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Jeanne Smits, Paris correspondent

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European court approves starvation of handicapped man – but he’s spared for now

Jeanne Smits, Paris correspondent

STRASBOURG, France, June 8, 2015 (LifeSiteNews) -- In a landmark decision on Friday, the European Court of Human Rights (ECHR) rejected the appeal of several family members of Vincent Lambert, France’s Terri Schiavo, against a judgment of the Conseil d’Etat, France’s highest administrative court, allowing the withdrawal of the artificial nutrition and hydration of the handicapped and brain-damaged man. While Lambert’s life is not immediately under attack, the ECHR’s decision marks an important point for Rachel, Vincent Lambert’s wife, who is in favor of putting an end to his life because, she says, he “would not have wanted to live this way.”

But the decision has many far-reaching effects. In deciding that each country has the right to qualify the administration of food and fluids through a feeding tube as a “treatment,” not “care,” provided laws are clear, the European judges have given a blanket approval to all laws that provide for killing non-terminally ill, brain-damaged patients, as well as those who can no longer have a meaningful relationship with their near ones, by depriving them of nourishment and hydration. This amounts to “slow euthanasia”: starving and dehydrating to death people who would otherwise not have died.

The “affaire Vincent Lambert,” as it is known in France, began in April 2013. Lambert, now 38 years old, had suffered head injuries five years previously, leaving him quadriplegic. After a period of coma and “vegetative state,” he was diagnosed as being in a minimally conscious state: capable of feeling pain and pleasure as well as emotions but not able to communicate consistently with those around him. Stimulation was recommended even though there was little hope of seeing his condition improve. Apart from his brain damage, Lambert is in a healthy, stable condition. He receives artificial nourishment through a gastric feeding tube but has spontaneously recovered his ability to swallow, even though he is not getting rehabilitative treatment in order for that reflex to improve.

While arguing that Lambert cannot communicate and is not conscious, several of the nursing staff at the Reims hospital where he has lived for the last three years said that at the end of 2012 he was showing signs of “refusal” of the care they were giving him. That led to a decision to put him on an end of life procedure under the authority of a doctor who has since left the hospital, Eric Kariger, in application of France’s current end of life law, which provides for this type of slow euthanasia. The decision was implemented on the basis of Rachel Lambert’s assurance – it was the first time she had mentioned it – that before his accident, Vincent, a psychiatric nurse, had said he “would not want to live that way.” Vincent’s parents, Viviane and Pierre Lambert, were not told of the decision and discovered their son was starving 20 days after the feeding tube had been pulled.

They sought legal help and obtained an emergency decision ordering Lambert to be fed once more, after 31 days in which he had received only 200 ml of liquid per day. Lambert recovered, and has since then presented some improvement, according to his mother. She describes, in a book published in May by a major French publisher, the way in which he now sometimes is able to lift one of his legs when asked to do so.

The Lamberts obtained several more favorable court decisions after Dr. Kariger, supported by the mainstream media and France’s political personnel, again took the decision to starve Vincent to death, this time respecting provisions of the law ordering him to “consult” the patient’s family within a “collective procedure.” Encouraged by French Health Minister Marisol Touraine, who called them personally, Rachel Lambert and several of Vincent’s siblings seized the Conseil d’Etat, which judged last June that the end of life law, or “Loi Leonetti,” covered the young man’s case and that the decision to stop feeding him because he would have wanted it, and also because he was deemed to be in a “vegetative state” after expert tests, and had no hope of seeing his condition improve. It was decided that as his condition was “irreversible” and as he would not have wanted to be kept alive “artificially,” Vincent could be submitted to an end of life procedure.

It is this last decision that the European Court of Human Rights has acknowledged as fully compatible with the European Convention of Human Rights.

Viviane and Pierre Lambert as well as two of Vincent’s siblings were told that they could not act in his name and on his behalf because the ECHR could not consider that there is a “convergence of interests between the applicant’s assertions” and what the young man “would have wished,” insofar as the proceedings in France had found that Kariger “had not incorrectly interpreted those wishes.” In January, the family’s lawyers had argued against the correctness of that interpretation, underscoring the fact that the only purported direct witness of Vincent’s statements was his wife. Furthermore, Rachel only produced this information several years after the accident and gave different versions of it. The European judges refused to look into this point. Rachel Lambert’s “request to represent her husband as a third-party intervener” was also rejected (all quotes from ECHR’s press statement).

But their application was deemed admissible on their own behalf: “Although Vincent Lambert was still alive, there was no doubt that if artificial nutrition and hydration were withdrawn, his death would occur within a short time. Accordingly, the Court considered that the applicants, in their capacity as Vincent Lambert’s close relatives, could rely on Article 2. Article 2 enjoined the State not only to refrain from the ‘intentional’ taking of life (negative obligations), but also to take appropriate steps to safeguard the lives of those within its jurisdiction (positive obligations),” says the press summary.

But the Court decided that France’s “Leonetti Law” does not authorize euthanasia or assisted suicide, only discontinuing of treatment when it constitutes “unreasonable obstinacy,” which it considers sufficient.  It went on to say that France’s law provides a clear legislative framework, that the patient’s wishes as well as those of the persons close to him and other medical personnel were taken into account and that there had been a possibility to approach the courts in order to decide what were the “patient’s interests.”

As to the main question – is depriving a patient of food and water, even though he is not in the terminal phase of an illness and when nourishment and hydration effectively achieve their goal of sustaining life without causing useless suffering, consistent with human rights? – the ECHR brushed it aside as “in the sphere concerning the end of life States must be afforded a margin of appreciation.” Revealingly, the Court followed the French government in saying that states also have a “margin of appreciation” as regards “the means of striking a balance between the protection of patients’ right to life and the protection of their right to respect for their private life and their personal autonomy,” the judgment states.

The Court did not answer Viviane and Pierre Lambert’s request that their son’s present situation be evaluated in the light of his present situation: because of the media coverage given to the affair, he is kept locked in his room and even his family is required to hand over their ID cards for the room to be opened; he is not receiving necessary care, including physiotherapy; and he is never moved from his bed into a special chair. Nor were they heard when they provided expert opinions that their son is not in a vegetative state but in a minimally conscience one. A specialized doctor who has seen him regularly is even ready to take him up in a unit for brain-damaged patients where they get all the care and therapy they need: the judges did not comment on this point. Rachel Lambert has consistently refused for her husband to be transferred to the unit.

In summary, the Court decided that France’s law is clear and was correctly applied, refusing to go any further to preserve Vincent Lambert’s life.

This is especially alarming as a new end of life law is being adopted in France that would allow for all patients who find their suffering unbearable or who have left advance directives would have a personal right to “deep and continuous sedation” coupled with withdrawal of food and fluids.

As the end of life procedure bears the signature of a doctor who has since left the hospital where Vincent lives in what amounts to captivity, his feeding tube cannot be withdrawn on the basis of the ECHR’s decision. A new procedure would have to be initiated and Viviane Lambert has received an assurance from the new doctor responsible that nothing would be done if a “consensus” is not found. The Lambert’s lawyers, Jérôme Triomphe and Jean Paillot, have announced that their defense of Vincent Lambert’s life will continue.

Of the 17 judges who examined the case of Vincent Lambert in a final decision (Grand Chamber arrests cannot be appealed), five signed a “partly dissenting opinion.” Judges Hajiyev, Šikuta, Tsotsoria, De Gaetano, and Griҭco did not mince their words. Among other things, they wrote:

We regret that we have to dissociate ourselves from the majority’s view expressed in points 2, 4 and 5 of the operative provisions of the judgment in this case. After considerable reflection, we believe that once all is said and written in this judgment, after all the subtle legal distinctions are made and all the fine hairs split, what is being proposed is nothing more and nothing less than that a severely disabled person who is unable to communicate his wishes about his present condition may, on the basis of a number of questionable assumptions, be deprived of two basic life-sustaining necessities, namely food and water, and moreover that the Convention is impotent in the face of this reality. We find that conclusion not only frightening but – and we very much regret having to say this – tantamount to a retrograde step in the degree of protection which the Convention and the Court have hitherto afforded to vulnerable people.

But even they, had Lambert’s wish been clearly known, “would have found no objection to hydration and feeding being turned off or withheld if domestic legislation provided for that (and save always the right of members of the medical profession to refuse to be party to that procedure on grounds of conscientious objection). One may not agree with such a law, but in such a situation two Convention rights are, as it were, pitted against each other: the right to life (with the corresponding duty of the State to protect life) on the one hand – Article 2 – and the right to personal autonomy which is subsumed under Article 8. In such a contest one can agree that “respect for human dignity and human freedom” (underlined in Pretty, cited above, § 65) may prevail.”

This already is an open door to slow euthanasia. The question of the deliberate killing of a person by this means is in itself the most important one posed by the case: does it constitute intentional homicide or no? The question has been completely sidetracked. But these judges do remark that Lambert is “alive”: “What, we therefore ask, can justify a State in allowing a doctor – Dr. Kariger or, since he has resigned and left Reims University Hospital, some other doctor – in this case not so much to ‘pull the plug’ (Lambert is not on any life-support machine) as to withdraw or discontinue feeding and hydration so as to, in effect, starve Vincent Lambert to death? What is the overriding reason, in the circumstances of the present case, justifying the State in not intervening to protect life? Is it financial considerations? None has been advanced in this case. Is it because the person is in considerable pain? There is no evidence to that effect. Is it because the person is of no further use or importance to society, indeed is no longer a person and has only ‘biological life’?”

They conclude: “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. Assuming, for the sake of argument, that an institution, as opposed to the individuals who make up that institution, can have a conscience, such a conscience must not only be well informed but must also be underpinned by high moral or ethical values. These values should always be the guiding light, irrespective of all the legal chaff that may be tossed about in the course of analysing a case. It is not sufficient to acknowledge, as is done in paragraph 181 of the judgment, that a case ‘concerns complex medical, legal and ethical matters’; it 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.”

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