On March 3, 2017, the French Council of State has ruled on a priority preliminary ruling on the issue of constitutionality, presented by an association, regarding the End-of-Life law enacted on February 2, 2016, and more specifically on the collegiate procedure for medical decision-making in the event of terminal sedation.

This unexpected initiative was filed by the National Union of Associations for Families of those with brain damage and cranial trauma (“UNAFTC“). They filed an annulment appeal at the end of 2016 with the Council of State for the August 3, 2016 decree pursuant to the Claeys-Leonetti law. This decree modified the Medical Code of Ethics for collegiate procedure for medical decision-making in cases of “deep and continuous sedation until death” especially when the patient concerned can no longer speak.

The priority preliminary ruling on the issue of constitutionality

To support their request, the association asked that “the preliminary issue of constitutionality be submitted to the Council of State as to whether the rights and liberty guaranteed by the Constitution” were respected concerning three articles in the Public Health Code modified by the Claeys-Leonetti law of February 2, 2016.

This special procedure is known as a “Priority Preliminary Ruling on the Issue of Constitutionality”: the Constitutional Council is asked, in a case where a law needs interpretation, to examine the law to verify its compliance with the Constitution. If the law does not comply, the Constitutional Council has the authority to rescind the law. This is the same scenario when 60 deputies or senators, request for all or part of a law be cancelled, after Parliament’s vote, and before its publication in the Official Journal.

The “UNAFTC” association’s main argument is: the collegiate procedure for medical decision-making is defined by decree (written by the government) and not by law (voted by the Parliament). However, this decree does not guarantee “the collegial nature of the medical decision to limit or stop treatment (…) nor the eventuality of filing a suspensive appeal against such a decision.” And yet the collegiate procedure can infringe on our fundamental rights, including the right to life, since it can result in the death of a patient. Such a prerogative belongs to the Parliament (according to article 34 of the Constitution) and not to a minister. Therefore, the articles in the February 2, 2016 law mentioning the collegiate procedure do not comply with the French Constitution.

The Council of State, whose role is to verify whether the preliminary ruling on the issue of constitutionality is legitimate or not, ruled that the association was well-grounded in its request and thereupon transferred their request to the Constitutional Council. All they have to do now is to wait for the Constitutional judge’s decision, and until it is known the procedure to cancel the Council of State’s decree dated August 3, 2016 is on hold.

The “UNAFTC” Association is willing to speak up for those who cannot speak for themselves.

The “UNAFTC” Association has been involved since the beginning of the Vincent Lambert case, when the Reims Hospital decided to implement an “end-of-life protocol”. Before the Council of State in June 2014, the association adamantly opposed that one single doctor could make the decision after the collegiate procedure for decision-making had decided to stop treatment for a patient who cannot speak for himself.

The association persistently upheld this position in the legal debates on the Claeys-Leonetti law.

In January 2015, they also wrote to the French President, and started a petition which stated: « The law should protect the most vulnerable, those whose wishes are not known. The decision must not be in the hands of one single doctor; the patient’s wishes should be sought by those who know and love him (…). If the decision-making process is not regulated by legal boundaries, there is an enormous risk of ending lives, even those motivated by compassion or under pressure for a certain kind of economic rationality, for individuals whose lives appear meaningless. Today we speak of those in a vegetative state or minimal consciousness, but in the future will it concern Alzheimer patients, or those with multiple disabilities?”