Gard and Others v. UK. Passive euthanasia of a minor patient and the limits to parental authority

Introduction

The case of Charles Gard (better known as “Charlie”) originates in the unfortunate conditions of a baby boy suffering from an incurable disease, whose life-sustaining treatment have been withdrawn on 28 July 2017 in accordance with UK law, notwithstanding his parents’ contrary will and after a legal dispute conducted before UK Courts and at European level.

The last stage of the dispute has been the decision issued by the European Court of Human Rights, First Section (“ECtRH”, or “Court”) on 27 June 2017, declaring inadmissible the application lodged against the United Kingdom by Charles’s parents, also on behalf of their son, for alleged violations of Articles 2 (right to life), 5 (right to liberty and security), 6 (right to fair trial) and 8 (right to respect for private and family life) of the European Convention on Human Rights (“ECHR”, or “Convention”).

The Court’s declaration of inadmissibility forms part of the developing body of European decisions on end-of-life situations. The present post describes the facts of the case and the ECtHR’s assessment on the complaints raised under Article 2 and 8 ECHR, focusing on two aspects of the decision: the use of the criteria developed in the recent Lambert judgment to assess whether domestic law regulating passive euthanasia is compatible with the Convention; the choice of expressly dealing with the issue of limits to parental authority in end-of-life choices concerning minors – issue which is likely to animate future debates on end-of-life situations.

 The case

Charles Gard was a baby boy suffering from a very rare and severe disease determining a progressive deterioration of his health since the age of two months and severely affecting his brain, muscles and ability to breath, so to require, inter alia, artificial ventilation.

In January 2017, the possibility of treating Charles with a form of therapy previously used on patients with a similar disease was being evaluated. In the meanwhile, the baby suffered from a severe epileptic crisis. In the light of the irreversible damages suffered by Charles’ brain, clinicians agreed that the therapy would be futile and that it would only prolong the baby’s suffering. They informed Charles’ parents of this conclusion and applied the UK High Court for an order stating that it would be lawful, and in the patient’s best interests, for artificial ventilation to be withdrawn and palliative care provided.

The High Court, noting the medical experts’ consensus on the fact that the treatment would have been futile and potentially painful for the patient, declared it lawful and in the patient’s best interest for artificial ventilation to be withdrawn.

Charles’ parents appealed on several grounds. Among them, it is worth recalling their argument according to which the ‘best interest of the child‘ criterion may be used only in cases whereby parents opposing a course of treatment do not have a viable alternative therapeutic option.[1]

The Court of Appeal dismissed this and the other arguments. Subsequently, the Supreme Court rejected the applicants’ request for permission to appeal on point of law. Charles’ parents applied the European Court of Human Rights, complaining, inter alia:

– on Charles’ behalf and on their own, of a violation of Article 2 ECHR (right to life), arguing that the hospital was blocking life-sustaining treatments and, thus, state authorities were violating their positive obligations to protect life;

– on their own behalf, of a violation of Article 8 ECHR (private and family life), alleging that there had been a disproportionate interference with their parental rights.

 The Court’s assessment on the complaints under Articles 2 and 8 ECHR.

Article 2 ECHR (right to life)

When analysing whether the applicants had locus standi on behalf of their son, the Court took the opportunity to point out that in end-of-life situations involving minors the parents’ role ‘is […] arguably to be accorded greater weight’ than in cases (such as Lambert) whereby the unconscious patient had had the opportunity to lead an adult life and express his views on end-of-life situations.

As to the substantive issue raised under Article 2, the Court examined not only the applicants’ complaint that the hospital was blocking access to life-sustaining treatment, but also the complaint (raised only at domestic level) that Charles’ right to life would be violated if treating clinicians were to withdraw artificial ventilation against his parents’ will.

With reference to the first complaint, the Court recalled its previous case-law, according to which positive obligations under Article 2 may include the duty for the State to put in place an appropriate legal framework to deal with access to experimental treatment; However, this cannot be interpreted as requiring access to unauthorised medicinal products for the terminally ill to be regulated in a particular way (Hristozov and Others v Bulgaria 2012). As the United Kingdom has a regulatory framework to deal with access to experimental treatment, which ‘is derived from the relevant European Directives’, the Court concluded that the applicants’ complaint under this head was manifestly ill founded.

As to the complaint concerning the withdrawal of life-sustaining treatment (or ‘passive euthanasia’), the Court made use of the criteria elaborated by the Grand Chamber in Lambert and Others v France (GC 2015), according to which it should be assessed whether:

– A regulatory framework compatible with the requirements of Article 2 exists in domestic law and practice;

– The patient’s previously expressed wishes were considered, together with those of the persons close to him and the opinions of other medical personnel;

– There is the possibility to approach the courts in the event of doubts as to the best decision to be taken in the patient’s interests.

The Court concluded that the second complaint under Article 2 was also manifestly ill founded, considering the following reasons:

– The regulatory framework in place in the UK to deal with passive euthanasia is compatible with the requirements of Article 2 (as assessed in Glass v UK (dec) 2003, first case involving, inter alia, the withdrawal of life-sustaining treatment in a minor patient whose parents oppose the treating clinicians’ choices);

– A guardian had been appointed expressly for ensuring that Charles’ wishes were taken into account, and the opinions of all medical personnel and parties involved (including the parents) had been adequately considered;

– UK domestic rules do impose a duty on clinicians to apply to courts in the event of doubts.

Article 8 ECHR (right to respect for private and family life)

Under Article 8, the applicants complained that the alleged lack of respect for their parental will constituted a violation of their right to private and family life.

The Court acknowledged that there had been an interference with the applicants’ rights under Article 8. However, this would not constitute a violation of Article 8 if: it was “in accordance with the law”, it pursued a legitimate aim (or aims), and it could be regarded as “necessary in a democratic society”.

With regard to the first two criteria, the Court found that the interference was lawful and that it pursued a legitimate aim (i.e. the protection of “health and morals” and “rights and freedoms” of a minor). As for the necessity test, the Court recalled the applicants’ argument that interference with their parental rights based on the ‘best interest of the child‘ test was unnecessary. In response to that, on the one hand,the Court pointed out that ‘there is a broad consensus – including in international law- in support of the idea that in all decisions concerning children, their best interest must be paramount‘; on the other hand, it clarified that, according to its case law, the necessity test requires ‘consideration of whether, in the light of the case as a whole, the reasons adduced to justify the measures are “relevant and sufficient”’. Also in consideration of the margin of appreciation doctrine (according to which, the less consensus among the Member States, the wider their margin of appreciation) the Court concluded that the decisions taken by the domestic courts did not show any element of arbitrariness and dismissed the complaint as manifestly ill-founded.

Final remarks

This is the first occasion in which the Court has applied the criteria developed in Lambert v. France to evaluate the compatibility of domestic laws regulating passive euthanasia with the Convention.

The body of Court’s decisions on end-of-life situations cannot be considered, yet, as case law. Still, the choice of applying to the Gard case the conclusions reached in Lambert can be regarded as a wilful development in that direction. In fact, the Court analysed the complaint relating to the withdrawal of life-sustaining treatment even though this had been raised by Charles’ parents only before UK Courts: The choice of expressly dealing with this argument can be considered as an opportunity to apply the Lambert conclusions to a new case, thus reinforcing their ‘general criteria’ nature. Thanks to this choice, in future decisions on passive euthanasia cases the Lambert criteria might gain a more authoritative dimension.

In the Gard decision, the Court also considered the issue of limits to parental authority in end-of-life choices concerning minors. In analysing the applicants’ locus standi to raise a complaint under Article 2 on their son’s behalf, the ECtHR clarified that, in cases involving minors, the very early age of the patient is a factor that can be taken into consideration when determining the weight to be attributed to parents’ choices. At the same time, in analysing the complaint raised under Article 8, the Court pointed out that the ‘best interest of the child‘ criterion must always be paramount.

These clarifications are particularly welcome, if one considers that in the only previous comparable case (Glass v UK 2004) the Court had not explicitly confronted the issue of limits to parental authority in end-of-life choices concerning minors. Quite understandably, in the light of the context (i.e., a decision of admissibility, and not a judgment) the issue was approached with caution in Gard: however, it is now more likely that, in the future, other cases of this kind will be brought to the attention of the Court, when arguments concerning the limits to parental authority could play an even more relevant role.

[1] See par. 58 of the Court of Appeal decision

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