CYIL vol. 13 (2022)

TOMÁŠ HOLČAPEK CYIL 13 ȍ2022Ȏ have usually not expressed (and have not been able to formulate) any relevant opinion on the matter. In reality they are bound to be more “objects” than “subjects” of care, the decision making competence being exercised by someone else (typically, their parents). 1.2 Illustrative Cases The provisions of international treaties set out above are framed in a rather general manner. Case law, especially that of the European Court of Human Rights, helps to explain and apply them in specific situations. 1.2.1 Vincent Lambert The quite widely-known case of Vincent Lambert did not concern a child, but nevertheless provided the basis for formulation of critically important legal principles stemming from the European Convention on Human Rights. Mr. Lambert sustained head injuries in a road traffic accident in September 2008, which left him tetraplegic and in a state of complete dependency. In a hospital, he received artificial nutrition and hydration. In September 2013, the doctor in charge of the patient initiated a consultation procedure with a view of ending the treatment. The consultation involved, among others, six other doctors, the patient’s wife, his parents and eight siblings. Following that, two groups formed. The patient’s wife, six of his siblings and five of the consulted doctors were in favour of withdrawal of treatment. The patient’s parents, two siblings and one of the consulted doctors were against it. The case came before French administrative courts. After obtaining specialist expert evidence 6 , the Conseil d’État held that the decision of the doctor in charge to withdraw artificial nutrition and hydration was lawful 7 . On application by the relatives who disagreed with the decision, the European Court of Human Rights held that there had been no breach of Article 2 of the Convention. 8 In the court’s view, the case did not involve the state’s negative obligations under Article 2, as it did not concern taking of life by the state. Consequently, only the state’s positive obligations were considered. Three main obligations were emphasised by the court: 1) existence in domestic law and practice of a regulatory framework compatible with the requirements of Article 2 of the Convention; 2) taking into account of the applicant’s previously expressed wishes and those of the persons close to him, as well as the opinions of other medical personnel; and 3) possibility to approach the courts in the event of doubts as to the best decision to take in the patient’s interests. The court expressly noted: “[N]o consensus exists among the Council of Europe member States in favour of permitting the withdrawal of artificial life-sustaining treatment, although the majority of States appear to allow it. While the detailed arrangements governing the withdrawal of treatment vary from one country to another, there is nevertheless consensus as to the paramount importance of the patient’s wishes in the decision-making process, however those wishes are expressed (…). [I]n this sphere concerning the end of life, as in that concerning the beginning of life, States must be afforded a margin of appreciation, not just as to whether or not to permit the withdrawal of artificial lifesustaining treatment and the detailed arrangements governing such withdrawal, 6 As ordered by the decision of the Conseil d’État of 14 February 2014, no. 375081. 7 Judgment of the Conseil d’État of 24 June 2014, no. 375081. 8 Judgment of the European Court of Human Rights of 5 June 2015, Lambert and Others v. France , app. no. 46043/14; it is worth noting that the judgment was adopted by the Grand Chamber.

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