The question of the end of life is a debate that comes up regularly in France, and all the more keenly in recent months due to the establishment of a citizens' agreement on the subject. As part of a national debate, the latter will allow the 185 citizens drawn by lot to exchange "in order to outline new perspectives and consensus on the subject of the end of life". The work produced will be made public in March 2023.
The possible evolution of legislation in this sensitive area led François Arnault, President of the National Council of the Order of Physicians, to declare in September 2022 that, if the country opened up the possibility of active assistance in dying, doctors should be able to benefit from a "conscience clause".
Known among doctors and other health professionals, the conscience clause also exists in other professions – notably journalists. Its creation was even mentioned for a time by the mayors, but never came to fruition.
But what is it in concrete terms with regard to health professionals? To whom and, above all, to what actions does it already apply? And what uses could be made of it tomorrow? It is important to know what the law says, and what already exists in countries that have already legislated on this subject.
"Controversies" is a new format from The Conversation France. We have chosen to tackle complex subjects which lead to positions that are often opposed, even extreme. In order to reflect in a calmer climate and to advance the public debate, we offer analyzes that call on different research disciplines and combine approaches.
Conscience clause: what are we talking about?
To use the definition given by Jean-Marie Faroudja, president of the ethics and professional conduct section of the Order of Physicians, in its report "Conscience clause of the doctor", it is:
"For the doctor, the right to refuse to perform a medical act that is authorized by law but that he considers contrary to his own personal, professional or ethical convictions."
As a result, it may be considered by some as a barrier to access to given acts. For health professionals, on the other hand, it is seen as a tool allowing the preservation of their freedom of conscience.
- What actions are involved?
If thearticle R4127-47 of the Public Health Code could be similar to a "general" conscience clause, we specify here the so-called "specific" conscience clauses, relating to specific medical procedures.
The first specific conscience clause was put in place in 1975 by the Veil law enshrining the right to voluntary termination of pregnancy (IVG), henceforth included in Article L2212-8 of the Public Health Code.
This model was then extended to other acts, such as sterilization for contraceptive purposes as indicated in thearticle L2123-1 of the Public Health Code. Since the bioethics law of 2011, a specific conscience clause has been included in thearticle L2151-7-1 of this same Code concerning research on human embryos.
- Which professionals can invoke it?
Physicians are obviously the first concerned by the conscience clause. Nevertheless, the law extends its application in the context of the refusal to practice an abortion or to contribute to the exercise of this act: it can apply to nurses, midwives or even to the various medical auxiliaries.
Likewise, the item L2212-8 of the Public Health Code provides that a private health establishment authorized to provide public hospital service may refuse to allow voluntary terminations of pregnancy to be performed on its premises. However, this is only possible if "other establishments are able to meet local needs".
Towards a new specific conscience clause?
Although France currently does not authorize assisted suicide or euthanasia, it does have a legal framework allowing deep and continuous sedation to be carried out in very specific cases, provided for by law.
"At the request of the patient to avoid all suffering and not to undergo unreasonable obstinacy, deep and continuous sedation causing an alteration of consciousness maintained until death, combined with analgesia and withdrawal of all life-sustaining treatments, is implemented in the following cases:
– When the patient suffering from a serious and incurable disease and whose vital prognosis is committed in the short term presents a suffering refractory to the treatments,
– When the decision of a patient suffering from a serious and incurable condition to stop treatment is life-threatening in the short term and is likely to cause unbearable suffering,
– When the patient cannot express his will and, under the refusal of the unreasonable obstinacy mentioned inarticle L.1110-5-1, in the event that the doctor stops life-sustaining treatment, he applies deep and continuous sedation causing an alteration of consciousness maintained until death, associated with analgesia.Article L1110-5-2 of the Public Health Code)
The Claeys-Léonneti law of 2016 thus laid down the legal framework for the end of life that we currently know. It is important to note that the National Council of the Order of Physicians did not want the implementation of a conscience clause for this deep and continuous sedation: "Thanks to the balance found in the text, a specific conscience clause is not necessary".
If end-of-life legislation were to become more flexible, with the possibility of implementing active assistance in dying, this balance would be de facto affected. The question of a new specific conscience clause, similar to what has been put in place for abortion, sterilization for contraceptive purposes or research on human embryos, could therefore be raised for health professionals.
In any case, this is what the National Council of the Order of Physicians wants.
In its opinion 139 made public on September 13, 2022, the National Consultative Ethics Committee (CCNE) makes several recommendations, including one on the conscience clause of people likely to contribute to the practice of euthanasia or assisted suicide. This report highlights the fact that:
"Any legal development in the direction of decriminalizing assisted suicide should be accompanied by the institution of a conscience clause, accompanied by an obligation to refer the patient to a practitioner capable of carrying out the intervention. "
How have our neighbors dealt with the acts concerned?
Active assistance in dying covers two main types of act: euthanasia (legal in Belgium, the Netherlands and Luxembourg) and assisted suicide or assisted suicide (authorized in ten United States, in Switzerland, Austria or New Zealand). Depending on the country, the principle of the clause is expressed differently.
- Euthanasia is defined as follows in CCNE Opinion 121 :
"An act intended to deliberately end the life of a person suffering from a serious and incurable disease, at his request, in order to put an end to a situation which he considers unbearable."
Belgian legislation has a conscience clause on this practice. The Belgian law of May 28, 2002 provides in fact "that no doctor is required to perform euthanasia". Nevertheless, the latter is required to communicate the patient's medical file and redirect it to another practitioner.
- Assisted suicide, or assisted suicide, which consists of "giving a person the means to commit suicide themselves" (aforementioned CCNE opinion 121).
In Switzerland, the role of associations is preponderant. The latter accompany people in this process even if, since 2012, the care and medico-social establishments of certain cantons can contribute to it if a patient requests it. The prescription is made by a doctor, but the lethal gesture is the act of the person who requested suicide.
Regarding the conscience clause, Sandra Merkhi, director of care at Geneva hospitals, recalls that her establishment "decided from the start not to oblige its (our) collaborators, doctors also, to accompany this suicide until the last moment. assisted if it went against their values".
Depending on the cantons, there is therefore an equivalent of the conscience clause. However, three cantons "require hospitals or medico-social establishments to allow assisted suicide for patients suffering from serious and incurable illnesses", as noted by theaforementioned CCNE opinion 139.
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The opinion of French caregivers
In order to know the opinion of the main concerned on the side of caregivers and people who can contribute to an act of active assistance in dying, a OpinionWay survey for the French Society for Palliative Support (SFAP) was published last September. It was conducted with 1335 people working in palliative care, including 326 volunteers.
As a reminder, the law provides that "palliative care is active and continuous care practiced by an interdisciplinary team in an institution or at home. It aims to relieve pain, soothe psychological suffering, safeguard the dignity of the sick person and to support those around him. SFAP is an association bringing together a large number of French players in the palliative support movement.
The results are very marked: if 15% of the actors of care are favorable to the evolution of the legislation towards the establishment of an intentionally caused death, 85% are not or not at all. In addition, two-thirds of respondent care providers state that they could use their conscience clause or leave their current position if euthanasia were to be legalized.
These data, like the interventions of the Order of Physicians, highlight a real issue relating to the evolution of legislation on the end of life: a new law would therefore not seem to be possible without the implementation of a specific conscience clause.
Death is a taboo subject, especially when it is provoked. The next legislation on the subject, if it came to shake up the exercise of medical practice, could therefore see the birth of a new conscience clause for medical personnel so that they accept it. This could be a necessity to guarantee parallel access to active assistance in dying procedures for patients who request them.
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