end-of-life decision-making

The case of Lambert and Others v. France

On June 5^th, 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) in a vegetative state who had not left clear instructions in advance.

Vincent Lambert was a victim of a road-traic accident in 2008. He was in a vegetative state and received life-sustaining nutrition and hydration. The treating doctor decided to discontinue nutrition and hydration. Vincent Lambert’s wife and two other family members supported the treating doctor’s decision. Although the Administrative Court suspended the implementation of the doctor’s decision, the Conseil d’État found that decision lawful.

The applicants were Vincent Lambert’s parents, half-brother and sister. The applicants’ principal complaint was that the withdrawal of nutrition and hydration would be in breach of Article 2.

The Court concluded that there would be no violation of the Convention should the judgment of the Conseil d’État be implemented.

In the irst place, the Court found that the applicants

could invoke the right to life of Vincent Lambert on their own behalf.

Secondly, the Court examined the issues of end-of-life decision-making from the point of view of the State’s positive obligation to protect life, read in light of the individual’s right to respect for his or her private life and the notion of personal autonomy which that encompassed (Pretty v. the United Kingdom). Further factors were taken into account: the existence in domestic law of a regulatory framework compatible with Article 2 requirements; the extent to which account had been taken of the wishes of the patient, of his family and of the medical personnel; and the possibility of consulting the courts for a decision in the patient’s interests. he Court concluded that the law (including the notion of “unreasonable obstinacy”) did not lack clarity or precision as alleged. It also found compatible with Article 2 the legislative framework (“suiciently clear” and “apt to ensure the protection of patients’ lives”) and the consequent consultation process (“meticulous”). In so inding, the Court emphasised the particular quality and breadth of both the consultation process and of the review by the Conseil d’État.

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Efective investigation

Mustafa Tunç and Fecire Tunç v. Turkey

Application no. 24014/05, 14.04.2015

This case involves the death of Cihan Tunç, who was born in 1983 and died on February 13, 2004.  Before his death, Cihan Tunç was doing his military service in Kocaköy, which was a site for a private oil company whose security service was run by the national gendarmerie.  While on duty, he was fatally injured by gunfire.  He was brought to a hospital.  However, he died shortly after his arrival.  The judicial investigation into the matter revealed that the cause of death was most likely an accidental death rather than suicide or murder.  According to experts, Cihan Tunç may have been playing with his weapon and upon getting up his hand accidentally pressed the trigger.  As a result, in June 2004, the prosecutor discontinued proceedings because no party could be held responsible for Cihan Tunç’s death. The applicants for this case to the European Court of Human Rights are Cihan Tunç’s parents.  They complained that the authorities failed to carry out an effective investigation into their son’s death.  The applicants rely on Article 2.  The applicants claim that the judicial authorities involved in the investigation were not given independence to carry out the investigation.  On June 25, 2013, the European Court of Human Rights in its Chamber Judgment held that there was a violation of Article 2.  The applicants were jointly awarded EUR 10,000 for non-pecuniary damages and EUR 2,000 for costs and expenses.  At the request of the Turkish government, however, on November 4, 2013, this case was referred to the Grand Chamber.

Article 6 (which provision was not applicable in the applicants’ case) and 2 require that the court called upon to determine the merits of a charge be independent of the legislature and the executive, and also of the parties. Compliance with this requirement is assessed, in particular, on the basis of statutory criteria, such as the manner of appointment of the tribunal’s members and the duration of their term of voice, or the existence of suficiente safeguards against the risk of outside pressures. The adequacy of the degree of independence is assessed in the light of all the circumstances, which are necessarily specific to each case. Where an issue arises concerning the independence and impartiality of an investigation, the correct approach consists in examining whether and to what extent the disputed circumstance has compromised the investigation’s efectiveness and its ability to shed light on the circumstances of the death and to punish those responsible. The compliance with the procedural requirement of Article 2 is assessed on the basis of several essential parameters: the adequacy of the investigative measures, the promptness of the investigation, the involvement of the deceased person’s family and the independence of the investigation. In its judgment the Grand Chamber held that there had been no violation of the procedural aspect of Article 2 of the Convention, as the investigation had been sufficiently thorough and independent and the applicants had been involved to a degree sufficient to protect their interests and to enable them to exercise their rights.