Decision no. 2017-632 QPC of 2 June 2017

THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE UPON a priority matter of constitutionality on 6 March 2017 by the Conseil d'État (decision no. 403944 of 3 March 2017), under the conditions set out in Article 61-1 of the Constitution. This matter was put forth for the National Union of Associations for Families of Those with Cranial Trauma and Brain Injuries by the firm Piwnica and Molinié, attorneys before the Conseil d'État and the Cour de Cassation. It was recorded by the General Secretariat of the Constitutional Council under number 2017-632 QPC. It relates to compliance with the rights and freedoms that the Constitution guarantees under Articles L. 1110-5-1, L. 1110-5-2 and L. 1111-4 of the Public Health Code, in their drafting arising out of the Law no. 2016-87 of 2 February 2016 that creates new rights for the ill and persons at the end of life.

In light of the following texts:

• the Constitution;
• Ordinance no. 58-1067 of 7 November 1958 concerning the Organic Law on the Constitutional Council;
• the Public Health Code;
• Law no. 2016-87 of 2 February 2016 creating new rights for the ill and persons at the end of life;
• the Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council for priority matters of constitutionality;

In light of the following items:

• the observations presented on behalf of the applicant by the firm Piwnica and Molinié, registered on 28 March and 12 April 2017;

• the observations of the Prime Minister, registered on 28 March 2017 ;

• the documents produced and appended to the case file;

Having heard Mr. François Molinié Esq., attorney at the Conseil d'État and the Cour de Cassation, for the applicant association, and Mr. Xavier Pottier, appointed by the Prime Minister, at the public hearing of 23 May 2017;

And having heard the rapporteur;

THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE ON THE FOLLOWING:

1. Article L. 1110-5-1 of the Public Health Code, drafting arising out of the Law of 2 February 2016 mentioned herein above, provides that::
   “The acts mentioned in Article L. 1110-5 shall not be implemented or continued when they result from unreasonable obstinacy. When they are deemed unnecessary, disproportionate or when they only have the effect of artificially maintaining life, they may be suspended or not carried out, in accordance with the patient's wishes, and if the latter is no longer in a condition to express his or her wishes, following a collegiate procedure defined through regulations.
   “Artificial nutrition and hydration are included among the treatments that may be halted pursuant to the first Subparagraph of this Article.
   “When the acts mentioned in the two first Subparagraphs of this Article are suspended or not carried out, the physician shall preserve the dignity of the dying person and ensure his or her quality of life by providing the palliative care mentioned in Article L. 1110-10”.

2. Article L.110-5-2 of this same Code as written pursuant to the same Law establishes:
   “Upon the patient's request to avoid any suffering and to not be subjected to unreasonable obstinacy, a deep and sustained sedation that will alter consciousness until death, in addition to analgesics and the halting of all life-sustaining treatments, shall be carried out in the following cases:
   “1° When the patient is inflicted with a serious and incurable life-threatening illness where there will be suffering in the near term and that is unresponsive to treatment;
   “2° Upon the decision of the patient who is inflicted with a serious and incurable life-threatening illness where there will be intolerable suffering in the near term to stop treatment;

“When the patient cannot express his or her wishes, in regard to avoiding unreasonable obstinacy mentioned in Article L. 1110-5-1, in the case where the physician halts the life-sustaining treatments and induces deep and sustained sedation that will alter consciousness until death, in addition to analgesics.
“The deep and sustained sedation and analgesics established in this Article shall be implemented according to the collegiate procedure regulations that allow the health care team to verify the applicable conditions established in the preceding Subparagraphs beforehand.
“Upon the patient's request, the deep and sustained sedation may be implemented in the patient's home, in a health care establishment or an establishment mentioned in Section 6 of I of Article L. 312-1 of the French Social Action and Family Code.
“The entire care procedure shall be included in the patient's medical file”.

3. Article L.1111-4 of this same Code as written pursuant to the same Law establishes:
   “All persons shall make decisions regarding their health with healthcare professionals and shall take into account the information and recommendations provided to them.
   “All persons have the right to refuse or not undergo treatment. Medical care nevertheless remains carried out by the physician, and that includes palliative care.
   “The physician must respect the wishes of the patient after informing him or her of the consequences of his or her choices and their gravity. If the patient choosing to refuse or halt treatment puts his or her life is in danger, the patient should reiterate his or her decisions in a reasonable period. He or she may seek a second opinion from another health care provider. The entire procedure shall be included in the patient's medical file. The physician shall preserve the dignity of the dying person and ensure the quality of his or her end of life by providing the palliative care mentioned in Article L. 1110-10.
   “No medical action or treatment shall be carried out without the free and informed consent of the person, and this consent may be withdrawn at any time.
   “When the person is no longer in the condition to express his or her wishes, no intervention or enquiry may be carried out, except in cases of emergency or impossibility, without consulting the health care agent established in Article L. 1111-6, or the family members, or lacking this, one of the persons' loved ones.
   “When the person is no longer in the condition to express his or her wishes, limiting or halting the medical treatment that may lead to death cannot be carried out without following the collegiate procedure mentioned in Article L. 1110-5-1 and its directives, or barring that, without consulting the health care agent established in Article L. 1111-6, or the person's family members or loved ones. The decision to limit or halt treatment shall be included in the patient's medical file,
   “Regarding the consent of a minor or an adult under guardianship, it must be systematically verified that this individual is able to express his or her wishes and participate in the decision. In the event that refusal of treatment by a person under parental authority or guardianship may lead to grave consequences to the health of this minor or adult under guardianship, the physician shall carry out the necessary care.
   “The examination of a patient in a clinical teaching establishment requires his or her prior consent. Students at this clinical teaching establishment shall be informed beforehand of the requirement to respect the patient's rights described herein.
   “The provisions of this Article shall apply without prejudice to the particular provisions relating to the patient's consent to certain categories of health care or treatment”.

4. According to the applicant association, these provisions infringe on Article 34 of the Constitution insofar as they deprive the individual of the legal guarantees, on the one hand, of the constitutional principle of preserving the dignity of the human being that follows from the right to life, and on the other, personal liberty, protected by Article 2 of the Declaration of the Rights of Man and the Citizen of 1789. These provisions do not guarantee respect of the wishes of the patient insofar as when the latter is no longer in the condition to express his or her wishes, following the collegiate procedure the definition of which is left to regulatory power, only the physician decides on the halting of treatment without being bound by the opinions gathered. The applicant association also claims that these same provisions infringe on the right to effective legal recourse, established in Article 16 of the 1789 Declaration, regarding the absence of suspensive effect of recourse against the decision to halt life-sustaining measures.

5. Consequently, the priority matter of constitutionality focuses on the terms “when the latter is no longer in the condition to express his or her wishes, following the collegiate procedure defined through regulations” appearing in the first Subparagraph of Article L. 1110-5-1 of the Public Health Code, and the fifth Subparagraph of Article 1110-5-2 of the same Code and the terms
   “the collegiate procedure mentioned in Article L. 1110-5-1” appearing in the sixth Subparagraph of Article L. 1111-4 of the same Code.

• On the claims of the infringement on the principle of preserving the dignity of the human being and personal liberty and the “negative incompetence” of the legislature [the legislature erroneously delegating the scope of its own powers]:

6. The Preamble to the 1946 Constitution reaffirms that every human being, regardless of race, religion, or belief, possesses sacred and inalienable rights. Preserving the dignity of the person against any type of enslavement and degradation is included in these rights and constitutes a principle of constitutional value.

7. Personal liberty is described in Articles 1, 2, and 4 of the 1789 Declaration.

8. It is thus up to the legislature, competent to apply Article 34 of the Constitution, to set the laws concerning fundamental guarantees granted to citizens to exercise their civil liberties, specifically in terms of medical treatment, to determine the conditions under which a decision to halt life-sustaining treatment may be taken whilst respecting the dignity of the person.

9. The contested provisions enable the physician caring for the patient, who is no longer in a condition to express his or her wishes, to halt or not implement the treatments - in the context of avoiding unreasonable obstinacy - that it deems useless, disproportional or without any other effect than artificially sustaining life. In this case, the physician shall order deep and sustained sedation that will continue until death, with analgesics.

10. However, firstly, the physician shall first enquire about the presumed wishes of the patient. In this regard, the physician, under Article L. 1111-11 of the Public Health Code, must respect the anticipated directives of the patient, unless they are to be set aside if they appear manifestly inappropriate or not in compliance with the medical situation of the patient. In the absence of these, the physician must consult the patient's health care agent, or barring this, the patient's family or loved ones.

11. Secondly, it is not the responsibility of the Constitutional Council, which does not have general powers of assessment and decision making of the same scope as those of the Parliament, to substitute its assessment for that of the legislature for the conditions in which, in the absence of the known wishes of the patient, the physician may take a decision to halt or continue treatment, in the context of unreasonable therapeutic obstinacy. However, when the wishes of the patient are uncertain or unknown, the physician may not decide on this circumstance alone, for which it may make no presumption further to the decision to halt treatments.

12. Thirdly, the physician's decision may only be made following a collegiate procedure that is intended to enlighten it. This procedure allows the health care team in charge of the patient to verify that the legal and medical conditions to halt or implement care are respected, in this case, deep and sustained sedation and analgesics.

13. Finally, the physician's decision and assessment of the patient's wishes are subject to, if it be the case, the decision of the judge under the conditions established in Paragraphs 16 and 17.

14. It follows from the foregoing, that by adopting these contested provisions, the legislature, which included sufficient guarantees in the procedure that it put in place, did not unconstitutionally infringe on the principle of maintaining the dignity of the human person and personal freedom. Thus, the claims of their infringement and that of Article 34 of the Constitution should be set aside.

• On the claim of infringement on the right to effective legal recourse:

15. Article 16 of the 1789 Declaration states:
    “A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all”. This provision guarantees that the individual in question may exercise the right to effective legal recourse.

16. In the absence of specific provisions, recourse against the physician's decision regarding halting or limiting the life-sustaining care of a person who is no longer in the condition to express his or her wishes is carried out under the conditions of ordinary law.

17. In regard to a decision to halt or limit life-sustaining care leading to the death of a person who is no longer in the condition to express his or her wishes, the right to effective legal recourse requires that this decision should be expressed by the physician to the persons who have the right to express the wishes of the patient, under the conditions that allow them to exercise their recourse right in a timely manner. Furthermore, this recourse must be examined by the competent jurisdiction as soon as possible so that the contested decision may be potentially suspended. Based on this, the claim of infringement on the right to effective legal recourse should be set aside.

18. It follows from the foregoing, that under the reserves established in Paragraph 17, the terms “when the latter is no longer in the condition to express his or her wishes, following the collegiate procedure defined through regulations” appearing the first Subparagraph of Article L. 1110-5-1 of the Public Health Code, the fifth Subparagraph of Article 1110-5-2 of the same Code, and the terms “the collegiate procedure mentioned in Article L. 1110-5-1” appearing in the sixth Subparagraph of Article L. 1111-4 of the same Code, which do not infringe upon any right or liberty that the Constitution guarantees, should be declared Constitutional.

THE CONSTITUTIONAL COUNCIL RULES:

Article 1. - Under the reserves established in paragraph 17, the terms “when the latter is no longer in the condition to express his or her wishes, following the collegiate procedure defined through regulations” appearing in the first Subparagraph of Article L. 1110-5-1 of the Public Health Code, the fifth Subparagraph of Article L. 1110-5-2 of the same Code, and the terms “the collegiate procedure mentioned in Article L. 1110-5-1” appearing in the sixth Subparagraph of Article L. 1111-4 of the same Code, in their drafting arising out of the Law no. 2016-87 of 2 February 2016 that creates new rights for the ill and persons at the end of life, are declared Constitutional.

Article 2. - This decision shall be published in the Journal official of the French Republic and notified under the conditions provided for in Article 23-11 of the Ordinance of 7 November 1958 referred to herein above.

Deliberated by the Constitutional Council in its session of 1 June 2017, in attendance: Mr. Laurent FABIUS, Chairperson, Ms. Claire BAZY MALAURIE, Ms. Nicole BELLOUBET, Mr. Michel CHARASSE, Mr. Jean-Jacques HYEST, Mr. Lionel JOSPIN, Ms. Corinne LUQUIENS, Ms. Nicole MAESTRACCI and Mr. Michel PINAULT.

Made public on 2 June 2017.