Whereas the debates on the end of life are due to restart in the French Senate, Francis Szpiner, Senator for Paris, has launched a new initiative by recently submitting a draft bill through a referendum, "aimed at excluding active provocation of death from the notion of care".
The proposal by Mr. Szpiner
The draft bill registered by the Senate on 7th April consists of a single article: Article L. 1110-5 of the public health code is supplemented by a paragraph with the following wording:
"The active provocation of death of a patient cannot be qualified as a treatment, a therapy or a care."
In concrete terms, this proposal is based on the possibility – defined in article 11 of the French Constitution – that members of parliament can call for a referendum on "the organisation of the public authorities, on reforms relative to the economic, social or environmental policies of the nation and the public services involved".
If this initiative were to lead to a referendum and if approved, the statement that administered death – in the form of assisted suicide or euthanasia – is not a care, a therapy, or a treatment, would be officially recorded in the public health code.
What is the possible path for a Shared Initiative Referendum?
Since the July 2008 constitutional reform, a procedure exists for members of parliament to call for the organisation of a referendum. To do so, a draft bill must be submitted and must assemble the signatures of at least 20% of MPs, i.e. 185 MPs or Senators. Next, the Constitutional Council checks the signatures during the following month as well as the compliance of the subject of the referendum in relation to article 11 mentioned above. Then, the draft bill must achieve the support of 10% of the electorate within the next 9 months. A Home Office web-site is provided for the purpose. There are currently no draft bills according to the web-site.
At the end of the 9-month period, if at least 10% of voters support the draft bill, Parliament has 6 months in which to examine it. In the absence of such examination beyond the 6-month period, the French President must submit the proposal to a referendum.
The reasons behind the proposal
This sets the bar high to succeed in having the draft bill examined. To this day, no Shared Initiative Referendum has ever been submitted to a public vote. Nevertheless, the reasons set out by Senator Szpiner are solid and deserve consideration.
The first point in the presentation of motives, notes, "the profound constitutional anchoring of the protection of life".
Firstly, "the Preamble to the 1946 Constitution, expressly referred to by article 1 of the Constitution dated 4th October 1958, proclaims that: " The Nation guarantees health protection for all". Secondly, there indeed exists a " constitutional protection of the dignity of the human persona, a constitutionally valid principle proclaimed by the Constitutional Council in its ruling dated 27th July 1994".
The presentation of motives adds that "Dignity is not merely the right for all to be treated as a subject and not an object; it is also a guarantee that no-one can be abandoned, nor considered as a burden and which it would be legitimate to hasten their disappearance. Any legislation which concerns the very definition of care must consequently be examined in the light of this irreducible constitutional requirement."
The second point notes that care is the concrete expression of fraternity.
" Care, is the response to the vulnerability of others through an active and benevolent presence. It is the assertion, when faced with suffering and the approach of death, that the national community does not give up, but rallies round, accompanies and supports. A truly fraternal society does not measure the value of a life by its productivity or its state of health; it recognises in every human being, up to the term of their existence, an unfailing dignity which calls for protection and solicitude."
Carer collectives have endlessly repeated during the debates: the administration of death is not a form of care.
Hence, the lethal act of euthanasia or assisted suicide, is radically different from the care process. As well stated in the presentation of motives for the draft bill, "Never mind the well-meaning of intentions or the reality of suffering motivating them: their end result is death, and not its prevention nor its relief. This divergence between the intention and objective is absolute and insurmountable. It prohibits any legal assimilation of such acts as care."
The breakdown of the frontier between care and death, destroys the trust which exists between carers and patients, and applies pressure on the most vulnerable.
"Such a re-qualification would moreover be liable to exercise intolerable pressure on the most vulnerable, who could feel obliged to justify their will to live"
Finally, confusing euthanasia and care, is to break away from the legislation established over 25 years. Neither euthanasia, nor therapeutic obstinacy, the end of life laws have so far maintained a dividing line for the benefit of patients. The presentation concludes by recalling the finality of the distinction: freedom for patients and for carers.
"Registering in the public health code that the active provocation of the death of a patient cannot be qualified as a treatment, a therapy or a care, does not restrict the rights of patients: it protects their dignity. It does not limit the freedom of carers: it confirms that their vocation is to care, accompany and relieve but never to cause death. It does not close off the democratic debate: it poses, with the appropriate formality, the boundaries which the national conscience has no authority to transgress".
A referendum on care, not on euthanasia
The proposed bill is clearly worded. It is not a referendum for or against euthanasia. On that subject, legal experts hold different views on whether or not such a subject comes within the scope of article 11. The proposal by Mr. Szpiner aims to supplement an article in the public health code, to exclude the active administration of death from the notion of care. As such, "the present proposed bill comes within the provisions of article 11 of the French Constitution and its first paragraph, since it concerns social policy and the associated public services."
This proposal therefore has the additional merit of focussing the debate on the true expectations of the French public: a policy and care system accessible to all.