Intensive Care Med (2006) 32:955957 DOI 10.

1007/s00134-006-0184-8

EDITORIAL

Jean-Michel Boles

End of life in the intensive care unit: from practice to law. What do the lawmakers tell the caregivers? A new series in Intensive Care Medicine

Received: 31 March 2006 Accepted: 31 March 2006 Published online: 23 May 2006 Springer-Verlag 2006 J.-M. Boles Hpital de la Cavale Blanche Centre Hospitalier Universitaire, Service de Ranimation mdicale et Urgences mdicales, Boulevard Tanguy Prigent, 29609 Brest cedex, France J.-M. Boles (u) Facult de Mdecine et des Sciences de la Sant, Universit de Bretagne Occidentale, Department of Human and Social Sciences, Research Group (ERCS) Ethique, professionnalisme et sant, Avenue Camille Desmoulins, 29238 Brest cedex 03, France e-mail: jean-michel.boles@chu-brest.fr Tel.: +33-2-98347181 Fax: +33-2-98347965

Decisions to forgo life-sustaining treatment (DFLST) and end-of-life (EOL) care in intensive care units (ICUs) have been a major subject of interest among intensivists in the past 15 years. Many studies have reported decision procedures and EOL practices in ICUs in many countries, e.g. the USA [1], France [2], Spain [3], Israel [4], Great Britain [5] and more recently Turkey [6] and Lebanon [7]. These studies have shown that 40% to more than 50% of all deaths occurring in ICUs follow DFLSTs [1, 2, 5]. The Ethicus study performed in European ICUs showed signicant differences in approaches to EOL decisions among countries and underlined the role of cultural characteristics in doctors attitudes [8]. To sum up, Europes paternalistic tradition, particularly in southern countries, is opposed to the American autonomistic attitude [9]. Middle East countries have their own specicities, largely inuenced by religion, which result in different attitudes, even though many of their physicians were trained in Europe or in the United States [10, 11]. North American professional societies [12] and many European national professional

societies [13, 14, 15, 16] have adopted and published recommendations about EOL care. These were presented at the 5th International Consensus Conference in Intensive Care Medicine [17, 18], organized by ve intensive care societies, which was held in Brussels in April 2003. The consensus statement, written by an international jury and published in Intensive Care Medicine in 2004, delineated general rules for procedures to make DFLSTs and provide EOL patients with the best possible care [19]. Finally, two recent books focused specically on this subject [20, 21]. The ethics of death in the ICU has undergone major changes in the past 20 years, driven by powerful principles: moving towards autonomous decisions, autonomy by surrogate, truth telling, clarifying confusing distinctions, overruling autonomy, withstanding medical resistance [22]. Societys changing perception of death, changes in law and jurisprudence, and limits in allocation of resources have also driven this evolution [22]. The questions raised reect the complexity of human situations created by illness or trauma and by the advances in medical knowledge and technology. Many factors have to be taken into account: the increasing desire of individuals for autonomy, the inuence of race, ethnicity, religion and socioeconomic status on patients attitudes toward EOL care [23], societys values and traditions, the particularities of each countrys legal and judicial system, and what has been designated as legal liabilities anxieties of ICU doctors [24]. Though doctors frequently express fear about legal liabilities, the rate of litigation after death resulting from DFLST has been estimated at 0.30.5% in the USA [24], and the last two annual reports of the main French medical insurance company contained no case of litigation resulting from such a complaint. EOL decisions and care have generated aggressive public debate, extensive media coverage, highly publicized judicial rulings and forceful government involvement leading to new legislation in many countries. This trend started with the Karen Quinlan case in the USA

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in 1976 and was followed by other painful instances such as the Nancy Cruzan case in 1990, leading to much new jurisprudence [22, 25] and to new US federal legislation as well as state legislation. In all these circumstances impressive media coverage fuelled public debate. For example, when the Terry Schiavo affair came to a climax in early 2005, the American international magazine Time made the case its cover story under the title The end of life. Who decides? [26]. One must remember that each country has its own judicial system. For example, under the American judicial system, a plaintiff may resort to court in the case of severe disagreement with a decision proposed by the medical team in order to initiate a judicial ruling; the court is then requested to supply a decision with equitable relief [24, 25]. Several cases have come to court in England and Australia, which have comparable systems, the court decision differing according to the circumstances of each case [27]. Under the French judicial system, however, courts always rule about facts that have happened, as a plaintiff may initiate a lawsuit only after an event has actually occurred. Finally, the European Court of Human Rights, Europes highest court of justice, has passed important trend judgments in this matter, such as Pretty vs. the United Kingdom in 2002, in which the court concluded that no right to die could be equivalent to that of life, nor could a right to die be derived from the European

Convention of Human Rights [28]. Legislation from each country is interesting to analyze, as laws represent a societys answer to a problem at a particular moment and have a major impact on making medical practices evolve to better answer peoples expectations. For instance, Belgium and the Netherlands have a law authorizing euthanasia [29], whereas France passed a law on EOL in 2005, after a major public scandal, deliberately excluding euthanasia or medically assisted suicide from its scope [30]. Intensive Care Medicine has decided to publish a new section headed End of life: from practice to law. The rst three articles will deal with the Israeli, Indian and Dutch legislations. The goal of this section is to inform readers of the way each country has coped with this difcult question, to compare the diversity of solutions brought to a wide array of questions: How do national cultural particularities translate into law? To what extent is patient autonomy accepted and promoted? Are advanced directives legally accepted? Can anyone designate a surrogate and what is his real power? Does the law protect the patients rights and authorize doctors to make DFLSTs? Are DFLSTs clearly distinguished from euthanasia? Is the latter allowed or tolerated? We sincerely hope this new section will stimulate the debate about EOL in the ICU among intensivists from countries all over the world.

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