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Belgian physician dismissed of legal proceedings

Monday, May 6, 2019

On Friday the 26th of April, Belgian physician Marc van Hoey was dismissed of further legal proceedings for his assistance in the suicide of Simona de Moor. The Public Prosecutor decided that the physician's acting was not 'euthanasia' and that therefore the proceedings would not continue.


The process
The case had come to the Public Prosecutor after the Belgian review commission judged the acting of the physician as 'not in line with the due care criteria' of the Belgian euthanasia law. The commission concluded that it was not convinced that the patient's condition was medically hopeless. Further, the physician had not consulted a psychiatrist, although he should have, now that patient's suffering was psychological and not terminal. However, the Prosecutor decided not to handle this case and to stop the legal proceedings. The given reason was that the acting could not be called 'euthanasia' because the woman had drunk the medicine herself, instead of being injected by the physician. This reasoning is a bit odd, now that it happens more often that a patient chooses to drink the medicine itself, at the end of a traject that is regulated by the Belgium Law on Euthanasia. Further, when it would not be euthanasia, then it would be assisted suicide. When a person drinks the medicine herself and dies, this is, from a strict legal point of view, suicide. Therefore the guiding of the physician can be seen as assisted suicide, instead of euthanasia.  However, when this would be the case, the Prosecutor could have decided to prosecute for assisted suicide (instead for a wrong performed euthanasia). 

Legal background and consequences of this case
In Belgium, assisting in suicide is not specifically forbidden by penal law: suicide itself is not a criminal offence, therefore assisting in a suicide is no criminal offence as well. However, literature (Griffiths, Weyers & Adams, Euthanasia and law in Europe, 2008) learns that it can be punished, based on the notion that it is a citizen’s duty to help a person in great danger (articles 422bis and 422ter of the penal code). A person who does not fulfil this duty can be punished with 8 days to one year imprisonment. With the introduction of the Wet betreffende de euthanasie (Belgian euthanasia law), the question arose whether this law also covered assisted suicide, as it is not, like in the Dutch law, explicitly mentioned in this law. This question was answered positively by the Belgian Council of State, the Belgium order of physicians and the Belgian review committees. So until now, assisted suicide is punishable but seen as a form of euthanasia when it fullfills the criteria of this law. The actual decision not to prosecute can lead to the conclusion that assisted suicide no longer falls under the scope of the euthanasia law ánd that assisted suicide is not a crime any more. This would mean that when a patient is willing to drink the medicine himself, the physician is no longer bound to the criteria of the euthanasia law.  


Simona de Moor
 
Simona de Moor was a 85-year-old lady who no longer wanted to live after the death of her daughter in 2015. When she also lost her husband, she asked her physician to help her dying. This physician, after a long trajectory, agreed and provided De Moor with a mixture that she voluntarily drank. She died a few minutes later. An Australian television channel made a documentary in which this case was also presented. The case of De Moor could have been used to gain more insight in the way psychological suffering should be judged. The decision to stop the legal proceedings means that this opportunity is missed.  
 

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