Grand Chamber hearing in Lambert v France: the debate on passive euthanasia before the European Court of Human Rights

Introduction[*]

On the 7th of January 2015, the Grand Chamber of the European Court of Human Rights (ECtHR) held a hearing in the case of Lambert v France.[1] The case concerns the withdrawal of artificial nutrition and hydration of a man in a vegetative state; thus, it relates to the so-called passive euthanasia. This can be defined as the withdrawal of ‘medical treatments that will keep a dying patient alive for a time’.[2] It is currently a disputed issue in the debate on end-of-life situations.[3]

The ECtHR has already pronounced on assisted suicide (i.e., the suicide of a patient facilitated by means or information provided by a physician who is aware of how the patient intends to use such means or information).[5] I have already dealt with this issue in my previous post in An International Law Blog.

The present contribution wishes to discuss the main legal issues regarding the so-called passive euthanasia, which have been raised in the Lambert hearing.[6]

Procedure

The case Lambert v France originates from an application lodged by the parents and two siblings of Vincent Lambert.[7] The applicants challenge a judgment in which the French Conseil d’Etat upheld the medical decision of withdrawing Vincent Lambert’s artificial nutrition and hydration. They submit that the withdrawal of Vincent Lambert’s artificial nutrition and hydration would be contrary to the State’s obligations to protect life under Article 2 ECHR and to the prohibition of torture set for by Article 3 ECHR. They allege that the French law authorizing the withdrawal lacks clarity and precision, thus violating the conditions under which Article 8 ECHR allows the State to interfere with private and family life. Finally, they submit that the process leading to the decision of the French court have not been impartial, thus violating the right to a fair trial under Article 6 ECHR. The applicant’s complaint under Article 6 ECHR relates to factual findings that are not of interest here. The arguments under Articles 2, 3 and 8 ECHR, instead, are relevant for understanding the European Court of Human Rights’ position towards passive euthanasia.[9] In October 2014, the Chamber of the ECtHR to which the application had been assigned announced its intention to relinquish jurisdiction in favour of the Grand Chamber.[8]

The applicants

At the Grand Chamber hearing held on the 7th of January 2015, Mr Jean Paillot and Mr Jérôme Triomphe spoke for the applicants, Mr François Alabrune represented the French Government, and the positions of the third parties interveners were described by Mr Laurent Pettiti and Ms Madelaine Munier-Apaire.

 The law

At the hearing, the third-parties interveners and the French Government stressed the link established by the ECtHR case law between Article 2 ECHR, protecting the right to life, and Article 8 ECHR, protecting private and family life. Mr Pettiti underlined that in the Haas and Gross judgments,[10] the Court has connected the obligation to protect life with the need to preserve personal autonomy, and that in Pretty[11] it has assessed a ‘right to decline the consent to a treatment, which might have the effect of prolonging life’. Ms Munier-Apaire declared that the right to life must be read in conjunction with Article 8 ECHR, protecting the right to freely decide how to live. She also connected Articles 2 and 8 with Article 3 ECHR (prohibition of torture), adding that the right to freely decide how to live includes a right to decide when your own life amounts to degrading and inhuman conditions, and it is not worth to be lead anymore. On the other hand, Mr Alabrune underlined that the procedure established by French law requires doctors to set in motion a sedative and pain-killing treatment, thus protecting the patient against a violation of article 3 ECHR.

The representatives of the applicants did not elaborate on the topic during the hearing: Indeed, there is little doubt that Articles 2 and 8 ECHR should be read in connection, as the Court’s case law is pretty clear on this.[12] What is doubtful is rather to which conclusions such a connection might lead. In its case law on assisted suicide, the ECtHR has avoided pronouncing on the balance between Articles 2 and 8 of the ECHR, and limited itself to test the quality of the legal framework surrounding this balance at the national level, and the protections set for the respect of the patient’s will. [13]

Mr Paillot and Mr Pettiti were probably having this case law in mind when they prepared their interventions for the Lambert hearing of the last 7th of January. On that occasion, Mr Pettiti declared that the conventional right to life requires Member States to establish a procedure capable of ‘ensuring that a decision to end life is corresponding to the free will’ of the person whose life is at stake. Also, he argued that the ECtHR adjudicates on the manners in which States safeguard the rights of individuals. Mr Paillot, on his part, stressed the uncertainty surrounding the distinction between medical treatments and form of ordinary care. The distinction is relevant in this case because French law allows the withdrawal of medical acts, and the notion does not include forms of ordinary care.[14] Notwithstanding the absence of a consensus in Europe as to whether artificial nutrition and hydration is a form of treatment or care, the fact that the French law does not take a stance in this regard could be a relevant element in the Court’s evaluation. Indeed, legal certainty is one of the supreme values enshrined in the ECHR.[15] Thus, any procedure determining the legality of an otherwise unlawful behaviour (as the Court has already claimed in the case of a physician-assisted suicide) must comply with the standards of certainty set for by the European Convention.

Conclusion[16]

In its previous case law on end-of-life situations, the European Court of Human Rights has been focusing on the quality of the domestic legal framework, and on the protections set for the respect of the patient’s will, avoiding to pronounce on the substance of the issue at stake (i.e., the balance between life and dignity). There are reasons to believe that this will be the attitude adopted in the Lambert case, as envisaged by the representative of the applicants and of the third-parties interveners at the hearing.

The French legal system allows passive euthanasia when the medical decision has been grounded on a ‘collective procedure’ set for by the law.[17] Thus, French law ‘proceduralises’ passive euthanasia, leaving to doctors and patients the task to decide on the correct balance between life and dignity. The Strasbourg Court, on its side, has shown its interest in legal certainty and the procedural guarantees surrounding the assessment of the patient’s will. Thus, it is likely that in the Lambert case the Court will focus on the French law and procedure leading to passive euthanasia, rather than on the substance of the medical and legal decisions concerning Vincent Lambert.[18] If this will be the case, the doctors and relatives of Mr Lambert will face a curious situation, in which neither the ECHR nor the domestic law provide substantial guidelines as to the balance between life and dignity. Whether this is the best way to respect the essence of individual autonomy, or just a way to avoid taking a stance on debated and controversial issues, is an aspect central to the debate on end-of-life decisions.

[1] Lambert v France, App no. 46043/14

[2] Passive euthanasia. (n.d.). Collins English Dictionary – Complete & Unabridged 10th Edition. Retrieved January 30, 2015, from Dictionary.com website: http://dictionary.reference.com/browse/passive euthanasia

[3] CoE, Guide on the decision-making process regarding medical treatment in end-of-life situations,  http://csc.ceceurope.org/fileadmin/filer/csc/Ethics_Biotechnology/CoE_FDV_Guide_Web_e.pdf. The guide was “drawn up by the Committee on Bioethics (DH‑BIO) of the Council of Europe in the course of its work on patients’ rights and with the intention of facilitating the implementation of the principles enshrined in the Convention on Human Rights and Biomedicine (Oviedo Convention, ETS No. 164, 1997)”

[4] Active euthanasia. (n.d.) Mosby’s Medical Dictionary, 8th edition. (2009). Retrieved January 30 2015 from http://medical-dictionary.thefreedictionary.com/active+euthanasia. Cfr Pretty v UK, ECHR 2002-III

[5] Assisted suicide (n.d.)., Merriam-Webster Dictionary, Retrieved January 30, 2015, from Merriam-Webster.com website:  http://www.merriam-webster.com/medical/physician-assisted+suicide. Cfr Haas v Switzerland (2011) 53 EHRR 33

[6] Records of the hearing are available online, at: http://www.echr.coe.int/Pages/home.aspx?p=hearings&w=4604314_07012015&language=en&c=&py=2015 .

[7] For a summary of the facts of this case, see the Press Releases issued by the Registrar of the Court: ECHR 290 (2014), 7.10.2014 and ECHR 2 (2015) 07.01.2015

[8] Press Release issued by the Registrar of the Court, ECHR 290 (2014), 7.10.2014

[9] Grégor Puppinck and Claire de la Hogue, ‘The “Right” to Assisted Suicide in the case law of the ECtHR’, IntJHR, 2014

[10] Haas v Switzerland (2011) 53 EHRR 33; Gross v Switzerland , App no 67810/10 (ECtHR [GC] 30 September 2014)

[11] Pretty v UK, ECHR 2002-III

[12] Pretty v UK, ECHR 2002-III; Haas v Switzerland (2011) 53 EHRR 33; Gross v Switzerland , App no 67810/10 (ECtHR [GC] 30 September 2014)

[13] Cfr Gross v Switzerland , App no 67810/10 (ECtHR [GC] 30 September 2014) and Koch v Germany, App 497/09, Judgment of 19 July 2012

[14] English translation by the Author. See Article L1105 of the French Public Health Code – Code de la Santé publique : ‘Ces actes ne doivent pas être poursuivis par une obstination déraisonnable. Lorsqu’ils apparaissent inutiles, disproportionnés ou n’ayant d’autre effet que le seul maintien artificiel de la vie, ils peuvent être suspendus ou ne pas être entrepris’.

[15] Sunday Times v UK, Appl. 6538/74, judgm 26/04/1979.

[16] Conclusion will be updated following the developments of the Lambert proceedings before the ECtHR

[17] Cfr Loi 22 avril 2005, so called Leonetti Act

[18] Particularly, the lack of clarity with regard to whether artificial nutrition and hydration is a form of treatment or care might be relevant to this case, as it might constitute an infringement of the supreme value of legal certainty

[*] The Author of the present post has been grounding her report of the hearing on the press releases and webcast accessible on the European Court of Human Rights’ official website, echr.coe.int: http://www.echr.coe.int/Pages/home.aspx?p=hearings&w=4604314_07012015&language=lang&c=&py=2015.

The webcasting project is funded by the Irish Department of Foreign Affairs and Trade, which the Author would like to thank

Advertisements

1 Comment

Filed under Human Rights, Public International Law

One response to “Grand Chamber hearing in Lambert v France: the debate on passive euthanasia before the European Court of Human Rights

  1. Pingback: Grand Chamber judgment in Lambert v France. Personal autonomy within the right to life opens the door to the ‘right to die’ | International Law Blog

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s