Euthanasia for unbearable suffering caused by a psychiatric disorder: improving the regulatory framework

Medical assistance in dying (MAID) – defined as voluntary euthanasia and/or physician‐assisted suicide – for people with a terminal illness is becoming available in more jurisdictions around the world. By contrast, MAID in people with a non‐terminal illness and, more specifically, in people with a psychiatric disorder remains a controversial topic.

Belgium is one of the very few countries where euthanasia for unbearable mental suffering caused by a psychiatric disorder is allowed. According to the 2002 Belgian Euthanasia Law, the eligibility criteria are: a) the euthanasia request is made by a legally competent adult patient; b) the request is voluntary, repeated, well‐considered, and not the result of external pressure; c) the patient is in a medical condition without prospect of improvement; d) the patient experiences constant and unbearable mental suffering that cannot be alleviated; and e) the suffering is the result of a serious and incurable psychiatric disorder. To assess the fulfilment of these criteria, the attending physician must consult two independent physicians, including a psychiatrist. At least one month should pass between the date of the patient's request and the performance of euthanasia. After the euthanasia is performed, the attending physician must report this to the Federal Control and Evaluation Commission for Euthanasia, which is tasked with the a posteriori control ¹ , ² .

According to the official data in 2020, MAID accounted for 1.9% of all deaths in Belgium. Between 2002 and 2021, a total of 370 patients received euthanasia for unbearable mental suffering caused by a psychiatric disorder. This corresponds to 1.4% of the total number of euthanasia cases, although in recent years the incidence slightly decreased to between 0.9 and 1%. The most common diagnoses (data on 2002‐2019, N=325) were mood disorders (55.7%) and personality disorders (19.4%), followed by psychotic disorders (6.2%), anxiety disorders and post‐traumatic stress disorder (6.2%), autism spectrum disorder (4.6%), eating disorders (1.5%), and other and/or combination of disorders (6.5%).

Recently, the fundamental rights compliance of the Belgian Euthanasia Law, as applied to euthanasia for mental suffering caused by a psychiatric disorder, was scrutinized in two ground‐breaking court decisions ³ , ⁴ .

In the first of these, the European Court of Human Rights examined whether a euthanasia of a 64‐year‐old woman with treatment‐resistant depression and a personality disorder had violated the state's responsibility to protect her right to life, as well as the right to respect for private and family life of her son, who had only been informed about the euthanasia after it had been performed ³ .

The Court held that the Belgian legal framework governing euthanasia for mental suffering caused by a psychiatric disorder complied with the conditions set out in an earlier case law on end‐of‐life decisions. More specifically, it was argued that the Belgian law contains a procedure that can guarantee that a euthanasia request is voluntary. In addition, as required for MAID concerning particularly vulnerable persons, the law provides for increased protective measures for euthanasia in people with mental suffering. In this regard, the Court noted the importance of the obligation to consult two independent physicians, including one psychiatrist, as well as to observe a waiting period.

By contrast, the Court still found a human rights violation in the way the a posteriori control of euthanasia was regulated. In the case at hand, the physician who had performed the euthanasia was the chair of the Federal Commission. Since in monitoring the legal compliance of that case of euthanasia the Commission had relied completely on the anonymous part of the registration document, the chair had inadvertently taken part in approving the euthanasia case without anyone having noticed his involvement. However, as this monitoring should be independent, reporting should not be anonymous if physicians involved in euthanasia are allowed to sit on the Commission ³ .

In the second case, the Belgian Constitutional Court was petitioned by a judge who was looking into the liability of a physician who had performed the euthanasia of a 38‐year‐old woman with a personality disorder ¹ , ² , ³ , ⁴ . As in previous rulings, the Court confirmed that the Euthanasia Law and its constituting elements and safeguards do not violate the constitution. Since the Belgian Euthanasia Law does not contain any sanctions, the Court was asked to shed light on the penalties that should apply. In accordance with the general provisions of the Criminal Code, any infraction, even of an administrative nature, could be considered murder by poisoning. The Constitutional Court held that this would be disproportionate for the physicians involved in euthanasia, as they would run the risk of being convicted for murder even for infringing upon a legal condition of minor importance. Ruling that this violated the principles of non‐discrimination and equality, the Court instructed the Belgian legislature to diversify the applicable system of penalties, with lighter penalties for violations of procedural conditions that are less important to guarantee the fulfilment of the eligibility criteria.

The evaluation of a request for MAID in the context of a psychiatric disorder is clinically challenging. First, the assessment of the decisional capacity of psychiatric patients who request MAID may be more complex than for other patients ¹ , ² , ⁵ . It is emphasized by opponents of MAID in people with a psychiatric disorder that their competence can be severely impacted by the illness ¹ , ⁶ , ⁷ . Although a cautious approach is therefore necessary, there is no reason to presume that people with a psychiatric disorder cannot possess the required decisional capacity. This capacity should be assessed case by case and held to a high standard, considering the nature and possible consequences of the request. In this light, it is highly advisable to conduct a formal evaluation of the capacity of psychiatric patients who request MAID.

Second, there is no consensus or authoritative guidance on how to define or measure unbearable mental suffering ¹ , ⁷ , ⁸ . This entails a risk that unbearable mental suffering is too readily accepted. Although treatment refractoriness is a clinical reality, MAID should only be considered after all reasonable biological, psychological, social and recovery‐oriented treatment options have failed. When a patient refuses such treatments, this should not lead physicians to conclude that the mental suffering cannot be alleviated and the psychiatric illness is without prospect of improvement. Hence, the request for MAID should not be granted.

In 2017, the Flemish Society of Psychiatry published recommendations to guide clinicians in these difficult decisions ⁷ . They recommend following a two‐track approach in the evaluation of a euthanasia request by a psychiatric patient. One track should examine the fulfilment of the eligibility criteria. Importantly, it is suggested to always involve at least two psychiatrists, who preferably are experts of that specific psychiatric disorder. In the second track, the psychiatric patient should be actively supported in exploring all remaining therapeutic and recovery‐based options. This two‐track approach combines respect for the autonomy of the patient with the obligation to protect that person's right to life. It implies that, while the euthanasia request is being assessed, the psychiatric patient continues treatment and his/her psychiatrist remains involved.

These recommendations inspired the Belgian Order of Phy‐sicians to adopt more stringent deontological standards for physicians who consider a euthanasia request from a psychiatric pa‐tient. These physicians are now obliged to comply with additional due care criteria: at least two of the three physicians involved should be psychiatrists; the physicians should come to a jointly formulated opinion about the fulfilment of all due care criteria; euthanasia should not be performed unless all reasonable treatment options have been tried and failed; and patients should be encouraged to involve their relatives in the euthanasia procedure. Combined, the legal and deontological due care criteria help ensure that a euthanasia request for mental suffering caused by a psychiatric disorder is appropriately addressed.