European Union: Withdrawal Of Artificial Nutrition And Hydration: Who Decides?

Last Updated: 1 December 2015
Article by Orla Keane and Joanelle O’Cleirigh

Medical practitioners often find themselves in the unenviable position of having to decide whether to withdraw or discontinue treatment that is artificially prolonging a patient's life. This can sometimes raise ethical and legal issues for the doctor concerned. How can doctors be sure that their decision is on the right side of the law? What should they do if a family member disagrees with their decision? This arose recently in the much-publicised case of French national, Vincent Lambert.

THE VINCENT LAMBERT CASE

In 2008, Vincent Lambert, a 32-year old nurse, was left in a vegetative state after sustaining serious head injuries in a motor-cycle accident. Doctors used artificial nutrition and hydration, administered through a gastric tube, to keep him alive. By 2012, however, he was becoming increasingly resistant to being fed. In 2014, his doctor decided to remove the gastric tube as its only effect was to sustain Mr Lambert's life artificially.

Mr Lambert's parents and two of his siblings argued that this would be in breach of the right to life guaranteed by Article 2 of the European Convention on Human Rights. Article 2 of the Convention imposes a positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction.

FRENCH LAW: WITHDRAWAL OF ARTIFICIAL LIFE-SUSTAINING TREATMENT

French law does not authorise euthanasia or assisted suicide. However, it allows doctors to discontinue or withhold treatment which is futile or disproportionate, or where the only purpose or effect of the treatment is to sustain life artificially.

Where a patient is unable to express his/her wishes, and the withdrawal of treatment would put his/her life at risk, doctors in France must follow a 'collective procedure'. This requires them to consult with the patient's care team; at least one doctor; a person designated as a 'person of trust' by the patient pre-injury; the family; and those close to the patient.

THE DECISION TO WITHDRAW TREATMENT IN MR LAMBERT'S CASE

The collective procedure was followed in Mr Lambert's case. Mr Lambert's wife and six of his eight siblings were in favour of withdrawing treatment, as were five of the six doctors consulted. His parents and two remaining siblings were against it however, and they obtained a court order preventing the doctor from removing the tube.

Mr Lambert's wife, his nephew and the hospital appealed this order to France's highest court, the Conseil d'Etat.

FRANCE'S HIGHEST COURT: DOCTOR'S DECISION NOT UNLAWFUL

The Conseil d'Etat found that the doctor's decision to withdraw artificial nutrition and hydration was not unlawful and that all the conditions imposed under French law had been met. The Court had regard to the view of three recognised specialists in neuroscience that Mr Lambert's condition corresponded to a vegetative state and that his brain damage was irreversible.

Mr Lambert's parents and two of his siblings went to the European Court of Human Rights.

THE ROLE OF THE EUROPEAN COURT

States have 'a margin of appreciation', or room for manoeuvre, as to whether or not to permit the withdrawal of artificial life-sustaining treatment, and also as regards the means of striking a balance between the protection of a patient's right to life and the protection of their right to respect for their private life and their personal autonomy. This margin of appreciation is not unlimited, however, and the European Court can review whether a State has complied with its obligations under Article 2 of the Convention to take appropriate steps to safeguard the lives of those within its jurisdiction.

EUROPEAN COURT: NO VIOLATION OF RIGHT TO LIFE

The European Court was satisfied that France had complied with its obligation under Article 2 of the Convention. In reaching this decision, the European Court had regard to:

  • the existence in French law and practice of a regulatory framework compatible with the requirements of Article 2;
  • the fact that account had been taken of Mr Lambert's previously expressed wishes not to be kept alive artificially, and the wishes of those close to him, as well as the opinions of other medical personnel; and
  • the availability of recourse to the French courts in the event of doubt as to the best decision to take in Mr Lambert's interests.

FIVE JUDGES DISAGREED

Five of the seventeen judges who heard the case disagreed with this decision, describing it as "frightening". They did not believe that Mr Lambert was in an "end-of-life" situation: he was not brain dead; could breathe on his own; could digest food (though he had difficulty swallowing); and there was no evidence that he was in pain. They also thought that the majority had placed too much weight on "casual" remarks Mr Lambert had allegedly made to his wife many years earlier to the effect that he did not want to be kept alive artificially. They expressed concern that:

"interpreting ex post facto what people may or may not have said years before (and when in perfect health) in casual conversations clearly exposes the system to grave abuse."

POSITION IN IRELAND

Issues similar to the issues in the Lambert case have arisen in the Irish courts over the last number of years. In 1996 in In re a Ward of Court, the Irish Supreme Court found that the withdrawal of artificial nutrition and hydration from a patient in a near persistent vegetative state for over 20 years was lawful. The patient, a ward of court, had been fed by means of a gastric tube for over four years. The Supreme Court said this was not in her best interests: the use of a gastric tube constituted medical treatment, not medical care; it was intrusive; it had no curative effect; and was merely prolonging her life artificially. The Court said that the right to life implies the right to die a natural death, and not to have one's life maintained artificially against one's wishes. As the patient in this case was under the care of the Court, it fell to the Court to decide whether to remove the gastric tube. The Court said that although the views of the ward's committee and family could be taken into account, they could not prevail over its view as to what was in her best interests. The Court was very careful in its judgment to draw a line between ending life and allowing life to end.

We do not have a 'collective procedure' as exists in France. However, medical practitioners can look to the Medical Council's Guide to Professional Conduct and Ethics for guidance. This guide states that doctors:

  • have a responsibility to ensure their patients die with dignity, in comfort and with as little suffering as possible.
  • are not obliged to start or continue treatment or artificial nutrition and hydration that is futile or burdensome, even if such treatment may prolong life.
  • should carefully consider when to start and when to stop attempts to prolong life, while ensuring that patients receive appropriate pain management and relief from distress.
  • should respect a patient's advance healthcare plan on condition that: (i) the decision was an informed choice; (ii) the decision covers the situation that has arisen; and (iii) the patient has not changed his/her mind. 

If in doubt, clear and practical legal advice can help address these sensitive issues to ensure appropriate decisions are made in a timely way and on a sound legal basis.

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.