The European Court of Human Rights has ruled on a case of interruption of life-sustaining treatments of the patient who, previously, had expressed that he wanted to be kept alive, even artificially, in the event of supervening unconsciousness and inability to communicate with his family members, through advance treatment provisions. The ruling in question is compatible with the precedents of the ECtHR, especially with reference to the recognition of the wide margin of appreciation of the Member States in cases relating to end-of-life decisions. Nevertheless, the ruling takes on an innovative scope since, unlike the precedents in which the Court had been confronted with the absence of directives or with wills contrary to the continuation of treatment, in the Medmoune affair the conflict emerges between a positive will to live of the patient and the medical assessment of interrupting life support.

In the case, the patient’s wife and sisters had complained before the ECtHR about the violation of the right to life (art. 2 ECHR), challenging the decision of the health team to interrupt the treatments. The doctors had, in fact, qualified the continuation of treatment as a form of “unreasonable obstinacy” (therapeutic obstinacy, in contrast with human dignity, referred to in Article 1111-2 of the French Public Health Code), judging life support a futile therapy and DATs "inappropriate" with respect to the actual clinical condition of the patient after the accident.

The Court ruled that the French legislative framework is compatible with the Convention, granting the State a wide margin of appreciation to mediate between divergent ethical issues. The national legislator is called upon to balance deeply polarized interests: on the one hand, the right to self-determination, understood as an expression of the individual's moral and cultural vision of his or her own life; on the other, human dignity and the duty to care according to the canon of qualified diligence of doctors.

With specific reference to the decision-making process, it is regulated by art. L. 1111-11 and R. 4127-37 of the French Public Health Code and has been applied in the case at hand. Although the patient’s wishes and the opinions of family members were taken into consideration, the medical team considered that it could not apply the DATs as they were considered incompatible with the contingent situation. The decision, adopted collectively by the team and motivated, configured the treatment as a therapeutic obstinacy, in contrast with the dignity of the patient and for this reason it was interrupted.

In addition, the European Court reiterates the wide margin of appreciation of member states on end-of-life choices. Differently, however, the Court affirms that the right to life cannot be declined within the right of the private individual to absolutely claim the maintenance of life, even through artificial forms of life support and arts. 2 and 8 ECHR do not oblige Member States to recognize an absolute value to advance treatment provisions.

At the end of the examination, however, two critical profiles can be identified emerging from the innovative decision.

First, it seems to be clear from the arguments of the decision that advance treatment directives drawn up by the patient, in a condition of full legal and natural capacity, can be ignored when they express the desire to continue living. Therefore, a doubt arises as to their actual relevance on a legal level. Their characterisation as “binding” (s’imposent), under French law, now appears to have been relativised by the Court, given that such provisions can be considered “inappropriate” and thus disapplied.

The first profile is directly linked to the second, relating to the concept of “unreasonable obstinacy”, i.e. therapeutic obstinacy. This concept is emphasized whenever it is necessary to avoid the painful and undignified prolongation of an irreversible condition. The concept was developed with reference to situations in which the patient was unable to manifest himself in a way contrary to the treatment to be continued or had expressed that he did not want to continue the treatment, but the doctors would not have wanted to apply this determination. Therefore, the medical treatment became, under certain conditions, an intolerable condition considering the interests of the patient, contrary to its prolongation. In the case examined, however, the concept has taken on a different nuance, including cases in which the patient himself has expressed the desire to be kept alive, even with the treatment qualified by the doctor as therapeutic obstinacy. Thus, the concept of obstinacy expands, which becomes a limit not only for medical health workers but also for patients. Health treatment or its continuation is not admissible when it constitutes therapeutic obstinacy, even when it is not considered as such by the patient himself. We can therefore glimpse a recovery of the meaning of human dignity in an objective and not subjective sense. And this is achieved by reconfiguring the dimension to the attribute of “reasonableness” of the concept.

In addition, the application of the concept of therapeutic obstinacy, in a case of tension between medical ethics and patient autonomy, is peculiar: the medical team invoked a “sense of mistreatment” and “therapeutic futility” of life support supports to affirm their nature of therapeutic obstinacy. Some doubts follow: if life-sustaining treatments are declared “futile” despite the patient’s wishes, what space is actually left for self-determination and ethical and cultural pluralism in end-of-life choices?

 

(Comment by Stefania Pia Perrino)