# Intractable conflicts over end-of-life decisions: A descriptive and ethical analysis of French case-law

Mikhael Giabicani, Emmanuel Weiss, Frederique Claudot, Gérard Audibert, Scarlett May Ferrié, Pierre François Perrigault, Ellen M. Robinson, Mildred Z. Solomon, Marta Spranzi, Marie France Mamzer

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Mikhael Giabicani, Emmanuel Weiss, Frederique Claudot, Gérard Audibert, Scarlett May Ferrié, et al. "Intractable conflicts over end-of-life decisions: A descriptive and ethical analysis of French case-law." Anaesthesia Critical Care & Pain Medicine, 2025, 44 (1), pp.101463. 10.1016/j.accpm.2024.101463 hal-05029320

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Original Article

# Intractable conflicts over end-of-life decisions: A descriptive and ethical analysis of French case-law

<figure><img src="image_3.png" /></figure>

Mikhael Giabicani<sup>a,b,c,*</sup>, Emmanuel Weiss<sup>b,d</sup>, Frédérique Claudot<sup>e,f</sup>, Gérard Audibert<sup>g</sup>,
Scarlett-May Ferrié<sup>h,i</sup>, Pierre-François Perrigault<sup>j</sup>, Ellen M. Robinson<sup>k,l</sup>,
Mildred Z. Solomon<sup>c,m,n</sup>, Marta Spranzi<sup>i,o</sup>, Marie-France Mamzer<sup>a,p</sup>

ARTICLE INFO

Article history:

Available online 31 December 2024

Keywords:

Ethics

Conflict

Life-sustaining treatment

ICU

End-of-life

Case law

ABSTRACT

**Context:** In European and Anglo-Saxon countries, life-sustaining treatment (LST) limitation decisions precede more than 80% of ICU deaths. However, there is now increasing evidence of disagreement and conflict between clinical teams and family members over LST limitation decisions. In some cases, these conflicts are brought to the courts. The aim of this study was to provide a descriptive and qualitative analysis of cases brought to the French courts.

**Methods:** We conducted a retrospective national observational study. All identified cases of emergency recourse to the judge in the context of LST limitation decisions in France between 2005 and 2022 were included.

**Results:** Seventy-six cases were investigated by the judge, with an increasing number over the years. The LST limitation decisions contested by the relatives were mainly decisions to withdraw treatment (78%) concerning patients with neurological injury (76%). The judge successively assessed the compliance with the legal decision-making process and the characterization of the inappropriateness of treatments. The latter was assessed by the judge using medical and non-medical criteria. In all, the medical decision was upheld in 29 cases (38%) and over-ruled in 20 cases (26%). Thirteen cases (17%) were finally settled out of court, and 14 patients (18%) died before the end of the investigation. The qualitative analysis highlighted opposing moral values and principles put forward by family members and physicians.

**Conclusion:** The growing incidence and deeply intertwined elements of these conflicts call for more policy and research to resolve them before they go to court.

© 2025 The Authors. Published by Elsevier Masson SAS on behalf of Société Française d'Anesthésie et de Réanimation (SFAR). This is an open access article under the CC BY license (http://creativecommons.org/licenses/by/4.0/).

<footnote><sup>a</sup> Centre de Recherche des Cordeliers, Sorbonne Université, Université Paris Cité, Inserm, Laboratoire ETREs, Paris, France</footnote>

<footnote><sup>b</sup> Department of Anaesthesiology and Critical Care, Beaujon Hospital, DMU Parabol, AP-HP Nord, and Université Paris Cité, Paris, France</footnote>

<footnote><sup>c</sup> Harvard Medical School Center for Bioethics, Boston, MA, United States</footnote>

<footnote><sup>d</sup> Université Paris Cité, Paris, France</footnote>

<footnote><sup>e</sup> Université de Lorraine, Inserm, INSPIIRE, F-54000, Nancy, France</footnote>

<footnote><sup>f</sup> Université de Lorraine, CHRU-Nancy, Département Méthodologie, Promotion, Investigation, Nancy, France</footnote>

<footnote><sup>g</sup> Université de Lorraine, CHRU-Nancy, Department of Anesthesiology and Intensive Care Medicine, F-54000, Nancy, France</footnote>

<footnote><sup>h</sup> Law School, CY Cergy Paris Université, Cergy, France</footnote>

<footnote><sup>i</sup> Center for Clinical Ethics, AP-HP, Paris, France</footnote>

<footnote><sup>j</sup> Anaesthesia and Intensive Care Department, Centre Hospitalier Universitaire de Montpellier, Montpellier Université, Montpellier, France</footnote>

<footnote><sup>k</sup> Optimum Care Committee, Massachusetts General Hospital, Boston, MA, United States</footnote>

<footnote><sup>l</sup> Patient Care Services, Massachusetts General Hospital, Boston, MA, United States</footnote>

<footnote><sup>m</sup> Department of Global Health & Social Medicine, Harvard Medical School, Boston, MA, United States</footnote>

<footnote><sup>n</sup> The Hastings Center, Garrison, NY, United States</footnote>

<footnote><sup>o</sup> University of Versailles St-Quentin-en-Yvelines, Medical School, Versailles, France</footnote>

<footnote><sup>p</sup> Unité Fonctionnelle d'Ethique Médicale, Hôpital Necker-Enfants malades, AP-HP, Paris, France</footnote>

<footnote>Abbreviations: Ads, Advance directives; CPR, Cardiopulmonary resuscitation; EOL, End-of-life; ICU, Intensive care unit; LST, Life-sustaining treatment.</footnote>

<footnote>* Corresponding author.
E-mail address: mikhael.giabicani@aphp.fr (M. Giabicani).</footnote>
## Introduction

Limitation of life-sustaining treatment (LST) – i.e., withholding or withdrawing life-sustaining therapy – is very common worldwide [1]. In Europe, the overwhelming majority of deaths in intensive care units (ICU) are preceded by decisions to withhold or withdraw LST, and this proportion has increased in recent years: in 2016, LST limitations concerned almost 12% of patients hospitalized in the ICU, and preceded more than 80% of ICU deaths [2].

In recent decades, most European and Anglo-Saxon countries have developed their own regulations governing the decision-making process regarding medical treatment in EOL situations [3–6]. In France, LST limitation decisions must comply with the "Claeys-Leonetti law" (Law 2016-87 introducing new rights for patients and persons at the end-of-life – February 2, 2016), which amended the "Leonetti law" (Law 2005-370 regarding patients' rights and end-of-life – April 22, 2005), prohibiting healthcare teams from administering inappropriate treatments, known as "unreasonable obstinacy" in French legislation, and urging for a collegial interprofessional decision-making process when the patient is unable to express himself/herself [7,8]. The law requires that the decision must be based on the principle of respect for persons. In the context of EOL decision-making, that means promoting the patient's autonomy (or right to self-determination) [9,10], including their right to have certain treatments limited, expressed directly or indirectly through advance directives (ADs) or a trusted person [11].

Although most legislation and institutional guidelines were designed to protect patient's rights to refuse medical treatment, unexpected difficulties have emerged. There is now growing evidence of provider-family disagreement, not so much around the right to refuse LST, which is now well established, but increasingly on the family's desire to continue LST that the clinical team deems ineffective or harmful [12–16]. Scarce data in the literature suggest that this sometimes leads to genuine conflicts between relatives and medical teams [17], that these conflicts are sometimes brought to court [18–21], and that clinical teams are increasingly concerned about this issue and affected by these conflicts [22].

To consider future strategies to avoid these harmful situations, the study of conflicts brought to court could provide the additional data needed to understand the underlying issues and the reasons for these conflicts. The main objective of this study was to provide a descriptive analysis of French intractable conflicts brought to the courts. The secondary objective was to analyze the ethical arguments of each of the parties and the ways in which they were arbitrated by the judge.

## Materials and methods

### Ethics approval

This study was approved by the research ethics committee of the French Society of Anaesthesia and Intensive Care (Institutional Review Board—IRB 00010254 - 2023 - 125). All French administrative courts and Council of State rulings are public data and are anonymous. Cases are identified on the databases (Center for Legal Research and dissemination of the French Council of State and governmental website Légifrance) by a chronological alphanumeric code. First and last names are erased before the orders are published so that patients and their relatives cannot be identified.

### Definitions and French legislation

Definitions and the French legislation are presented in Additional files.

## Study design and inclusion criteria

We conducted a retrospective national observational study. All identified cases of emergency recourse to the judge in the context of LST limitation decisions in public and private non-profit hospitals between January 1, 2005 (the year the first law governing LST limitation decisions in France was passed) and December 31, 2022, were included.

## Identification and selection of cases

Cases were identified with the help of the Center for Legal Research and Dissemination of the French Council of State ("Centre de recherches et de diffusion juridiques du Conseil d'Etat") and the government website "Légifrance." Details on the identification and selection of cases are provided in Additional files.

## Data collection and analysis

For each case, we collected patient's and hospital characteristics, details of the LST limitation decision, details regarding recourse to the judge, and details of the judge's decision and its justification. Data were collected exclusively from judges' orders. No cross-referencing with hospital medical records was carried out. Results are expressed as number and percentage or median and interquartile range.

We also carried out a qualitative analysis of the content of the orders using a thematic analysis to document the parties' arguments and the arbitration process. For this analysis, all orders were coded. Based on the coding, themes, and sub-themes were identified. Finally, selected verbatims highlighting elements contained in the sub-themes were selected.

## Results

### Descriptive analysis of court cases

Ninety-three cases brought to administrative courts were identified. The period studied was from the inception of the law in 2005 to 2022. However, the first case identified was in 2013. Fig. 1 shows that the incidence of court cases has risen steadily over the years. Among them, 17 cases were ruled inadmissible by the judge: recent pre-existing judgment and absence of any new element likely to justify a new judgment (n = 6), absence of LST decision formally taken by the medical team (n = 5), absence of emergency (n = 7) (e.g. non-readmission decisions in the ICU in the

<figure><img src="image_4.png" /><figcaption>**Fig. 1.** Incidence of cases brought before the judge. Cumulative incidence of cases brought before the administrative courts (local) and the Council of State (national).</figcaption></figure>
<figure><img src="image_5.png" /><figcaption>Fig. 2. Decisions of the judge.</figcaption></figure>

event of a hypothetical worsening of the patient's condition), death of the patient before investigation (n = 2) (Fig. 2). Characteristics of the 76 cases investigated by the judge are displayed in Table 1. In 66 cases, patients were adults of median age 62 years [42–74], mostly hospitalized in ICU (86%) in academic hospitals (61%). Of the 10 pediatric patients who were hospitalized in academic hospitals, 9 (90%) of them were in ICU.

The LST limitation decisions contested by the relatives were mainly decisions to withdraw treatment (n = 59, 78%) and were made because of neurological injury in 76% of cases (n = 58). Of these, 50 (86%) patients had a disorder of consciousness with no signs of awakening. In the 8 (14%) remaining cases, there were severe motor and cognitive sequelae. Other medical justifications for the LST limitation decisions were refractory respiratory failure (12%) and multiple organ failure (12%). In only one case, the medical decision contested by the relatives was a decision to continue treatment (“no limitation”). The median hospital length of stay at the time of the LST limitation decision was 27 days [15–53] and 44 days [18–68] in the adult and pediatric populations, respectively. In the adult population, the existence of ADs was marginal (6%), and a declared trusted person was reported in 21% of cases. The time elapsed between the medical decision and the last judgment (local court and national court where applicable) was 6 days [2–20] and 14 days [6–22], respectively, for the adult and pediatric populations.

In all cases, relatives contested the LST limitation decision on the grounds that the inappropriateness of the treatment had not been established, and in 55 cases (72%), on the grounds that the legal decision-making process had not been fully respected. The reasons given by relatives for referring to the judge are detailed in Table 1. From a legal standpoint, almost all cases were justified by relatives as endangering the fundamental “right to life” (n = 75, 99%), and in some cases by the “right to health care” (n = 8, 11%), the “right to privacy” (n = 7, 9%), the “right to consent to medical treatment” (n = 6, 8%), the “right to respect for dignity” (n = 5, 7%), the “ban on euthanasia” (n = 3, 4%), or “freedom of thought, conscience or religion” (n = 2, 3%). All these fundamental rights were put forward in the name of respect for the European Convention on Human Rights and/or the French Public Health Code [23,24].

<table><caption>**Table 1**

Characteristics of court cases.</caption><thead><tr><th></th><th>Adult<br>population<br>(n = 66)</th><th>Pediatric<br>population<br>(n = 10)</th></tr></thead><tbody><tr><td><strong>Patient's and hospital characteristics</strong></td><td></td><td></td></tr><tr><td><strong>Age (y)</strong></td><td>62 [42–74]</td><td>1 [0–9]</td></tr><tr><td><strong>Type of hospital, n (%)</strong></td><td></td><td></td></tr><tr><td>• Academic hospital</td><td>40 (61)</td><td>10 (100)</td></tr><tr><td>• Non-academic hospital</td><td>22 (33)</td><td>0 (0)</td></tr><tr><td>• Private non-profit hospital</td><td>2 (3)</td><td>0 (0)</td></tr><tr><td>• Other</td><td>2 (3)</td><td>0 (0)</td></tr><tr><td><strong>Type of department, n (%)</strong></td><td></td><td></td></tr><tr><td>• ICU</td><td>57 (86)</td><td>9 (90)</td></tr><tr><td>• Conventional unit</td><td>7 (11)</td><td>1 (10)</td></tr><tr><td>• Home hospitalization</td><td>2 (3)</td><td>0 (0)</td></tr><tr><td><strong>Main reason for hospitalization, n (%)</strong></td><td></td><td></td></tr><tr><td>• Traumatic brain injury</td><td>7 (11)</td><td>0 (0)</td></tr><tr><td>• Stroke</td><td>10 (15)</td><td>1 (10)</td></tr><tr><td>• Cardiac arrest</td><td>18 (27)</td><td>5 (50)</td></tr><tr><td>• Respiratory failure</td><td></td><td></td></tr><tr><td>• Covid-19 ARDS</td><td>6 (9)</td><td>0 (0)</td></tr><tr><td>• Other</td><td>5 (8)</td><td>1 (10)</td></tr><tr><td>• Septic shock</td><td>5 (8)</td><td>0 (0)</td></tr><tr><td>• Status epilepticus</td><td>4 (6)</td><td>0 (0)</td></tr><tr><td>• Other neurological reason</td><td>4 (6)</td><td>3 (30)</td></tr><tr><td>• Other</td><td>7 (11)</td><td>0 (0)</td></tr></tbody></table>
<table><caption>**Table 1 (Continued)**</caption><thead><tr><th></th><th>Adult population (n = 66)</th><th>Pediatric population (n = 10)</th></tr></thead><tbody><tr><td><strong>LST limitation decision</strong></td><td></td><td></td></tr><tr><td>Type of decision, n (%)</td><td></td><td></td></tr><tr><td>• LST withholding</td><td>15 (23)</td><td>1 (10)</td></tr><tr><td>• LST withdrawing</td><td>50 (76)</td><td>9 (90)</td></tr><tr><td>• No limitation</td><td>1 (1)</td><td>0 (0)</td></tr><tr><td>Main justification for the decision, n (%)</td><td></td><td></td></tr><tr><td>• Neurological</td><td>49 (74)</td><td>9 (90)</td></tr><tr><td>• Severe disorder of consciousness</td><td>42 (64)</td><td>8 (80)</td></tr><tr><td>• Severe motor and/or cognitive sequelae</td><td>7 (11)</td><td>1 (10)</td></tr><tr><td>• Respiratory failure</td><td>8 (12)</td><td>1 (10)</td></tr><tr><td>• Covid-19 refractory ARDS</td><td>6 (9)</td><td>0 (0)</td></tr><tr><td>• Other refractory hypoxemia</td><td>0 (0)</td><td>1 (10)</td></tr><tr><td>• Difficult weaning from mechanical ventilation</td><td>2 (3)</td><td>0 (0)</td></tr><tr><td>• Polypathology/Multiple organ failure</td><td>9 (14)</td><td>0 (0)</td></tr><tr><td>• With underlying cancer</td><td>4 (6)</td><td>0 (0)</td></tr><tr><td>• Without underlying cancer</td><td>5 (8)</td><td>0 (0)</td></tr><tr><td>Existence of written advance directives, n (%)</td><td>4 (6)</td><td>NA</td></tr><tr><td>Existence of a declared trusted person, n (%)</td><td>14 (21)</td><td>NA</td></tr><tr><td><strong>Appeal to the judge</strong></td><td></td><td></td></tr><tr><td>Time between admission and LST decision (d)</td><td>27 [15-53]</td><td>44 [18-68]</td></tr><tr><td>Time between LST decision and appeal to the judge (d)</td><td>5 [2-12]</td><td>6 [4-22]</td></tr><tr><td>Time between LST decision and final judgment (d)</td><td>6 [2-20]</td><td>14 [6-22]</td></tr><tr><td>Reasons given by relatives for recourse to the judge, n (%)</td><td></td><td></td></tr><tr><td>• Qualification of "unreasonable obstinacy"</td><td>66 (100)</td><td>10 (100)</td></tr><tr><td>• Medical and prognostic uncertainty</td><td>58 (88)</td><td>10 (100)</td></tr><tr><td>• Acceptance of quality of life/disability</td><td>6 (9)</td><td>2 (20)</td></tr><tr><td>• Absence of suffering</td><td>2 (3)</td><td>0 (0)</td></tr><tr><td>• Non-compliance with the decision-making process</td><td>47 (71)</td><td>8 (80)</td></tr><tr><td>• Failure to inform relatives</td><td>29 (44)</td><td>2 (20)</td></tr><tr><td>• Inappropriate "consultant" physician</td><td>5 (8)</td><td>1 (10)</td></tr><tr><td>• Failure to consider the opinion of relatives</td><td>33 (50)</td><td>7 (70)</td></tr><tr><td>• No collegial procedure</td><td>15 (23)</td><td>3 (30)</td></tr><tr><td>• Failure to consider the patient's wishes</td><td>9 (14)</td><td>NA</td></tr><tr><td>• No traceability in the medical record</td><td>6 (9)</td><td>1 (10)</td></tr><tr><td>Appeal to the Council of State, n (%)</td><td>17 (26)</td><td>3 (30)</td></tr></tbody></table>

Results are expressed as number (percentage) or median [interquartile range]. ICU, Intensive Care Unit; LST, Life-sustaining therapy; Covid-19, Coronavirus disease 2019; ARDS, Acute respiratory distress syndrome; NA, Not applicable.

## Descriptive analysis of court decisions

### Characteristics of court decisions

The characteristics of the court decisions are displayed in Fig. 2. In 24 cases (32%), no judgment was handed down because

the patient had died before the end of the investigation or because an amicable settlement had been reached. Of the 52 first-instance rulings, the clinical team's decision was deemed legal in 36 cases (69%) and illegal in 16 cases (31%). In half the cases (18/36) of medical decisions ruled legal, the family appealed the decision to the national court. By comparison, the medical teams appealed the judgment in only 2 of the 16 cases where the medical decision was overturned. In all, when a judgment was handed down and after taking into account any appeals, the original medical decision was upheld in 29 cases (56%), over-ruled in 20 cases (38%), and 3 cases (6%) were finally settled out of court.

### Reasons for judgments

The reasons for the first-instance judgments are summarized in Fig. 3. The judge successively assessed two issues: compliance with the legal decision-making process and the characterization of the inappropriateness of treatments. To rule a LST limitation decision legal (n = 36, 69%), full compliance with the decision-making process and characterization of the inappropriateness of treatments were both necessary. In one case, the relatives requested that the patient's treatments be withdrawn, against the medical team's decision. In this particular case, the appropriateness of treatments supported the legality of the medical decision. Conversely, to rule an LST limitation decision illegal, only one of the following conditions was sufficient: non-compliance with the decision-making process (n = 10, 19%) and/or absence of characterization of the inappropriateness of treatments (n = 10, 19%). A single breach of procedure was sufficient to judge the non-compliance with the legal decision-making process in 10 cases.

The inappropriateness of treatments was assessed by the judge using "medical" and "non-medical criteria." The medical criteria were: Is the patient's evolution time sufficiently long? Has there been a collegial analysis of the situation? What has been the patient's evolution since admission? Is the patient suffering? What is the patient's prognosis assessment? The non-medical criteria included: What were the patient's previously expressed wishes? What was the opinion of the trusted person? What was the opinion of the family members? What efforts have been made to reach a consensus? In 10 cases (19%), the judge requested a medical expert uninvolved in the case to help assess the medical criteria. Reasons that led the judge to consider that the inappropriateness of the treatments was not established (n = 10) were: patient's evolution since admission insufficiently considered (n = 6), opinion of relatives not taken into account (n = 4), absence of real suffering or suffering accessible to treatment (n = 3), insufficiently long time since admission (n = 3), prognostic uncertainty (n = 2), the patient's directly expressed wishes for continued treatment (n = 2), incorrect assessment by clinicians of the wishes of patients unable to express themselves (n = 1).

Of the 20 cases referred to the Council of State (national court), the same approach was used by the judge, using the same medical and non-medical criteria. The reasons for the appeal judgments are summarized in Fig. A1. Medical expert opinion was ordered in 4 cases to help the judge assess the medical criteria. Three cases were settled out of court before the judge's decision.

### Qualitative analysis of the parties' ethical arguments and the arbitration process

The qualitative analysis of the parties' arguments and the arbitration process is summarized in Fig. 4. For medical teams, on the one hand, and for relatives, on the other, the thematic analysis highlighted different types of arguments justified by ethical values and principles, themselves supported by articles of law. The
<figure><img src="image_6.png" /><figcaption>**Fig. 3.** Reasons for first-instance judgments.</figcaption></figure>

arguments put forward by relatives included hopes and beliefs, perceptions, and the incompleteness of science (uncertainty) arguing for chances of survival, in contrast to those put forward by medical teams, which included medical knowledge (evidence-based medicine), bedside medical experience, and scientific probability in terms of likelihood of death. These arguments were justified by opposing moral values and principles: the supreme value of life, respect for the patient's wishes, and sometimes the religious argument of “natural death” as the only possible death defended by the relatives; professional integrity, which calls for medical responsibility to discontinue unnecessary treatment in irreversible situations, the duty to put an end to suffering, and respect for human dignity defended by the medical teams. Some verbatims are presented in Table A1. Lastly, relatives based their arguments on articles of the law recognizing a “right to life,” a “right to health protection,” and a “right to respect for the patient’s wishes,” as opposed to medical teams who relied on the prohibition on continuing inappropriate treatments resulting in “unreasonable obstinacy.”

Our qualitative analysis concludes that the judge exercises his power based on “evidence criteria.” This notion of evidence is applied by the judge at three consecutive levels: “procedural” (compliance with the legal decision-making process), “scientific” (medical criteria based on medical knowledge and experience, objective medical arguments, possible expert appraisal), and patient-family “narrative” as best it can be ascertained (including non-medical criteria referring to the patient’s life history, the patient’s wishes, the testimony of relatives, interactions between relatives and the care team). It should be noted that while the religious argument was sometimes put forward by relatives (n = 9), it was systematically excluded from the judge’s arguments to characterize the inappropriateness of treatments.

## The particularity of pediatric cases

Ten cases involved pediatric patients. Among these, a judgment was handed down in seven cases, five of which followed an expert appraisal. Thus, of the ten expert appraisals ordered by the judge mentioned above, half concerned pediatric cases. There was no significant difference in the qualitative analysis between pediatric and adult cases. Nevertheless, the principles of patient autonomy and wishes were not operative and were constantly replaced by the wishes expressed by the parents in the name of “the child’s best interests” [25].

## Discussion

The present study provides a brief descriptive and qualitative analysis of French jurisprudence on LST limitation decisions. Most cases brought to the courts involve neuro-injured patients with disorders of consciousness hospitalized in ICUs, and the incidence of these cases has increased dramatically over the years. When a judgment is handed down, the medical decision is ultimately deemed legal in over half of cases and illegal in over a third. The judge assesses two main elements: compliance with the legal decision-making process and the characterization of the inappropriateness of treatments, for which an expert appraisal is not systematically required. The qualitative analysis identifies the different types of arguments put forward by family members and medical teams that the judge must evaluate according to evidence criteria.

Conflicts between family members and care teams over EOL issues are not uncommon, particularly in intensive care [17], and they may often arise when families request the continuation of treatments considered unreasonable or potentially inappropriate
<figure><img src="image_7.png" /><figcaption>**Fig. 4.** Qualitative analysis of the parties' ethical arguments and the arbitration process. Rounded arrows in solid lines indicate justification. Straight dotted arrows indicate opposition.</figcaption></figure>

by medical teams [26]. Like our study, other studies have suggested that these conflicts are related to a lack of knowledge of the patient's wishes [27–29], different perceptions of the inappropriateness of treatments [27,28,30], and inadequate decision-making procedures [28]. In 2015, a multi-society statement set out recommendations for preventing and managing such disagreements and conflicts [13]. Nevertheless, the complexity of these situations sometimes makes amicable resolution impossible and requires the intervention of a third party [27]. Whenever possible, this third party could be a clinical ethics consultation, a palliative care medicine consultation, the use of a hospital ethics committee due process – such as a resolving intractable conflict policy – or the intervention of a mediator [20,28,31–33]. In the last resort, the case goes before a judge. Interestingly, the judge sometimes takes on the role of mediator, as shown by the ten cases where an amicable solution was found before a judgment was handed down. These out-of-court settlements are probably also linked to the time that has elapsed

with the legal proceedings (6 days [2–20] and 14 days [6–22], respectively, in the adult and pediatric populations), allowing stakeholders to evolve their opinions.

All the conflicts in our study are based on a perception of the inappropriateness of treatments differing between medical teams and relatives. In French law, the inappropriateness of treatments ("unreasonable obstinacy") is defined as any intervention that appears unnecessary or disproportionate or that has no other effect than the artificial maintenance of life [7,8]. By analogy, in the United States, potentially inappropriate treatments refer to treatments judged by the physician to be beyond the boundaries of generally accepted medical standards [34]. However, establishing the boundaries of the inappropriateness of treatments that would be accepted by all stakeholders is no simple matter. Piers et al. have shown that physicians' and nurses' perceptions of the inappropriateness of treatments vary between countries, within countries, and within ICUs themselves, testifying to the importance of the subjectivity of each individual's perceptions
[35]. Relatives themselves would seem to attach more importance to their own perception of "well-being" and "patient's best interest" than to the patient's wishes when defining inappropriate treatments [36]. In this field, different philosophical theories of well-being have been described, some appealing to the patient's own subjectivity and preferences and others aiming to be objective and independent of the patient's perceptions [37,38]. When the patient's wishes are not known – by far the most frequent situation in our study given the low rates of ADs and declared trusted persons – it is likely that the judge's role is to make a transition from the confrontation of different subjectivities to a form of objectivity that enables a decision to be reached.

A crucial point in our study, in the debates between relatives and physicians, is the uncertainty of the prognosis (incompleteness of science). As in our work, Zier et al. have shown that the medical team's assessment of the prognosis is frequently questioned by relatives [39]. This is corroborated by the fact that the literature suggests that even after a decision to withhold or withdraw treatment, a significant proportion of patients are discharged from the hospital and return home (respectively, up to 31% and 12%) [1,40–42]. While the argument of prognosis (treatment uselessness and medical irreversibility) and the likelihood of death was highlighted in our qualitative analysis as one of the pillars of physicians' arguments, establishing a vital or functional prognosis on an individual scale is a particularly arduous task. On the basis of large cohort studies, physicians can get an overall idea of prognosis, but probably not a precise prognosis at the individual level [43]. This difficulty in providing a prognosis in a context of uncertainty is also recognized by some physicians, particularly when it comes to prognosticating quality of life [26]. We don't have clinical data to assess the outcome of patients in our work, but the argument of medical uncertainty is preponderant in the reasons for recourse to the judge and questioning the unreasonableness of the situation. In particular, it should be noted that 76% of the patients in our study had a neurological injury, 86% of whom had a disorder of consciousness, and that family members asked for more time to hope for neurological recovery. In this respect, some studies suggest that decisions to limit LST in patients with neurological injury are made too early in the ICU to properly assess neurological status [44].

Ethical reflection has long shaped the law and vice versa [45,46]. In many countries, extreme situations such as the conflicts described in this work have often led to advances in legislation and ethical thinking. This was notably the case in France with the Vincent Humbert affair [18], in the United States with the Nancy Cruzan [47] and Karen Ann Quinlan [48] cases, and in the United Kingdom with the Charlie Gards affair [49]. In this sense, our results continue to contribute to a better understanding of the ethical issues and tensions between relatives and medical teams in EOL decisions. However, these results suggest that more research and policy are needed to improve practices and reduce these tensions. This could be the intervention of a third party (ethics committee, clinical ethics consultation, mediation team), the use of local conflict resolution policies, or the improvement of physicians' communication skills [20,50].

Finally, the intractable conflicts brought to the courts described in our study appear to be a rare and relatively recent issue in France. Nevertheless, such conflicts have also been described in other countries, indicating that this issue goes beyond the French regulatory framework [27,51]. The constant increase over the last ten years and the sometimes devastating consequences of these situations make it important to bring these facts to the attention of healthcare teams [28].

This work has a few limitations. First, it is possible that some cases were not correctly identified by the research method. Nevertheless, the collection of cases was as exhaustive as possible,

using legal service databases. Second, the clinical information was limited to that contained in the judge's orders, which restricted access to certain information about the patient and the LST decision and did not allow any conclusions to be drawn about the evolution of the situation after the court decision. Third, we had no knowledge of the content of the debates on the day of the hearing and no access to the documents submitted by the protagonists, which limited our ability to provide further details on the arguments of each party and on the decisions taken by the judge. Finally, we cannot exclude certain biases, which we have tried to limit by using an analysis grid that was as objective as possible.

## Conclusions

This work highlights the context, the decisions, and the methods of arbitration of conflicts brought before the judge concerning EOL decisions while attempting to provide an ethical interpretation. Given the increasing incidence, research in this field needs to be continued and extended to limit these extreme situations as much as possible.

## Ethics approval and consent to participate

This study was approved by the research ethics committee of the French Society of Anaesthesia and Intensive Care: Institutional Review Board—IRB 00010254 - 2023 - 125.

## Consent for publication

Not applicable.

## Disclosure of interest

The authors declare that they have no competing interests.

## Funding

Not applicable.

## Author contributions

MG, EW participated in research design, in the writing of the paper, in the performance of the research and in data analysis. FC, GA participated in the writing of the paper and in the performance of the research. SMF participated in the performance of the research and in data analysis. PFP, ER, MiS, MaS participated in the writing of the paper and in the performance of the research. MFM participated in research design, in the writing of the paper, in the performance of the research and in data analysis.

## Data availability

The datasets used and/or analyzed during the current study are available from the corresponding author on reasonable request.

## Acknowledgements

We would like to thank the French Society of Anaesthesia and Intensive Care (Société Française d'Anesthésie Réanimation-SFAR) for its support and we are particularly grateful to the members of the ethics committee of the French Society of Anaesthesia and Intensive Care for their help in carrying out this work. We are also grateful to the Paris Center for Clinical Ethics (Centre d'Ethique Clinique de l'AP-HP-Assistance Publique Hôpitaux de Paris) and the Harvard Medical School Center for Bioethics for their help in carrying out this work.
# Appendix A. Supplementary data

Supplementary material related to this article can be found, in the online version, at doi:https://doi.org/10.1016/j.accpm.2024.101463.

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