THE LAW CREATING NEW RIGHTS FOR PATIENTS AND PEOPLE AT THE END OF LIFE RECOGNISED AS COMPLYING WITH THE CONSTITUTION

Abstract

On 6 March 2017 the Council of State referred to the
Constitutional Council on a priority issue of constitutionality raised by the national union of families of those
with head trauma and brain injuries. The association
questioned one of the law’s principles, viz the doctor’s
decision to cease treatment following an exclusively
consultative collegial procedure, whereas it seemed to
them that the decision should be collegial. The association also reproached the provisions in question with
being ignorant of the right to an effective jurisdictional
recourse, owing to the lack of a suspensive nature of the
recourse possibly formed against the decision to limit or
cease treatment of a patient unable to express his/her
wishes.
By the decision of 2 June, the Constitutional Council
rejected the application for unconstitutionality and
declared that the contested texts complied with the
Constitution. However, the Constitutional Council
expressed two reservations. The first concerns the medical
profession, the right to an effective jurisdictional recourse
imposes “that this decision should be notified to the persons of whom the doctor enquired about the patient’s
wishes, in conditions which allow them to exercise a
recourse in good time”. The second reservation is for the
judge, more precisely the administrative judge for urgent
proceedings, as the recourse against the medical decision
must “be examined as soon as possible by the competent
jurisdiction in order to obtain a possible suspension of
the contested decision”.
For all that, this decision cannot provide a response to
certain questions raised by the application of the law
which are mentioned in this article.