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An Autonomy-Based Approach to Justifying Physician-Assisted Death: A Recent Judgment of the German Federal Constitutional Court

Florijn’s analysis of the Dutch Supreme Court ruling on the Albert Heringa case demonstrates that the Dutch approach to justifying physician-assisted death (PAD) is based primarily on the physician’s duty to alleviate suffering (Florijn 2022). In principle, PAD is punishable under Dutch criminal law. Performing PAD is justified under the Euthanasia Act only when the physician’s duty to preserve life conflicts with her duty to relieve suffering, which allows the physician to invoke force majeure. The due care criteria laid out in the Dutch Euthanasia Act require the patient’s suffering to be unbearable and without prospect of improvement, with no reasonable alternatives existing to relieve suffering. The Dutch Supreme Court clarified in a 2002 judgment that the patient’s suffering must originate from a medical condition (Florijn 2018). From an ethical perspective, the physician’s duty to relieve unbearable and irremediable suffering can be understood as deriving from the principle of beneficence (Beauchamp and Childress 2013), implying that the physician acts in the patient’s best interests by providing PAD. The Dutch legal framework can thus be understood as a beneficence-based approach to PAD. The Heringa case draws attention to an ongoing debate in the Netherlands on the desirability of a practice of PAD which centers around the autonomy of PAD requesters rather than the patient’s suffering and the physician’s beneficence-based duty. The public’s view of PAD in the Netherlands appears to shift from a focus on the physician’s duty to relieve suffering to the person’s self-determination (Kouwenhoven et al. 2019). However, the current legal regulation of PAD in the Netherlands remains based on the physician’s conflict of duties.