The French government filed an appeal against the decision by the Paris Court of Appeals that had ordered the resumption of food and hydration for Vincent Lambert. After the medical aspect of this decision, the legal aspect, which underlies this whole affair, must be considered.
In the name of what is right, in the juridical sense of the word, or in other words, by which law can a doctor today decide to stop giving food and water to a patient in France? It is necessary to make a detailed examination, on the one hand, to realize the multiple ambiguities contained in the texts, and, on the other hand, to measure their opposition to the natural law.
A New Situation: Resuscitation
The technical progress of resuscitation raises difficult questions. Doctors ask themselves about the sense of these treatments; about the amount of time to give them if the state of the patient does not seem to improve; whether they must accede to the demands of the family asking for the this resuscitation to be stopped. Finally, the question of the eventual death of some resuscitated patients (“brain” death) also insistently comes up. These three problems were submitted to Pope Pius XII by the resuscitators, and he responded to them in his discourse of November 24, 1957. In a later article, we will consider the responses of the angelic pastor who perfectly clarified the problem.
In the 1970s, debates surged around the limits to be placed on resuscitation, against what was already stigmatized as “extraordinary treatment”; on the patient’s participation in medical decisions, especially in end-of-life situations; on the family’s intervention; on the suffering that must be taken into account—which led to the development of palliative care; and finally, on the question of euthanasia.
A dramatic case happened in the United States that was blown out of proportion by the promotors of euthanasia. Karen Ann Quinlan fell into a coma in April 1975 at 21 years of age. She suffered irreversible lesions to the brain and was placed on a respirator. At the end of two months, the parents asked that this resuscitation be stopped—which was legal. A legal fight followed at the end of a year, which led to the carrying out of the parents' request. But against all expectations, the young woman survived another nine years with only food and water.
That was the era that began the preparation of the law that would lead to euthanasia in the Netherlands: the Supreme Court of that country rendered a series of judgements that created case law decriminalizing euthanasia. From that time, there was a relaxation of the law with regards to doctors who administer death to conscious patients—who are terminal, under great pain, and who have made the request to them. It is notable that the first proposition of the law “relative to the right to therapeutic dignity of the incurable patient” (1985) mentioned the Karen Quinlan case.
The Antecedents to the Lionetti Law in France
The first person in France to file legislation in this area was Senator Henri Caillavet, in 1978: “legislation on the right to live his death,” incongruous wording, to say the least. His preamble makes reference to the Karen Quinlan case. The senator, a high dignitary of the Grand Orient of France [Freemasonry], does not hesitate to quote Fr. Riquet, Fr. Teilhard de Chardin, or Pius XII in his presentation...
At the time the project was severely criticized by Senator Jean-Marie Girault’s report, which explained that legislation in such a field is absolutely not advisable. He writes: “Against extraordinary treatment, legislative obstinacy is not the remedy, supposing that the patient who is the object of it wants to escape it.”
He went on to say, “A law passed because of the ambiguity of certain terms, sometimes gives rise to multiple difficulties... The legislative technique here is inappropriate and it is the nature of the subject that would make it so. The intrinsic examination of the text well illustrates it: by creating definitions, categories, and legal situations, we multiply the problems more than resolving them.”
He adds finally that “this supreme social relationship: dying—doctor—family, the last for the person who is going to die, is specific. Too specific to accommodate a legalism multiplied by eventual decrees or application orders adding to the law.”
The Leonetti Law
The words of the wise senator were not heeded. On November 30, 2004, the National Assembly unanimously passed, at first reading, the “Law relating to patients’ rights and the end of life.” It is the only law of the Fifth Republic passed unanimously by votes cast. It was promulgated on April 22, 2005.
The law aims to strengthen the rights of the patient to prohibit “unreasonable obstinacy,” to grant specific rights to patients at the end-of-life: refusal of treatment, a “collegial” process for unconscious patients. It gives an obligation to the doctor to do everything to relieve pain. Finally, it gives the patient the opportunity to express his wishes in advance in the form of advance directives or to appoint a person of trust to convey his last wishes in these circumstances.
The ultimate principles invoked are respect for the dignity of the person and his or her quality of life.
But this law is very ambiguous, as emphasized by the National Consultative Ethics Committee (CCNE) in its Observations for the Attention of the Council of State of May 5, 2014. It is especially article L1110-5 of the code of public health, as amended by law, which is targeted:
“The acts of prevention, investigation or treatment must not be continued with unreasonable obstinacy. When they seem useless, disproportionate or to have no other effect than solely the artificial preservation of life, they can be withheld or withdrawn.” The Claeys-Léonetti law of February 2, 2016 adds that “artificial nutrition and hydration constitute treatments that may be stopped in accordance with the first paragraph of this article.”
A first ambiguity lies in the use of the notions of “unreasonable obstinacy” and “artificial maintenance of life.” The law applies them in extremely different situations:
- patient in a terminal phase of a serious and incurable condition—or at the end of life;
- patient in the advanced phase of such an illness, whether or not he is able to express his will in both cases.
The law more or less confuses “ordinary care” and “treatments.” By definition, the former should not be stopped—out of respect for the patient's dignity, while the latter can be suspended or not implemented.
The particular case of nutrition and hydration is characteristic: the first concern must be human medical care. To avoid this interpretation, the Claeys-Léonetti law (2016) has added a special paragraph to describe them as treatments. Thus, it leads to this absurdity: it is forbidden to stop comfort care—to help the patient with basic bodily needs—but it is permissible to suspend food and drink!
Another ambiguity is what the qualification as “useless” and “disproportionate” means for treatment. The meaning is not the same for the legislator and the doctor. For the law, a treatment is useless that does not improve the state of health, and claims to be disproportionate in relation to the risks incurred by the patient. But for a doctor, this means that the treatment does not comply with good medical practice. Which doctor worthy of the name uses treatments that he knows are useless or involve risks disproportionate to the expected benefit?
As for the “artificial maintenance of life” what does it mean? Is insulin taken by a diabetic, or kidney dialysis, that will last a lifetime, “artificial” maintenance? If a person is at the end of life, the notion of artificial maintenance can take on a certain sense: stopping a therapy recognizes the powerlessness of medicine and lets the patient die naturally. On the other hand, removing this “artificial” element is to decide on the death of a patient.
Moreover, when does an obstinacy become “unreasonable”? Reasonable medical conduct implies knowledge of medical therapy, and the practical appreciation of the circumstances for this or that patient. But how can one distinguish what is reasonable from what is not, when this decision is irreversible: the cessation of treatments that keep alive a person who is not at the end of life? How could the care that the law requires be provided to the dependent person in the name of the dignity of the person and the quality of the life, exclude nutrition? Yet that one is affirmed as a fundamental right by the Universal Declaration of Human Rights ...
Finally, one last ambiguity hides itself under the collegial decision (Article R. 4127-37 of the Code of Public Health). In reality it is not true. It is specified, that if the patient is unconscious and at the end of life, the doctor can make a treatment decision only after consulting the advanced directive, if one exists, or after receiving the advice of the patient’s designated person of trust, and, failing that, of the family, and implementing a collegial procedure. The term gives the impression that the decision will be made by many, but it is a mistake: it is the consultation that is collegial, the doctor alone makes the decision.
If legal obstinacy was able to be practiced and to continue against Vincent Lambert, it is due to the calamitous law “relating to patients’ rights and the end of life.” The very title announces that it cannot concern the 1,500 to 1,700 subjects who are in a state of wakefulness without response or in a state of minimal consciousness: they are not at the end of life.
The multiple ambiguities that it contains allows for an elastic interpretation: a doctor decides to end the days of one of his patients by refusing him food and drink, under cover of the “law” and of the highest jurisdictions of the country—and outside the country.
The intention of the Leonetti Law was to exclude back-to-back extraordinary treatment and euthanasia. It has become a weapon to promote the latter by hiding behind a show of pretense. The legislator judges the cessation of nutrition as “passive” euthanasia—in other words, letting nature take its course; but opposes “active” euthanasia—inflicting death directly by injecting a lethal substance. False opposition that will fool no one.
If the law is applied to the end, the patient will die of hunger and thirst, but they will preserve his dignity and his quality of life. He will receive sedation and an analgesia—prescribed by the law—just in case... Everything in a hushed and tidy way. Silence, it kills.