Euthanasia in the ECtHR

JUDGMENT 

Lambert and others v. France 05/06/2015 (no. 46043/14)

see here

SUMMARY:

Euthanasia. No violation of Article 2 (right to life) by France to authorize Vincent Lambert’s cessation of artificial feeding and hydration.

COMMENT 

Euthanasia is an issue Strasbourg still faces within the discretion of the Member States. The expectation by the ECtHR of the consensus of the majority of the member states of the Council of Europe does not solve such a serious problem.

PROVISION 

Article 2

PRINCIPAL FACTS 

The case concerned the judgment of the Conseil d’État, dated 24.06.2014, authorizing the withdrawal of Vincent Lambert’s artificial diet and hydration.

THE DECISION OF THE COURT 

Standing to act in the name and on behalf of Vincent Lambert

The Court noted that while the direct victim was unable to express his wishes, several members of his close family wished to express themselves on his behalf, while defending diametrically opposed points of view. The Court was required to establish whether the situation was one in which an application could be lodged in the name and on behalf of of a vulnerable person. A review of its relevant case-law revealed the following two main criteria: the risk that the direct victim would be deprived of effective protection of his or her rights, and the absence of a conflict of interests between the victim and the applicant.

In the present case the Court did not discern any risk that Vincent Lambert would be deprived of effective protection of his rights since, in accordance with its consistent case-law, it was open to the applicants, as Vincent Lambert’s close relatives, to invoke before the Court on their own behalf the right to life protected by Article 2.

In so far as one of the key aspects of the domestic proceedings had consisted precisely in determining Vincent Lambert’s wishes and the Conseil d’État had found that Dr Kariger had not incorrectly interpreted those wishes, the Court did not consider it established that there was a convergence of interests between the applicants’ assertions and what Vincent Lambert would have wished. It concluded that the applicants did not have standing to raise the complaints under Articles 2, 3 and 8 of the Convention in the name and on behalf of Vincent Lambert. The Court also refused Rachel Lambert’s request to represent her husband as a third-party intervener.

Nevertheless, the Court did examine all the substantive issues arising in the present case under Article 2 of the Convention, given that they had been raised by the applicants on their own behalf.

Article 2

Although Vincent Lambert was still alive, there was no doubt that if artificial nutrition and hydration were withdrawn, his death would occur within a short time. Accordingly, the Court considered that the applicants, in their capacity as Vincent Lambert’s close relatives, could rely on Article 2.

Article 2 enjoined the State not only to refrain from the “intentional” taking of life (negative obligations), but also to take appropriate steps to safeguard the lives of those within its jurisdiction (positive obligations).

The State’s negative obligations

The Court first examined whether the present case involved the State’s negative obligations.

The applicants acknowledged that the withdrawal of nutrition and hydration could be legitimate in cases of unreasonable obstinacy, and accepted that a legitimate distinction existed between, on the one hand, euthanasia and assisted suicide and, on the other hand, therapeutic abstention, consisting in withdrawing or withholding treatment that had become unreasonable. They argued that, since those criteria were not met, in their opinion, the present case concerned the intentional taking of life; they referred in that regard to the notion of euthanasia. The Government stressed that the aim of the medical decision was not to put an end to life, but to discontinue a form of treatment which was refused by the patient or – where the patient was unable to express his or her wishes – which, in the doctor’s view, amounted to unreasonable obstinacy. They quoted the public rapporteur before the Conseil d’État, who, in his submissions of 20 June 2014, had noted that, in discontinuing treatment, a doctor was not taking the patient’s life but was resolving to withdraw when there was nothing more to be done.

The Court observed that the Act of 22 April 2005 did not authorise either euthanasia or assisted suicide. It allowed doctors, in accordance with a prescribed procedure, to discontinue treatment only if continuing it demonstrated unreasonable obstinacy. The Court noted that both the applicants and the Government made a distinction between the intentional taking of life and therapeutic abstention. In the context of the French legislation, which prohibited the intentional taking of life and permitted life-sustaining treatment to be withdrawn or withheld only in certain specific circumstances, the Court considered that the present case did not involve the State’s negative obligations under Article 2.

The State’s positive obligations The Court examined the applicants’ complaints solely from the standpoint of the State’s positive obligations.
The Court stressed that the issue before it in the present case was not that of euthanasia, but rather the withdrawal of artificial life-sustaining treatment and observed that in a case such as the present one reference should be made, in examining a possible violation of Article 2, to Article 8 of the Convention.

The Court reiterated that in addressing the question of the administering or withdrawal of medical treatment it had taken into account the following factors (which it would take into account in examining the present case): the existence in domestic law and practice of a legislative framework compatible with the requirements of Article 2; whether account had been taken of the applicant’s previously expressed wishes and those of the persons close to him, as well as the opinions of other medical personnel; and the possibility to approach the courts in the event of doubts as to the best decision to take in the patient’s interests.

The margin of appreciation The Court noted that no consensus existed among the Council of Europe member States in favour of permitting the withdrawal of artificial life-sustaining treatment, although the majority of States appeared to allow it. There was nevertheless consensus as to the paramount importance of the patient’s wishes in the decision-making process. Accordingly, the Court considered that in this sphere concerning the end of life States must be afforded a margin of appreciation, not just as to whether or not to permit the withdrawal of artificial life-sustaining treatment and the arrangements governing such withdrawal, but also as regards the means of striking a balance between the protection of patients’ right to life and the protection of their right to respect for their private life and their personal autonomy.

The legislative framework The applicants alleged that the Act of 22 April 2005 lacked clarity and precision and that it was not applicable to the case of Vincent Lambert, who was neither sick nor at the end of his life. They further maintained that the legislation did not define with sufficient precision the concepts of unreasonable obstinacy and treatment that could be withdrawn. They also complained of the process culminating in the doctor’s decision of 11 January 2014.

The Court noted that, in its ruling of 14 February 2014, the Conseil d’État had determined the scope of application of the Act and held that it was applicable to all users of the health system, whether or not the patient was in an end-of-life situation.

In the same decision the Conseil d’État had interpreted the concept of treatment that could be withdrawn or limited. It had held that the legislature had intended to include among such forms of treatment all acts aimed at maintaining the patient’s vital functions artificially, and that artificial nutrition and hydration fell into that category of acts.

Regarding the concept of unreasonable obstinacy, the Court noted that under the terms of Article L. 1110-5 of the Code of Public Health, treatment would amount to unreasonable obstinacy if it was futile or disproportionate or had “no other effect than to sustain life artificially”. It was that last criterion which had been applied by the Conseil d’État.

In its judgment of 24 June 2014 the Conseil d’État had detailed the factors to be taken into account by the doctor in assessing whether the criteria for unreasonable obstinacy were met, while making clear that each situation had to be considered on its own merits. The Court noted that the Conseil d’État had established two important safeguards in that judgment. Firstly, it had stated that the sole fact that a person was in an irreversible state of unconsciousness or, a fortiori, had lost his or her autonomy irreversibly and was thus dependent on artificial nutrition and hydration, did not by itself amount to a situation in which the continuation of treatment would appear unjustified. It had also stressed that where a patient’s wishes were not known, they could not be assumed to consist in a refusal to be kept alive.

The Court considered that the provisions of the Act of 22 April 2005, as interpreted by the Conseil d’État, constituted a legal framework which was sufficiently clear, for the purposes of Article 2 of the Convention, to regulate with precision the decisions taken by doctors in situations such as that in the present case. It therefore concluded that the State had put in place a regulatory framework apt to ensure the protection of patients’ lives.

The decision-making process The Court noted that neither Article 2 nor its case-law could be interpreted as imposing any requirements as to the procedure to be followed with a view to securing a possible agreement. In those countries which authorised the withdrawal of treatment, and where the patient had not drawn up any advance directives, there existed a great variety of arrangements governing the taking of the final decision to withdraw treatment.

The Court observed that the collective procedure in the present case had lasted from September 2013 to January 2014 and that, at every stage of its implementation, it had exceeded the requirements laid down by law. It considered that the organisation of the decision-making process, including the designation of the person who took the final decision to withdraw treatment and the detailed arrangements for the taking of the decision, fell within the State’s margin of appreciation.

The Court noted that the procedure in the present case had been lengthy and meticulous, exceeding the requirements laid down by the law, and considered that, although the applicants disagreed with the outcome, that procedure had satisfied the requirements flowing from Article 2 of the Convention.

The legal remedies used by the applicants The Court observed that the Conseil d’État, called upon for the first time to rule on an appeal against a decision to withdraw treatment under the Act of 22 April 2005, provided some important clarifications in its rulings concerning the powers of the urgent-applications judge in cases such as the present one. Not only could the judge suspend implementation of the doctor’s decision, he or she could also conduct a full review of its lawfulness. He or she had to examine – in addition to the arguments alleging that the decision in question was unlawful – any arguments to the effect that the legislative provisions that had been applied were incompatible with the Convention.

The Court noted that the Conseil d’État had examined the case sitting as a full court, which was highly unusual in injunction proceedings. In its judgment of 14 February 2014 it had considered it necessary to have the fullest information possible on Vincent Lambert’s state of health. It had ordered an expert medical report which it had entrusted to three recognised specialists in neuroscience. In view of the scale and difficulty of the issues raised by the case, it had requested the National Medical Academy, the National Ethics Advisory Committee, the National Medical Council and Mr Jean Leonetti to submit general observations to it, in order to clarify in particular the concepts of unreasonable obstinacy and sustaining life artificially.

The Court noted that the expert report had been prepared in great depth. In its judgment of 24 June 2014 the Conseil d’État had begun by examining the compatibility of the relevant provisions of the Code of Public Health with Articles 2, 8, 6 and 7 of the European Convention on Human Rights, before assessing the conformity of Dr Kariger’s decision with the provisions of the Code of Public Health. Its review had encompassed the lawfulness of the collective procedure and compliance with the substantive conditions laid down by law, which it had considered to have been satisfied. In the view of the Conseil d’État, those findings had confirmed those drawn by Dr Kariger.

The Court observed that the Conseil d’État, after stressing the particular importance which the doctor had to attach to the patient’s wishes, had sought to ascertain what Vincent Lambert’s wishes had been. As the latter had not drawn up any advance directives or designated a person of trust, the Conseil d’État had taken into consideration the testimony of his wife, Rachel Lambert, who had reported in precise detail and with the corresponding dates the remarks repeatedly made by her husband, the tenor of which had been confirmed by one of his brothers and indicated by several of Vincent Lambert’s other siblings to have been in keeping with their brother’s personality, past experience and views. The applicants, for their part, had not claimed that he would have expressed remarks to the contrary. The Conseil d’État had observed, lastly, that the consultation of the family, prescribed by law, had taken place.

The Court pointed out that it was the patient who was the principal party in the decision-making process and whose consent must remain at its centre, even where the patient was unable to express his or her wishes.

The Court observed that, in the absence of advance directives, a number of countries required that efforts be made to ascertain the patient’s presumed wishes, by a variety of means, and reiterated an earlier ruling in which it had recognised the right of each individual to decline to consent to treatment which might have the effect of prolonging his or her life. It took the view that the Conseil d’État had been entitled to consider that the testimony submitted to it was sufficiently precise to establish what Vincent Lambert’s wishes had been.

The Court was keenly aware of the importance of the issues raised by the present case, which concerned extremely complex medical, legal and ethical matters. In the circumstances of the case, the Court reiterated that it was primarily for the domestic authorities to verify whether the decision to withdraw treatment was compatible with the domestic legislation and the Convention, and to establish the patient’s wishes in accordance with national law.

The Court found the legislative framework laid down by domestic law, as interpreted by the Conseil d’État, and the decision-making process, which had been conducted in meticulous fashion in the present case, to be compatible with the requirements of Article 2.

As to the judicial remedies that had been available to the applicants, the Court reached the conclusion that the present case had been the subject of an in-depth examination in the course of which all points of view could be expressed and that all aspects had been carefully considered, in the light of both a detailed expert medical report and general observations from the highest-ranking medical and ethical bodies. The Court concluded that the domestic authorities had complied with their positive obligations flowing from Article 2 of the Convention, in view of the margin of appreciation left to them in the present case, and that there would be no violation of Article 2 of the Convention in the event of implementation of the Conseil d’État judgment of 24 June 2014.

Article 8

The Court was of the view that the complaint raised by the applicants under Article 8 was absorbed by those raised by them under Article 2. In view of its finding concerning Article 2, the Court considered that it was not necessary to rule separately on that complaint.

Article 6 § 1

Even assuming Article 6 § 1 to be applicable to the procedure resulting in the doctor’s decision of 11 January 2014, the Court considered that the complaints raised by the applicants under that provision, to the extent that they had not been dealt with already under Article 2, were manifestly ill-founded.

Separate opinion

Judges Hajiyev, Šikuta, Tsotsoria, de Gaetano and Griţco expressed a separate opinion, which is annexed to the judgment(echrcaselaw.com editing).