Withdrawal of nutrition and hydration would not offend right to life – Strasbourg Court

16 June 2015 by Rosalind English

Lambert and Others v. France (application no. 46043/14) – read judgment

In an important step away from Pretty v UK, the Grand Chamber of the Strasbourg Court has upheld the right of to die with dignity by ruling that there would be no violation of Article 2 (right to life) of the European Convention on Human Rights if artificial nutrition and hydration were to be withdrawn from a patient in a persistent vegetative state.

Although the facts were very different, it is heartening to see Strasbourg at last allowing the argument that the state’s obligation to protect life also involves a duty to respect people’s rights to exit life with dignity. The importance of this ruling cannot be underestimated, as can be seen in the ferocity of dissent set out in the Separate Opinion annexed to the judgment (discussed at the end of this post.)

The case involved a challenge by some of the patient’s family members to a judgment delivered on 24 June 2014 by the Conseil d’État which authorised this step.  The following summary of the facts and judgment is based on the Court’s press release.

Background facts

Vincent Lambert sustained serious head injuries in a road-traffic accident on 29 September 2008, which left him tetraplegic and in a state of complete dependency. At the time of this hearing he was in the care of a hospital which specialises in patients in a vegetative or minimally conscious state.In 2011 his condition was characterised as minimally conscious and in 2014 as vegetative. He receives artificial nutrition and hydration which is administered enterally, through a gastric tube.

In 2012 Vincent Lambert’s carers observed increasing signs of what they believed to be resistance on his part to daily care. In early 2013 the medical team initiated a procedure provided for by French law on patients’ rights and end-of-life issues (known as the “Leonetti Act”). The patient’s wife Rachel Lambert was involved in the procedure, which resulted in a decision by his doctor to withdraw the patient’s nutrition and reduce his hydration. That decision was put into effect on 10 April 2013.

The applicants, respectively the parents, a half-brother and a sister of M. Lambert, won an injunction ordering the hospital to resume feeding and hydrating him and to provide him with whatever care his condition required.

In September 2013 a fresh collective procedure was initiated by Dr Kariger, and  in January 2014, supported by five other doctors he announced in a decision stating reasons – a summary of which was read out to the family – his intention to discontinue artificial nutrition and hydration. Again, the applicants obtained another injunction, but this time it was opposed by the patient’s wife Rachel Lambert (who submitted a third party intervention in the Strasbourg hearing) and the hospital itself. The top court of administrative appeals in France, the Conseil d’État,  found that the provisions of the Leonetti Act applied to Vincent Lambert and that artificial nutrition and hydration fell into the category of treatment that could be legally withheld. In particular, the French court observed that, in addition to medical factors,

the doctor had to attach particular importance to any wishes the patient might have expressed previously, whatever their form or tenor.[italics added]

In addition, the Conseil d’État pointed out that where the patient’s wishes remained unknown, they could not be assumed to consist in a refusal by the patient to be kept alive. In the light of the evidence from Rachel Lambert, the Conseil d’État found that

Dr Kariger could not be regarded as having incorrectly interpreted the wishes expressed by the patient before his accident. …Dr Kariger had obtained the views of the patient’s family.

The Conseil d’État concluded that all the conditions imposed by the law had been met and that the doctor’s decision of 11 January 2014 to withdraw the artificial nutrition and hydration of Mr Vincent Lambert could not be held to be unlawful.

Arguments in Strasbourg

The applicants submitted that the withdrawal of M. Lambert’s artificial nutrition and hydration would be in breach of the State’s obligations under Articles 2 (right to life) and 8 (right to physical integrity), that depriving him of nutrition and hydration would constitute ill-treatment amounting to torture under Article 3, and that under Article 6 § 1 (right to a fair hearing) the doctor who had taken the decision had not been impartial, and that the expert medical report ordered by the Conseil d’État had not been fully adversarial.

Article 2

This provision enjoins 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 applicants acknowledged that the withdrawal of nutrition and hydration could be legitimate in some cases, 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. But, they said, these criteria had not been met in this case, which concerned the intentional taking of life. This, in their opinion, was tantamount to euthanasia.

The French 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 which, in the doctor’s view, if continued, demonstrated “unreasonable obstinacy” on the part of the medical profession (“relevait d’une obstination déraisonnable”).

In November 2014 the Chamber relinquished jurisdiction in favour of the Grand Chamber. A hearing was held in public in the Human Rights Building in Strasbourg on 7 January 2015.

The Decision of the Grand Chamber

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. Because there was no consensus among signatory states in favour of permitting the withdrawal of life-sustaining treatment, they must be afforded a margin of appreciation in that sphere.

As to the legality of the doctor’s decision, the Court considered that the provisions of the relevant French legislation  constituted a legal framework which was sufficiently clear to regulate with precision the decisions taken by doctors in situations such as that in the present case.  In cases like these 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’s role was simply to examine the State’s compliance with its positive obligations flowing from Article 2 of the Convention. 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 a “meticulous fashion”, to be compatible with the requirements of Article 2.

The Court noted that 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 “obstination déraisonnable”  the Court observed that under the French Public Health Code, treatment would amount to unreasonable obstinacy if it was futile or disproportionate or had “no other effect than to sustain life artificially”.

The procedure leading to withdrawal of treatment in this case had been lengthy and meticulous, not only observing but exceeding the requirements laid down by the law. The hospital had therefore satisfied the positive obligations flowing from Article 2.

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.

As for the applicants’  other arguments, 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. 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.

Comment

There were various thought provoking points in this decision, apart from the important step towards refining the Convention as a guardian of autonomy rather than the conservative position of defending life preservation above all other interests.

Locus standi

First, there was the question of standing.  Without the direct victim being able to express his wishes, who could take up cudgels on his behalf?  This case would not have been brought if various members of M. Lambert’s family had not decided to do this, while defending diametrically opposed points of view.  Strasbourg case law has long established that where the victim would otherwise be deprived of effective protection of his or her rights,  it was open to the applicants, as his close relatives, to invoke before the Court on their own behalf the right to life protected by Article 2.

The reason why the court had to adopt this rather contorted position is that there was clearly no convergence of interests between the applicants’ assertions and what Vincent Lambert would have wished. Therefore the applicants could not claim to raise any complaints under the Convention on his behalf.

The patient’s wishes

It is clearly very difficult to ascertain an unconscious patient’s presumed wishes, particularly in the absence of any advance directives. Nevertheless, decision makers whether they are doctors or judges have to bear in mind that it is the patient who is the principal party in the decision-making process and whose consent must remain at its centre, even where the patient is unable to make him or herself clear. The Court recalled 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.

In a Separate Opinion Judges Hajiyev (Azerbaijan), Šikuta (Slovak Republic), Tsotsoria (Georgia), de Gaetano (Malta) and Griţco (Moldova) expressed their strong disagreement with the majority outcome. What was being proposed in the judgment, they said, was

nothing more and nothing less than that a severely disabled person who is unable to communicate his wishes about his present condition may, on the basis of a number of questionable assumptions, be deprived of two basic life-sustaining necessities, namely food and water, and moreover that the Convention is impotent in the face of this reality. We find that conclusion not only frightening but – and we very much regret having to say this – tantamount to a retrograde step in the degree of protection which the Convention and the Court have hitherto afforded to vulnerable people.

Invoking Pretty v United Kingdom, a decision now thirteen years old, they insisted that “Article 2 protects the right to life but not the right to die”. Likewise, they argued, “Article 3 guarantees a positive right not to be subjected to ill-treatment, but no “right” whatsoever to waive this right and to be, for example, beaten, tortured or starved to death. To put it simply, both Article 2 and Article 3 are “one-way avenues”. As to the case at hand, the applicants did not accept that even if M.Lambert had made known his intention to refuse to be kept in a state of great dependency, such a statement did not in their view “offer a sufficient degree of certainty regarding his desire to be deprived of food and water.” So, the withdrawal of enteral feeding and hydration would “starve him to death” against his wishes.

They end their opinion with this parting flourish:

In 2010, to mark its fiftieth anniversary, the Court accepted the title of The Conscience of Europe when publishing a book with that very title. Assuming, for the sake of argument, that an institution, as opposed to the individuals who make up that institution, can have a conscience, such a conscience must not only be well informed but must also be underpinned by high moral or ethical values. These values should always be the guiding light, irrespective of all the legal chaff that may be tossed about in the course of analysing a case.

It might be said, on the contrary, that the Court’s conscience or those of its constituent members should be sensitive enough to absorb developing awareness of individual dignity and autonomy, of states of being that exist somewhere in the twilight zone between  life and death, and that not only modern medicine but modern law should acknowledge that preservation of life is not the be-all and end-all of conscientious endeavours in a world which not everyone agrees is governed by a jealous God.

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