Is There a Reasonable Alternative?

According to the Euthanasia Act, it is the patient who determines what a “reasonable alternative” to euthanasia is, after being informed by the doctor about the alternatives and their costs and benefits.^{Footnote 10} VDB recognizes that it is not possible for his suffering to be relieved through a medical treatment: psychiatrists agree that, given the current state of psychiatric care, his condition is untreatable. A transfer to the FPC in the Netherlands would be a more credible alternative and could provide better living conditions. However, VDB deemed it unreasonable to wait for the regulations to change to make such a transfer possible. At the time when this option was initially considered, he had already been waiting for a decision regarding his euthanasia request for more than two years. A further delay would be psychologically unbearable, he said. Thus, for VDB, there was no reasonable alternative to euthanasia, thus satisfying the relevant condition of the Euthanasia Act. The recent unexpected announcements regarding a transfer to the FPC in the Netherlands and the development of a long-stay unit in the FPC in Belgium do not necessarily change this situation. VDB retains the discretion to decide whether such a transfer provides a reasonable alternative to euthanasia. The act does not require that he try all the proposed alternatives.^{Footnote 11}

Is the Suffering the Result of an Illness?

The Euthanasia Act stipulates that the patient’s suffering (whether psychological or physical) must result from a serious and incurable disorder caused by illness or accident. An obvious ambiguity of this condition is that it is almost always possible to identify an illness that plays some role in motivating a euthanasia request.^{Footnote 12} Furthermore, it is often difficult to specify the causal relation between a certain condition, the patient’s social circumstances, and the euthanasia request. Often social circumstances may contribute to one’s physical or mental condition (for example, the degree to which a society promotes the use of sign language may determine to what extent deafness is a disability), and a person’s condition may influence the circumstances (for example, psychopaths are more likely to be incarcerated than nonpsychopaths). This suggests that the act does not imply that the euthanasia request needs to result entirely from suffering caused by an illness or accident. VDB reported that his suffering is largely the result of being a prisoner of his deviant sexual fantasies, which he is unable to control. The psychiatrists who provided advice on the case accept his explanation as likely. This suggests that his euthanasia request results (at least to a significant extent) from an illness. We could, of course, learn more about the cause of VDB’s request if he were transferred to the FPC in the Netherlands (or to the long-stay unit in Belgium, once it exists). If, after spending some time in a long-stay unit, he withdraws his request, it would indicate that a contributing factor was the dire nature of the circumstances in which he previously found himself. However, as mentioned earlier, VDB is not required to accept the transfer to such a unit for a doctor to be able to lawfully carry out his euthanasia request. If he does not accept the transfer, and the doctor thinks it is plausible that his request is largely motivated by his illness, the relevant condition of the act is met.

Is the Request Voluntary?

It may be argued that VDB’s euthanasia request does not meet the conditions of the Euthanasia Act as it is not entirely voluntary. The voluntariness requirement is an important condition of the act.^{Footnote 13} It is widely accepted that an involuntary choice is not autonomous. It is also widely accepted that euthanasia in competent patients can only be permissible if it is the patient’s autonomous choice.^{Footnote 14}

The voluntariness condition is also perhaps the most difficult to interpret. In Belgium, there is no case law regarding the definition or interpretation of voluntariness in the context of euthanasia. Thus, we must turn to arguments of academic experts in law and moral philosophy for interpreting voluntariness in this context. Although a comprehensive analysis of the concept is beyond the scope of this article, the following considerations may be sufficient to show that the voluntariness condition of the act is satisfied.

In law, a voluntary decision is usually understood to mean a decision that an agent has reached without having been subjected to coercion, intimidation, deception, fraud, or undue influence or inducement.^{Footnote 15} There is no reason to believe that VDB’s request was motivated by any of these factors. However, it could be proposed that his decision was in some sense coerced. Unfortunately, coercion is also a disputed concept. Some hold the view that a choice is coerced if the person’s options are so restricted that he or she has no reasonable alternative. For example, when discussing the permissibility of offering neurointerventions such as chemical castration to sex offenders as an alternative to further incarceration, Martha Farah writes that “sentencing options are rarely appealing options, introducing implicit coercion.”^{Footnote 16} On her view it seems that a choice is coerced if the only alternatives are unappealing.

However, this explanation for when a choice is coerced is unconvincing. It would, for example, imply that a patient whose only alternative to imminent death is to undergo a high-risk operation is coerced to undergo the operation, but this is implausible.^{Footnote 17}

A more convincing view holds that coercion requires the deliberate control of a person’s circumstances or options for the purpose of inducing her to act as the coercer wants. This view is common to several of the most influential accounts of coercion, including those offered by Robert Nozick, Alan Wertheimer, David Zimmerman, Thomas Beauchamp, and James Childress.^{Footnote 18}

Consider, for example, Zimmerman’s island case:

Zimmerman suggests that A’s offer should be regarded as coercive. By contrast, when a surgeon offers to perform a high-risk operation in order to save a patient from imminent death, the offer is not, according to Zimmerman, coercive. Zimmerman’s explanation for why the kidnapper’s offer is coercive but the doctor’s is not is that the kidnapper undermines, or limits, Q’s freedoms for the purpose of getting him to act in a way that A wants. This explanation seems feasible. It also has the advantage that it offers an explanation for why coercion threatens autonomy: the coerced individual relinquishes some control over her behavior to the coercer.^{Footnote 20}

Is it credible that VDB’s freedoms and circumstances are being purposefully controlled so as to bring it about that he requests euthanasia? I do not think so. We have no reason to believe that the Belgian state, or anyone else responsible for VDB’s conditions of detainment, wanted him to request euthanasia. Recall that VDB had been in prison since the early eighties and that euthanasia was decriminalized only in 2002. A more likely explanation for why VDB was detained in problematic circumstances can probably be found in the general shortcomings in mental healthcare and care for detainees in Belgium.

Thus, if coercion requires purposefully controlling someone’s situation to obtain what one wants, it seems that we have no reason to believe that VDB’s request was coerced. Moreover, there seems no other reason to suppose that his request is not voluntary. For example, his mental competence is not in question. We may thus tentatively conclude that his choice is as voluntary as a patient’s request for a risky operation to avert imminent death. In both cases, a choice is made in order to avoid an unappealing outcome, but this does not make the request involuntary.

Thus, from a legal perspective it would appear that a doctor could lawfully fulfil VDB’s request for euthanasia.

However, even if euthanizing VDB would be lawful, there may still be weighty moral reasons against doing so. I now turn to consider whether the moral reasons for fulfilling VDB’s request defeat the moral reasons against doing so. If so, it is morally permissible for a doctor to fulfil the request. Let us first look at what reasons there could be for a doctor to fulfil VDB’s request.

Respect for Autonomy

One possible argument for fulfilling VDB’s request is that this would most fully respect his autonomy. This is one of the standard arguments in support of euthanasia in less controversial cases.^{Footnote 21}

We can respect others’ autonomy by refraining from interfering with, or attempting to interfere with, their autonomous choices and actions—for example, by refraining from coercing them. But the requirement to respect autonomy may also have positive implications in the context of certain relationships. For example, in the context of a doctor-patient relationship, it may imply a positive reason to disclose information and foster autonomous decisionmaking, or to assist in realizing the autonomous decisions of patients who are not in a position to do so themselves.^{Footnote 22} However, reasons to positively respect autonomy may be weaker than reasons to negatively respect autonomy. Thus, for example, positive reasons to respect autonomy may be outweighed by costs to the person assisting, whereas reasons to negatively respect autonomy may be decisive regardless of their costs.^{Footnote 23}

Carrying out VDB’s euthanasia request would not violate the requirement to negatively respect autonomy, as it would not interfere with an autonomous decision of VDB. Moreover, refusing to carry out the euthanasia would violate the (weaker) requirement to positively respect his autonomy. Thus, it seems that there are no autonomy-based reasons against a doctor fulfilling VDB’s request, and there is at least some reason for fulfilling it.

Maintaining Unjustified Circumstances

An objection may be raised that I am ignoring the most problematic aspect of VDB’s case: the fact that he has unjustifiably been placed in bad circumstances. I mentioned earlier that Belgium has been convicted several times by the European Court for Human Rights for not providing adequate care for prisoners, and especially for detainees. At the time of this writing, there are around 1,000 mentally ill individuals in Belgium who have not been held accountable for their crimes but who are nevertheless being held in ordinary prisons where they do not receive appropriate treatment or care. Some measures have recently been taken to improve the situation. For example, the right to adequate healthcare for detainees will become enforceable under the 2014 Law for Internees, which is expected to come into effect in 2016, and two new FPCs were recently built, one in Ghent and one in Antwerp. However, it is widely agreed that much more needs to be done to improve healthcare for detainees.^{Footnote 24}

Why might VDB’s circumstances be relevant to the permissibility of fulfilling his request for euthanasia? After all, I have argued that a doctor who is prepared to fulfil the request not only negatively but also positively respects VDB’s autonomy. The problem is that VDB’s circumstances cast doubt on this argument from autonomy. Consider the following case:

The rescuers’ justification is credible. The rescuers have nothing to do with the fact that the kayaker is stuck under the rock, and they provide the kayaker with the only feasible additional option—an option that is of value to the kayaker. There is no reason to think that providing this option unjustifiably harms the kayaker or anyone else.

The kayaker is analogous in this respect to the patient whose only alternative to imminent death is a risky operation. Just like the rescuers in case of the kayaker, a surgeon could justify performing the operation at the patient’s request on the ground that this positively respects her autonomy. The doctor did not contribute to the patient’s illness, and there is no reason to believe that offering or performing the operation will unjustifiably harm the patient, or anyone else.

Consider now a modified version of the kayaker story. Suppose the rescuers negligently left something in the water that trapped the kayaker. They could easily move the obstacle but refuse because doing so would cause mild back pain. The kayaker thus begs the rescuers to amputate his arm. The rescuers fulfil this request, justifying their actions on the ground that they thereby positively respect the kayaker’s autonomy.

It seems that in this modified scenario, the rescuers’ justification for fulfilling the request is more problematic. This has to do with the fact that the kayaker’s restrictive circumstances (being stuck under the obstacle) are unjustifiably maintained by the rescuers (mild back pain is not a sufficient reason to refuse to move the obstacle). If the rescuers unjustifiably restrict the kayaker’s autonomy by refusing to move the obstacle, they can hardly appeal to a concern for autonomy to justify performing the amputation. To do so would be to inconsistently apply an ethical principle.^{Footnote 25} If the rescuers really care about autonomy, they should move the rock, even at the cost of mild back pain.

Similar reasoning could apply to VDB’s case. His autonomy is unjustifiably restricted by the state. He should not be in an ordinary prison where he does not, and arguably cannot, receive appropriate care. If the state justifies offering euthanasia to VDB on the ground that this respects his autonomy, we have little reason to accord any weight to this justification, as the state is willing to disregard this value when it comes to VDB’s detainment. However, strictly speaking it is not the state who will euthanize VDB if he maintains his euthanasia request; it will be a doctor. Thus, one could argue that, though it would be problematic for the state to justify offering euthanasia to VDB by arguing that this best respects his autonomy, this problem does not arise when it is the doctors who are carrying out the euthanasia. Unlike the state, individual doctors do not have the power or responsibility to reform the relevant institutions.

However, one could point out here that though individual doctors do not have the power or responsibility to directly reform institutions, they can still influence their reform by others—in this case, the Belgian state. This raises important questions regarding complicity in the wrongdoing of others.

Complicity in Immoral Practices

Complicity is a disputed concept, but it is generally taken to capture the idea that one may do wrong by being associated, in a certain way, with the wrongdoing of others. What sort of association is required for complicity is controversial. However, most agree that if one contributes to others’ wrongdoing, for example, by enabling or encouraging it, one may become complicit in that wrongdoing.^{Footnote 26} According to some, contribution to others’ wrongdoing is not required for complicity.^{Footnote 27} However, the possibility of complicity without contribution is contested, and this subject is not pursued in this article.

One possible objection to fulfilling VDB’s request is that the Belgian state could welcome this as an easy solution for ongoing problems regarding the treatment of detainees. Fulfilling the request would thus reduce the state’s incentive to improve the current situation. In this way, the doctor might help maintain, and thus perhaps become wrongfully complicit in, immoral detention practices.^{Footnote 28}

Note, however, that complicity is not always wrong, all things considered. If your action makes you complicit in others’ wrongdoing, this gives you a moral reason not to undertake that action. However, this reason could be defeated by countervailing considerations. One factor that will influence where the balance of reasons lies is your degree of complicity.

It is thus necessary to consider what degree of complicity would be entailed by fulfilling VDB’s request. Chiara Lepora and Robert Goodin have developed a useful moral framework for determining an agent’s degree of complicity.^{Footnote 29} On their account, we must look at several factors: the graveness of the principal wrongdoing in which the agent will become complicit, the extent to which the agent is responsible for her contribution to the wrongdoing, and the centrality of this contribution to the occurrence of the principal wrongdoing. Whether the agent shares the intentions of the principal wrongdoer may also affect the degree of complicity, though as Lepora and Goodin note, one may be heavily complicit in others’ wrongdoing without sharing their intentions.

How grave is the wrongdoing in which a doctor may become complicit by fulfilling VDB’s request? Detaining VDB in an ordinary prison without appropriate care violates a basic right to healthcare. Thus, most would agree that the wrongdoing is very serious.

To what extent would a doctor carrying out the euthanasia be responsible for her contribution to the wrongdoing, assuming for now that there is such a contribution? It is reasonable to assume that any Belgian doctor who agrees to fulfil VDB’s request would do so freely, without significant external pressure.^{Footnote 30} The doctor would also likely be aware of the possible impact of her decision on detention practices. Arguably, then, she will be fully responsible for any contribution to maintaining these practices.

It is more difficult to determine the centrality of the doctor’s contribution to the wrongdoing, if there is such a contribution. It is not at all clear in advance what the expected contribution will be in VDB’s case. Perhaps the state will indeed welcome euthanasia as an easy solution to problems with its detention practices, thus reducing its incentive to improve the situation. But the opposite effect could also occur. In fact, as VDB’s case continues to unfold, it appears that the growing possibility that he will be euthanized is increasing the pressure on the state to improve conditions of detention. After a doctor initially agreed to fulfil VDB’s euthanasia request, the case received much national and international attention, causing outrage and igniting a debate. Though we cannot be sure, this is likely to have contributed to the new minister of justice’s efforts to look for an alternative institution for VDB and to the government’s decision to create a long-stay unit for individuals like VDB.

Thus, though complicity-based reasons are in general important, in this particular case they seem weak. The degree of complicity seems low, as there is no clear reason to believe that the doctor would contribute to the maintenance of immoral detention practices by acceding to VDB’s euthanasia request, and indeed there is some reason to think the opposite might be true. Nevertheless, complicity-based concerns would need to be reevaluated with each new euthanasia request from a detainee or ordinary prisoner.

It should also be noted that, even if euthanizing VDB would contribute to the maintenance of immoral detention practices, the doctor might be able to reduce this complicity by undertaking separate actions that help to improve those practices, for example, by seeking to influence policy decisions in other ways. From a moral point of view, this might be preferable to avoiding all complicity at the cost of the patient’s autonomy. After all, one could argue that a doctor’s chief responsibilities are to respect her patient’s autonomy and act in her patient’s best interests, not to influence government institutions. Indeed, if a doctor made her decision about whether to accede to VDB’s request solely on the basis of the likely effects on government institutions, it might be argued that she would be using him as a mere means to effecting reform.