Law Review. Issue N 4. March 2016

Transcription

1 Issue N 4 March 2016 Law Review The methodological difficulties faced by the ECtHR on the issue of the boundaries of life Marion Chabassier and Prof. David Scymczak EXCELLENCE I N I T I A T I V E Program supported by the ANR n ANR-10-IDEX-03-02

2 MONTESQUIEU LAW REVIEW Issue No.4 March 2016 European law (ECHR) The methodological difficulties faced by the ECHR on the issue of the boundaries of life Marion Chabassier, University of Limoges and Prof. David Scymczak, University of Bordeaux ECHR, Lambert v France [GC], Application n 46043/14, 5 June 2015 Of all the cases to hit the headlines, the Vincent Lambert case is a topical example that has seared the legal imagination of every French citizen in light of the social issues that it raises and the most private personal beliefs that it summons. Left tetraplegic and in a state of total dependence following a head injury sustained in a road traffic accident in September 2008, Vincent Lambert has been hospitalised since January In 2011, extensive examinations concluded that he was in a persistent vegetative state or low-level neurological state, i.e. a minimally conscious plus state. A level above the vegetative state, it precludes any interaction with the patient serving to establish whether he has retained any ability to understand. Signs of resistance to treatment and washing noticed by the medical team in 2012, the collegiate procedure provided under the Law of 22 April 2005 on patients' rights and end of life (1), known as the loi Leonetti, was instigated in early It resulted in the head of the hospital department deciding, on 10 April 2013, and following a consultation with the patient s spouse and several of his siblings as well the medical team, to stop treatment by respectively suspending and reducing artificial nutrition and hydration. Lambert s parents and remaining siblings, who were not consulted, made an application to the juge des référés (interim relief judge) to the Administrative Court at Châlons-en-Champagne on 9 May 2013, on the basis of Article L of the Code de justice administrative (Administrative Justice Code). Finding that the patient s parents had not been informed that the collegiate procedure had been implemented, the court ruled that there had been a serious and manifestly unlawful infringement of the right to life, guaranteed by Article 2 of the European Convention on Human Rights, and ordered that artificial nutrition and hydration resume (2). In September 2013, the attending physician instigated another collegial procedure, at the end of which, on 11 January 2014, he decided to stop artificial nutrition and hydration as of 13 January, subject to any application made to the administrative courts. The patient s parents again made an application for interim relief to the same court, which suspended the medical decision, ruling that it constituted a serious and manifestly unlawful infringement of the patient s right to life (3). The patient s spouse, one of his brothers and the hospital brought an appeal before the juge des référés at the Conseil d'état, which ruled on 14 February 2014 (4). Upholding the administrative court s examination, according to which artificial nutrition and hydration did indeed constitute treatment within the meaning of the Léonetti law, the court requested an expert report on the patient s clinical condition before ruling on the matter of suspending said treatment. The Conseil d'état handed down its judgment on 24 June 2014 (5). The patient s state having deteriorated and 1

3 his condition being irreversible, this invalidated the decision handed down by the interim relief judge sitting at the administrative court. On 23 June 2014, Vincent Lambert s parents, one of his sisters and his half-brother applied to the European Court of Human Rights, pursuant to Article 34 of the Convention, invoking Articles 2, 3 and 8. The following day, the designated Chamber decided to suspend the enforcement of the judgment handed down by the Conseil d Etat pending its own decision on the merits of the case. On 4 November, the case was referred to the Grand Chamber. In its judgment of 5 June 2015, ruling by a majority of 14 votes to 5, it ruled that the decision to halt treatment was compatible with Article 2 ECHR: the implementation of the Conseil d Etat s decision of 24 June 2014 in no way infringed the provisions of the Convention. Moreover, on 6 July 2015, the Court also dismissed an application for the revision of said judgment. Beyond the issue of the applicants locus standi or legal standing, which took on a unique configuration in this matter (6), on its merits the judgment is part of the wider debate on the boundaries of life, viewed through the prism of halting treatment of a patient who is not stricto sensu at the end of life and is in no condition to clearly express his wishes. It is also striking owing to the Court s use of its own methodological tools. While its use of the national margin for appreciation unsurprisingly justifies its limited review (I), the flimsiness of that justification weakens the scope of its decision (II). I. The expected use of the national margin of appreciation justifying the conduct of a limited review That the Court should have recourse to the national margin of appreciation is no surprise, the case having raised a number of particularly sensitive social issues (A). The ECHR s use of this methodological tool justifies its limited examination of the merits of the case (B). A. The Court s anticipated recourse to the national margin of appreciation Recourse to the national margin of appreciation is unsurprising in view of the social issues raised by the case. The Court also took pains to highlight the lack of consensus between the various Member States of the Council of Europe on the issue of end of life. This is especially the case given that end of life is currently the subject of legislative debate. As regards, inter alia, "complex scientific, legal or ethical questions", the Court grants a margin of appreciation to States (7). Questions concerning the boundaries of life be it the starting point of human life (8) or the end of life (9) - are also social issues that justify such a margin of appreciation being granted to States party to the Convention. Up until now, when ruling on issues concerning the boundaries of life, the Court has considered that the right to respect for private and family life, protected under Article 8, was at stake (10). Its approach is therefore quite innovative. Recognising a national margin of appreciation in the application of Article 2 ECHR would appear to be justified in the sense that the obligation to protect the right to life must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities (11), particularly in difficult social and technical spheres (12). Consequently, it is quite logical that a margin of appreciation should be recognised to States "not just as to whether or not to permit the withdrawal of artificial life-sustaining treatment and the detailed arrangements governing such withdrawal (13). In addition, because Article 2 encompasses 2

4 questions raised on the basis of Article 8, a balance must be struck between protecting the patient s right to life and his right to respect for private life and personal autonomy (14) the aim is to establish a balance between competing private interests (15). The case summons the State s positive obligation to protect life, the State having to take the necessary steps to protect the life of persons within its jurisdiction (16). Specifically, in the field of public health, the regulatory framework set by the State must require that hospitals adopt appropriate measures to guarantee the protection of patients lives (17). Furthermore, in a limited review, the ECtHR ensures that the French State has complied with that positive obligation. B. The logical performance of a limited review of compatibility with the Convention On a substantive level, the Court reviewed the precision and clarity of the law. Recalling the Conseil d Etat s interpretation, it affirmed that the provisions of the Léonetti law were applicable to Vincent Lambert s position, which was not "end of life stricto sensu (18). In view of Conseil d Etat case law, the ECtHR took the view that artificial nutrition and hydration formed part of "treatment" within the meaning of the same law, i.e. acts intended to maintain vital functions artificially. These are likely to be stopped or restricted (19). As for Vincent Lambert, his position fell within the scope of obstination déraisonnable or unreasonable obstinacy (20). Upholding the Conseil d Etat s reasoning, the ECtHR paired the characterisation of that concept with two important safeguards, namely: an irreversible state of unconsciousness or loss of autonomy, and the patient s wishes ; in the event that these are not known, they could not be assumed to consist in a refusal to be kept alive (21). The ECHR thus emphasised the need to stick to a casuistic examination and the impossibility of extending the scope of the decision to all patients in a low-level neurological state, said state being so imbued with mystery (22). The Court therefore held that the provisions of the Léonetti law, as interpreted by the Conseil d Etat, were "sufficiently clear, for the purposes of Article 2 of the Convention and concluded that the State put in place a regulatory framework apt to ensure the protection of patients lives (23). The Court required that the decision-making process be compatible with procedural obligations that were similar to the duty to ensure a fair decision-making process in the protection of public health, on the basis of the right to respect for private life (24). From the point of view of collegiality, while the decision is not made collectively, the law does not ignore any and all forms of collegiality, as provision is made for consultation stages. The procedure instituted exceeded the requirements laid down by law" (25). The issue of the patient s wishes was more delicate. These were sought through a consultation with the family, the patient not being able to make them known while no provision was made for any of the anticipatory measures put forward by law. As the Conseil d Etat ruled, "it had been lawful for him to take his decision in the absence of unanimity among the family members (26). The Court also noted, as had the Conseil d Etat, that the procedure satisfied the requirements flowing from Article 2 of the Convention (27). The State had established "an efficient legal system". On the one hand, the juge des référés had conducted a complete review of the lawfulness of the decision to stop treatment (28). The judge has the power to suspend the doctor s decision, but also to conduct a full review of the lawfulness of that decision (29). This demonstrates the unusually extensive review conducted by the juge des référés (30), as does the request for expert evidence (31). Ultimately, the Conseil d Etat "was able to adapt its tempo and office to the necessities of the case" (32). On the other hand, the patient s wishes had indeed been considered by the Conseil d Etat which, in the absence of any advance 3

5 directive and an appointed person of trust, heard specific testimony from the patient s spouse allowing it to establish what the patient s wishes had been (33). For the Court, the patient being "the principal party in the decision-making process and whose consent must remain at its centre (34), enshrined the patient s right to personal autonomy in situations where they have clearly expressed their wish to end their life in Pretty v United Kingdom (35). It went even further in Lambert by extending that right to patients who have not made an explicit choice (36). The Court s decision is understandably tinged with humility in view of the societal choices involved in the debate surrounding the boundaries of life, which is reflected in the use of the national margin of appreciation. However, the latter suffers from significant weaknesses that undermine the scope of the decision. II. A weak justification undermining the scope of the decision The justification for resorting to the national margin of appreciation proves to be quite weak (A). Combined with the other imperfections in the grounds, this relativises the scope of the decision (B). A. The weak justification for resorting to the national margin of appreciation The Court s position proves to be "nuanced and cautious", it having chosen to restrict its review by hiding behinds the Member States margin of appreciation, which is nothing more than a corollary to the principle of subsidiarity, pursuant to Protocol 15 (37). It would no doubt have been relevant for the Court to place greater emphasis on this principle, which it considers to be one of the pillars of the Convention (38). It would appear to be of little use even "superfluous" (39) - for the Court to emphasise the lack of consensus between the Member States on the issue of end of life. The ECtHR s legal argument is far from irreproachable, being "quite random" (40): what it loses in rationality in its reasoning, it makes up for in its opportunity (41). The debate on the usefulness of consensual interpretation is ongoing (42). While "the balance between the protection of rights and deference to state sovereignty is more crucial than ever", the Court did not stipulate the scope of the national margin of appreciation (43). It handed down ""an overall reward" to French legislation and the interpretation thereof by the Conseil d Etat" (44). However, the decision gives the impression that it has dodged the substantive issues (45) by giving competence as a priority to national authorities "without [ ] defining, for Member States as a whole, the general principles likely to frame end-of-life situations in compliance with the Convention (46). Imperfections in the grounds for the judgments end up relativising its scope. B. Imperfect grounds While the Court avoided ruling on the issues raised on grounds of Article 3 (prohibition of torture, inhuman or degrading treatment) with no explanation, the use of Article 2 is essentially "atypical" (47) in view of previous case law on the end of life, in which the Court had always ruled on the merits on the basis of Article 8. Until Lambert, it had always preferred to transfer the debate to the sole area of the concept of personal autonomy (48). In this context, it considered that the right to respect for private life, within the meaning of Article 8, included the individual s right to decide 4

6 how and when she dies in order to ensure a dignified death (49). Thus the Court reads the ECHR as an "everything" (50) i.e. a coherent whole, and refers to Article 2 in the context of the examination of a potential violation of Article 8 (51). In Lambert, however, it opted without justification for the opposite approach: referring to Article 8 in the context of the examination of a potential violation of Article 2. According to the Court, only the State s positive obligations were brought into play in this case, on the basis of Article 2 (52). It noted that the 2005 Law does not authorise either euthanasia or assisted suicide " (53) and the issue before it in the present case is not that of euthanasia, but rather the withdrawal of life-sustaining treatment (54). In this context, the State s negative obligations on the basis of Article 2 are not concerned. The Court followed in the footsteps of the Conseil d Etat and gave precedence to judicial dialogue by drawing inspiration from the conclusions of the rapporteur public (55). Conversely, the five dissenting judges affirmed that they "strongly disagree with what is stated in paragraph 141 of the judgment. For them, [t]he case before this Court is one of euthanasia, even if under a different name (56). The mistake made by the Court in its decision in Glass (57) also impacts on the grounds in Lambert. Contrary to the assertion made repeatedly in the initial version of the latter judgment of 5 June 2015, the case of Glass v United Kingdom is the only instance where the Court, ruling on the administration of medication to a severely disabled child for the purposes of ensuring a peaceful death, in the absence of parental consent required under domestic law, found a violation of the child s right to respect for private life and his right to physical integrity (58). On 24 June 2015, the parents of Vincent Lambert applied for a revision of the decision. Admittedly, by a decision of 6 July 2015, the Court rejected their application: the error invoked by the applicants in the description of the Court s previous case law was merely material (59), not substantive and therefore could not constitute an error in law (60). However, this further undermined the scope of the statement of compatibility. Ultimately, the scope of the statement of compatibility issued by the ECtHR is all the more restrictive in that its applicability is in doubt in two other respects. The potential recognition of a right to terminal sedation could already lead to further debates (61). Furthermore, while the ECtHR found that there had been no violation of Article 2, the medical team ran the risk of a fresh appeal before French administrative courts by deciding to instigate a new decision-making process. However, given that counsel for the applicants considered bringing the matter before the disciplinary and criminal courts, the medical team opted to announce the end of the current process and also applied to the Public Prosecutor for measures to protect adults (demande de mesure de protection des majeurs). Applications to the ordinary courts could thus lead to further developments in the Lambert case. Notes: (1) Loi n du 22 avril 2005 relative aux droits des malades et à la fin de vie (Law n of 22 April 2005 on patients rights and the end of life), JORF n 95 du 23 avril 2005, p ( 2) TA Châlons-en-Champagne, 11 May 2013, n (3) TA Châlons-en-Champagne, 16 January 2014, n (4) CE, 14 February 2014, n , n and n (5) CE, 24 June 2014, n , n and n

7 (6) For an in-depth examination of this issue, see in particular Laurence Burgorgue-Larsen, «Actualité de la Convention européenne des droits de l Homme (janvier-juillet 2015)», AJDA, 2015, p (7) Para (8) ECtHR, Vo v France [GC], Application n 53924/00, 8 July 2004 ECHR 2004-VIII; ECtHR, Evans v United Kingdom [GC], Application n 6339/05, 7 March 2006; ECtHR, A., B. and C. v Ireland [GC], Application n 25579/05, 16 December 2010, on abortion; ECtHR, S. H. and others v Austria [GC], Application n 57813/00, 3 November 2011, on in vitro fertilisation. (9) ECtHR, Haas v Switzerland, Application n 31322/07, 20 January 2011; ECtHR, Koch v Germany, n 497/09, 19 July (10) See below, part B, point 2. (11) ECtHR, Osman v United Kingdom, Application n 23452/94, 28 October 1998, para (12) ECtHR, Öneryildiz v Turkey, Application n 48939/99, 30 November 2004, para See Frédéric Sudre, «La fin de vie devant la Cour européenne des droits de l Homme : un brevet de conventionnalité délivré à la loi Leonetti», JCP G n 27, 6 July 2015, 805, note beneath judgment. (13) ECtHR, Lambert v France [GC], Application n 46043/14, 5 June 2015, para (14) Idem. (15) Para See ECtHR, Odièvre v France [GC], Application n 42326/98, 13 February (16) Para (17) Para The Court refers to the following ECtHR decisions: Calvelli and Ciglio v. Italie [GC], n 32967/96, 17 January 2002, ECHR 2002-I, para. 49; ECtHR, Glass v United Kingdom (4 th section), n 61827/00, 9 March 2004; ECtHR, Vo v. France [GC], cited above, para. 89. (18) Entitled "Loi relative aux droits des malades et à la fin de vie " (Law on patients rights and the end of life), this Law is applicable to all healthcare users "regardless of whether the patient is at end of life", para In the context of the discussions surrounding the current proposals, there may be a fresh debate depending on the title selected. (19) Nevertheless, the qualification could still be discussed today, the French Senate having amended the National Assembly s proposals at second reading, providing that "artificial hydration constitutes treatment that may be maintained until the death of the patient" (proposal, Article 2). (20) A concept that can be difficult the grasp, "obstination déraisonnable" relates to a purely medical assessment, which explains the technical consultations required by the Conseil d Etat and adopted by the ECtHR. (21) Recital 17, para (22) Valérie Depadt, «Le droit français sur la fin de vie à l épreuve de la Convention européenne des droits de l Homme», Revue Juridique Personnes et Famille, 2015, p. 9. (23) Para (24) See Frédéric Sudre, «La fin de vie devant la Cour européenne des droits de l Homme : un brevet de conventionnalité délivré à la loi Leonetti», cited above, 805. See also ECtHR, Tysiac v Poland, Application n 5410/03, 20 March (25) Paras. 166 and 168. However, the principle of a collegiate decision may be beneficial. Nonetheless, this does not appear to be the path taken by ongoing parliamentary work (proposal, Article 3). (26) Para (27) Para

8 (28) Pursuant to Article L of the Code de justice administrative (Administrative Justice Code), in the context of a référé-liberté (urgent application for protection of fundamental rights), the juge des référés rules, in principle, alone and may take provisional measures "necessary for the safeguarding of a fundamental freedom that has been subject to a serious and manifestly illegal infringement on the part of an administrative authority", without ruling on the merits of the case. The Conseil d Etat has clarified the role played by the juge du référé-liberté in the specific case of a decision made by a doctor which would lead to the withdrawal of treatment constituting unreasonable obstinacy. (29) See paras. 171, 173 and 175. (30) See Pierre Delvolvé, «Glissements», RFDA ; Paul Cassia, «Arrêt de traitement médical : un bien étrange référé-liberté, AJDA (31) Paras (32) Xavier Dupré de Boulois, «La Cour européenne des droits de l Homme et l affaire Vincent Lambert : à la recherche du temps perdu», Revue des droits et libertés fondamentaux 2015, chron. n 24. (33) See para (34) Para (35) Para. 180; ECtHR, Pretty v United Kingdom (4 th section), Application n 2346/02, 29 April (36) Frédéric Sudre, «La fin de vie devant la Cour européenne des droits de l Homme : un brevet de conventionnalité délivré à la loi Leonetti», cited above, 805. (37) Vialla (François), Reynier (Mathieu), «Usque adeone mori miserum est?», Revue Lamy Droit Civil, 2015, p. 131; on the principle of subsidiarity, see Frédéric Sudre, Droit européen et international des droits de l Homme, PUF, 2015, 12th ed., n 148. As this protocol has not to be ratified by all States parties to the Convention, it is not yet in force. (38) ECtHR, Austin and others v United Kingdom [GC], n 39692/09, 15 March (39) Frédéric Sudre, Zoom, JCP G ; see also Béatrice Pastre-Belda, «Et si la Cour européenne renonçait à l interprétation consensuelle?», RTDH 2015, p (40) Frédéric Sudre, «La fin de vie devant la Cour européenne des droits de l Homme : un brevet de conventionnalité délivré à la loi Leonetti», cited above, 805. (41) Moreover, the explanation given is a clumsy one. It is "contradictory in asserting (para. 147) that there is no consensus whilst noting that a "majority of States" (unspecified) "appear" to permit the withdrawal of treatment in order to highlight (within said majority, if we understand correctly) the existence of a consensus as to the paramount importance of the patient s wishes in the decision-making process, (idem). (42) Burgorgue-Larsen (Laurence), «Actualité de la Convention européenne des droits de l Homme (janvier-juillet 2015)», cited above, p (43) Idem. (44) See Joël Andriantsimbazovina, «Chronique de jurisprudence de la Cour européenne des droits de l Homme (chronique avril à juin 2015)», La Gazette du Palais, 12 September 2015 n 255, p. 17. (45) Idem. (46) Frédéric Sudre, «La fin de vie devant la Cour européenne des droits de l Homme : un brevet de conventionnalité délivré à la loi Leonetti», cited above, 805. (47) François Vialla, Mathieu Reynier, «Usque adeone mori miserum est?», cited above, p (48) ECtHR, Pretty v United Kingdom (4 th section), cited above, para

9 (49) Ibid., Paras. 65 and 67; ECtHR, Haas v Switzerland (1 st section), cited above, para. 51; ECtHR, Koch v Germany, cited above, para. 52. (50) Para (51) See in particular ECtHR, Pretty v United Kingdom (4 th section), cited above, paras. 63 and 65. (52) It emerges from the L.C.B. decision that the States Parties have a negative obligation to protect the right to life, consisting in abstaining from killing "intentionally", but also a positive obligation, which involves taking those measures necessary to protect the life of persons within their jurisdiction (ECtHR, L.C.B. v United Kingdom, Application n 23413/94, 9 June 1998, ECHR 1998-III, Para. 36). (53) Para (54) Para (55) See in particular para. 122 of the judgment. (56) Para. 9 of the joint dissenting opinion. (57) Paras. 138 and 139. (58) ECtHR, Glass v United Kingdom (4 th section), cited above. (59) This is an obvious inaccuracy, which was subsequently rectified on 25 June 2015, in accordance with Article 81 of the Regulations of the Court. (60) According to the Court, this mistake, together with the recent statements made by the Minister of Health on the difficulties faced by the medical profession as regards the expression of the patient s wishes, and the video serving to confirm that the patient can feed and hydrate himself again without artificial means, do not constitute new facts likely to "exert a decisive influence on the outcome of the case, within the meaning of Article 80 (1) (2) of the Regulations of the Court. (61) The forthcoming Article L may lead to a number of situations in which involving "a deep and continuous sedation, causing altered consciousness maintained until death, combined with an analgesic and the halting of all life-support treatment ( ). So, "while it is not euthanasia expressis verbis or even assisted suicide, the boundary is no less difficult to identify", François Vialla, Mathieu Reynier, «Usque adeone mori miserum est?», cited above, p