Background

Vincent Lambert was in a vegetative state and had to be artificially fed and hydrated. His parents, half-brother and sister wanted him to be kept fed and hydrated while his wife, his nephew and his physicians wanted life-support discontinued. The Administrative Court had held that withdrawal of artificial nutrition and hydration would be “a serious and manifestly unlawful breach of [his] right to life”.

On appeal, however, the Conseil d’État held that the provision in the Public Health Code authorising doctors to withdraw and withhold “unreasonably persistent medical treatment” [un traitement médical qui traduirait une obstination déraisonnable] did not violate Article 2 (right to life) or 8 (private and family life) ECHR [47] and that the Code’s procedural safeguards satisfied the requirements of the Convention. The Conseil also rejected the applicants’ allegations of breach of Articles 6 (fair trial) and 7 (no punishment without law): the doctor’s role under the provisions of the Public Health Code was not incompatible with the duty of impartiality under Article 6, while Article 7 (which applies to criminal convictions) was simply not relevant [47].

The judgment

The matter came before the Grand Chamber in Lambert & Ors v France [2015] ECHR 545. In coming to its decision the Court relied both on the margin of appreciation and on the testimony of Mrs Lambert that her husband had expressed the wish not to be kept alive artificially if he were to find himself in a highly dependent state [176]. It also noted that “it was primarily for the domestic authorities … to establish the patient’s wishes in accordance with national law” [181]. The Court also observed that the Act of 22 April 2005 on patients’ rights and end-of-life issues did not authorise either euthanasia or assisted suicide: it allowed doctors, in accordance with a prescribed procedure, to discontinue treatment only if continuing it demonstrated “une obstination déraisonnable”; and in its observations to the Conseil d’État the National Medical Academy had reiterated the fundamental prohibition barring doctors from deliberately taking another’s life laid down in Article R. 4127-38 of the Public Health Code [121].

The Grand Chamber declared unanimously that the claim under Article 2 was admissible and dismissed the remainder of the application by twelve votes to five (Hajiyev, Šikuta, Tsotsoria, De Gaetano and Griҭco JJ dissenting). It further held by twelve votes to five that there would be no violation of Article 2 if the judgment of the Conseil d’État of 24 June 2014 were implemented and that it was not necessary to rule separately on the complaint under Article 8.

The dissent

In a judgment almost (but not quite) worthy of Scalia J at his most waspish, the five dissenters concluded that

“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 … [I]t is of the very essence of a conscience, based on recta ratio, that ethical matters should be allowed to shape and guide the legal reasoning to its proper final destination. That is what conscience is all about. We regret that the Court has, with this judgment, forfeited the above-mentioned title” [11].

Ouch.

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For a longer analysis see Konstantin Tretyakov on Strasbourg Observers: From Therapeutic Abstention to the Right to Die? The Case of Lambert and Others v France.