patient self-determination (or autonomy) and patient benefit (or well-being). In this paper I explore the roles of these two values in Govert den Hartogh’s What Kind of Death. The Ethics of Determining One’s Own Death.

This contribution will restrict itself to Den Hartogh’s conceptual framework and formulate some hesitations about Den Hartogh’s moral premisses which he calls ‘ethical atoms’ (p. 159-160, 317). For at least two reasons I will discuss these premisses with a certain reluctance. First of all, the sensitive nature of what is at stake here: matters of life and death and the question of what we owe others and ourselves; secondly and more on a more personal level, my hesitations do not lead to any clear alternative moral premisses. Especially with regard to Den Hartogh’s central premiss concerning self-determination, I sympathise Velleman’s approach in one of his famous articles: I am neither completely pro nor completely con. I am more, like, not so sure.

In What Kind of Death: The Ethics of Determining One’s Own Death (2023), Govert den Hartogh offers a ‘dual-track’ model for assisted death. According to Den Hartogh’s model, mere access to lethal drugs would be lawful on the basis of an autonomous decision (Track 1), while “full-blown physicianassisted death” (provision of lethal means under professional supervision and care) would be lawful in the presence of an autonomous decision and satisfaction of further conditions instantiating values including dignity and well-being (Track 2). I offer a critical reading of Den Hartogh’s argument in respect of the nature and justification of Track 1. I argue that permitting mere access to lethal medication may be both “lifting a blockade” (as Den Hartogh argues) and assisting an individual to die (as he denies). This conclusion about the nature of Track 1 opens the question of the sufficiency of Den Hartogh’s claim that autonomy is its sole normative ground. A revised account of the justification for Track 1 is possible, however. I argue that Track 1 assistance may be permissible on the same grounds as Den Hartogh provides for Track 2: autonomy in conjunction with other values (albeit in a different mix). Rather than conceive of Den Hartogh’s model for assisted death as ‘dual-track’, dual gauge, we might rather consider mere access to lethal drugs and full-blown physician assisted death as two services on a single normative gauge.

This contribution deals with the role of the principle of self-determination in the current Dutch euthanasia practice. The focus lies on the concrete elaborations of the principle of self-determination in law and practice. I distinguish between self-determination as a dynamic, diffuse and risky principle. I analyze these three characteristics in the light of the current developments in the Dutch euthanasia practice. My conclusion is that the attempts to broaden the influence of the principle of self-determination within the law is – to a certain extent – rather successful and can be justified by the societal developments and the nature of the Dutch Euthanasia Act. The principle of self-determination is reflected in almost all elements of the law and it is in the spirit of the law to allow more room for self-determination if societal developments give rise to this and if this is possible in a safe way. Attempts to allow more room for self-determination outside the law have not been successful and involve too many risks for society.

This contribution deals with the moral justification of euthanasia. Initially, in the process towards legalizing euthanasia in the Netherlands the right to self-determination was the driving force. However, it is widely accepted that Dutch law on euthanasia that was passed in 2001 is based on mercy. In this respect, the early work of Den Hartogh has been influential. So, the principle of respect for autonomy and the principle of beneficence both seem to play a role in justifying euthanasia. Why exactly do we need those two principles, and what exactly are their complimentary roles? These are important questions that Den Hartogh has put on the agenda. In recent years several initiatives have been undertaken to increase the possibilities for euthanasia and assisted suicide. Again, these initiatives are driven by the right to self-determination. In this contribution the focus will be on this development regarding the underlying principles, with attention for the question how Den Hartogh’s dual track theory should be placed in this development.

Legal certainty – that is predictability of law – is not just a legal principle but also an empirical topic. And as an empirical topic legal certainty can both be a goal and a means to achieve ends (‘factual legal certainty’). As concerns the Termination of Life on Request and Assisted Suicide (Review Procedures) Act, these ends involve next to legal certainty, to promote social transparency and to guarantee the carefulness of ending life on request. In this article, it is argued that legal certainty has not been properly examined in the fourth evaluation of the Act. Therefore, the results that are offered by the evaluation cannot support the conclusion that the goal of legal certainty has been achieved. The article proposes to operationalize factual legal certainty as knowledge of the rules and being able to predict how the relevant government agencies will act. Such an operationalization of legal certainty has been used before (Marseille 1993). A comparison between Marseille’s findings regarding legal certainty and what is known in this respect about euthanasia supposes that legal certainty regarding euthanasia law is to be expected. The conclusion is that an examination of legal certainty is possible ánd required.

In Den Hartogh’s What Kind of Death. The Ethics of Determining One’s Own Death (2023) a thorough philosophical analysis of the ethical considerations on suicide and other means of determining one’s own death is based on the empirical evidence published on the topic. In this contribution I want to emphasise the importance of concerns arising from the practice, and attempt to add to the analysis in his book by posing a number of questions arising from that practice. In order to so, I first elucidate a few empirical observations, some of which are well-known, others are just emerging. First, the fear of review and the possibility of legal sanctions physicians experience when contemplating active ending of life, particularly in ‘difficult cases’, including cases in which the patient is incompetent and thus unable to ask for active ending of life himself. Second, the on-going increase of continuous palliative sedation from 8% of all deaths in 2005 to 23% in 2021. (Van der Heide et al 2023, p.17) Taken together, these observations raise the question whether they might be related. It is clear that active ending of life for patients with advanced dementia is very difficult to obtain in the Netherlands, and it is equally clear that some of these patients are suffering. It is important to consider and research the practice and decision-making for continuous palliative sedation in these patients and how this practice should be evaluated ethically. The two questions I would like to highlight here are, first: how should we understand relatively early continuous palliative sedation in patients with advanced dementia and, second: what risks may arise from such a practice?

Thanks to all commentators for their words of praise and constructive criticism. I was pleasantly surprised by the fact that so many of them address the basic argument of my book, starting from the division of labour between the principles of respect for autonomy and compassion or beneficence, and resulting in my proposal of a ‘dual track’ system of legal regulation. The whole argument is well summarized by both Wayne Sumner and Isra Black.¹ Together the comments provide a sustained examination of every major step in that argument. I will consider them step by step.