Therapeutical freedom and best interest of a child before a French court
French medical deontology determines that a physician benefits of the therapeutical freedom when treating a patient. The “therapeutical freedom” entails the right to choose the cure that might be the best – in the doctor’s opinion – for his patient. It corresponds to the right of the patient of choosing his doctor (S. WELSCH, Responsabilité du médecin, Paris, Litec, p. 89). There are nevertheless limits to the therapeutical freedom: the physician should always be very careful in the case of danger for the patient, or when some new treatments are insufficiently experimented.
A case which made the front page of newspapers, has precisely illustrated this “therapeutical freedom” in an unexpected manner. A six-year old child suffering of a cancer of the face had an extension of the cancer to the jaw. The parents wished that their child be operated in order to enable him to have a better quality of life. A specialist of facial surgery first favourable to the operation then declined, on the concordant opinion of his colleagues who recommended complementary exams before operating. The parents then brought the case before a judge responsible for urgent decisions (Tribunal des référés, a one-judge first-tier court, responsible for judging cases where emergency is proved). The case was judged yesterday, 29 November 2005, and the judges’ decision was to declare itself incompetent in the case:
“The legitimate desire of the demanders [the parents] to put all in action to favour the healing of their child cannot allow them to ask the State to interfere in physician-patients relationships and in the independent exercise of the medical art by requesting the realisation of a surgical operation”. The judge posed another barrier to the intervention of the judicial in the medical field by saying that appreciating the appropriateness of an operation does not “pertain to the judicial debate, but only to the competence of the health care professionals who must, in conscience and in the interest of the child, decide of the most appropriate treatment for his state”.
In the aftermath of the decision, the centre Antoine-Lacassagne where the child was being hospitalized announced that he would be however operated, a decision which the French media saluted as being the result of dialogue.
The judicial decision, however, was in line with traditional legal opinion, though it is the first of this type in France. It is a mark of an evolution of the medical relationship in France towards a confrontational style, in the example of what takes place in the U.S. It is no wonder that the judge of référés thought it was necessary of establishing boundaries as to the action of the judicial body in medical matters.
On the ethical plane, it seems that the deontological problem was allegedly complicated by the fact that some French newspapers alleged that the medical community was set against a case being treated outside of the traditional scheme of treatment.
A case which made the front page of newspapers, has precisely illustrated this “therapeutical freedom” in an unexpected manner. A six-year old child suffering of a cancer of the face had an extension of the cancer to the jaw. The parents wished that their child be operated in order to enable him to have a better quality of life. A specialist of facial surgery first favourable to the operation then declined, on the concordant opinion of his colleagues who recommended complementary exams before operating. The parents then brought the case before a judge responsible for urgent decisions (Tribunal des référés, a one-judge first-tier court, responsible for judging cases where emergency is proved). The case was judged yesterday, 29 November 2005, and the judges’ decision was to declare itself incompetent in the case:
“The legitimate desire of the demanders [the parents] to put all in action to favour the healing of their child cannot allow them to ask the State to interfere in physician-patients relationships and in the independent exercise of the medical art by requesting the realisation of a surgical operation”. The judge posed another barrier to the intervention of the judicial in the medical field by saying that appreciating the appropriateness of an operation does not “pertain to the judicial debate, but only to the competence of the health care professionals who must, in conscience and in the interest of the child, decide of the most appropriate treatment for his state”.
In the aftermath of the decision, the centre Antoine-Lacassagne where the child was being hospitalized announced that he would be however operated, a decision which the French media saluted as being the result of dialogue.
The judicial decision, however, was in line with traditional legal opinion, though it is the first of this type in France. It is a mark of an evolution of the medical relationship in France towards a confrontational style, in the example of what takes place in the U.S. It is no wonder that the judge of référés thought it was necessary of establishing boundaries as to the action of the judicial body in medical matters.
On the ethical plane, it seems that the deontological problem was allegedly complicated by the fact that some French newspapers alleged that the medical community was set against a case being treated outside of the traditional scheme of treatment.
posted by dawnofeurope | 6:54 pm
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