The bill must be presented in April to the Council of Ministers, and be examined at first reading on May 27 in the National Assembly. This Sunday, March 10, in an interview given to Release And The cross, Emmanuel Macron announced the arrival of a proposed law on active assistance in dying. To be able to request it, patients must meet a certain number of criteria: be of legal age, suffering from an “incurable illness” and “capable of full and complete discernment”. They will also have to suffer “refractory” suffering – which cannot be relieved – but also have “a life-threatening prognosis in the short or medium term”. This temporal notion of “medium term”, which still needs to be detailed, follows an opinion published on September 13, 2022 by the National Consultative Ethics Committee. Martine Lombard, professor emeritus of public law at the University of Paris II-Panthéon-Assas, in favor of developments on the subject and author of The Ultimate Request: End of life, the answer will be through the lawanalyzes its inclusion in the bill.
What do you think of the introduction of the notion of “short or medium-term vital prognosis” in active assistance in dying? How to define this “middle term”?
Martine Lombard I am surprised that this project announced by the President of the Republic adds a fourth condition to all those that we always find in legislation on active assistance in dying. First, the constant demand from a lucid patient. Then the suffering, which the patient considers intolerable. Finally, the third condition of serious and incurable illness. This bill would add a fourth condition which does not appear in any European legislation, which is borrowed from the legislation of certain states in the United States, which is a condition of vital prognosis engaged in the medium term. I don’t understand why France feels obliged to introduce the American model in Europe.
Where does this concept of “medium term” come from?
This notion comes very clearly from the Oregon “model” which was favored by the Sicard report, named after the professor of medicine who was president of the National Consultative Ethics Committee. In this context, in 2012 there was a visit to the State of Oregon. The doctors, then quite hostile to assisted dying, found that it was the least bad solution. That the Oregon “model” was the least embarrassing because it was the one that set the most conditions and allowed doctors to stay far enough away by only prescribing the lethal product. It comes from there, and I don’t know if the President of the Republic is aware of it.
In certain cases, French law already mentioned a “vital prognosis undertaken in the short term”.
A temporal notion was in fact introduced into the Claeys-Léonetti law of 2016. The law says that after rejection, it is possible for a patient to request – not necessarily to obtain it – deep and continuous sedation until the death if his vital prognosis is compromised in the short term. This was interpreted by the High Health Authority as meaning that the vital prognosis, therefore natural death, must be announced in a few hours or in a few days. It’s really very short term. The medium term would be a few days to a few weeks. Others say it could be possibly six months, others possibly twelve months before death. The only thing we really know is that doctors will oppose active assistance in dying. Claire Fourcade, the president of the French Society for Support and Palliative Care, said that we will never be able to certify that the life expectancy of a patient is not more than X months. There are always cases that escape these predictions.
So you are opposed to this mention in the law?
A parliamentary debate should open. The President of the Republic said that this debate could enrich the law. It could, indeed, by removing, for example, the condition of vital prognosis engaged in the medium term. I think we need a fairly precise law. If this condition were to persist, it would be necessary to specify what is meant by medium term, for example twelve months.
I am counting a lot on the parliamentary debates, with great confidence in the fact that there will be a very large majority in the National Assembly. There will also undoubtedly be an equally broad procedure in the Senate, and therefore a fairly long process. But I am confident that a law on the subject can be adopted, if the parliamentary debate does indeed begin.
Would introducing this temporal concept into the bill make it inapplicable?
Including a fixed period of twelve months could be useful to terminally ill cancer patients, or to terminally ill Charcot patients. On the other hand, this will leave behind many patients suffering from degenerative diseases who may have all their consciousness and discernment, but whose body no longer responds. I am thinking of illnesses that can be extremely painful both physically and psychologically, such as multiple sclerosis.
The Citizens’ Convention had introduced the idea of vital prognosis committed to the medium term, but as an alternative. The Citizens’ Convention had indicated the taking into account either of refractory suffering or of a vital prognosis committed in the medium term. There, it becomes what the lawyer calls cumulative conditions: refractory suffering and a vital prognosis committed in the medium term. It is also very behind what the Citizens’ Convention proposed.
What do you think about the exclusion of Alzheimer’s patients from medical assistance in dying?
I have closely studied all the legislation adopted around the world on assisted dying. So I wasn’t surprised. To name countries where French people can go to die, you have to go very early to Belgium and Switzerland if you have Alzheimer’s disease, well before the disease has advanced and made you lose your discernment. In Belgium, I believe that only 1% of cases of euthanasia concern patients who have just suffered from Alzheimer’s disease. This idea of an advance directive consisting of saying: “If one day I do not recognize my children, I ask to be helped to die”, I have not yet seen it applied anywhere.
I have just read a book by Véronique Fournier entitled Seven old ladies and death. It seems to me to provide an explanation. It presents the case of a lady at a very advanced stage of Alzheimer’s disease, who does not even recognize her husband. But when we see her, she looks relaxed, and seems to enjoy the chocolate cream that we give her from time to time. It seems difficult to me, because she no longer recognizes her children or her husband, to make her die when she does not ask for it. This lady who is no longer what she used to be, but who still appreciates chocolate cream. So I’m a little bothered by this idea of making someone die against their will.
The bill introduces the possibility that this assistance in dying be administered by a loved one. Is it new in Europe?
This is a notable change compared to other legislation. We feel the notable influence of the United States, because in European countries and Canada, it is always a caregiver – doctor or nurse – who comes to make this last gesture. This notably involves inserting a catheter. If that’s it, indeed: a loved one can turn the dial in place of the patient, but a caregiver must first have inserted the catheter. I imagine that this idea of a loved one actually comes from what we have observed in certain American states: that patients who are sometimes totally exhausted are unable to drink the whole glass. The whole family gets involved to ensure that the patient can still absorb this liquid. In European legislation, I don’t know of any cases like that.
The State and public authorities are absent from the decision – only doctors, patients and relatives are concerned. Does this surprise you?
Aid in dying should not be confused with the death penalty. It is surely not up to a public authority to say “this person must die” and “this person does not”. This question is a matter for discussion between the doctor and the patient, as well as a second doctor specializing in the pathology to get a second opinion. It is a collegial procedure, which will therefore already include third parties: psychologists, caregivers, etc. The procedure will already be cumbersome. It is said that if a first collegial procedure results in a negative response, there may be a second different collegial procedure, and then recourse to justice. Here we find the Vincent Lambert affair, and I say to myself: no, definitely not! The procedure must not last months or years for the patient to finally obtain the right to die. In my opinion, this is not the role of a judge.
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