2009: Healthcare and decision-making in dementia
Consent to medical treatment
Treatment carried out without the consent of the person concerned could technically constitute the offence of assault and battery, although such a case has never arisen. In any case, this would not apply in the case of emergency treatment by doctors or in situations which involve a serious risk to the patient. In such cases the doctor can and indeed must intervene with or without the implicit or explicit consent of the patient.
According to article 8 of the Code of Medical Ethics, doctors are obliged as far as possible to respect the patient's wishes. If a patient is unable to express his or her wishes, his/her relatives must be contacted and informed, except in cases of emergency or if this is impossible. The doctor must make every attempt to explain clearly the effects and consequences of each proposed examination or treatment, except in case of emergency. He/she must obtain the patient's consent, particularly for acts which entail a serious risk (article 9).
It is the doctor's duty when treating a minor or an incapable adult to try to notify the parents or legal representative and to obtain their consent (article 52).
Consent in case of emergency
In case of emergency, if the parents or legal representative cannot be contacted, the doctor can give the necessary treatment. However, if the incapable person is able to express an opinion on the matter, the doctor must take it into account as far as possible.
Consent in the Law on Hospital Establishments
A patient who has been admitted to hospital or a specialised hospital establishment is entitled to receive adequate information on his/her state of health and on any treatment proposed in order to be able to give informed consent. He/she has the right to refuse or accept any diagnostic or therapeutic intervention/treatment. Although, this law provides for the case whereby a complaint can be made on behalf of a patient who is legally or mentally incapacitated, there are no similar provisions regarding consent or refusal of treatment in the case of such a patient.
Consent to the donation of organs and/or human tissue
The Law of 25th November 1982 concerning the Removal of Substances of Human Origin addresses the issue of tissue and organ donation from incapacitated people.
According to article 2 of this law, the removal of substances from a living person for the purposes of a graft or transplant to another human being for therapeutic purposes is only possible if the donor is over the legal age of majority, in full possession of his/her mental faculties and has given his/her consent freely and in writing. Whereas special provisions exist in the case of minor, there are no special provisions in the case of incapable adults.
In the case of the removal of substances for therapeutic or scientific purposes from a deceased person, this cannot be done if whilst living the person gave written notice of his/her refusal of such removal. In the case of incapacitated adults and minors, removal is possible provided that the legal representative gives his/her authorisation and that the deceased person did not refuse such removal at a time when he/she was capable.
Experimental treatment and clinical testing on incapacitated interned adults
According to article 31 of the Law of 26th May 1998 on the placement of people suffering from mental disorders in closed psychiatric establishments or departments, the situation is as follows concerning the administration of certain forms of treatment on people who have been interned due to a mental disorder and who are not in a position to consent:
"No treatment which is not yet generally recognised by medical science, or which presents a serious risk of entailing irreversible damage to the brain or of impairment to the personality, shall be administered unless the doctor considers it to be essential and unless the patient, after being fully informed, expressly consents to such treatment.
Where the patient is incapable of comprehending the significance of the treatment, the doctor shall submit the matter to a committee of three experts, two of whom shall be doctors, appointed by the Minister for Health. The treatment may be administered only if the committee – which shall consider the opinion of the patient's legal representative, if there is one – issues a favourable opinion.
It shall be prohibited to perform on patients any clinical testing of medical products or techniques whose objectives are not those of psychiatric therapy. Where such tests do have objectives of psychiatric therapy, prior authorisation shall be obtained from the Minister for Health, who shall take advice from the Medical Board."
Advance directives/living wills
The legal status of advance directives
The Law of 16 March 2009 relating to palliative care, advance directives and accompaniment at the end of life contains a section on advance directives which also includes the possibility of appointing in advance a “trusted person” whom doctors should consult about end-of-life issues when the patient is no longer able to express his or her will.
Conditions surrounding the writing, validity and registering of an advance directive
The advance directive and any amendments must be dated and signed by the patient. The advance directive should be available to any doctor responsible for the care of the patient in the terminally ill stage. Alternatively, the patient is free to give the advance directive to medical staff on the occasion of a hospitalization or at any moment to his/her regular doctor. In all cases, the document should be included n the patient’s medical or care file.
What an advance directive can cover
A person can express in the advance directive his/her wishes concerning end-of-life treatment and care. This might include the conditions, limits and withdrawal of treatment, including the treatment of pain, as well as psychological and spiritual accompaniment that s/he would like to receive should he/she be in an advanced or end stage of a serious and incurable condition and unable to express his/her wishes.
A trusted person (“personne de confiance”) can be designated in the advance directive. The doctor must consult this person if the terminally ill person is no longer able to express him/herself.
An advance directive is not the same thing as an advance written request for euthanasia. Please see the section on euthanasia for details about the latter.
Obligation to comply with instructions contained in an advance directive
Article 4 of this law states that doctors must try to establish what the patient’s presumed will which involves checking whether he/she wrote an advance directive. The doctor must take into consideration the advance directive in a patient’s medical file or which has come to his attention. He/she must evaluate whether the provisions contained in the document correspond to the situation envisaged by the terminally ill patient and take into consideration developments in medical science since it was written. If the doctor decides not to fulfil the patient’s previously expressed wishes as contained in the document, he/she must record the reasons for this in the patient’s medical file and inform the trusted person, or if there is none, the patient’s family.
Amending, renewing and cancelling advance directives
The advance directive can be revoked at any time.
Access to information/diagnosis
The right to be informed
The contractual nature of the doctor-patient relationship requires the doctor to provide the patient with full information on proposed treatment or examinations. Article 36 of the Code of Medical Ethics permits the doctor to inform the legal representative of an incapable or unconscious person of his/her diagnosis and of relevant medical information.
Access to medical files
Article 40 of the Code of Medical Ethics states that the doctor must provide the patient with objective elements of the medical file such as X-rays and the results of tests if s/he feels that this would be useful or if the patient requests such information.
Hospitalised patients are entitled to consult their medical file in accordance with the Law of 28th August 1998 on Hospital Establishments. The patient may exercise this right either personally or through the intermediary of a doctor designated by him/her who does not necessarily have to be attached to the hospital. The patient also has the right to request copies of information contained in the file. In case of death, access to the patient's medical file may be granted to his/her spouse (unless separated), his/her children or any other person who was living with the patient at the time of death.
In accordance with the Law of 31 March 1979 on the Use of Nominative Data in Computer Processing, patients may also have access to computerised information kept on them, although this must be communicated by a doctor designated by the patient for this purpose. Article 22 of this law states that the patient can request the correction, completion, clarification, updating or destruction of personal data if it is inaccurate, incomplete, ambiguous or out-of-date. The patient cannot, however, forbid the recording of such data in this way.
The doctor’s right to withhold information
Article 51 of this code grants the doctor the right to withhold a serious diagnosis or prognosis from the patient if he/she sincerely believes that there are legitimate reasons for doing so. It is also stated that a fatal prognosis should only be revealed to the patient with the utmost caution. In such cases, the family should generally be informed, unless the patient previously forbade this or designated another person.
Confidentiality/disclosure of information to other people
The issue of personal privacy is covered by the Law of 11th August 1982 on the Protection of Private Life. This does not directly address the issue of professional secrecy in the health domain, but this is addressed in article 458 of the Penal Code:
"Any doctor, surgeon, health official, pharmacist, midwife, or any other person, who by nature or by profession, is in possession of confidential information entrusted to him/her, and who discloses such information other than in circumstances where he/she is called as a court witness or where the law obliges him/her to disclose such information, shall be punished by imprisonment of between eight days and six months and a fine of between EUR 500 and EUR 5000."
The fact that the revelation takes place in the interests of science does not make it any less of an offence, as the interests of the individual take precedence over those of science. Health professionals are answerable to their patients for any damage caused by a breach of professional confidentiality. A doctor who uses material obtained from his/her medical observation of patients for the purpose of scientific communications and publications must ensure that identification of the patient is not possible. Collecting and registering nominal and medical information on computer must be carried out in accordance with the Law of 31 March 1979 on the Use of Nominative Data in Computer Processing.
Confidentiality and secrecy in the Code of Medical Ethics
Chapter II of the Code of Medical Ethics deals with professional secrecy. It states that professional secrecy, established in the interests of the patient, is imposed on every doctor subject to the conditions laid down by law. Professional secrecy is total and includes not only what the patient has confided in the doctor, but any information which the doctor might have obtained based on what he/she saw, heard or understood. This obligation extends beyond the patient's death (article 35).
Article 39 states that it is the doctor's duty to make sure that a patient's medical file as well as clinical files and documents containing information on the patient are protected from any form of indiscretion. A medical certificate which contains a medical secret can only be given to the patient in person, who is then free to dispose of it as he/she sees fit. In case of necessity, the doctor can give the certificate to another person, provided that the patient has consented to this. If the patient is incapable or unconscious, the certificate can be given to the patient's legal representative.
End-of-life care and issues
The Law of 16 March 2009 relating to palliative care, advance directives and accompaniment at the end of life addresses several issues linked to palliative care as well some issues which may also be relevant to euthanasia (although there is a separate law on euthanasia and assisted suicide which will be discussed in the next section). The provisions relating to advance directives have already been discussed. The law of 16 March 2009 contains 3 articles which address: 1. the definition of and right to palliative care, 2. the right to abstain from harsh and futile treatment, 3. the double effect.
Article one states that every person in the advanced or terminal stage of a serious and incurable condition, irrespective of its cause, shall have access to palliative care. Such care is available in a hospital establishment or at home. In all cases, cooperation with a hospital is assured and care is provided by a multi-disciplinary trained team. The aim of the care is described as being to cover the physical, mental and spiritual needs of the person and of his/her entourage, and should include the treatment of pain and of psychological suffering.
In article two it is stated that doctors will not be prosecuted for failure to administer treatment to terminally ill patients which they consider inappropriate due to the patient’s condition and which, according to current medical knowledge, would not bring any relief to the patient, improve his/her condition or involve any hope of cure.
Finally, article three stipulates that it is the doctor’s duty to relieve suffering and that he/she must provide the necessary treatment to a terminally ill patient even if this would entail a risk of shortening the patient’s life. However, the doctor must inform the patient of this risk and obtain his/her consent.
Palliative care is also covered in article 45 of the Code of Medical Ethics which" states:
"In the event of incurable or terminal illness, the treating hospital doctor shall palliate the physical and psychological suffering of the patient by giving him/her appropriate treatment, while avoiding "acharnement thérapeutique" and maintaining as far as possible the quality of the life which is coming to an end. The doctor shall assist the dying person until the end, and act in such a manner as to permit the patient to retain his/her dignity. A doctor shall not have the right provoke to deliberately the death of the patient."
The first two sentences of this article are reproduced in article 43 of the Law of 28 August 1998 on Hospital Establishments, which applies solely to doctors treating patients in a hospital establishment.
The Law of 28 August 1998 on Hospital Establishments grants patients suffering from an incurable and terminal illness the right to a dignified death by avoiding "acharnement thérapeutique" and maintaining as far as possible the quality of life. It is stipulated that the doctor must assist the dying person right to the end and act in such a manner as to permit the patient to maintain his/her dignity. It is the doctor's duty to provide palliative care in order to help alleviate physical and psychological suffering. In addition, he/she must also provide the relatives of the patient with adequate assistance to relieve their suffering. Finally, as the patient approaches death, he/she has the right to be permanently accompanied by at least one person of his/her choice in conditions which permit his/her dignity to be respected.
Special leave to care for a terminally ill person
Chapter III of the Law of 16 March 2009 relating to palliative care, advance directives and accompaniment at the end of life covers the right to special leave to accompany a person at the end of his/her life. The special leave consists of five days per case per year but can be divided up into smaller units with the agreement of the employer. To benefit from this leave, the employee must provide a medical certificate in which it is stated that the person is in the terminal phase of a serious illness and that his/her permanent presence is needed. During the special leave, the same conditions are applied to the employee as if he or she were personally unable to work due to illness or accident. The period of special leave ends at the latest with the death of the terminally ill person.
The Law of 19 March 2009 on euthanasia and assisted suicide lays down the conditions which regulate the lawful practice of euthanasia and assisted suicide by doctors and requests by patients for it.
Doctors who respond to a request for euthanasia or assisted suicide will not be prosecuted provided that the following four conditions are fulfilled and the correct procedure followed:
- the patient must be an adult with capacity who is conscious at the time of making the request.
- the request is voluntary, considered, repeated and not the result of external pressure.
- the patient has a terminal medical condition and is experiencing constant and unbearable physical or psychological suffering with no hope of improvement, resulting from an accidental or pathological condition.
- the patient’s request for euthanasia or assisted-suicide has been made in writing.
The doctor must have informed the patient about his/her state of health and life expectancy, and have discussed the issue of euthanasia or assisted suicide with him/her as well as other possibilities such as palliative care and their consequences. He/she must ensure that the request is voluntary, consult another doctor regarding the incurable nature of the condition, consult the “trusted person” if one has been appointed, and check with the National Commission of Control and Evaluation whether the patient has registered a document outlining his/her wishes concerning end-of-life. The patient who made the request for euthanasia or assisted suicide in writing can revoke it at any time.
Any adult with capacity can make an advance written request for euthanasia to be carried out should he/she become terminally ill and unable to express his/her wishes. This statement may contain details of the circumstances and conditions in which this should occur. The doctor may carry out euthanasia on the basis of this document provided that he/she can confirm that:
- The patient has a serious and incurable condition which is accidental or pathological.
- The patient is unconscious
- This situation is irreversible according to current scientific knowledge
The advance request for euthanasia must be registered with the National Commission of Control and Evaluation. A doctor who has a terminally ill patient in this above-mentioned situation must consult this National Commission in order to find out whether the patient made such a request.
As for consciously expressed requests for euthanasia, the doctor must consult another doctor as well as the “trusted person” if one has been appointed. Doctor’s who ensure that the conditions have been fulfilled and follow the correct procedure would not be prosecuted for carrying out euthanasia. No doctor or any other person can be forced to carry out euthanasia or assist in someone’s suicide.
The provisions relating to euthanasia and assisted suicide only apply to doctors and only if certain conditions have been fulfilled and a certain procedure followed. Lay people are not covered by the provisions of this law. For them, laws on assisted suicide and murder would apply.
Assisted suicide/non-assistance to a person in danger
A person who helps someone else to commit suicide could be prosecuted for assisted suicide according to article 410-1 of the Penal Code which states that it is a punishable offence not to offer assistance to a person in danger, provided that such assistance would not result in serious danger to oneself.
Murder and poisoning
Homicide committed with the intention of bringing about death, i.e. premeditated murder is covered by article 394 of the Penal Code. If death was caused using substances, this would be classed as poisoning according to article 397 of the Penal Code.
 The Code of Medical Ethics is more than simply a set of guidelines. It is legally binding due to the fact that it is inscribed in article 4 and article 18 of the Law of 29th April 1983 concerning the exercise of the profession of doctor, dentist and veterinary surgeon. It was also promulgated by the Minister of Health through the Ministerial Decree of 21 May 1991.
 Law of 28th August 1998 on Hospital Establishments
 The fines and prison sentences are adjusted periodically via a special law. The sentence and fine quoted in this article are thus no longer applicable.
 This means the relentless pursuit of treatment even when there is no hope of recovery, cure or improvement. This is also covered in the next section on "euthanasia".
Last Updated: Wednesday 27 April 2011