PRESS RELEASE
Decision No. 2022-1022 QPC of 10 November 2022
(Refusal by a doctor to apply advance directives that are manifestly inappropriate or not in accordance with the medical situation of the patient)
The Constitutional Council rules that the legislative provisions relating to the conditions under which a doctor may overrule the advance directives of a patient at the end of his or her life conform to the Constitution
Purpose of the application for a priority preliminary ruling on the issue of constitutionality (question prioritaire de constitutionnalité, QPC)
The Constitutional Council received a referral on 22 August 2022 from the Conseil d’État of an application for a priority preliminary ruling on the issue of constitutionality relating to the conformity of the third section of Article L. 1111-11 of the Public Health Code, with the rights and freedoms guaranteed by the Constitution.
Article L. 1111-11 of the Public Health Code provides that any adult may draw up advance directives relating to the end of his or her life, which in principle are binding on the doctor, in the event that the adult concerned is one day unable to express his or her wishes regarding the conditions for continuing, limiting, stopping or refusing medical treatment or procedures.
The contested provisions of this article allow the doctor to set aside these advance directives, in particular when they are manifestly inappropriate or not in keeping with the medical situation of the patient.
Criticism made concerning these provisions
In particular, the applicants, joined by the intervening association, criticised these provisions for allowing a doctor to disregard advance directives by which a patient has expressed his or her wish to continue life-sustaining treatment. They argued that, by allowing the doctor to take such a decision when the directives appear to him or her to be “manifestly inappropriate or not in accordance” with the medical situation of the patient, these provisions were not accompanied with sufficient guarantees since these terms were imprecise and gave the doctor too much discretion, whereas he or she takes the decision alone and without being subject to a prior reflection period. The result, they argued, was an infringement the principle of safeguarding the dignity of the individual, from which the right to respect for human life, as well as individual freedom and freedom of conscience, would be derived.
Review of the provisions subject to the QPC
- In its decision today, the Constitutional Council notes that the Preamble of the Constitution of 1946 reaffirms that all human beings, without distinction as to race, religion or belief, have inalienable and sacred rights. Safeguarding the dignity of the individual from all forms of servitude and degradation is one of these rights, and constitutes a principle with constitutional value.
It also notes that the right of individual freedom is declared in Articles 1, 2 and 4 of the Declaration of Human and Civic Rights of 1789.
It is therefore for the legislator, who is competent under Article 34 of the Constitution to lay down rules concerning the fundamental guarantees granted to citizens for the exercise of public freedoms, particularly in medical matters, to determine the conditions under which the continuation or cessation of the treatment of a person at the end of his or her life may be decided, in compliance with these constitutional requirements.
- In reference to the constitutional framework thus specified, the Constitutional Council notes, firstly, that, by allowing the doctor to set aside advance directives, the legislator considered that the latter could not be imposed in all circumstances, since they are drawn up at a time when the person is not yet faced with the particular situation at the end of life in which he or she will no longer be able to express his or her wishes because of the seriousness of his or her condition. In so doing, it sought to guarantee the right of every person to receive the most appropriate care in relation to his or her condition and to ensure that the dignity of individuals at the end of their lives is safeguarded.
In this respect, the Council notes that it does not have a general mandate for judgements that is similar to that of Parliament, and that it is not in its remit to call into question the legislator’s evaluation of the conditions under which a doctor may set aside the advance directives of a patient at the end of his or her life who is unable to express his or her wishes, provided that these conditions are not manifestly inappropriate to the pursued objective.
Secondly, the disputed provisions only allow the doctor to set aside advance directives if they are “manifestly inappropriate or not in accordance with the medical situation” of the patient. These provisions are neither imprecise nor ambiguous.
Thirdly, the doctor’s decision can only be taken after a collegial procedure designed to inform the doctor. It is recorded in the medical file and brought to the attention of the trusted person designated by the patient or, failing that, of his or her family or close friends.
Finally, the doctor’s decision is subject to judicial review, if necessary. Where a decision is taken to limit or stop life-sustaining treatment on the grounds of refusing unreasonable obstinacy, this decision shall be notified in such a way as to enable the trusted third party or, failing that, the family or close friends, to appeal in good time. This appeal is also examined as soon as possible by the competent court in order to obtain a possible suspension of the disputed decision.
From all these reasons, the Constitutional Council deduced that the legislator had not disregarded either the principle of safeguarding human dignity or of personal freedom.
Considering that the disputed provisions do not disregard either the freedom of conscience or the principle of equality before the law, or any other right or freedom guaranteed by the Constitution, the Constitutional Council deems they conform to the Constitution.