The communication is submitted by J.S. on behalf of her son S.S., both nationals of Poland. She claims a violation of her son’s rights under articles 10, 15, 22 (1) and 25 (f) of the Convention. The Optional Protocol entered into force for the State party on 6 September 2009. The author is represented by counsel.
On 8 January 2021, the Committee, acting through its Special Rapporteur on new communications and interim measures, decided not to issue a request for interim measures under article 4 of the Optional Protocol.
On 25 May 2022, the Special Rapporteur on new communications and interim measures, acting on behalf of the Committee, decided, at the request of the State party and in accordance with rule 70 (8) of the Committee’s rules of procedure, that the admissibility of the communication should be examined separately from the merits.
Facts as submitted by the author
The complaint is submitted by J.S., on behalf of her son S.S. The author resides in Poland and her son S.S., his wife and his children are residents of the United Kingdom of Great Britain and Northern Ireland. The author notes that her son had a heart attack on 6 November 2020. He was deprived of oxygen for at least 45 minutes and he has been in a coma as of that date. According to the author, the hospital doctors and a court-appointed expert assessed him to be in a vegetative state and considered it to be in his best interests to discontinue hydration and nutrition. An external doctor, consulted by J.S., disagreed with this finding and found that S.S. was in a state of “minimal consciousness”. S.S.’s wife supported the discontinuation of life support, while his mother and sisters opposed it.
The author describes her son as having a strong Catholic faith. He left no instructions as to his views on discontinuation of life support. The author claims that, in prior conversations with his sisters, S.S. had expressed opposition to euthanasia and had criticized a decision of a court in the State party to discontinue life support in the case of Alfie Evans.
The author notes that the first instance court reached its decision to discontinue life support on the basis of accounts given by the alleged victim’s wife, who stated that he did not want to be kept alive if he could not be saved and that he never wanted to be a burden if seriously ill. The author disagrees with this view, stating that it would have been incompatible with his religious faith. The request to appeal the first instance decision was denied by the Court of Appeal of England and Wales on 23 December 2020.
Complaint
The author claims that the discontinuation of life support for S.S. amounts to a violation of his rights under articles 10, 15, 22 (1) and 25 (f) of the Convention.
The author claims a violation of S.S.’s right to life under article 10 of the Convention. She argues that, in the jurisprudence of the State party, the value of life is differentiated depending on its quality. She claims that a patient’s human life enjoys protection of the law only if it is of sufficiently high quality, or free from suffering and any other ailments. She claims that, if the quality is not high enough, any health care is considered futile and that the quality of life of a patient in a vegetative state or in a state of minimal consciousness is assessed as low in practice.
The author also claims a violation of S.S.’s rights under article 15 of the Convention as the discontinuation of life support inevitably leads to death by starvation, causing severe physical pain and suffering amounting to inhuman and degrading treatment.
The author further claims that the discontinuation of life support constitutes an interference with S.S.’s right to respect for family life, in violation of article 22 (1) of the Convention. She notes that she and other family members would like to stay in touch with him and fight to improve his health.
She claims that the discontinuation of life support also amounts to a violation of S.S.’s rights under article 25 (f) of the Convention.
State party’s observations on admissibility
On 25 May 2021, the State party submitted its observations on the admissibility of the complaint. It submits that the communication should be found inadmissible for abuse of the right of submission, for being examined under another procedure of international investigation or settlement at the time the communication was filed (it has since been rejected by the European Court of Human Rights as both inadmissible and manifestly ill-founded) and for being manifestly ill-founded.
The State party notes that S.S. suffered significant and irreversible brain damage. On 23 November 2020, at the initiative of the University Hospitals Plymouth National Health Service Trust, the Court of Protection of England and Wales found that he lacked capacity to consent to or refuse medical treatment. The Court heard evidence that he was in a coma and that there was a limited chance that his condition would improve as he was at the lower end of a minimally conscious state. The Court also heard detailed evidence about the wishes and intentions of S.S. In its findings, the Court concluded, on the basis of the evidence before it, that S.S. would not wish to be kept alive in his condition. On the basis of that evidence, the Court held that it was lawful and in the best interests of S.S. for nutrition and hydration to be withdrawn. The State party notes that the finding was supported by S. S.’s next of kin, namely, his wife of 17 years and his children. It also notes that his wife gave evidence concerning what her husband’s wishes would have been in the situation and informed the Court that he had told her that he would not want to be a burden on her and their children if he were in such a condition. She recalled him saying that, if there was no way to save him, he did not want to be kept alive. The Court noted that the alleged victim’s wife was the person who had been closest to him for the previous 17 years and that he had had limited contact with his birth family during that time. On that basis, and having noted the importance of identifying the wishes of the patient, the Court gave permission for the withdrawal of hydration and nutrition and the provision of palliative care.
Significant litigation followed, before the Court of Appeal of England and Wales and then before the Court of Protection of England and Wales. The State party notes that S.S.’s birth family – in particular his niece, his sisters and the author – challenged the hospital trust’s decision that nutrition and hydration should be withdrawn. On 31 December 2020, a further application by the author seeking permission to rely on fresh evidence and seeking to restore nutrition and hydration was refused by the High Court of England and Wales. The author sought to rely on the evidence of a doctor she had consulted. The Court described this doctor’s evidence as “unaccountably vague”. It rested on a series of short films of S.S, taken by his niece in the hospital during a visit, without the consent of S.S.’s wife or the hospital staff. The Court concluded that it did not find the doctor consulted by the author to be “a satisfactory witness”.
As well as seeking to challenge the decision of 23 November 2020 in the domestic courts, the author also filed an urgent request for interim measures with the European Court of Human Rights on 24 December 2020 under rule 39 of its rules of court. That application was refused on 24 December 2020. Further applications under rule 39 and, on 28 December 2020, a substantive application were filed with the European Court of Human Rights, alleging that the State party had breached article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights). On 7 January 2021, the European Court of Human Rights declared the application inadmissible as being manifestly ill-founded. The State party notes that, on 6 January 2021, while her application was still being determined by the European Court of Human Rights, the author filed the present communication before the Committee.
The State party submits that the communication should be found inadmissible under article 2 (b) of the Optional Protocol as an abuse of the right of submission. First, it argues that the communication offers a partial and incomplete account of the background facts. The communication contains repeated references to the wishes of the family, stating that they are opposed to the views of the treating hospital and the courts of the United Kingdom. The State party argues that this creates the false impression that the family are unanimous in their opposition to the withdrawal of treatment: the fact that S.S.’s wife actively supports the application to discontinue nutrition and hydration is not mentioned. The complaint also contains no mention of the court finding as to the wishes of the alleged victim and no mention is made of the fact that, according to the findings of the court, the author – and the other birth family members – had had limited contact with S.S. in the 10 years before the heart attack. Second, the State party argues that the communication provides a false picture of the State party case law in relation to the value of life. It notes that the leading authority on this issue, the Supreme Court of the United Kingdom, was cited in the decision by the first instance court on the alleged victim’s case, to the effect that, according to jurisprudence in the State party, decision makers “must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be. They must consult others who are looking after him or interested in his welfare. In particular for their view of what his attitude might be”. The State party argues that the communication as presented by the author thus misrepresents the principles and practices of the State party’s courts. It submits that it also constitutes an abuse of submission that the author did not disclose in her communication that an application and request for interim measures had also been submitted to the European Court of Human Rights.
The State party argues that the author has not substantiated that she is authorized to act on behalf of her son. It argues that the author is not S.S.’s next of kin but that his wife is and that, accordingly, the author has no authority to act on S.S.’s behalf.
The State party also argues that the communication should be found inadmissible under article 2 (c) of the Optional Protocol. It notes that, on the date on which the complaint was filed before the Committee (6 January 2021), the author had an extant application for substantive consideration pending before the European Court of Human Rights and that, having applied to the Committee, the author then made a further application for interim measures to the European Court of Human Rights on 7 January 2021. The State party notes that, on 7 January 2021, the European Court of Human Rights rejected that application for interim measures and declared that the substantive application was inadmissible. The author then contacted the European Court of Human Rights again, on 12 January 2021, seeking to reopen the decision of 7 January 2021 and making a further application for interim measures under rule 39. The Court responded on 13 January 2021, stating that the decision of 7 January 2021 stood. It went on to explain that it had considered and dismissed the matter on its substantive merits, stating that: “I also take this opportunity to clarify that on 7 January 2021, the Court found in the light of all the material in its possession that the matters complained of did not disclose any appearance of a violation of the rights and freedoms set out in the Convention or the Protocols thereto. Accordingly, the complaints were manifestly ill-founded within the meaning of Article 35 § 3 (a).” The State party argues that, as a consequence, the matter that is the subject of the present communication was being examined by the European Court of Human Rights on the date the communication was filed and, as of the date of the submission of its observation, the matter that is the subject of the communication has been examined under another procedure of international investigation or settlement. It argues that the matter has been considered on the merits, rather than being dismissed for procedural reasons, and that, accordingly, there is no proper basis for the Committee to reopen the matter.
The State party submits that the communication should be found inadmissible under article 2 (e) of the Optional Protocol as being manifestly ill-founded on the grounds that: (a) the withdrawal of treatment is lawful; (b) the communication rests on the false presumption that the Convention requires the preservation of life in all cases, without reference to context and circumstances, which is not the established approach of the Committee or the European Court of Human Rights – both have repeatedly stressed the importance of ascertaining the intentions and wishes of the individual in question; and (c) the practice and procedure of the State party is consistent with the practice and procedure of other States on this issue – there is an established statutory scheme whereby applications may be made to determine the proper approach in a case of this kind under the Mental Capacity Act 2005 and, in a case such as the present, the court will hear detailed arguments about the clinical condition of the patient and about their wishes, will and preferences.
Author’s comments on the State party’s observations on admissibility
On 15 September 2021, the State party’s observations on admissibility and the request for the admissibility of the communication to be examined separately from the merits were sent to the author for comments. The author was informed that, if no comments were received by 15 November 2021, the Committee might decide, on the basis of the information on file, on the State party’s request for the admissibility of the communication to be examined separately from the merits. To date, no reply has been received from the author.
B. Issues and proceedings before the Committee
Before considering any claim contained in a communication, the Committee must decide, in accordance with article 2 of the Optional Protocol and rule 65 of its rules of procedure, whether the communication is admissible under the Optional Protocol.
The Committee notes the State party’s submission that the communication should be found to be inadmissible under article 2 (c) of the Optional Protocol as being or having been examined under another international procedure of investigation or settlement. The Committee also notes the State party’s submission that, as the same matter was pending before the European Court of Human Rights on the date that the author submitted her communication to the Committee, it should be found inadmissible under article 2 (c) of the Optional Protocol. The Committee further notes the State party’s information that, on 7 January 2021, the European Court of Human Rights dismissed the author’s application before the Court as being manifestly ill-founded. It notes the State party’s information that, on 13 January 2021, the European Court of Human Rights clarified that: “On 7 January 2021, the Court found in the light of all the material in its possession that the matters complained of did not disclose any appearance of a violation of the rights and freedoms set out in the Convention or the Protocols thereto. Accordingly, the complaints were manifestly ill-founded within the meaning of Article 35 § 3 (a).” The Committee also notes the State party’s argument that the same matter has therefore been considered on the merits by the European Court of Human Rights, rather than being dismissed for procedural reasons, and that consequently there is no proper basis for the Committee to reopen the matter.
The Committee must therefore decide whether the author’s application before the European Court of Human Rights entailed the same matter as the present communication, and whether it can be considered that that Court has examined the application within the meaning of article 2 (c) of the Optional Protocol.
The Committee notes the jurisprudence of the Human Rights Committee, according to which the same matter, within the meaning of article 5 (2) (a) of the Optional Protocol to the International Covenant on Civil and Political Rights, must be understood as relating to the same author, the same facts and the same substantive rights.3 The Committee also notes that, in the present case, the author has not provided any information on her application before the European Court of Human Rights, nor in fact has she disclosed in her communication before the Committee that she submitted such an application. The Committee further notes the State party’s argument that the author’s application to the European Court of Human Rights concerned the same matter as that submitted to the Committee and it observes that application No. 55987/20, as provided by the State party in its observations, was submitted to the European Court of Human Rights by the same author on behalf of the same alleged victim, was based on the same facts, namely the decision to discontinue life support for the alleged victim, and related largely to the same substantive rights as those raised in the present communication, given that in her application to the European Court of Human Rights the author claimed a violation article 2 of the European Convention on Human Rights, which is similar in scope and content to article 10 of the Convention. The Committee notes that, in the communication before the Committee, the author has also raised claims under articles 15, 22 (1) and 25 (f) of the Convention. It, however, finds these claims as presented by the author in the present communication to be closely linked to her claims under article 10 of the Convention and finds, in the light of the fact that the author has not refuted the State party’s argument that the application to the European Court of Human Rights concerned the same matter as the present communication and in the absence of any specific information from or argumentation by her in this regard, that her application to the European Court of Human Rights concerned the same matter as the communication submitted to the Committee.
- Petersen v. Germany (CCPR/C/80/D/1115/2002), para. 6.3. See also E.E. v. Russian Federation, (CAT/C/50/D/479/2011), para. 8.4. ↩
Having thus found, the Committee must also determine whether the author’s claims can be considered to have been “examined” by the European Court of Human Rights. The Committee notes the jurisprudence of the Human Rights Committee, according to which, when the European Court of Human Rights has based a declaration of inadmissibility not solely on procedural grounds but on reasons that include a certain consideration of the merits of the case, however limited, then the same matter has been “examined” within the meaning of article 5 (2) (a) of the Optional Protocol to the International Covenant on Civil and Political Rights.4 It also notes the jurisprudence of the Committee against Torture in M.T. v. Sweden,5 in which the European Court of Human Rights had declared an application inadmissible as it considered that “the material in its possession … did not disclose any appearance of violation of the rights and freedoms set out in the Convention or its Protocols”. The Committee against Torture therefore considered that said decision of the European Court of Human Rights was based not solely on mere procedural issues, but on reasons that indicated a sufficient consideration of the merits of the case. Accordingly, that Committee considered that it was precluded by article 22 (5) (a) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment from considering the communication.
In the present case, the Committee takes note of the letter of the European Court of Human Rights of 13 January 2021 in which it informed the author that the European Court of Human Rights had found that the matters complained of did not disclose any appearance of a violation of the rights and freedoms set out in the Convention or the Protocols thereto. The Committee therefore considers, in line with the jurisprudence of other treaty bodies, that said examination of the author’s application by the European Court of Human Rights went beyond an examination of purely procedural admissibility criteria and that the reasons provided by the Court indicated a certain consideration of the merits of the application before the Court. The Committee therefore finds that it is precluded by article 2 (c) of the Optional Protocol from considering the present communication.
Having reached this conclusion, the Committee will not separately consider the remaining inadmissibility grounds set forth by the State party.
C. Conclusion
The Committee therefore decides: (a) That the communication is inadmissible under article 2 (c) of the Optional Protocol;