Grand Chamber judgment in Lambert v France. Personal autonomy within the right to life opens the door to the ‘right to die’

Introduction

On the 5th of June 2015, the Grand Chamber of the European Court of Human Rights (ECtHR) has released its judgment in the case of Lambert v France. The judgment’s core lies in the decision, taken by twelve votes to five, that the withdrawal of Mr Lambert’s artificial nutrition and hydration under the procedure prescribed by French law would not (if implemented) constitute a violation of Article 2 ECHR (right to life).

The facts of the Lambert case and the relevant domestic legislation have been described by this Author in this same blog. Therefore, the present contribution focuses only on the legal reasoning developed by the Grand Chamber. It is worth reminding that the judgment is a unicum in the panorama of the Strasbourg case law, being the first occasion in which the Court has been called to rule on the withdrawal of medical treatments from an adult patient unable to express his will.

The applicants’ standing before the ECtHR

The applicants were the parents and two siblings of Mr Lambert. They alleged that the domestic authorities’ decision to withdraw Mr Lambert’s nutrition and hydration would violate Article 2 (right to life), Article 3 (prohibition of torture) and Article 8 (right to private and family life) of the Convention. As a general rule, applications can be brought to the ECtHR only by the victims of an alleged violation of the Convention rights.1 The Court’s case law allows exceptions in two cases: when the violation is ‘closely linked to a death or disappearance in circumstances allegedly engaging the responsibility of the State’, or when the victims are vulnerable subjects, unable to personally lodge a complaint. In this second case, the Court applies two criteria: the risk that, otherwise, the victim would be deprived of effective protection, and the absence of a conflict of interest between victim and applicant. The Grand Chamber acknowledged the standing of the applicants under the first exception, thus allowing them to claim a potential violation of Mr Lambert’s right to life. Vice versa, it did not admit their standing under the second exception, holding that the two criteria had not been met.

The legal reasoning

On the basis of a subtle distinction between ‘euthanasia’ and ‘therapeutic abstention’, the Grand Chamber decided that the case of Mr Lambert involved only the positive obligations deriving from Article 2 ECHR. In other words, the issue at stake was declared to be whether the French State had taken the appropriate steps to safeguard Mr Lambert’s life (positive obligation), and not whether it had the intention of causing Mr Lambert’s death (negative obligation).

The Court recalled its previous case law on ‘related issues’, highlighting the evolution on the relationship between Articles 2 and 8 ECHR. It then referred to the only two previous cases involving the administering or withdrawal of medical treatments2, assessing that the factors taken into account on those occasions were: the existence in domestic law and practice of a regulatory framework compatible with the requirements of Article 2; whether account had been taken of the applicant’s previously expressed wishes and of those of the persons close to him, as well as the opinions of other medical personnel; the possibility to approach the courts in the events of doubts as to the best decision to take in the patient’s interest.

The Court acknowledged the absence of a consensus among the Council of Europe member States as to whether the withdrawal of ‘artificial life-sustaining treatment’ should be allowed (par 147). Accordingly, it declared that ‘in this sphere concerning the end of life (…) States must be afforded a margin of appreciation (…) 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’ (par 148).

After having thus defined the context, the Grand Chamber analysed the applicants’ claims. In the first place, they argued that the domestic legislative framework lacked precision and clarity as to its scope of application, and as to the notions of ‘medical treatment’ and ‘unreasonable obstinacy’. The Court considered the relevant legislative provisions and the interpretation given to them by the Conseil d’État, coming to the conclusion that the legal framework thus defined ‘is sufficiently clear, for the purposes of Article 2 of the Convention, to regulate with precision the decision taken by doctors’. As for the decision itself, the applicants alleged that it was vitiated, because the doctors had not tried to compose the contrast between the different positions expressed by Mr Lambert’s family. The Court assessed that the organisation of the decision-making process (including the designation of the person who takes the final decision, and the arrangements for the final taking of the decision) falls within the margin of appreciation of the State (par 168). It pointed out that the process had taken into consideration all points of view (including the presumed wish of Mr Lambert’s himself), and that effective domestic remedies had been available to the applicants.

To conclude, the Grand Chamber assessed that the legislative framework laid down by French law, and the decision taken by the doctors of Mr Lambert on this basis, were compatible with the positive obligations flowing from Article 2 ECHR, in view of the margin of appreciation left to the State in this case (par 181). The complaint raised by the applicants with regard to Article 8 (right to respect for private life) was declared to be absorbed by the one under Article 2.

Analysis

In previous posts on the Lambert case, this Author had anticipated the Grand Chamber’s focus on Article 2 ECHR and on the respect for legal certainty. Indeed, referring to Article 2 (right to life) looked more reasonable than referring to Article 8 (right to private life, encompassing personal autonomy) because Mr Lambert is currently unable to express his will. Furthermore, the focus on legal certainty was predictable because the Strasbourg Court has so far avoided taking a stance on the substance of the issue at stake (i.e., the corret balance between life and dignity). A closer look at the final judgment, however, reveals that these predictable choices hide an interesting mix of parameters, apparently causing contradictions in the Court’s reasoning, but actually pushing further than ever the ECtHR’s position on end-of-life situations.

In motivating the refusal to accept the applicants’ standing in the name and behalf of Mr Lambert, the Grand Chamber declared that it ‘does not consider it established that there is a convergence of interest between the applicants’ assertion and what Vincent Lambert would have wished’. In addition, it declared that there was no risk for Mr Lambert to be deprived of effective protection, because ‘it is open to the applicants (..) to invoke before the Court on their own behalf the right to life’. Such motivation oddly mixes arguments concerning Articles 2 and 8. If the focus were on Mr Lambert’s right to life, no argument could be brought to assess that he and his parents had different ‘interests’. As correctly pointed out by the partly dissenting opinion of Judges Hajiyev, Šikuta, Tsotsoria, De Gaetano and Gritco, obviously Mr Lambert and his parents had similar concerns as regard the protection of his physical integrity. A different conclusion can be reached only if the focus is on the right to private life (Art. 8), hence on Mr Lambert’s right to freely determine the extent of his own life. However, if this were the case, one cannot see how this right would be ‘effectively protected’ by allowing his parents to invoke a different right, namely the right to life (Art. 2). A further contradiction is the following: the Court applied the parameters elaborated in previous judgments involving the administering or withdrawal of medical treatments. Those cases focused on alleged violations of Article 8, which, unlike Article 2, does not entail an absolute right. The use of parameters elaborated in the context of a non-absolute right for assessing whether a certain framework is sufficiently protective of an absolute right is, at the very least, a peculiar choice.

It is this Author’s belief that behind these apparent contradictions in the Court’s reasoning there is actually a conscious choice, grounded on the following assertion:

‘[I]n 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 and to the right to respect for private life and the notion of personal autonomy which it encompasses (par 142).

The Court’s previous case law connected Article 8 to Article 2, in order to reach the conclusion that the right to private life entails the right to freely determine the extent of one’s own life.3 What is new in Lambert, is that this connection is reversed, allowing the Court to establish the extent and scope of Article 2 in the light of Article 8. In other words, the previous case law on end-of-life situations is used in Lambert to justify that the content of the right to life is partly determined by the right to private life and by personal autonomy. Even if not evident, this is a considerable opening by the Strasbourg Court to reverse its previous position, according to which the right to life ‘cannot entail, without a distortion of language, the right to die’.4

1 Article 34 ECHR

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