The authors of the communication are P.L., I.L., D.P. and A.T., the father, mother, brother and sister, respectively, of V.L., a national of France, who was born on 20 September 1976 and died on 11 July 2019, after withdrawal of the tube feeding and hydration that was keeping him alive. They claim that V.L. was the victim of violations by the State party of articles 1, 3, 4, 15, 16, 17, 25 and 26 of the Convention. The Optional Protocol entered into force for the State party on 20 March 2010. The authors are represented by counsel.
In notes verbales dated 3 May 2019, 17 May 2019 and 2 July 2019, the Committee, acting through its Special Rapporteur on communications under the Optional Protocol, issued a request for interim measures under article 4 of the Optional Protocol, requesting the State party to take the necessary steps to ensure that V.L.’s rt’s tube feeding and hydration were not suspended while the Committee considered his case. However, the Committee notes that, on 7 May 2019, the State party notified it that it was unable to comply with the Committee’s request, as the decision to halt the treatment had been examined and deemed to be in conformity with the law by multiple domestic courts and the European Court of Human Rights.
Facts as submitted by the authors
V.L. was tetraplegic and in a state of impaired consciousness owing to significant brain damage following a traffic accident which occurred on 29 September 2008.3 After the accident, he was hospitalized at Reims University Hospital.
- The authors point out that, on 5 May 2014, the National Advisory Committee on Ethics of France acknowledged that V.L. was in a “special extreme situation of severe and stable disability”. ↩
V.L. was diagnosed as being in a minimally conscious state in 2009, 2011 (once as in a minimally conscious state “plus”) and 2012, in a vegetative state in 2014, in a minimally conscious state in 2015 and then in a vegetative state after a second legal assessment. The authors argue that he was “consistently” diagnosed as being in a minimally conscious state in specialized centres and was diagnosed as being in a vegetative state when satisfactory assessment conditions were not met. They state that V.L. was not in an end-of-life situation, that he did not usually have comorbidities, that he was breathing independently, that he had spontaneously regained his saliva swallowing reflex, that he could have been comfort fed and that he had brain activity. He was fed and hydrated through a gastrostomy tube.
Sensory stimulation was withdrawn in October 2012 and never resumed. The withdrawal of physiotherapy caused tendon contractures, which made any movement of his limbs painful. V.L. was never transferred to a wheelchair, despite a proposal to fund this, such that he was constantly in bed, contrary to good medical practice. He was not provided with stimulation of any kind or with any swallowing rehabilitation, despite films and expert opinions showing that this was possible. He was never offered comfort feeding to improve his swallowing, although he was physically capable of this. He was locked in his room, where the heat was “stifling” in summer, and monitored using a camera and a baby monitor. The authors’ visiting times were severely restricted. He never saw anyone other than his carers and close relatives, based on a list whose composition, according to the authors, was decided arbitrarily by the hospital. On one occasion, a chaplain was refused entry.
On 8 April 2013, following an initial collective procedure, Dr. F. of Reims University Hospital decided to withdraw V.L.’s nutrition, on the grounds that the continuation of the feeding and hydration care appeared to be futile, disproportionate and to have no other effect than artificially sustain life within the meaning of article L1110-5 of the Public Health Code,4 and thus was not in keeping with V.L.’s right to refuse unreasonable therapeutic obstinacy. On 10 April 2013, Dr. F.’s decision was implemented, without the authors being informed. On 11 May 2013, following a petition by the authors, Châlons-en-Champagne Administrative Court ordered the hospital to restore the feeding, hydration and necessary care, on the grounds that the parents had not been informed of the decision to carry out the collective procedure or the grounds for the decision to withdraw the care and that their wishes had not been considered. Nutrition and nursing care were resumed. On the same day, Dr. F. stated to the authors and then in the media that he would make the same decision again. The feeding and nursing care were resumed. V.L. survived for 31 days without food and with limited hydration which, according to the authors, was incompatible with his alleged desire to die.
- Article L1110-5 of the Public Health Code in force at the time, as amended by Act No. 2005-370 of 22 April 2005 on Patients’ Rights and End-of-Life Situations (“Léonetti Act”). ↩
In a decision of 11 January 2014, Dr. F. announced to the family that he was going to withdraw V.L.’s nutrition and hydration and place him under deep terminal sedation. On 16 January 2014, Châlons-en-Champagne Administrative Court set aside this decision, finding that the criteria for unreasonable obstinacy had not been met.5 On 14 February 2014, following a petition by R.L. – the wife of V.L. – V.L.’s half-nephew and the hospital, the Conseil d’État (the supreme administrative court) ordered an expert assessment of V.L.’s medical situation and requested an opinion from the National Advisory Committee on Ethics, the National Council of the Order of Physicians, the National Academy of Medicine and Jean Léonetti, rapporteur for the Léonetti Act. The experts found that V.L. was in a chronic vegetative state but that that circumstance did not in itself justify the withdrawal of treatment. In its opinion of 5 May 2014, the Advisory Committee found that the collective procedure was inappropriate for persons with disabilities for whom withdrawal of tube feeding was proposed and that maintaining nutrition and hydration could only be considered unreasonable obstinacy from the standpoint of a previously stated wish of the person in question or an obvious state of chronic suffering. By a judgment of 24 July 2014, the Conseil d’État quashed the ruling of the Administrative Court, finding that Dr. F.’s decision was in line with the Léonetti Act.
- According to the State party’s observations, on this date the Administrative Court decided to stay the execution of Dr. F’s decision. ↩
On the same day, the European Court of Human Rights indicated an interim measure to stay the decision of the Conseil d’État. In a judgment of 5 June 2015, the Court found that the applicants lacked standing to allege a violation of articles 2, 3 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) in the name and on behalf of V.L. However, the Court examined all the substantive issues arising in the case under article 2 of the Convention, given that they were raised by the applicants on their own behalf. The Court found that implementation of the decision of the Conseil d’État would not result in a violation of that article, considering that the provisions of the Léonetti Act, as interpreted by the Conseil d’État, constituted a legal framework which was sufficiently clear, for the purposes of article 2 of the Convention, to regulate with precision the decisions taken by the doctor in the case.
Since Dr. F. had now resigned, a new collective procedure was initiated by Dr. O., during which the authors argued that V.L.’s condition had improved and that he was now able to swallow. On 23 July 2015, Dr. O. announced the suspension of the procedure pending a request for the public prosecutor to initiate a guardianship measure in respect of V.L. By a ruling of 10 March 2016, the Reims tribunal d’instance (court of minor jurisdiction) appointed his wife, R.L., as his guardian and the Marne Departmental Union of Family Associations as auxiliary guardian. According to the authors, R.L. and the Departmental Union never attempted to secure proper care for him, with R.L. supporting the withdrawal of his nutrition and hydration care. The authors argue that, as the family caregivers and “natural protectors” of V.L., their claims were found admissible during national proceedings.
On 22 September 2017, after Dr. O.’s departure, Dr. R. informed the family that he was going to initiate a new collective procedure. During this procedure, 24 specialist doctors wrote to him, disputing that patients with impaired consciousness are being subjected to unreasonable obstinacy based only on their state and highlighting the need to follow good medical practice. V.L.’s regular doctor also considered that it was no longer appropriate to stop his nutrition. Nonetheless, on 9 April 2018, Dr. R. decided to withdraw nutrition and hydration. Acknowledging that this care did not constitute unreasonable obstinacy, he justified the decision by stating that V.L. was experiencing constant suffering, which the authors contest.6 As part of the authors’ appeal to ChâlonsenChampagne Administrative Court, 11 specialist doctors argued in favour of greater consideration of the specificities of V.L.’s case. Moreover, 70 doctors and health workers signed an article in Le Figaro denouncing the “euthanasia” of V.L. On 20 April 2018, the Court ordered a new expert assessment to determine the clinical picture for V.L. and his capacity for swallowing rehabilitation. However, none of the experts appointed was a doctor specialized in care for patients with impaired consciousness. The findings of the assessment of 8 September 2018 were that V.L.’s chronic vegetative state was comparable to that observed in 2014 and that meeting his primary needs did not amount to unreasonable obstinacy. The authors claim that, contrary to good medical practice, the assessment was not conducted using the method of level of consciousness evaluation. By a judgment of 31 January 2019, the Court dismissed the authors’ appeal.
- The authors refer to court-ordered expert opinions of 2014 and 2018. ↩
On 24 April 2019, the Conseil d’État upheld the decision of the ChâlonsenChampagne Administrative Court, finding that V.L. was in an irreversible chronic vegetative state, that he had shown the desire not to remain in that situation and that he was thus being subjected to unreasonable obstinacy. Before the Conseil d’État, Dr. R. acknowledged that he was not certain of V.L.’s suffering, which, along with urinary infections, he had invoked to justify his decision of 9 April 2018. He was also not certain of V.L.’s wishes, although the certainty of a previously expressed wish constitutes one of the legal conditions for withdrawing care amounting to unreasonable obstinacy.
The authors note that, in June and July 2015, they sent letters to Reims University Hospital requesting V.L.’s transfer. They stress that various specialized medical institutions had agreed to accommodate him. In August 2016, they applied to the guardianship judge to have V.L. transferred to a specialist unit in line with the terms of reference on the establishment of dedicated hospital care units for persons in a chronic vegetative or minimally conscious state7 and to challenge visiting restrictions. In orders handed down on 20 October 2016, the guardianship judge found the first petition inadmissible, since only the guardian had standing to file it, and required changes to the visiting hours to allow for visits from a greater number of specified family members. In a judgment of 24 March 2017, Reims Court of Appeal dismissed the authors’ request to consult the case file and their appeal against the orders. On 13 December 2017, the Court of Cassation rejected the authors’ appeal. In an order of 11 December 2017, the Reims tribunal d’instance rejected an application to change the parents’ visiting arrangements. By a judgment of 19 April 2018, Reims Court of Appeal extended their daily visiting period from three to four hours.
- France, circular DHOS/02/DGS/SD5D/DGAS No. 2002-288 of 3 May 2002 on the establishment of care units for persons in a chronic vegetative or minimally conscious state, annex. ↩
Complaint
The authors claim that V.L.’s rights under articles 1, 3, 4, 15, 16, 17, 25 and 26 of the Convention have been violated.
The authors note that French law, through circular No. 2002-288, recommends that support for persons with impaired consciousness should include a “care plan and a living plan” and the optimum use of interpersonal possibilities for communication and interaction. Good medical practice in this context includes nursing and hygiene care, technical care such as sensory stimulation and paramedical care such as physiotherapy, massages and daily transfer to a wheelchair. Continuous efforts must be made to stimulate and develop sensory and emotional capability. Oral stimulation through comfort feeding is also important.
However, according to the authors, Reims University Hospital did not follow these specifications. The decisions about V.L. made there were taken by geriatricians, while the doctor monitoring him was a general practitioner. No distinction was made there between services for persons in chronic vegetative and minimally conscious states and palliative care. Thus, the decision of 9 April 2018 to transfer V.L. to palliative care in connection with the withdrawal of his nutrition and hydration did not lead to any change of care in practice. Moreover, the medical team did not produce any living plan. On the contrary, V.L. received only nursing care and occasional medical care, despite the order of 11 May 2013 under which all care should have been resumed. According to the authors, every effort was made to keep him dependent and justify his euthanasia. They refer to letters from specialists condemning his “prison environment”, the fact that he was deprived of human contact and the failure to transfer him to an adapted wheelchair, meaning he was left confined to his bed, or to try and feed him.
The authors argue that the refusal to provide the necessary care to improve his health violated V.L.’s rights to dignity, to the protection of physical integrity, to health and to rehabilitation, and to freedom from cruel, inhuman or degrading treatment and from abuse. According to the authors, even pending the execution of a decision to withdraw treatment, there is no reason not to provide patients with all the legitimate care to which they are entitled, except in the case of explicit refusal by the patients themselves, which in the present case was impossible to ascertain. They request the Committee to find that the State party’s public medical institutions unduly withdrew and then refused to resume all the care due to V.L. They argue that legal experts highlighted that his care was abnormal and recommended a transfer, given that he was not being subjected to unreasonable obstinacy. However, the offers made by some of the 138 units specialized in his form of disability to take V.L. were refused. The judicial decisions finding the authors’ petitions in this regard inadmissible showed that the objective was to end his life.
The authors claim that Act No. 2016-87 of 2 February 2016 on the Establishment of New Rights for Patients and Persons at the End of Life, which provides that artificial nutrition and hydration constitute a treatment that may be withheld or withdrawn if it amounts to unreasonable obstinacy, can result in the withdrawal of nutrition and hydration even when such care remains appropriate. According to the authors, French law makes a distinction between “treatment”, within the meaning of article L1110-5-1 of the Public Health Code, and “care”, which is always due unless there is a medical contraindication. Since the Code was amended pursuant to Act No. 2016-87, this article also provides that “artificial nutrition and hydration is a treatment that may be withdrawn in accordance with the first paragraph of the present article”. The authors contend that the invasive aspect of tube feeding is not grounds for considering it to be a treatment, despite the fact that French law so provides. As Dr. R. recognized in his decision of 9 April 2018, V.L.’s nutrition and hydration were not only sustaining his life but were also contributing to his well-being and natural maintenance. The authors request the Committee to find that it is necessary to make a distinction between the surgical operation of gastrotomy, which could constitute a treatment, and the tube feeding itself, which can only constitute palliative care in accordance with article 25 of the Convention.
The authors state that, in the context of the collective procedure, the decision is made by a single doctor and that the process is not suitable for the situation of persons who are neither ill nor at the end of their lives. It runs counter to the opinion of 5 May 2014 of the National Advisory Committee on Ethics, according to which the decision should not be made by a single person. Moreover, the French authorities have always refused the option of mediation. The authors request the Committee to find that the decision-making process is not appropriate for the situation of persons with disabilities and should allow for a collective decision by medical professionals and family members, reached through mediation if necessary.
The authors object to what they describe as the “euthanasia” of V.L. They argue that the reasoning in the Conseil d’État judgment of 24 April 2019 led to him being “eliminated” for the sole reason of his disability while he was unable to express his wishes. His desire to stop all treatment was merely assumed. However, the continuation of treatment cannot be considered to constitute unreasonable obstinacy solely because of the existence of a disability. Doctors caring for persons in chronic vegetative and minimally conscious states have acknowledged that only a non-temporary comorbidity can justify the withdrawal of treatment. Moreover, numerous experts have recognized that tube feeding and hydration do not constitute treatment amounting to unreasonable obstinacy. The authors request the Committee to find that, for patients with impaired consciousness, a level of consciousness evaluation must be conducted, based on incontrovertible scientific standards and involving a behavioural study carried out over a sufficient period of time by a multidisciplinary team. The authors note that no such examinations were carried out in the present case. They also request the Committee to find that: (a) a chronic vegetative state does not constitute sufficient medical grounds to justify the withdrawal of treatment without a certain level of comorbidity; (b) a person in such a state must be cared for in the same way as a person in a minimally conscious state; (c) “substantial” evidence of the wishes of the person with a disability must be provided; (d) the Conseil d’État allows for the possibility of stopping vital treatment on the sole basis of disability and because the person would not want to be in such a situation; and (e) the State party should adopt a procedure to prevent the lives of persons with disabilities who are not capable of expressing their wishes from being ended when the only medical justification is the disability itself.
The authors argue that the communication is admissible under article 2 (c) of the Optional Protocol. They claim that, in its judgment of 5 June 2015, the European Court of Human Rights adjudicated on the merits of the second collective procedure and not the subsequent decisions, which were made by different doctors and based on different grounds. Moreover, the claims in the present communication are different from those considered by the Court since the authors are not invoking the right to life, the right to a fair trial or the right to an effective remedy before the Committee. The aim of the communication is to seek a finding that: (a) breaches of care obligations and ill-treatment resulting from a lack of appropriate support prevented V.L.’s condition from improving after 2013; (b) tube feeding and hydration cannot in themselves constitute a treatment that may be withdrawn to end a patient’s life; (c) a decision made by a single doctor cannot apply to the proposed withdrawal of nutrition and hydration from a person with a disability; and (d) the French courts have allowed disguised euthanasia on the basis of V.L.’s disability and his assumed and insufficiently proven wishes.
State party’s observations on the Committee’s request for interim measures
In its observations of 7 May 2019, the State party argues that it is obliged to consider promptly requests for interim measures from human rights treaty bodies and that, in principle, it aims to take action in response to such requests. However, in the light of articles 4 and 5 of the Optional Protocol to the Convention, such measures are non-binding. In the present case, medical professionals had to uphold the right to the most appropriate treatment and care but also the right not to be subjected to unreasonable obstinacy. Given that V.L. was not in a position to express his wishes, the medical professionals conducted a collective procedure. The decision to withdraw treatment was subject to judicial review on more than one occasion, with findings that the decision was lawful. Moreover, in its judgment of 5 June 2015, the European Court of Human Rights found no violation of article 2 of the European Convention on Human Rights. In such circumstances, there can be no question of reopening the decision through a new suspension which would violate V.L.’s right not to be subjected to unreasonable obstinacy. Accordingly, the State party is not in a position to carry out the request for interim measures.
Authors’ comments on the Committee’s request for interim measures
In their comments of 12 May 2019, the authors note that, on 10 May 2019, they received a letter from Dr. R., informing them that he would end V.L.’s treatment in the week beginning 20 May 2019.
The authors claim that the State party is obliged to comply with the Committee’s request for interim measures as it has ratified the Convention and the Optional Protocol. The State party cannot invoke its national law to justify non-compliance with the request. In addition, it is bound by its public commitment to participate actively in the work of the human rights treaty bodies. The authors invoke the positions of treaty bodies on non-compliance with such requests.8 Moreover, the provisions on interim measures of the Committee and of the European Court of Human Rights contain similar terms, such that they have the same legal nature.
- See Nuñez Chipana v. Venezuela (CAT/C/21/D/110/1998); T.P.S. v. Canada (CAT/C/24/D/99/1997); Piandong et al. v. Philippines (CCPR/C/70/D/869/1999); Ashby v. Trinidad and Tobago (CCPR/C/74/D/580/1994); Zhuk v. Belarus (CCPR/C/109/D/1910/2009); see also Human Rights Committee, General comment No. 33 (2008), para. 19. ↩
According to the authors, by its intention to provide its observations on admissibility and the merits after V.L.’s death, the State party is rendering the procedure ineffective, by disingenuously claiming that it would do more harm to leave him alive than to end his life. The refusal to comply with the Committee’s request therefore constitutes a violation of the State party’s international commitments.
On 24 April 2019, the urgent applications judge of the Conseil d’État rejected a petition by the authors to suspend Dr. R.’s decision of 9 April 2018 to withdraw V.L.’s nutrition and hydration. By an order of 15 May 2019, the urgent applications judge for administrative cases in Paris rejected the authors’ application regarding the State party’s refusal to take action in response to the Committee’s request. On 17 May 2019, the Paris tribunal de grande instance (court of major jurisdiction), found that it did not have jurisdiction to consider a petition submitted by the authors, on the grounds that a decision to withdraw care did not constitute a patently illegal action within the jurisdiction of the ordinary courts. By a judgment of 20 May 2019, the Paris Court of Appeal quashed the ruling of the tribunal de grande instance and ordered the State party to take all necessary measures to comply with the Committee’s request. On the same day, the European Court of Human Rights rejected a new request for interim measures submitted by the authors. In a judgment of 28 June 2019, the Court of Cassation quashed the judgment of the Court of Appeal, on the grounds that the criteria to determine a patently illegal action had been incorrectly applied.
State party’s observations on admissibility
In its observations of 4 July 2019, the State party recalls the facts and the proceedings brought before the French courts and the European Court of Human Rights. The State party notes that the authors of the communication are not V.L.’s legal representatives and that his guardian is R.L.
The State party argues that the communication is inadmissible under article 2 (c) of the Optional Protocol, on the grounds that it relates to a matter that has already been considered by the European Court of Human Rights. The State party observes that, in its judgment of 5 June 2015, the Court found that, in the event of the implementation of the 24 June 2014 decision of the Conseil d’État, there would be no violation of article 2 of the European Convention on Human Rights. The Court noted that it was keenly aware of the importance of the issues raised by V.L.’s case. The Court considered that it was primarily for the domestic authorities to verify whether the decision to withdraw treatment was compatible with the domestic legislation and the European Convention, and to establish the patient’s wishes. It found that the case was the subject of an indepth examination in the course of which all points of view could have been expressed and all aspects had been carefully considered, in the light of both a detailed expert medical report and general observations from the highestranking medical and ethical bodies.
According to the State party, the present communication was submitted by the same parties, concerns the same factual situation and has the same legal basis as the application submitted to the Court. The fact that the Conseil d’État handed down a new decision on 24 April 2019, reaching the same conclusion as in its judgment of 24 June 2014, does not constitute a change in factual circumstances, because the only reason that a new decision had to be made on 9 April 2018 was the change of doctor. Furthermore, while the authors do not explicitly mention the right to life, there is no doubt that the communication has the sole purpose of opposing the decision to withdraw V.L.’s nutrition and hydration. In this regard, the State party refers to the authors’ requests that the Committee recognize the alleged “euthanasia” of V.L. The State party notes that, in its decisions of 30 April 2019 and 20 May 2019, the European Court of Human Rights refused to issue a request for interim measures because it had already handed down a decision on the subject matter of the new applications, although the right to life was not invoked in them.
The State party also submits that the communication is inadmissible under article 2 (e) of the Optional Protocol, since it is manifestly ill-founded. According to the State party, the authors do not show how French law and its application by the courts violated articles 3, 4, 15, 16, 17, 25 or 26 of the Convention. Moreover, the claim under article 1 of the Convention cannot form the basis of a complaint.9 According to the State party, the right not to be subjected to treatment resulting from unreasonable obstinacy applies to all patients. No patients may be deprived of that right based on their disability or inability to express their wishes. The authors are therefore wrong to challenge the French legislation on access to care for persons with disabilities. Moreover, in making the decision, the doctor in charge must consider the circumstances specific to each individual case, including the patient’s wishes. The State party argues that the procedures were conducted especially thoroughly. In addition, the authors have not shown that they were arbitrary or amounted to a denial of justice.
- H.M. v. Sweden (CRPD/C/7/D/3/2011), para. 7.3. ↩
Third-party intervention
In her intervention of 15 July 2019, R.L. argues that the communication is inadmissible under article 2 (c) of the Optional Protocol. She states that the authors made the same claims before the European Court of Human Rights and before the Committee. She notes that the Court did not discern any risk that V.L. would be “deprived of effective protection of his rights” and that it had examined “all the substantive issues” arising under article 2 of the European Convention on Human Rights. According to R.L., V.L. was not a person with a disability, as there was no interaction with any barrier.
R.L. notes that she was V.L.’s guardian. She claims that the Reims guardianship judge appointed her as guardian based on the “accuracy of V.L.’s reported statements” and that she could defend what she had said. She notes that the European Court of Human Rights recognized the importance of her account of what V.L. had told her regarding his wish not to be kept alive artificially in a highly dependent state. Moreover, she argues that the communication resembles an abuse of the right of submission because its only purpose is to delay the decision to withdraw treatment.10
- In a note verbale of 26 August 2019, the State party stated that it had no observations to make regarding the third-party intervention. ↩
Authors’ comments on the State party’s observations on admissibility and the thirdparty intervention
In their comments of 20 September 2019 and 30 September 2019, the authors note that, on 3 July 2019, the Châlons-en-Champagne Administrative Court found that there were no grounds to take action in response to the announcement made the previous day by Dr. R. that he would withdraw V.L.’s nutrition and hydration. He died on 11 July 2019 after “horrible suffering”, as Dr. R. had not been able to ensure continuous deep sedation. The authors claim that the State party violated the Convention and its Optional Protocol by depriving the communication of its object and purpose.
The authors deny that the communication is inadmissible under article 2 (c) of the Optional Protocol, for nine reasons. Firstly, four collective procedures in respect of V.L. were carried out, in different medical contexts and at different times. The decisions were made by different doctors and for different reasons. Secondly, given that doctors are independent, changes of doctor necessitated medical decisions specific to the new doctor, which implied a full judicial review. Thirdly, new issues have been raised before the Committee, as the European Court of Human Rights did not rule on the compatibility of the Léonetti Act with the Convention and the principle of non-discrimination or the issue of persons with disabilities who are unable to express their wishes and whose relatives claim they want their treatment to be withdrawn. Fourthly, according to the authors, the Court refrained from determining whether the withdrawal of nutrition and hydration is compatible with the European Convention on Human Rights, given that it has granted States a margin of appreciation in the end-of-life sphere. Fifthly, the Court’s judgment was handed down four years before submission of the communication and is based on the general provisions of the European Convention on Human Rights and not on the specific provisions of the Convention on the Rights of Persons with Disabilities. Sixthly, the Court’s judgment erroneously cites a previous decision, Glass v. the United Kingdom.11 Seventhly, neither the Conseil d’État nor the Court obliged the doctor to end V.L.’s life, as the medical decision could not be subject to a binding medical or judicial ruling. Eighthly, the authors challenge the relevance of the Court’s refusal of 30 April 2019 to issue a new request for interim measures. Ninthly, the Court did not consider the claim that V.L. was subjected to inhuman and degrading treatment by being deprived of care or the claims relating to the conditions of his death12 and his confinement.
The authors also challenge the claim that the communication is inadmissible under article 2 (e) of the Optional Protocol. Firstly, they reiterate their complaints concerning V.L.’s treatment at Reims University Hospital and note that the State party’s prosecution service did nothing to appeal against the decision to appoint R.L. as guardian or to “prevent these abuses and ill-treatment”. Secondly, the authors note that they claimed in their initial submission that the withdrawal of nutrition and hydration from persons with disabilities should be subject to specific provisions for persons with disabilities. Thirdly, the authors note that they argued that the decision-making process did not account for the improvement in V.L.’s state and his condition as a person with disabilities who was not suffering and that it should have been consensus-based. Fourthly, the authors reiterate that French law allows for the withdrawal of treatment for the purpose of ending life, claiming that the withdrawal of care from a person with disabilities who has no comorbidities is not compatible with the Convention. They stress that the communication concerns the intention to cause the death of a man with a disability who was neither ill nor at the end of his life. Fifthly, the authors reiterate that, according to the expert assessment of 8 September 2018, V.L.’s tube feeding and hydration did not constitute a treatment amounting to unreasonable obstinacy. According to the authors, the State party cannot claim that it does not allow euthanasia. Moreover, the legal definition of unreasonable obstinacy is purely medical, whereas, in its judgment of 24 April 2019, the Conseil d’État added the non-medical aspect of the patient’s wishes.
The authors note that, since V.L.’s death, R.L. is no longer his guardian and no longer has any authority to represent him. They argue that she left Reims permanently in 2013 and abandoned V.L., with the authors taking over his care. They object to R.L.’s argument that V.L. was not a person with a disability.
According to the authors, a person’s wishes regarding the withdrawal of treatment are valid only when expressed after the disability arose, given medical experience of the differences between wishes expressed in an imagined situation and in a lived situation. In the present case, V.L.’s wishes after his accident are not known. He left nothing in writing. The account of his wishes relies on general remarks reported by one of his brothers and the assertions of R.L., who described comments which were attributed to V.L. but, according to the authors, had varying content and were inconsistent and contradictory.13 According to the authors, this shows only R.L.’s interpretation of his wishes. Moreover, the European Court of Human Rights simply accepted the analysis of the Conseil d’État concerning V.L.’s wishes, while Dr. R. had acknowledged that he was not certain that V.L. was suffering. The authors refer to a video of 19 May 2019, which shows V.L. crying in response, according to them, to the news that his nutrition and hydration were going to be withdrawn.
- According to the authors, on 14 May 2014, R.L. said “yes, he wanted us to let him pass away as we have decided to do”, after having initially claimed that he would have wanted to be euthanized by lethal injection. ↩
State party’s observations on the merits
In its observations of 4 November 2019, the State party argues that the communication reveals no violation of the Convention. The authors’ claims relate essentially to an assessment of the facts and evidence regarding the decision-making process. However, the Committee is not a final instance competent to re-evaluate findings of fact or the application of domestic legislation, unless it can be ascertained that the proceedings were arbitrary or amounted to a denial of justice.14 In the present case, no such conclusion can be reached, given that all the national courts allowed for transparent adversarial proceedings, supported by scientific assessments and giving full consideration to the parties’ arguments. Firstly, the authors claim that the Convention was violated on the grounds that care was refused to V.L. and that such failure constitutes abuse, ill-treatment and forced dependency. The other subjects of the communication are not based on any specified article of the Convention and are therefore manifestly ill-founded.
- L.M.L. v. United Kingdom (CRPD/C/17/D/27/2015), para. 6.3. ↩
Secondly, the authors’ general claims cannot rely on articles 15, 16, 17, 25 and 26 of the Convention. On the contrary, the decision to withdraw V.L.’s treatment contributed to respect for his right not to be subjected to the continuation of treatment resulting from unreasonable obstinacy. According to the State party, V.L. was not a victim of exploitation, violence or abuse and his dignity was always preserved. All the particular circumstances and his specific needs were taken into account in line with articles 25 and 26 of the Convention, as the national courts ascertained. He was provided with 87 speech and physical therapy sessions before October 2012 and any possibility of swallowing rehabilitation was ruled out. As he was cared for in an appropriate unit dedicated to patients in minimally conscious states, there is no structural problem in the service.
Thirdly, the authors are requesting that it be found that the State party decided to euthanize a person with a disability because of his condition. The State party reiterates that: the authors are wrongly challenging the legislation on access to care; the doctor in charge must consider the circumstances of each case; and the European Court of Human Rights found that the Léonetti Act of 22 April 2005 was sufficiently clear and precise.
Fourthly, the State party observes that, in compliance with the legal provisions, every effort was made to determine V.L.’s wishes to the extent possible, based on consultations with his family and friends. According to the State party, the relevant legal provisions establish all the necessary guarantees that the most appropriate solution for each situation will be sought.
Authors’ comments on the State party’s observations on the merits
In their comments of 25 January 2020, the authors argue that, during the court-ordered expert assessment, the proceedings were corrupted by breaches of good medical practice and violations of the adversarial principle and the right to a fair trial. The State party does not respond to the argument that the French courts found that V.L.’s treatment amounted to unreasonable obstinacy despite the fact that this was disputed by the court-appointed experts. The authors reiterate that he was the victim of a violation of the principle of non-discrimination because his nutrition and hydration were withdrawn on the grounds of his disability and of an interpretation of his wishes made without the slightest evidence, even though he had no comorbidities and was not in an end-of-life situation.
The authors claim that the State party subjected V.L. to torture because it intentionally inflicted acute suffering on him on discriminatory grounds. The State party’s appeal in cassation against the Paris Court of Appeal judgment of 20 May 2019 shows that it wished to end V.L.’s life. In the absence of any medical indication, the withdrawal of treatment constituted intentionally inflicted violence causing terrible pain. Sedation is not an adequate means of mitigating such pain; V.L.’s nephew attested to his suffering. His dignity was thus not assured.
Regarding their claims under articles 25 and 26 of the Convention, the authors reaffirm that V.L. was unable to enjoy the highest attainable standard of health, as some of his care was withdrawn without legitimate reason in October 2012 because Dr. F. considered that there could be no further improvements in his condition. That led him to be kept in a state of dependency although his condition could have improved.15 Moreover, according to the court-appointed experts, swallowing rehabilitation after 2012 would have allowed for a partial recovery of his abilities. The authors reiterate that he should have been transferred to a specialist care unit but was in a palliative care unit managed by a geriatrician where there is structural non-compliance with the standards of care for persons in chronic vegetative and minimally conscious states. The authors’ applications for a transfer were found inadmissible.
- The authors refer to the submission to Châlons-en-Champagne Administrative Court by a group of doctors specializing in care for patients in chronic vegetative or minimally conscious states. ↩
The authors reaffirm that the withdrawal of nutrition and hydration was discriminatory because the only medical reason was his disability and that article L1110-5 of the Public Health Code does not provide that the wishes of the person involved are a factor that may be used to determine unreasonable obstinacy. They criticize the fact that the “subjective opinions of his family and friends” were considered, rather than the objective question of whether he had any comorbidity. They deny that French law provides for the necessary conditions to establish a person’s wishes, since the courts contented themselves with the statements of a person who could have an interest in his death. Lastly, the authorities never encouraged a consensus-based solution reached through mediation.
B. Issues and proceedings before the Committee
Before considering any claims 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 it is admissible under the Optional Protocol.
The Committee notes that the present communication was submitted on behalf of V.L. by his mother, father, sister and brother and that there is no dispute that V.L. was not in a position to consent to the submission of the communication owing to his state of impaired consciousness or vegetative state. The Committee must therefore determine whether the authors have standing to act on behalf of V.L. before the Committee. To be able to do so, it is not enough for the authors to be able, formally, to act as his legal representatives under applicable domestic legislation.16 Rather, in the light of article 12 of the Convention, they must express his wishes and substantive preferences. In that regard, the Committee recalls that, for many persons with disabilities, the ability to plan is an important form of support, as it allows them to indicate their wishes and preferences in the event that they are subsequently no longer able to do so.17 In the present case, the Committee notes that the communication is closely linked to the issue of the withdrawal of V.L.’s nutrition and hydration, while the domestic proceedings found that such withdrawal was in line with his wishes. The Committee also notes that the position set out in the present communication is opposed to that of other immediate family members of V.L., including his wife. Accordingly, the Committee must determine whether the authors truly represent V.L.’s wishes.
The Committee notes that the determination of V.L.’s wishes was one of the central aspects of the domestic proceedings and that the Conseil d’État considered this matter in its judgments of 24 June 2014 and 24 April 2019. In its first judgment, the Conseil d’État found that the investigation conducted showed, based in particular on R.L.’s statements, that she and her husband, who were both nurses, had often spoken of their professional experience with patients in intensive care or with multiple disabilities and that, on such occasions, V.L. had clearly expressed his wish not to be kept alive artificially if he were to find himself in a highly dependent state; that the content of these remarks, dated and reported accurately by R.L., was confirmed by one of V.L.’s brothers; that, although the remarks were not made in the presence of V.L.’s parents, they do not claim that their son could not have made them or had expressed conflicting wishes; that several of V.L.’s brothers and sisters have indicated that the remarks are in keeping with their brother’s personality, personal history and opinions; and, thus, that Dr. F. cannot be considered to have inaccurately interpreted the wishes expressed by V.L. before his accident when he indicated in his reasoning for the challenged decision his certainty that, before his accident, the patient had not wanted to live under such conditions.18
- Conseil d’État of France, decision No. 428117, 24 April 2019, para. 37. ↩
The Committee further notes that, in its judgment of 24 April 2019, the Conseil d’État found that Dr. R., in indicating in his reasoned decision that he had gathered “consistent statements indicating V.L.’s probable wish not to be kept alive (artificially)” in a situation involving “a high level of physical dependence”, which, although some of them were presented without the names of the sources, were corroborated by other items in the case file produced by the defendant parties, did not make an error of law with regard to the relevant provisions of the Public Health Code and did not inaccurately interpret the wishes expressed by V.L. before his accident.19
- Conseil d’État of France, decision No. 428117, 24 April 2019, para. 37. ↩
The Committee notes that the authors dispute the consistency of R.L.’s statements, refer to the absence of a written statement and argue that the doctor should have identified V.L.’s wishes after the accident, which was impossible. However, the Committee considers that the above-mentioned analyses of V.L.’s wishes made by the Conseil d’État were detailed and extensive. The authors have not effectively challenged the finding that V.L.’s wishes were determined to the extent possible, in line with the legal provisions on the collective procedure. They have also failed to identify any factual evidence which could have been taken into account but was ignored. The conclusion of these analyses was that V.L. would not have wished to be in the condition in which he was being sustained by tube feeding and hydration. In the light of the foregoing and the materials in the case file, the Committee is not convinced that the communication submitted represents the assumed wishes of V.L. Accordingly, the Committee considers that the authors lack standing to act on behalf of V.L. under article 1 of the Optional Protocol.
C. Conclusion
The Committee therefore decides: (a) That the communication is inadmissible under article 1 of the Optional Protocol;