FRANCE 
DIGNITAS is taking legal action

Despite the clear will of the people and a favourable majority in parliament, a law on voluntary assisted dying in France is not to be expected in the foreseeable future. DIGNITAS has therefore decided to take legal action to demand the right to a self-determined end of life for people in France.

For a long time, various organisations in France have been campaigning for the possibility to end one's own suffering and life safely, self-determinedly and at a time of one's own choosing, with professional help. However, their efforts have so far not brought any significant progress, especially in the political arena. Last spring, two bills to regulate self-determination over one's own end of life were undermined by undemocratic tactical manoeuvres (see article in the DIGNITAS newsletter of June 2021).

Why DIGNITAS is taking legal action

The current end-of-life legislation in France, the "Loi Claeys-Léonetti" [1], is an inadequate surrogate for the freedom that the majority of French citizens have wanted for many years [2]. Although it does not grant real self-determination over the manner and time of one’s own end in life, the Minister of Health and other conservative circles keep referring to it. They argue that it would be wrong to legalise assisted dying as long as the current regulations concerning palliative care, living wills and termination of treatment are not implemented nationwide. This argument is also often used in other countries. While the goal of nationwide access to palliative care is legitimate, seriously suffering individuals always have the right to decide on the basis of the options that are actually available. The right to decide on the manner and time of one's own end of life is a human right. It must not be made dependent on the availability of specific other options.

DIGNITAS has therefore decided to obtain freedom of choice over one's own end of life through the courts, as it has already done in other countries. The association is of the opinion that although this right is implicit in the French constitution, unlawful ordinances continue to prevent its exercise in France. Moreover, the European Court of Human Rights (ECtHR) in Strasbourg already stated in 2011 in a case brought by DIGNITAS: "In the light of this case law, the Court considers that the right of an individual to decide in what manner and at what time his life is to end, provided that he is able freely to form his views on the matter and to act accordingly, constitutes one of the aspects of the right to respect for private life within the meaning of Article 8 of the Convention."[3]

What the complaint is about

The complaint, filed with the French Conseil d'État by the well-known French lawyer Patrice Spinosi on behalf of DIGNITAS, essentially concerns the fact that the medication sodium pentobarbital [4] is on the list of narcotics inaccessible for prescription in France, with no exception made for use to end one's own life. At the same time as the complaint, a so-called "QPC" (question prioritaire de constitutionnalité; request for constitutional review of a legal provision) was submitted to the Conseil d'État. The question to be examined is whether it is constitutional to make no legal exception for the prescription of sodium pentobarbital for the purpose of a self-determined end of life.

The complaint was preceded by a so-called "demande d'abrogation" to the Prime Minister and the Ministry of Health. After they let the two-month period provided for by the law elapse without replying to the request, the way was cleared for the complaint to the Conseil d'État.

The reasoning of the complaint is mainly based on the French Constitution, the European Convention on Human Rights (ECHR), the case law of the ECtHR and other courts, as well as Switzerland's positive experience of 35 years of freedom of choice and professional support for a self-determined end of life.

More information on the court case can be found in the DIGNITAS media release of 22 September 2021.

Current situation in France

End-of-life issues are always politically controversial in France, and conservative forces in medicine and bioethics still have great influence. Some progress has been made in recent years in the area of living wills, withdrawal of life-sustaining measures and palliative treatment [5]. However, palliative sedation is only permitted for individuals who are at the immediate end of life. This means that many seriously ill people are still excluded from the right to end their lives legally and safely in France at a time of their own choosing. They are forced either to take the often arduous route to an assisted suicide in Switzerland, to obtain a lethal medication illegally, or to attempt suicide using risky methods and means; the majority of such suicide attempts fail, with serious consequences.

Although, according to surveys, over 90 per cent of the population [6] and over 70 per cent of doctors [7] in France are in favour of assisted dying in principle, the end of life, especially suicide, is still subject to many taboos. Anyone who wants to end his or her life seems to be suspected of being either incapable of judgement or mentally ill. Suicide is not forbidden, but even giving access to information about suicide methods is punishable; a person who is informed of another person's suicidal intentions but does not "save" that person can be punished for failure to provide assistance, and persons who want to end their lives can be placed in psychiatric detention under the pretext of protecting life.

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[1] LOI n° 2016-87 du 2 février 2016 créant de nouveaux droits en faveur des malades et des personnes en fin de vie;
https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000031970253?r=hMFAQjT2cS

[2]http://www.dignitas.ch/index.php?option=com_content&view=article&id=70&Itemid=138&lang=fr (in French)

[3] ECtHR judgment of 20 January 2011 in the case Haas v. Switzerland
http://hudoc.echr.coe.int/eng?i=001-102940

[4] Sodium pentobarbital is considered the most reliable and safest means of ending one's own life. In Switzerland, it has been used for many years in assisted suicide.

[5] LOI n° 2016-87 du 2 février 2016 créant de nouveaux droits en faveur des malades et des personnes en fin de vie;
https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000031970253?r=hMFAQjT2cS

[6] http://www.dignitas.ch/index.php?option=com_content&view=article&id=70&Itemid=138&lang=fr (in French)

[7] http://www.dignitas.ch/index.php?option=com_content&view=article&id=70&Itemid=138&lang=fr (in French)

Newsletter 2021-3-1-e