The Dutch Public Prosecution Service (OM) and the euthanasia committees do not agree on the current elaboration of euthanasia monitoring in The Netherlands. The committees consist of ethicists, legal professionals, and doctors. Together, they assess whether the necessary due diligence is exercised. When this is not the case, they inform the OM. Nevertheless, it turns out that the directive is more lenient than the applicable legislation. Paul Mevis, Professor of Criminal Law at Erasmus School of Law, is concerned about the control function of criminal law. He, therefore, pleads for independent research.
As a result of the Arends ruling, the euthanasia directive was amended by the euthanasia committees. In the case, a nurse called Arends performed euthanasia based on a written will, although the law states that euthanasia should be requested by the patient on the moment itself. The Dutch Supreme Court ruled that Arends acted with due diligence and, therefore, had not committed a criminal offence. The committee changed its directive following this judgement, but the OM considers this change to be too lenient in comparison with the current applicable legislation. In the worst case, a doctor might perform euthanasia in line with the directive but still be charged with murder according to criminal law standards.
The control function of criminal law
The committees send all cases that violate the directive to the OM, after which the OM assesses whether prosecution is necessary or possible. Due to this construct, the committees play an essential role in providing information that the OM needs to enforce the law. If the committees use a directive that is too lenient, the OM is not able to guarantee proper law enforcement. “As it stands, the control function of criminal law is hard to execute”, as stated by Mevis in Trouw.
Cases that should be discussed by society
That is why Mevis pleads for independent research into the committees and the directive: “This research should not aim to reassess all the specific cases, but it should assess the due diligence and whether the approved cases might contain issues that should be discussed by society.” It is important that the judiciary can continue to take care of possible offenses and possible wrongful execution of euthanasia.