End of Life [ECHR]

No Right to Euthanasia

Pretty v UK confirmed that is no right to end one’s life prematurely. The applicant wished to permit to assist her husband in ending her life without the risk of prosecution for aiding and abetting suicide. The applicant was concerned her husband might be subject to prosecution for assisting her suicide. The applicant claimed she was prevented by law from exercising her choice to avoid what she considers will be an undignified and distressing end to her life.

The court was not prepared to exclude that this constitutes an interference with her right to respect for her private life as guaranteed by Article 8 of the Convention. However, there was no breach as the position was within the state’s margin of appreciation.

Nicklinson and Lamb v. the United Kingdom concerned the ban under UK law on assisted suicide and voluntary euthanasia. The first applicant, the wife of Tony Nicklinson (now deceased) who was suffering from locked-in syndrome and wished to end his life, complained that the domestic courts had failed to determine the compatibility of the law in the UK on assisted suicide with her and her husband’s right to respect for private and family life.

As regards the first one, it held that it was manifestly ill-founded, finding that Article 8 (right to respect for private and family life) of the Convention did not impose procedural obligations which required the domestic courts to examine the merits of a challenge brought in respect of primary legislation as in the present case. In any event, the Court was of the view that the majority of the Supreme Court had examined the substance of the applicant’s complaint by concluding that she had failed to show that there had been any relevant developments since the judgment in Pretty v. the United Kingdom.

Operation of Law

Gross v. Switzerland concerned the complaint of an elderly woman – who had wished to end her life but had not been suffering from a clinical illness – that she had been unable to obtain the Swiss authorities’ permission to be provided with a lethal dose of a drug in order to commit suicide. In its Chamber judgment in the case on 14 May 2013, the Court held, by a majority, that there had been a violation of Article 8 (right to respect for private life) of the Convention. It found in particular that Swiss law was not clear enough as to when assisted suicide was permitted.

In Haas v Switzerland the court held that the right to decide when and how one’s life should end is protected by the private life provisions of Article 8. The state was not obliged to provide lethal substances without a medical prescription for this purpose. The court recognised that the Article allows a state to prevent a person from taking his own life, when vulnerable or not acting freely and with full understanding.

In Koch v Germany the applicant was refused lethal substances that would end her life in circumstances where she was paralysed and needed artificial ventilation and permanent care. The refusal to examine the matter on its merits breached the procedural requirements of Article 8.

Life Support Withdrawal

Lambert and Others v. France 2015 (Grand Chamber judgment) The applicants are the parents, a half-brother and a sister of Vincent Lambert who sustained a head injury in a road-traffic accident in 2008 as a result of which he is tetraplegic. They complained in particular about the judgment delivered on 24 June 2014 by the French Conseil d’État which, relying on, among other things, a medical report drawn up by a panel of three doctors, declared lawful the decision taken on 11 January 2014, by the doctor treating Vincent Lambert, to discontinue his artificial nutrition and hydration.

The Court held that there would be no violation of Article 2 (right to life) of the European Convention on Human Rights in the event of implementation of the Conseil d’État judgment of 24 June 2014. It observed in particular that there was no consensus among the Council of Europe member States in favour of permitting the withdrawal of life-sustaining treatment. In that sphere, which concerned the end of life, States must be afforded a margin of appreciation.

Court & Best Interests

Gard and Others v. the United Kingdom concerned a baby suffering from a rare and fatal genetic disease. In February 2017, the treating hospital sought a declaration from the domestic courts as to whether it would be lawful to withdraw artificial ventilation and provide the child with palliative care. His parents also asked the courts to consider whether it would be in the best interests of their son to undergo experimental treatment in the U.S.A. . In particular, the Court bore in mind the considerable room for manoeuvre (“wide margin of appreciation”) left to the authorities in the sphere concerning access to experimental medication for the terminally ill and in cases raising sensitive moral and ethical issues, reiterating that it was not for the Court to substitute itself for the competent domestic authorities.

From this perspective, the Court gave weight to the fact that a domestic legal framework – compatible with the Convention – was available governing both access to experimental medication as well as withdrawal of life sustaining treatment.; it was appropriate for the hospital to approach the courts in the UK in the event of doubts as to the best decision to take; and, lastly, the domestic courts had concluded, on the basis of extensive, high-quality expert evidence, that it was most likely the child was being exposed to continued pain, suffering and distress and that undergoing experimental treatment with no prospects of success would offer no benefit, and continue to cause him significant harm.

Parent’s Opposition

Afiri and Biddarri v. France concerned the decision to withdraw the life-sustaining treatment being administered to a 14-year-old girl in a vegetative state following acute cardio-respiratory failure. Her parents complained of the fact that the decision to withdraw the treatment of their minor daughter ultimately lay with the doctor despite the fact that they opposed it. The Court declared the application inadmissible as being manifestly ill-founded.

It found in particular that the legislative framework in force complied with Article 2 (right to life) of the Convention and that, despite the fact that the applicants disagreed with the outcome of the decision-making process undertaken by the doctors, the process had satisfied the requirements of that Article. The Court also found that French law had provided for a judicial remedy that satisfied the requirements of Article 2.

Claimed Right to Know

Mortier v. Belgium concerned the death by euthanasia of the applicant’s mother, without the applicant or his sister having been informed. The applicant’s mother had not wished to inform her children of her euthanasia request in spite of the repeated advice from the doctors. the lack of an in-depth and effective investigation into the matters raised by him.

The Court firstly explained that the case was not about whether there was a right to euthanasia, but about compatibility with the Convention of the act of euthanasia performed in the case of the applicant’s mother. In the present case, the Court held that there had been no violation of Article 2 (right to life) of the Convention on account of the legislative framework governing the pre-euthanasia acts and procedure

However, the Court held that there had been a violation of Article 2 of the Convention on account of the post-euthanasia review procedure in the present case, finding that the State had failed to fulfil its procedural positive obligation, on account of the lack of independence of the Federal Board for the Review and Assessment of Euthanasia and the length of the criminal investigation in the case

Freedom of expression

Gawlik v. Liechtenstein concerned a doctor who raised suspicions that euthanasia had been taking place in his hospital. In doing so, he went outside the hospital complaints structure and lodged a criminal complaint. The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention, finding that the interference with the applicant’s rights had been proportionate. While noting that he had not acted with improper motives, the Court nevertheless found that the applicant had been negligent in not verifying information. In the present case, it considered that the applicant’s dismissal had been justified, especially given the effect on the hospital’s and another staff member’s reputations.

Lings v. Denmark The applicant was a doctor and the founder of Physicians in Favour of Euthanasia (Læger for Aktiv Dødshjælp), an organisation campaigning for assisted suicide. The case concerned his conviction on two counts of assisted suicide, and one count of attempted assisted suicide. The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention, finding that, overall, the domestic courts’ reasons for taking the decision they did – protection of health and morals and the rights of others – had been legitimate, and they had acted within the wide discretion (“margin of appreciation”) afforded to the authorities in this particular case. The Court also emphasised that no right to assisted suicide existed under the Convention.