On 22 August 2022, the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality raised by the Conseil d’État (ordinance no. 466082 of 19 August 2022). This application was made on behalf of Zohra M., Rachida M., and Saïda M. by SCP Melka - Prigent - Drusch, lawyer at the Conseil d’État and at the Cour de Cassation. It was registered by the general secretariat of the Constitutional Council under no. 2022-1022 QPC. It relates to the conformity of Article L. 1111-11 of the Public Health Code with rights and freedoms that the Constitution guarantees.
Having regard to the following texts:
- the Constitution;
- Ordinance No. 58-1067 of 7 November 1958, constituting an institutional act on the Constitutional Council;
- the Public Health Code;
- Ordinance No. 2020-232 of 11 March 2020 on the regime of decisions taken in matters of health, social or medico-social care or support for adults subject to a legal protection measure;
- the Regulation of 4 February 2010 as to the procedure applicable before the Constitutional Council with respect to applications for a priority preliminary ruling on the issue of constitutionality;
Having regard to the following documents:
- the observations of intervenors on behalf of the Union Nationale des Associations de Familles de Traumatisés Crâniens et de Cérébro-Lésés association by SCP Piwnica et Molinié, lawyer at the Conseil d’État and at the Cour de Cassation, registered on 19 September 2022;
- the observations on behalf of the applicants by SCP Melka - Prigent - Drusch, registered on 20 September 2022;
- the observations presented on behalf of the Centre Hospitalier de Valenciennes, party to the dispute when the application for a priority preliminary ruling on the issue of constitutionality was made, by SCP Waquet, Farge, Hazan, lawyer at the Conseil d’État and at the Cour de Cassation, registered on the same date;
- the observations of the Prime Minister, registered on the same date;
- the second observations on behalf of the intervening association by SPC Piwnica et Molinié, registered on 30 September 2022;
- the additional documents produced and appended to the case files;
After having heard Ludwig Prigent, lawyer at the Conseil d’État and at the Cour de Cassation, on behalf of the applicants, Claire Waquet, lawyer at the Conseil d’État and at the Cour de Cassation, for the intervening association, and Antoine Pavegeau, appointed by the Prime Minister, at the public hearing of 25 October 2022;
And after having heard the rapporteur;
THE CONSTITUTIONAL COUNCIL DECIDED THAT:
1. The application for a priority preliminary ruling on constitutionality must be considered as relating to the provisions applicable to the legal dispute at the moment in which the application was made. Consequently, a referral to the Constitutional Council is made as provided for in section three of Article L. 1111-11 of the Public Health Code, in its formulation resulting from the aforementioned ordinance of 11 March 2020.
2. The third section of Article L. 1111-11 of the Public Health Code, in this formulation, provides that:
“Advance directives shall be binding on the physician for any decision regarding investigations, interventions or treatment, except in cases of vital urgency for the time necessary for a full assessment of the situation and when the advance directives appear manifestly inappropriate or not in accordance with the medical situation.”
3. The applicants, joined by the intervening association, criticise these provisions for allowing a doctor to set aside advance directives by which a patient has expressed his or her wish to continue life-sustaining treatment. They argue 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 patient’s medical situation, these provisions are not accompanied with sufficient guarantees since these terms are imprecise and give the doctor too much room for manoeuvre, whereas he or she takes the decision alone and without being subject to a prior reflection period. This would result in an infringement of 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, are derived.
4. Consequently, the application for a priority preliminary ruling on the issue of constitutionality concerns the words “when the advance directives appear manifestly inappropriate or not in accordance with the medical situation” in the third section of Article L. 1111-11 of the Public Health Code.
5. The intervening association further argues that these provisions would introduce an unjustified difference in treatment between people who are able to express their wishes regarding the cessation of treatment and those who have only been able to express them in advance directives.
6. The Preamble of the Constitution of 1946 reaffirmed 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.
7. The right of individual freedom is declared in Articles 1, 2 and 4 of the Declaration of Human and Civic Rights of 1789.
8. 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.
9. 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.
10. The disputed provisions of this article allow the doctor to set aside these advance directives, in particular when they are manifestly inappropriate or not in accordance with the patient’s medical situation.
11. Firstly, by allowing the doctor to set aside advance directives, the legislator considered that the latter could not be imposed in all circumstances, since they were drawn up at a time when the person was not yet faced with the particular situation at the end of life in which he or she would no longer be able to express his or her wishes because of the seriousness of his or her condition. In so doing, they sought to guarantee the right of every person to receive the care most appropriate to his or her condition and to ensure that the dignity of persons at the end of their lives is safeguarded.
12. It is not for the Constitutional Council, which does not have a general power of assessment and decision of the same nature as that of Parliament, to substitute its assessment for that of the legislator on 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.
13. 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.
14. 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 the patient’s family or close friends.
15. 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 the possible suspension of the disputed decision.
16. It follows from the above that the legislator has not infringed either the principle of safeguarding the dignity of the individual or of individual freedom. The objections to the infringement of these principles must therefore be dismissed.
17. Consequently, these provisions, which do not infringe freedom of conscience or the principle of equality before the law, or any other right or freedom guaranteed by the Constitution, must be declared as conforming to the Constitution.
THE CONSTITUTIONAL COUNCIL DECIDED:
Article 1. - The words “when the advance directives appear manifestly inappropriate or not in accordance with the medical situation” appearing in the third section of Article L. 1111-11 of the Public Health Code, in its wording resulting from Ordinance No. 2020-232 of 11 March 2020 relating to the regime of decisions taken in matters of health, care or social or medico-social support with regard to adults subject to a legal protection measure, conform to the Constitution.
Article 2. - This decision will be published in the Journal Officiel of the French Republic and notified in the manner provided for in Article 23-11 of the aforementioned ordinance of 7 November 1958.
Ruled by the Constitutional Council in its 10 November 2022 session, with the following members present: Laurent FABIUS, President, Alain JUPPÉ, Corinne LUQUIENS, Véronique MALBEC, Jacques MÉZARD, and Michel PINAULT.
Published on 10 November 2022.