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Case:
CE, Ass., 26 octobre 2001, no198546 Case Mme X
Date:
26 October 2001
Translated by:
Tony Weir
Copyright:
Professor B. S. Markesinis

Conseil d’Etat

In view of the summary request and amplifying memorandum lodged on 10 August and 10 December 1998 on behalf of Mme Catherine X…, in which Mme X, both in her own right and as representing her minor children Audrey and Dayn, requests the Conseil d’Etat to annul the decision of 9 June 1998 of the administrative court of appeal of Paris which rejected her request for the annulment of the decision of 5 April 1995 of the administrative tribunal of Paris which dismissed her claim that the Assistance Publique-Hôpitaux of Paris be held liable to pay her the sum of 100,000 francs as compensation for the harm caused by the decision to give her husband, M. Sunil X., several blood transfusions despite his refusal of such treatment…..

Given that is emerges from the virtually uncontested findings of fact underlying the decision under attack that on 2 January 1991 M. Sunil X. , then aged 44, was admitted to the surgical centre of Western Paris at La Garenne-Colombes with acute renal deficiency, and was transferred, when his condition worsened, to Tenon Hospital in Paris; that on 12 January 1991 while at Garenne-Colombes he wrote a letter, later transmitted with his medical dossier to the doctors at Tenon Hospital, stating that as a Jehovah’s Witness he refused blood transfusion even if this were the sole way to save his life; that on 23 January 1991 he repeated this refusal to a doctor at the Tenon Hospital in the presence of his wife and a nurse, and maintained this position even when informed that his refusal put his life at risk; that nevertheless when he became seriously anaemic between 28 January and his death on 6 February 1991 several blood transfusions were applied.

Considering that in upholding the administrative tribunal’s decision to dismiss the claim of Mme X. for damages against the Assistance-Publique Hôpitaux of Paris for the harm suffered by her husband by reason of their overriding his expressed will, the administrative appeal court of Paris based itself on the view that “…the doctor’s obligation to respect the wishes of a patient who is able to express them ceases when it conflicts with the obligation of the doctor, in line with the very purpose of his profession, to protect the health and ultimately the life of the individual; that therefore it cannot be said to be a fault if in an emergency situation when life is at stake and no other alleviation is possible a doctor takes steps which are essential for the life of the patient and proportional to his condition, even if he is aware that the patient had previously expressed a refusal, for whatever reason”; that in stating it as a general rule that the doctor’s obligation to save life takes precedence over his obligation to respect the wishes of the patient the court of appeal made an error of law such that its judgment must be annulled;…

Considering that given the extremely serious condition in which M. X. was placed the doctors treating him decided, with the sole aim of saving his life, to apply treatment which was essential for his survival and proportionate to his condition; that in these circumstances, whatever their obligation to respect his wishes based on his religious convictions, they did not commit a fault such as to impose liability on the Assistance Publique-Hôpitaux of Paris;

Considering that it emerges from the judgment and especially from the report of the expert ordered by the president of the administrative court of appeal of Paris that the anaemia from which M. X. was suffering was so serious that blood transfusion was the only treatment capable of saving his life; and that thus the hospital was not guilty of any fault in not adopting any alternative treatment;

Considering that since M. X. was well able to express his wishes, Mme X. cannot complain that his doctors committed any actionable fault in not consulting her personally;

Considering that the application to M. X. of the blood transfusions cannot be considered to be inhuman or degrading treatment, nor a deprivation of liberty in the sense of articles 3 and 5 of the European Convention for the Protection of Human Rights and Fundamental Liberties;

Considering that it follows from the above that Mme X. cannot complain of the dismissal by the administrative tribunal of Paris of her claim that the Assistance Publique-Hôpitaux de Paris be held liable;

DECIDES

Article 1: The decision of the administrative appeal court of Paris dated 9 June 1998 is annulled.

Article 2: The complaint of Mme X. against the decision of the administrative tribunal of Paris is dismissed, as well as her other arguments before the Conseil d’Etat.

 

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