On the Authority of Advance Directives for People with Severe Dementia Reflections on a Dutch Case

In 2016, a Dutch physician complied with the advance euthanasia directive of a patient with severe dementia. In the ensuing lawsuit, the physician was charged principally with termination of life on request, with euthanasia, that is, and alternatively with murder. A district court acquitted her of both charges, a decision later upheld by the Dutch Supreme Court.

Euthanasia is still a criminal offense in the Netherlands, but in 2002, a new euthanasia act came into effect allowing a physician to perform euthanasia if she has fulfilled six due-care criteria, the two most important of which are that she must be satisfied that the patient's request is voluntary and well considered and that the patient's suffering is unbearable, with no prospect of improvement. Neither of these two criteria is controversial; particular cases are controversial when it is disputed that these criteria were fulfilled. Other euthanasia cases, however, are controversial because they belong to a category that is contentious for independent reasons. One such disputed category is euthanasia performed on incompetent patients with an advance directive.

Since determining whether these criteria are fulfilled in a particular case depends on the particular circumstances, we describe this 2016 case in detail. We then focus on three general philosophical reasons for doubting the validity of advance euthanasia directives for incompetent patients: the someone else problem, the problem of response shift, and the problem of normative authority. These problems have been discussed before, but our primary aim is to show how they are connected. Taken together, we believe that our two lines of argument make a strong moral case for supporting the Dutch Supreme Court's decision.