What happens when one is incapacitated to the point of not being able to express ones last wishes concerning a treatment or refusal of, following an accident or during a terminal illness. Who will make the decisions as to whether a treatment should be carried out, if the patient cannot express himself?
This issue divided the public opinion in France for years, following a highly publicised case that ended sadly in July 2019: the Lambert case.
Vincent Lambert had been in a vegetative state following a road accident in 2008. His wife, appointed as his legal guardian, supported by some of his siblings, had been trying since 2013 to allow him to die with dignity. Lambert could no longer make any decisions but had before his accident expressed the wish not to be kept in a vegetative state should something happened to him. Unfortunately, his parents felt strongly otherwise and fought to make sure that he was kept alive.
To cut a story short, after years of legal battle in France (more than 34 court decisions, including one from the European Court of Human Rights[1]) Lambert died on July 11th 2019 following a decision of the French Supreme Court[2] overruling an appeal, thus allowing the medical team to stop treatment. Artificial nutrition and hydration were no longer supplied in order to allow Lambert to die, while placing him in deep sedation as is provided for by the French law.
This is the second highly publicised cases in France about the right to a dignified death. The first one in the noughties, the Vincent Humbert Case, had ended with the assisted suicide by his mother, which is yet the subject of another debate.
Both cases have led to changes in the French law, the latest one dating back to 2016[3].
Can the situation in the Lambert case be avoided? Yes, it can.
With the advice of your lawyer, you can take some steps, called anticipated directives.
What are the end of life practices in France?
In France, as it is the case in many countries, euthanasia is illegal. Doctors can however place terminally ill patients in deep sedation since 2016. French law also provides that maintaining someone’s life artificially is illegal, if it is useless and aims at prolonging artificially the life of the patient. This is referred to in the law as “unreasonable stubbornness” in applying medical treatment to patient at the end of his life. As a result, doctors are encouraged to prescribe palliative care, even if the outcome may be the death of the patient.[4]
· Anticipated directives
What we learnt from the Lambert case, is the importance and the need to express your last wishes not only orally to your spouse or your friends but also on paper. The solution is to draft what we call anticipated directives, and this must be done regardless of your age and your health.
These anticipated directives will help your family and the medical team to make decisions with regards to treatments such as whether or not to stop them, whether or not to revive you, whether or not to proceed with surgery....
In France, the process is quite straight forward. The easiest way to go about it is to draft a written statement in order to specify your last wishes with regards to the end your life. This can be done by anyone above 18 alone or with the help of your Legal Guardian, if one has been appointed, by hand, signed and dated and kept somewhere safe but easily accessible. Depending on the situation this could be at home, with your family doctor, or given to the medical team who will carry out surgery, or to the retirement home. The important thing is that the anticipated directives can be easily found if needed.
These anticipated directives will be applied by the medical team if clearly drafted and not ambiguous. However, there may be situations where they can be overlooked, for instance in case of an emergency leaving no time to assess the directions and the situation or if the last wishes are not adapted to the medical condition. In the latter case the decision not to respect the anticipated directive will be submitted to a committee of doctors.
[1] European Court of Human Rights Lambert and others v. France ECHR 46043/14 June 5th 2015 [2] Cour de Cassation 28 juin 2019 Assemblée Pleinière (19-17.330 19-17.342) [3] Law n ° 2016-87 of February 2nd 2016 creating new rights in favour of sick patient and people at the end of their life (LOI n° 2016-87 du 2 février 2016 créant de nouveaux droits en faveur des malades et des personnes en fin de vie) [4] Article 1 to 9 of the law n ° 2016-87 February 2nd, 2016