July 06, 2015
This guest post was written by Konstantin Tretyakov, S.J.D. at Harvard Law School.
On June 5th, 2015, the European Court of Human Rights (the ECHR) delivered its judgment in the case of Lambert and Others v. France. The case was about end-of-life decision-making on behalf of a persistently incompetent patient (Vincent Lambert, a French citizen) who was in a vegetative state and had to be artificially fed and hydrated through a gastric tube. The controversy arose with respect to the removal of that tube, which would result in the patient’s starvation, dehydration, and, ultimately, death: while some of the patients’ relatives (parents, half-brother and sister) wanted him to be kept fed and hydrated, his other relatives (wife and nephew) and caring physicians wanted the nutrition and hydration to be discontinued.
Facts and Legal Arguments
The controversy was litigated in the French courts, including the Administrative Court and the Conseil d’État. The courts came to drastically different conclusions: while the Administrative Court opined that the decision to withdraw artificial nutrition and hydration from Mr. Lambert “had constituted a serious and manifestly unlawful breach of [his] right to life,” the Conseil d’État held instead that the provision of the French Public Health Code authorizing physicians to withdraw and withhold “unreasonably obstina[te]” medical treatment “cannot be said to be incompatible with the requirements of Article 2 of the Convention [for the Protection of Human Rights and Fundamental Freedoms] . . . , or with those of Article 8 . . . .” The Conseil d’État stressed that the law allowing the discontinuation of medical treatment provides for several procedural safeguards (reports about patient’s medical condition, ascertaining his or her wishes about being kept alive while in persistently unconscious state, consultations with patient’s family members) and therefore meets the requirements of the Convention.
The ECHR, deciding on the application following the judgment of the Conseil d’État, focused its analysis on Article 2 of the Convention. In particular, the ECHR noted that the duty to protect human life, enshrined in Article 2, consists of both positive and negative obligations of the States (that is, the obligations to “take appropriate steps to safeguard the lives of those within [the] jurisdiction [of the State]” and the obligations to “refrain from the ‘intentional’ taking of life.”)
With respect to negative obligations, the ECHR observed that the “therapeutic abstention” (that is, withdrawal and withholding of medical treatment) lacks the intention to end patient’s life―by contrast, a doctor discontinuing medical treatment from his or her patient merely intends to “allow death to resume its natural course and to relieve suffering.” Therefore, as long as therapeutic abstention authorized by the French Public Health Code, is not about taking life intentionally, the ECHR opined that France has not violated its negative obligation to “refrain from the ‘intentional’ taking of life.”
When considering the State’s positive obligations to protect human life, the ECHR noted that the regulatory framework developed in the Public Health Code and the decision of the Conseil d’État established several “important safeguards” with respect to therapeutic abstention, and that the regulation is therefore “apt to ensure the protection of patients’ lives.” While examining the end-of-life decision-making process, the ECHR heavily relied on the margin of appreciation doctrine: the Court opined that “the organisation of the decision-making process, including the designation of the person who takes the final decision to withdraw treatment and the detailed arrangements for the taking of the decision, fall within the State’s margin of appreciation.” Finally, the ECHR also took into account the testimony about Mr. Lambert’s verbal remarks to his wife, where he expressed the “wish not to be kept alive artificially if he were to find himself in a highly dependent state,” and noted that “it was primarily for the domestic authorities . . . to establish the patient’s wishes in accordance with national law.”
All this compelled the ECHR to conclude that there was no violation of the State’s positive obligation to protect human life, which, together with the absence of violation of negative obligations, resulted in conclusion that “there would be no violation of Article 2 of the Convention in the event of implementation of the Conseil d’État judgment.” Having dismissed the applicants’ claims based on Article 2 of the Convention, the ECHR briefly noted that their claims from Article 8 of the same Convention (violation of family life with Mr. Lambert) were “absorbed by those raised by the applicants under Article 2” and therefore did not merit a separate ruling.
By distinguishing between euthanasia and therapeutic abstention and allowing the States to set the regulatory framework for the latter, the ECHR in the Lambert case stroke the balance between the sanctity of life on the one hand and the notions of quality of life and individual autonomy on the other hand. Not all Members of the Court, however, agreed with that approach: the Lambert decision was passed by twelve Justices, with five dissenters.
The dissenting Justices filed a separate opinion, where they made several points. First, their reasoning strongly suggests that the dissenters considered Mr. Lambert an incapacitated individual who, like any other disabled member of society, needs to be cared for and whose life must be protected by the State; therefore, they put much greater emphasis on the notions of value of life and human dignity. Second, the dissenting Justices emphasizes upon the distinction between ordinary and extraordinary care: they thought that since artificial nutrition and hydration belongs to the first category, it should not be discontinued. Finally, the dissenters suggested a much higher standard of evidence than approved by their colleagues in majority: the separate opinion suggests that in the matters of end-of-life decision-making “nothing short of absolute certainty should have sufficed.”
Some Comparisons and Ethical Analysis
The case of Vincent Lambert is tragic, but not unique. In all countries, many patients with their family members, attending physicians, and often lawyers are struggling with the tough ethical dilemmas pertinent to end-of-life decision-making. These dilemmas include the questions of inviolability (sanctity) and quality of human life, causation and intent, standards of evidence to ascertain patient’s true will.
The story of Mr. Lambert very much resembles the tragedy of Terri Schiavo in the United States, who was in persistent vegetative state for more than ten years and was also artificially fed and hydrated. Her family also split with regard to her future: while the husband of Ms. Schiavo wanted the nutrition and hydration to be discontinued, her parents objected and wanted their daughter to be kept alive. The case arose a nation-wide controversy in the United States, culminating in a narrowly tailored bill approved by the Congress and signed by president Bush, and was ultimately decided in a federal court that approved the removal of the feeding tube.
Another similar story that happened in the United States was the earlier case of Nancy Cruzan, which was decided by the Supreme Court in 1990. In that case, there was no family controversy (Ms. Cruzan’s parents wanted to discontinue life-sustaining treatment from their daughter who was in persistent vegetative state), but the authorities of the state of Missouri objected, requiring “clear and convincing evidence” that Nancy Cruzan would want to terminate her life in such a condition. The Supreme Court, while acknowledging the right to refuse medical treatment, even at the risk of death, still deferred to the states in setting the evidentiary standards for end-of-life decision-making for incompetent patients.
The tragedies of Terri Schiavo and Nancy Cruzan and related ethical dilemmas shed some light on the story of Vincent Lambert―in all three cases, similar ethical and legal questions were raised. First of all, all three stories were evolving around the competing notions of human dignity, inviolability (sanctity) and quality of human life. Whereas the advocates of withdrawing and withholding treatment insisted that continuing it would merely extend the biological existence devoid of autonomous decisions and meaning (quality of life), the proponents of keeping the patients alive pointed out that human life and dignity are sacrosanct and their sanctity does not depend on the exercisable capacity to make choices, deliberation, and judgments. The majority of the ECHR, as I mentioned earlier, while acknowledging the notions of both sanctity and quality of life enshrined in the Convention, sought to strike the balance between the two by deferring to the States in establishing procedural safeguards with respect to end-of-life decision-making and ascertaining the patient’s will. The dissenting Justices vehemently disagreed pointing out that the ECHR’s majority undervalued human life.
Second, all three stories raise the problem of intention and the related issue of distinguishing between the foreseeable and intended effects of one’s actions―the distinction as old as the familiar (and hugely problematic) doctrine of double effect. While the ECHR majority carefully distinguished between intending to end patient’s life and intending to let the underlying medical condition take its cause, the dissenters took the broader definition of intention, pointing out that as long as medical professionals know that therapeutic abstention will necessarily cause death they indirectly intend it.
Finally, the stories raise the problem of how the autonomous will of an incompetent patient who is incapable of communication can be ascertained. The Lambert Court opined that the Conseil d’État did not violate the Convention in adopting the preponderance of evidence standard, according to which the will of Mr. Lambert was determined based on some remarks that he offered to his wife in the presence of her father (it is unclear from the text of the decision whether the courts have considered that Mr. Lambert could have changed his opinion afterwards). The dissenting Members of the ECHR, by contrast, offered the “beyond the reasonable doubt” standard used in criminal law, which is much more demanding than the preponderance of evidence. (And, as I mentioned earlier, the Supreme Court of the United States held in the Cruzan case that the states can legitimately impose the clear and convincing evidence standard, which is somewhere between the two evidentiary standards.)
These are hard questions, and different courts in different jurisdictions (including those of the member states of the Council of Europe) answer them differently, offering more or less permissive regimes of end-of-life decision-making and exercising individual autonomy in making the choice about the time and manner of one’s death. What, if anything, can the Lambert decision tell us about the future of end-of-life legal regime under the jurisprudence of the ECHR?
At first glance, the Lambert ruling seems permissive with respect to a right to die: the Court held that the procedure established in France for terminating the medical treatment of persistently unconscious and incompetent patients does not violate Article 2 and Article 8 the Convention. At the same time, the ECHR emphasized several times that the Lambert case was not about euthanasia and/or assisted suicide, which involve the intentional termination of human life, so it does not approve those practices under the Convention. Nevertheless, it seems appropriate to conclude that the ECHR has made a cautious, but a very important step in the direction of recognizing that the individual autonomy in end-of-life decision-making is to be protected, and if the state chooses to protect it and establishes appropriate safeguards around it, this does not constitute a violation of the Convention.