FRANCE – Assisted dying: draft law discriminates against people with long-term suffering and those with a mental illness
15 May 2024
A new draft law aims to regulate “aide à mourir” (assisted dying), but up front excludes many people, including those with a mental illness. However, total exclusion from access to assisted dying raises the pressure on those excluded. The taboo surrounding suicide and the many times higher number of failed suicide attempts may further increase.
After lengthy preparations, the French parliament will be debating a comprehensive legislative proposal for end-of-life care in the coming days. On 10 April 2024, the “Projet de loi relatif à l’accompagnement des malades et de la fin de vie”, which had been announced for a long time and drawn up in 2023, was presented to the government after numerous delays.
The proposed law includes provisions on improved palliative care, patient rights (living wills) and “aide à mourir”, which includes assisted suicide and voluntary euthanasia. The proposed restriction of access to assisted dying to people with an estimated life expectancy of a maximum of 12 months is particularly objectionable. Such a requirement is problematic in several respects: firstly, no one, not even the best physician, can predict the time of death with certainty. Restricting access to assisted dying based on estimated life expectancy is also discriminatory; it excludes many seriously and incurably ill people who are not necessarily near the end of their lives but whose quality of life has deteriorated to an unbearable extent.
Exclusion of mental illnesses
In addition to people who, for example, suffer from a neurodegenerative disease or an unbearable physical disability that may persist for years, the present draft law also unduly restricts the rights of people with a mental illness. People who wish to end their suffering and life due to a serious mental illness and who do not suffer from a somatic illness that will lead to death in the foreseeable future are denied from the outset the option to do so with professional and legal assistance.
On 8 April 2024, the French daily newspaper “Le Monde” wrote: “Emmanuel Macron has reaffirmed it: The request for assistance in dying presupposes ‘full and unrestricted capacity of judgment’, which means that ‘patients with psychiatric illnesses’ are also excluded – as are those with certain neurodegenerative diseases.” According to the French President, suffering from a mental illness thus means not being capable of judgment. This statement is based on an outdated view of human nature, namely that a mentally ill person is not able to make clear and well-considered decisions and must therefore always be protected from themselves. This is arrogant and inhumane.
Differentiation necessary
It is true that a suicidal crisis or the acute phase of a mental illness can lead to a temporary loss of capacity of judgment, and an intellectual impairment can even permanently remove it. However, there are people with a psychiatric diagnosis and a long history of suffering and therapy who are perfectly capable of judgment, have a clear idea of what quality of life means to them, how much suffering they are willing to bear, and how much and what help they would like to receive, when and for how long. To assume that all people with a mental illness lack capacity of judgment is an unjustifiable generalisation.
On 3 November 2006, the Swiss Federal Supreme Court confirmed that the decision on how and when one’s own life ends is a human right, and granted mentally ill people this right, too, adding that a distinction must be made between a wish to die which is an expression of a treatable mental disorder and calls for treatment, and one which is based on a self-determined, well-considered and lasting decision by a person capable of judgment and which must be respected where applicable. It added that when a wish to die is based on an autonomous decision that takes account of the overall situation, sodium pentobarbital may also be prescribed to mentally ill persons under certain circumstances, thus allowing assisted suicide.[1]
This differentiation can also be made in France. Experienced therapists know that a quality of life acceptable for the person concerned is sometimes not achieved even after years of therapy. A competent psychiatrist knows how to differentiate between a wish to die which is a symptom of a crisis or phase, and a firm and deliberate decision. This distinction is essential and must be the guiding principle when assessing the dying wishes of persons with a mental illness. They must have the same rights as people with a somatic illness.
Tabooing suicide and suicide attempts
Another aspect which is often overlooked, and also ignored in the context of this draft law, is that having options is important for one’s own quality of life. A right to assisted dying that is truly humane and progressive is based on freedom of choice, self-determination and self-responsibility, and must provide those affected with legal, safe and accessible options regarding the time and the manner of their own end in life.
Exclusion from access to assisted dying increases the pressure on those excluded. If the law denies access to “aide à mourir” from the outset, the taboo surrounding suicide and the many times higher number of failed suicide attempts may possibly increase, with serious social consequences.
Those affected have no say
In any case, those directly affected are neglected in the drafting of a truly fair law compliant with their (human) rights. Clear responsibilities in the procedure are undeniably important. However, the present draft law only aims to appease those who would potentially be involved in an “aide à mourir” – but not those directly affected by it; they were hardly ever invited to speak up in the law’s formal preparatory work and the debates on requirements and criteria. They still have no place at the negotiating table. Instead, everyone claims to speak on their behalf: the medical associations, the nursing and palliative care associations, politicians, even bishops and the Pope.
Doctors argue about who is best qualified to assess a request for an assisted death, palliative care associations fear an absurd kind of “obligation to die”, politicians do not want to alienate their conservative electorate, clerics fear the collapse of (Christian) civilisation and charity. But the draft law stipulates that nobody is obliged to participate in an “aide à mourir” anyway. So what is the problem?
Anyone who denies a person, from the outset, the right to make decisions about their own life and death lacks the appropriate respect for human dignity. They declare themselves in charge of something that is not their responsibility and end up in a self-inflicted, irresolvable dilemma. In the case of mentally ill people, trying to eliminate this dilemma through a complete ban under the pretext of presumed incapacity of judgment has nothing to do with protecting and caring for others. It is an incapacitating and degrading position, an unjustifiable discrimination which curtails the (human) right to self-determination.
[1] Judgment BGE 133 I 58 of 3 November 2006 (in German)
