Philosophies in collision in Belgian euthanasia law.
Can a Belgian hospital or nursing home refuse to take part in euthanasia deaths?
The law can determine the answer to that question entirely by a decision of the parliament or the courts. The hospital, the aged care facility or, more appropriately, the network to which they belong, may also decide for themselves. If that decision is at odds with the law, then there may be consequences – but that does not take away the institution’s right to make that determination. What most certainly may be at peril in such circumstances would be the institution’s right to make such a decision without loss of freedom or privilege on a par with similar other institutions that have taken the opposite view.
The newly installed Archbishop of Mechelen-Brussels, Jozef De Kesel, has prized open this ‘can of worms’ in Belgium in his recent statement asserting the right of Catholic hospitals and aged care services to refuse to co-operate. That they currently do co-operate – many under formal protocols – is a significant concern but not the focus of this article.
This is a very big deal in Belgium. The Catholic hospital and aged care networks are large indeed and the largest provider by far in Flanders even though, in many areas, they have merged with public entities over the years. Still, if the Archbishop has a showdown in mind it would be most significant and one which the State can ill afford.
The very idea that the Archbishop might consider, at some time, formalizing a policy of non-co-operation on euthanasia sent pro-euthanasia medicos and academics into a frenzy in recent days. Responses ranged from incredulity to open hostility, betraying in many cases, a base misunderstanding of the legal status of the act of euthanasia in Belgian law.
Most fundamental is the error of the Co-Chair of the Belgian Euthanasia Evaluation Commission no-less, Dr Wim Distelmans who told the press that, "If there (in Catholic facilities – Ed.) the right to euthanasia is rejected, then that's problematic." But as former fellow commissioner (alternate) and senior lawyer Fernand Keuleneer told De Morgen: “The law does not create a subjective, let alone fundamental right to euthanasia, but is limited to non-criminalization of Doctors who perform euthanasia in legal terms.”
One could conclude that, were euthanasia a ‘right’ as Distelmans suggests, then perhaps Keuleneer and the Belgian law might take a different approach. That the Belgians do see euthanasia as a fundamental right (even though it is not) is a significant problem as Senator Vanackere lamented, also in De Morgen, where he says that, 'It makes me really sad when I hear doctors say on TV how much people have become “ripe” for it. An indoctrination machine has indeed done its job.'
Keuleneer stresses that a refusal to accommodate euthanasia in such institutions does place an obligation on those bodies to ensure that their objection is well known to their prospective patients. He then advocates for a genuine pluralism as a public good:
“Under this condition, it is a very good thing that exist within the framework of the law institutions with a different model of guidance in life together. Apart from the social importance of the constitutionally guaranteed freedom to shape a philosophy of life, can not be enough attention for an excessive obviousness of euthanasia and voluntary death, sometimes under pressure from increasing financial constraints.”
It is unclear from the translation (above) whether by ‘financial constraints’ he is referring to general health budget pressures or pressure to agree to euthanasia under the threat of loss of funding. Prominent Belgian philosopher and architect of the euthanasia law, Professor Etienne Vermeersch certainly sees ‘the money’ as fundamental: “All the hospitals work with the community of money: it is absurd that some of them would be allowed close access to the most important law without losing their funding.” He also told De Morgen.
That’s a huge call. Vermeersch seems keen to defend his law from possible dilution or dissolution by binding the national government to make that call.
However, his article is largely focussed on a rebuttal of Keuleneer’s earlier assertion that hospitals do have a right to make such decisions. Vermeersch sets up his case by blatant use of the ‘straw-man’ gambit suggesting that Keuleneer made the claim that the Belgian law explicitly permits the ‘right to refuse’ to hospitals; he did not. He goes on to make some very basic errors in regards to the law and then backs that up with some very dubious philosophy.
Keuleneer made the case that institutions have, ‘the right to prohibit the use of euthanasia within the walls’ by sighting comments to that effect from the chair of the Justice Committee of the Belgian Parliament when they considered the draft euthanasia law in 2001/2002.
Vermeersch is correct to observe that those comments are opinion (well qualified though they may be) and have no binding force. However, he then goes on to claim that because, during the parliamentary debate, two amendments to the conscientious objection clause to include institutions were rejected, that somehow this renders the interpretation of Article 14 to mean the precise opposite. Vermeersch fails to explain how comments from the Justice Committee’s deliberations have ‘no binding force’ while comments in the chamber debate (that support his argument) have the full force of law.
He also strangely argues that his interpretation is, in fact, the law when he says that it was ‘fixed by a vote’ and ‘What is fixed by a vote can only be changed by a vote’. Yet in a previous sentence he argues against himself by saying that Article 14 is ‘only about a conscience clause for human persons’. ‘La loi, c’est moi!’
The intention of any or all of the Senators during that debate is not what lawyers and the courts base decisions upon; nor are the stumped up recollections of an advocate-philosopher. Chamber debates are instructive, as Keuleneer points out, and may be cited in the courts, but they are not the law.
For clarity sake, Article 14 of the Belgian law says:
No physician may be compelled to perform euthanasia.
No other person may be compelled to assist in performing euthanasia.
There are really only two ways of understanding what this means. The common ‘first-glance’ understanding is that the ‘right to refuse’ to perform euthanasia extends not only to the doctor but also to anyone assisting in a particular act of euthanasia.
However, the second sentence, pertaining to a ‘person’ could be taken to include a ‘juridical person’ and ‘assist’ could be understood to include the provision of premises, for example. A Catholic hospital network is such a juridical person; providing premises and staff may be to ‘assist’.
The statute remains open to these interpretations (and perhaps even others) unless and until it is amended by a further law or by a court decision.
Vermeersch also seems confused when he says that, ‘a conscience clause for human subjects is intended’ adding that, ‘settings have no conscience, only mentally competent people have (a conscience).’ By ‘settings’ he is clearly referring to institutions, but is this correct?
If by conscience he means the ability to determine right from wrong and to choose between alternatives based on a moral framework, then a juridical person does have a conscience or, perhaps, more correctly the ability to define a moral path and to follow it. Corporations have aims and objectives, religions have creeds, it should be no surprise that they seek to express their ethos and raison d’etre through ethical and moral decision making. As Keuleneer implies, it is a benefit or good to society that there is a ‘constitutionally guaranteed freedom to shape a philosophy of life’ within institutions.
But Vermeersch then acknowledges ‘hospital administration’ as a legal person when he invokes ‘freedom’ as a value, bemoaning that ‘a bishop thinks that the "freedom" of a hospital administration takes precedence over the free choice of the people in need and over the conscientious decision of a fellow human doctor’. Who can lay any claim to freedom other than a person?
He also claims that, if said hospitals refuse to co-operate, then some people may, ‘have to suffer pointless(ly)’, ‘because no human hospital is nearby’. What rot! This in a country the size of a postage stamp and with at least two agencies that support people in regards to euthanasia only a phone call away. It is a certain sign of a shaky argument when one stoops so low as to try emotional blackmail; characterised so well by Senator Vanackere’s observation that, ‘it is so shameful that some people want to write off the opponents of certain options as if they "want to let people starve."’
I hope this debate continues. There is a great deal to be explored here about conscience, especially in relation to voluntariness or ‘volition’. One would have thought that, after fourteen years of experience, the Belgian polity would have become mature enough to engage in a thorough review of the operation of their law. There are signs that some in academia are willing to go there.
Sadly, the defensiveness of the likes of Distelmans, Vermeersch and others that instinctively engage in emotional invective at the slightest hint of a challenge not only suggests that transparency is indeed an illusion, but that they will happily want to keep it that way.
NB: online translations do not always render text into grammatically correct English. Where only slight corrections were necessary and where the meaning was obvious I have made those changes. Where the sentence is a little more complex, I have left the translation ‘as-is’ for the readers consideration. PR.