Opposability of Advance Directives: The Limit Established in Law, Validated by the Constitutional Council

Opposability of Advance Directives: The Limit Established in Law, Validated by the Constitutional Council

by | November 10, 2022 | Advance directives, End of life, News

The Constitutional Council has been consulted in a conflict opposing the family of a patient and his medical team concerning the application of his advance directives.

A patient in an irreversible coma state (Abdelhami M., 43 years old), following an accident, had indicated, in writing, a desire to be kept alive whatever the cost if he ever found himself in such a situation. However, ten days after the accident, his medical team considered that the treatments keeping him alive artificially could be considered as unreasonable obstinacy. Judged to be futile and disproportionate, these heavy treatments, in their view constituted aggressive therapy. This is prohibited by the medical code of practice; as well as by law. But family members immediately referred to the courts, quoting his written wishes, to prevent the interruption of his life support. The case has been referred to the Constitutional Council.

The so-called Claeys-Leonetti law, dated 2nd February 2016, has reinforced advance directives. They are considered, in addition to the advice of the person of confidence, as a privileged expression of the will of a patient unable to express his/her wishes. In the case concerned, paragraph 3 of article 8 of the law was in question: “The advance directives are mandatory for the doctors for all investigation, operation or treatment decisions, except in the case of life-threatening urgency during the time necessary for a complete evaluation of the situation and when the advance directives appear manifestly inappropriate or non compliant with the medical situation.” The paragraph uses wording which could be considered ambiguous or even contradictory concerning the use of the term “mandatory” immediately combined with notable exceptions. It is the final part of these exceptions on which the Constitutional Council is being called upon to judge the validity, through a “Priority Ruling on Constitutionality”.

Which should take precedence between the opposable advance directives – or the collective decision by the doctors?

Unconscious, under artificial respiration, hydrated and fed artificially, benefiting from transfusions (a different situation from that of Vincent Lambert, who could breathe spontaneously and stably) his condition is judged to be both catastrophic and irreversible by the medical team. Their lawyer additionally notes that the artificial life-support for the patient is inevitably a heavy burden on the health system. He quotes in particular article 1111-11 paragraph 3 of the public health code (article 8 previously mentioned of the law) which is intended to attenuate the bearing of the advance directives since the doctors are no longer compelled to follow them when “they appear manifestly inappropriate or non compliant with the medical situation.“

In reviewing the 2005 end-of-life law, the legislator, whilst reinforcing the “opposable” nature of advance directives aimed at avoiding their abuse: making them truly opposable would make the patient his own prescriber and the doctor a mere executor of that prescription. Medical competence – the medical art – prohibits submitting doctors to the potentially excessive or medically unfounded requirements of patients or their family members. It is the doctors who in principle have the competence. The paragraph in question thus provides a means of resistance to possible prior requirements which are tantamount to demands for euthanasia, which is an illegal practice.

The decision by the Constitutional Council

Through this particular case, the Constitutional Council finally validated article 1111-11 paragraph 3 in its current wording, therefore including the limit which the legislator intended to introduce regarding the opposability of advance directives. The wording “when the advance directives appear manifestly inappropriate or non compliant with the medical situation” in the third paragraph of article L. 1111-11 of the public health code, in its wording resulting from ruling No. 2020-232 dated 11th March 2020 relative to the regulations governing decisions taken on matters of health, funding or social or medico-social accompaniment with respect to adults subject to legal protection measures, are compliant with the Constitution.”

More generally, the upholding of the paragraph confirms doctors in their authoritative role for the pursuit or otherwise of life support treatments. Implicitly, this case confirms that advance directives, although useful, are in no way a guarantee of a “good death” and that they are no guarantee either against conflicts. It should be added that it is not certain that a patient demanding in advance to be kept alive “at whatever the cost” has any enlightened conscience of what is being asked for. Constitutional Council indicated additionally that “by allowing doctors to go against advance directives the legislator considered that the latter could not be mandatory in all circumstances, inasmuch as they are prepared at a time when the person is not yet confronted with the particular end-of-life situation in which he/she will be unable to express his/her will due to the critical nature of their condition. Notwithstanding, he intended to guarantee the right of any person to receive the most appropriate treatment for their condition and ensure the safeguard of the dignity of persons at their end-of-life.”

By validating the current wording of this article, the Constitutional Council confirms the balanced nature of the text with regard to the constitutional principles in its care.

Uterus graft: A high risk ethical and medical technique

Uterus graft: A high risk ethical and medical technique

by | October 28, 2022 | Medically Assisted Procreation, News

In the context of an as yet experimental protocol, a second uterus graft has just been accomplished in France at the Foch hospital in Suresnes. The patient was affected by the Rokitansky syndrome (MRKH), in other words, she was born without a uterus, which makes pregnancy impossible. It is a highly technical graft procedure, which involved three teams of surgeons for 18 hours.

“Grafting a uterus is a delicate operation due to the particularly deep anatomical position of the organ, which makes it difficult to access. Moreover, the blood vessels to be manipulated are extremely fine”, according to the surgeon during an interview. He additionally stated that it is preferable to have a living relative donor (pregnancy with a uterus obtained from a deceased donor is less likely to succeed) and immunological compatibility tests are of course performed. The graft received by the young patient was from her sister. The process for her and her partner will necessarily involve medically assisted procreation. Embryos have been conceived in vitro and frozen in anticipation of this delicate operation. The first attempts at implantation will take place in a few months’ time. In the event of pregnancy, very strict medical monitoring will be required, due to the high risks involved with this type of pregnancy for both the mother and the child.

The first such graft performed in France in 2019 was conducted on a woman affected by the same syndrome. She received a uterus transplanted from her mother. The young woman gave birth to a child in February 2021 and is currently expecting her second. Around 80 grafts of this type have already been performed worldwide. The first was performed some ten years ago, the first child born after this very special operation arrived in 2014 in Sweden.

A study conducted over the last five years, in three hospitals in Texas, Ohio and Pennsylvania, was published in Jama Surgery in September. Out of 33 patients transplanted, one in four had to have the graft removed urgently as it had failed. The others still had the graft after one year. Eventually, 19 of them were able to give birth to at least one child. In this study, the children are reported to be in good health. According to the doctor in charge of the study, the rate of miscarriage does not appear to be higher. But the risk of pre-eclampsia (high blood pressure which may endanger the life of the mother and the child) is greater, in particular due to the immunosuppressive treatments necessary to avoid rejection of the graft or the risk of renal anomalies associated with the MRKH syndrome. The pregnancies are very closely monitored. Concerning childbirth, it has to be by caesarian section and most often before term, in particular due to the risk of pre-eclampsia. The grafted uterus is planned to be removed at the same time as the caesarian section, or at a later date, if the caesarian section goes well, that the patient is in good health and is hoping for another child.

Uterus grafts may concern women born without a uterus, those having undergone a hysterectomy due to cancer or a haemorrhage during delivery, for example.

These grafts are a subject of controversy from an ethical and medical standpoint due to the complications mentioned. The risk may be vital whereas the graft itself is not.

In India, a surgeon is considering this type of experiment on men. Risky experimentations, beyond the bounds of ethics, without any ethical frame nor precautionary approach: this should alert the international scientific and medical community.

End of life: The successive U-turns by the CCNE

End of life: The successive U-turns by the CCNE

by | October 28, 2022 | End of life, Euthanasia and Suicide, News

On 13th September, during publication of instruction No. 139 by the CCNE on the end of life, according to which “there is a way for ethical application of an active assistance to die”, it is surprising to note the u-turn relative to a previous instruction on the subject dated 2013. What could possibly justify that the ethical principles could evolve over time?

As a matter of fact, on examining the succession of instructions issued on the accompaniment of the end of life, one can note that the CCNE is far from its first about-turn.

The first instruction by the CCNE (National Consultancy Committee on Ethics) on the matter is dated June 1991 (instruction No. 26). At that time, without ambiguity, the CCNE “disapproved that a legal or regulatory text could legalize the act of ending a patient’s life.”  According to that instruction, “the legalization of euthanasia, even for exceptional cases, opens the way to abusive and uncontrollable interpretations” the inclusion of euthanasia in doctors’ missions would be a “betrayal of purpose” and would “throw suspicion on the medical teams“.

Nevertheless, on 27th January 2000, the CCNE opened the door to an “exception of euthanasia” in its instruction No. 63, “when facing certain distress, when all therapeutic hope is lost and that suffering has become unbearable.”

But that position, once again, was not final. Thirteen years later, in instruction No. 121, “the majority of the members of the Committee expressed major reservations and recommended not modifying the current law […]. They consider that to retain the prohibition on doctors from “deliberately causing death” protects patients at the end of life, and that it would be dangerous for society if doctors could partake in “causing death.” Meanwhile, euthanasia has been legalized in several states, including Belgium, and the “feedback from foreign experience invites caution.” In France, a law dated 2002 authorized patients to refuse treatment and the Leonetti law in 2005 specifies the refusal of unreasonable therapeutic obstinacy.

This position by the CCNE is unchanged in the 2018 instruction No. 129, until the new about turn, in 2022.

The inconsistency in the CCNE position is so obvious regarding the end of life, it is difficult to understand how such about-turns every ten years can be justified. On the same subject, the CCNE did not show much imagination between 2000 and 2022. In 2022, the instruction mentioned “an increasing trend for the medicalization of the end of life” or the “technicisation”. However such medicalization was already present in the 2000 instruction, leading to the same problems.

Surprisingly also, whether when asking to retain the prohibition from ending life or when legalizing euthanasia, the CCNE claims solidarity. In 2000, they opened the possibility of euthanasia in the name of “human solidarity and compassion“. Whereas, in 2013, they underlined the risks which would result from the legalization of euthanasia ” with respect to the requirement of solidarity and fraternity.” Finally, in 2022, in order to reconcile the two, they concluded that “two expressions of fraternity are […] put under strain”.

After no less than 7 instructions concerning the question of life between 1991 and today, it is therefore difficult to distinguish any ethical consistency in the thinking of the CCNE, whose composition has in fact evolved over time. If there is one thing which has remained constant, it is that the instructions have become ever longer, from 2 pages in 1991 to 63 pages in 2022. It can therefore be concluded that on the end of life, the CCNE often changes its mind…

Euthanasia: The Belgian Law is Declared Unconstitutional, at the Expense of the Most Vulnerable?

Euthanasia: The Belgian Law is Declared Unconstitutional, at the Expense of the Most Vulnerable?

by | October 28, 2022 | End of life, Euthanasia and Suicide, News

The decision by the Belgian Constitutional Court concerning the unconstitutionality of the law dated 28th May 2002 on euthanasia raises the question of the true protection of patients.

The Court was called upon in the context of the case of a young woman, Tyne Nys, euthanised at 38 years of age in 2010 due to mental disorders.

The Law was called upon twice by the family

This young woman, who was suffering from depression following a romantic break-up, obtained the approval of three doctors, as required by law. Her family registered a first appeal with the Court criticizing the decision by the doctors since two months beforehand, Tyne Nys had been diagnosed with autism but had not been treated for it. The three doctors sued for poisoning due to the presumed non-observance of the conditions of the law, were eventually acquitted in 2020. There did however remain a doubt, according to the Gand Court of Assizes concerning Doctor Van Hove who conducted the euthanasia. The family then initiated a new lawsuit to determine whether there was any fault on the part of the acquitted doctor under the benefit of doubt.

Referral to the Constitutional Court by the defence

It was in this context that the lawyers of the defence referred to the Constitutional Court. The question concerned the legality of the law, which did not specify any distinct sanctions whether the non-observance concerned the form (procedure) or fundaments of the conditions relative to euthanasia. Insofar as a doctor infringes the legal framework, he/she is liable for poisoning. The Court judged that the law on euthanasia was unconstitutional inasmuch as it “qualifies indistinctly as murder by poisoning any non-observance of the conditions and procedures to be complied with when practicing euthanasia.” The Court charged the Parliament with modifying the law.

As underlined by the European Institute for Bioethics, certain conditions “whose non-observance may seem trivial, are in fact quite fundamental: as for instance the compulsory mention by the doctor of the treatment options conceivable for the patient, which may have a direct bearing on the patient’s decision to die or not by euthanasia. Similarly, observance of the four-day time allowance for registering the euthanasia declaration by the doctor having conducted the act, has a concrete influence on the possibility of verifying the legality of the euthanasia performed. In the Tine Nys case, the declaration was submitted several weeks late by the doctor in question, and even then, at the insistence of the young woman’s family to the doctor and the verification commission.”

Moreover, during the preparatory work for the 2002 law to legalize euthanasia, its authors indicated that “all the conditions which the patient or the doctor must comply with are important; none of the conditions are secondary.”

The decision by the Constitutional Court confers ever more power to the doctors at the expense of the protection of the most vulnerable.

Additionally, it occurs at a time when the European Court of Human Rights has just condemned Belgium in the context of another contentious euthanasia case, underlining that there was an “infringement of article 2 of the Convention due to failings in the subsequent verification of the euthanasia performed.” Another very recent case has also shaken Belgium concerning the euthanasia of the young Shanti de Corte at 23 years of age, euthanised for depression after surviving the terrorist attack on Brussels airport in 2016.

Further reading: Flash expert of the European Institute of Bioethics: Euthanasia: Are any of the conditions to be satisfied by doctors more important than others?

[Press Release] – 2nd November: 10 Ideas from Alliance VITA for Solidarity and Against the Drift Towards Euthanasia

[Press Release] – 2nd November: 10 Ideas from Alliance VITA for Solidarity and Against the Drift Towards Euthanasia

by | October 28, 2022 | Old age and Dependency, Press Releases

On the occasion of All Souls Day, Alliance VITA has re-issued its guide of 10 ideas for solidarity with old age, dependency and the end of life.

Whilst the high-risk debate is open on the end of life, this guide is an invitation for solidarity and mutual aid against the risk of drifting towards euthanasia, and in support of renewed bereavement rites.

10 idees

It is through its “SOS Fin de vie” (SOS end of life) hotline that Alliance VITA bases its thinking and its modes of action in support of the most vulnerable. These ten ideas constitute a tool for one and every to become involved in practical terms with the aged, the dependent or those during their end-of-life. Beyond the responsibilities incumbent upon the public services, anyone can be active by helping and accompanying those suffering from isolation. All the possibilities put forward in this guide, from the simplest to the most demanding, materialize this commitment to the aged and the sick:

  1. Giving and asking for news
  2. Visiting the sick
  3. Listening, listening and again, listening
  4. Not hiding the truth
  5. Never ceasing to consider each person as a living human being
  6. Daring to mix generations
  7. Living the rites of bereavement
  8. Mentioning the departed
  9. Supporting carers
  10. Volunteering as a palliative carer

Tugdual Derville, the spokesman for Alliance VITA concludes: “In confrontation with the “euthanasia lobby” which for several years has been “instrumentalizing” All Souls Day, we are asking for a solidary transition, in other words the choice of a society founded on mutual aid and solidarity rather than introvert individualism and the cult of autonomy and performance. Better accompaniment for the aged, the sick or during the end-of-life, involves first and foremost a firm commitment for them to be accompanied right up to the end. It also means encouraging the true rites of bereavement.”

Click here for the guide of 10 solidary ideas.

Press contact
contactpresse@alliancevita.org