CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 5 juin 2015

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color:#000000 } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 } .sC36A6361 { font-family:Arial; color:#000000 }       GRAND CHAMBER                 CASE OF LAMBERT AND OTHERS v. FRANCE   (Application no. 46043/14)                 JUDGMENT   This version was rectified on 25 June 2015 under Rule 81 of the Rules of Court.     STRASBOURG       5 June 2015       This judgment is final.   In the case of Lambert and Others v. France, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Dean Spielmann, President ,   Guido Raimondi,   Mark Villiger,   Isabelle Berro,   Khanlar Hajiyev,   Ján Šikuta,   George Nicolaou,   Nona Tsotsoria,   Vincent A. De Gaetano,   Angelika Nußberger,   Linos-Alexandre Sicilianos,   Erik Møse,   André Potocki,   Helena Jäderblom,   Aleš Pejchal,   Valeriu Griţco,   Egidijus Kūris, judges , and Erik Fribergh, Registrar , Having deliberated in private on 7 January and 23 April 2015, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no. 46043/14) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four French nationals, Mr Pierre Lambert, Mrs Viviane Lambert, Mr David Philippon and Mrs Anne Tuarze (“the applicants”), on 23 June 2014. 2.     The applicants were represented by Mr J. Paillot, a lawyer practising in Strasbourg, and Mr J. Triomphe, a lawyer practising in Paris. The French Government (“the Government”) were represented by their Agent, Mr   F.   Alabrune, Director of Legal Affairs at the Ministry of Foreign Affairs and International Development. 3.     The applicants alleged, in particular, that the withdrawal of Vincent Lambert’s artificial nutrition and hydration would be in breach of the State’s obligations under Article 2 of the Convention, that it would constitute ill-treatment amounting to torture within the meaning of Article 3 of the Convention and would infringe his physical integrity, in breach of Article 8 of the Convention. 4.     The application was assigned to the Fifth Section of the Court (Rule   52 § 1 of the Rules of Court). On 24 June 2014 the relevant Chamber decided to apply Rule 39, to give notice of the application to the Government and to grant it priority. 5.     On 4 November 2014 a Chamber of the Fifth Section composed of Mark Villiger, President, Angelika Nußberger, Boštjan M. Zupančič, Vincent A. De Gaetano, André Potocki, Helena Jäderblom and Aleš Pejchal, judges, and Stephen Phillips, Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72). 6.     The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. 7.     The applicants and the Government each filed observations on the admissibility and merits of the case. 8.     Observations were also received from Rachel Lambert, François Lambert and Marie ‑ Geneviève Lambert, the wife, nephew and half-sister respectively of Vincent Lambert, and from the National Union of Associations of Head Injury and Brain Damage Victims’ Families, the association Amréso-Bethel and the Human Rights Clinic of the International Institute of Human Rights, to all of whom the President had given leave to intervene as third parties in the written procedure (Article   36 § 2 of the Convention and Rule 44   §   3   (a)). Rachel Lambert, François Lambert and   Marie ‑ Geneviève Lambert were also given leave to take part in the hearing. 9.     A hearing took place in public in the Human Rights Building, Strasbourg, on 7 January 2015 (Rule 59 § 3).   There appeared before the Court: (a)     for the Government Mr   F.   Alabrune , Director of Legal Affairs, Ministry of Foreign Affairs and International Development,   Agent , Ms   E. Jung , Drafting Officer, Human Rights Section, Ministry of Foreign Affairs and International Development, Mr   R. Féral, Drafting Officer, Human Rights Section, Ministry of Foreign Affairs and International Development, Ms   S. Rideau , Adviser, Legal Affairs Directorate, Ministry of Social Affairs, Health and Women’s Rights, Ms   I. Erny , Legal Adviser, Users’ Rights, Legal and Ethical Affairs Division, Ministry of Social Affairs, Health and Women’s Rights, Ms   P. Rouault-Chalier , Deputy Director of Litigation and Legal Affairs, Ministry of Justice, Ms   M. Lambling, Drafting Officer, Individual Rights and Family Law Office, Ministry of Justice,   Advisers ; (b)     for the applicants Mr   J. Paillot , lawyer, Mr   J. Triomphe , lawyer,   Counsel , Mr   G. Puppinck , Prof.   X. Ducrocq, Dr   B. Jeanblanc,   Advisers ; (c)     for Rachel Lambert, third-party intervener Mr   L. Pettiti , lawyer,   Counsel , Dr   Oportus , Dr   Simon ,     Advisers; (d)     for François and Marie-Geneviève Lambert, third-party interveners Mr   M. Munier-Apaire , member of the Conseil d’État and the Court of Cassation Bar, Mr   B. Lorit , lawyer,   Advisers.   The applicants, with the exception of the first applicant, also attended, as did Rachel Lambert, François Lambert and Marie-Geneviève Lambert, third-party interveners. The Court heard addresses by Mr Alabrune, Mr Paillot, Mr Triomphe, Mr Munier-Apaire and Mr Pettiti, as well as the answers given by Mr   Alabrune and Mr Paillot to the questions put by one of the judges. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 10.     The applicants, who are all French nationals, are Mr Pierre Lambert and his wife Mrs Viviane Lambert, who were born in 1929 and 1945 respectively and live in Reims, Mr David Philippon, who was born in 1971 and lives in Mourmelon, and Mrs Anne Tuarze, who was born in 1978 and lives in Milizac. They are the parents, a half-brother and a sister respectively of Vincent Lambert, who was born on 20 September 1976. 11. Vincent Lambert sustained serious head injuries in a road-traffic accident on 29 September 2008, which left him tetraplegic and in a state of complete dependency. According to the expert medical report ordered by the Conseil d’État on 14 February 2014, he is in a chronic vegetative state (see paragraph 40 below). 12.     From September 2008 to March 2009 he was hospitalised in the resuscitation wing, and subsequently the neurology ward, of Châlons ‑ en ‑ Champagne Hospital. From March to June 2009 he was cared for in the heliotherapy centre in Berck ‑ sur ‑ Mer, before being moved on 23   June 2009 to the unit in Reims University Hospital providing follow-up and rehabilitative care to patients in a vegetative or minimally conscious state, where he remains to date. The unit accommodates eight patients. Vincent Lambert receives artificial nutrition and hydration which is administered enterally, that is, via a gastric tube. 13.     In July 2011 Vincent Lambert was assessed by a specialised unit of Liège University Hospital, the Coma Science Group, which concluded that he was in a chronic neuro-vegetative state characterised as “minimally conscious plus”. In line with the recommendations of the Coma Science Group he received daily sessions of physiotherapy from September 2011 to the end of October 2012, which yielded no results. He also received eighty-seven speech and language therapy sessions between March and September 2012, in an unsuccessful attempt to establish a code of communication. Attempts were also made to sit the patient in a wheelchair. A.     First decision taken under the Law of 22 April 2005 on patients’ rights and end-of-life issues 14.     As Vincent Lambert’s carers had observed increasing signs in 2012 of what they believed to be resistance on his part to daily care, the medical team initiated in early 2013 the collective procedure provided for by the Law of 22 April 2005 on patients’ rights and end-of-life issues (the so-called “Leonetti Act” – see paragraph 54 below). Rachel Lambert, the patient’s wife, was involved in the procedure. 15.     The procedure resulted in a decision by Dr Kariger, the doctor in charge of Vincent Lambert and head of the department in which he is hospitalised, to withdraw the patient’s nutrition and reduce his hydration. The decision was put into effect on 10 April 2013. B.     Injunction of 11 May 2013 16.     On 9 May 2013 the applicants applied to the urgent-applications judge of the Châlons ‑ en ‑ Champagne Administrative Court on the basis of Article L. 521-2 of the Administrative Courts Code (urgent application for protection of a fundamental freedom ( référé liberté )), seeking an injunction ordering the hospital, subject to a coercive fine, to resume feeding and hydrating Vincent Lambert normally and to provide him with whatever care his condition required. 17.     In an order dated 11 May 2013, the urgent-applications judge granted their requests. The judge held that, since no advance directives had been drawn up by Vincent Lambert, and in the absence of a person of trust within the meaning of the relevant provisions of the Public Health Code, the collective procedure should be continued with his family, despite the fact that the latter was divided as to what should become of the patient. The judge noted that, while Vincent Lambert’s wife had been involved in the procedure, it was clear from examination of the case that his parents had not been informed that it had been applied, and that the decision to withdraw nutrition and limit hydration, the nature of and reasons for which had not been disclosed to them, had not respected their wishes. 18.     The judge held accordingly that these procedural shortcomings amounted to a serious and manifestly unlawful breach of a fundamental freedom, namely the right to respect for life, and ordered the hospital to resume feeding and hydrating Vincent Lambert normally and to provide him with whatever care his condition required. C.     Second decision taken under the Leonetti Act 19.     In September 2013 a fresh collective procedure was initiated. Dr   Kariger consulted six doctors, including three from outside the hospital (a neurologist, a cardiologist and an anaesthetist with experience in palliative medicine) chosen by Vincent Lambert’s parents, his wife and the medical team respectively. He also had regard to a written contribution from a doctor in charge of a specialised extended-care facility within a nursing home. 20.     Dr Kariger also convened two meetings with the family, on 27   September and 16 November 2013, which were attended by Vincent Lambert’s wife and parents and his eight siblings. Rachel Lambert and six of the eight brothers and sisters spoke in favour of discontinuing artificial nutrition and hydration, while the applicants were in favour of continuing it. 21.     On 9 December 2013 Dr Kariger called a meeting of all the doctors and almost all the members of the care team. Following that meeting Dr   Kariger and five of the six doctors consulted stated that they were in favour of withdrawing treatment. 22.     On completion of the consultation procedure Dr Kariger announced on 11 January 2014 his intention to discontinue artificial nutrition and hydration on 13 January, subject to an application to the administrative court. His decision, comprising a reasoned thirteen-page report, a seven ‑ page summary of which was read out to the family, observed in particular that Vincent Lambert’s condition was characterised by irreversible brain damage and that the treatment appeared to be futile and disproportionate and to have no other effect than to sustain life artificially. According to the report, the doctor had no doubt that Vincent Lambert had not wished, before his accident, to live under such conditions. Dr Kariger concluded that prolonging the patient’s life by continuing his artificial nutrition and hydration amounted to unreasonable obstinacy. D.     Administrative Court judgment of 16 January 2014 23.     On 13 January 2014 the applicants made a further urgent application to the Châlons ‑ en ‑ Champagne Administrative Court for protection of a fundamental freedom under Article L. 521-2 of the Administrative Courts Code, seeking an injunction prohibiting the hospital and the doctor concerned from withdrawing Vincent Lambert’s nutrition and hydration, and an order for his immediate transfer to a specialised extended-care facility in Oberhausbergen run by the association Amréso ‑ Bethel (see paragraph 8 above). Rachel Lambert and François Lambert, Vincent   Lambert’s nephew, intervened in the proceedings as third parties. 24.     The Administrative Court, sitting as a full court of nine judges, held a hearing on 15 January 2014. In a judgment of 16 January 2014, it suspended the implementation of Dr Kariger’s decision of 11 January 2014. 25.     The Administrative Court began by observing that Article 2 of the Convention did not prevent States from making provisions for individuals to object to potentially life-prolonging treatment, or for a doctor in charge of a patient who was unable to express his or her wishes and whose treatment the doctor considered, after implementing a series of safeguards, to amount to unreasonable obstinacy, to withdraw that treatment, subject to supervision by the Medical Council, the hospital’s ethics committee, where applicable, and the administrative and criminal courts. 26.     The Administrative Court went on to find that it was clear from the relevant provisions of the Public Health Code, as amended following the Leonetti Act and as elucidated by the parliamentary proceedings, that artificial enteral nutrition and hydration – which were subject, like medication, to the distribution monopoly held by pharmacies, were designed to supply specific nutrients to patients with impaired functions and which required recourse to invasive techniques to administer them – constituted a form of treatment. 27.     Observing that Dr Kariger’s decision had been based on the wish apparently expressed by Vincent Lambert not to be kept alive in a highly dependent state, and that the latter had not drawn up any advance directives or designated a person of trust, the Administrative Court found that the views he had confided to his wife and one of his brothers had been those of a healthy individual who had not been faced with the immediate consequences of his wishes, and had not constituted the formal manifestation of an express wish, irrespective of his professional experience with patients in a similar situation. The court further found that the fact that Vincent Lambert had had a conflictual relationship with his parents, since he did not share their moral values and religious commitment, did not mean that he could be considered to have expressed a clear wish to refuse all forms of treatment, and added that no unequivocal conclusion as to his desire or otherwise to be kept alive could be drawn from his apparent resistance to the care provided. The Administrative Court held that Dr   Kariger had incorrectly assessed Vincent Lambert’s wishes. 28.   The Administrative Court also noted that, according to the report drawn up in 2011 by Liège University Hospital (see paragraph 13 above), Vincent Lambert was in a minimally conscious state, implying the continuing presence of emotional perception and the existence of possible responses to his surroundings. Accordingly, the administering of artificial nutrition and hydration was not aimed at keeping him alive artificially. Lastly, the court considered that, as long as the treatment did not cause any stress or suffering, it could not be characterised as futile or disproportionate. It therefore held that Dr Kariger’s decision had constituted a serious and manifestly unlawful breach of Vincent Lambert’s right to life. It issued an order suspending the implementation of the decision while rejecting the request for the patient to be transferred to the specialised extended-care facility in Oberhausbergen. E.     Conseil d’État ruling of 14 February 2014 29.     In three applications lodged on 31 January 2014, Rachel Lambert, François   Lambert and Reims University Hospital appealed against that judgment to the urgent-applications judge of the Conseil d’État . The applicants lodged a cross-appeal, requesting Vincent Lambert’s immediate transfer to the specialised extended-care facility. The National Union of Associations of Head Injury and Brain Damage Victims’ Families (UNAFTC, see paragraph 8 above) sought leave to intervene as a third party. 30.     At the hearing on the urgent application held on 6 February 2014, the President of the Judicial Division of the Conseil d’État decided to refer the case to the full court, sitting as a seventeen-member Judicial Assembly. 31.     The hearing before the full court took place on 13 February 2014. In his submissions to the Conseil d’État , the public rapporteur cited, inter alia , the remarks made by the Minister of Health to the members of the Senate examining the bill known as the “Leonetti Bill”: “While the act of withdrawing treatment ... results in death, the intention behind the act [is not to kill; it is] to allow death to resume its natural course and to relieve suffering. This is particularly important for care staff, whose role is not to take life.” 32.     The Conseil d’État delivered its ruling on 14 February 2014. After joining the applications and granting UNAFTC leave to intervene, the Conseil d’État defined in the following terms the role of the urgent ‑ applications judge called upon to rule on the basis of Article   L.   521 ‑ 2 of the Administrative Courts Code. “Under [Article L. 521-2], the urgent-applications judge of the administrative court, when hearing an application of this kind justified by particular urgency, may order any measures necessary to safeguard a fundamental freedom allegedly breached in a serious and manifestly unlawful manner by an administrative authority. These legislative provisions confer on the urgent-applications judge, who normally decides alone and who orders measures of an interim nature in accordance with Article L.   511-1 of the Administrative Courts Code, the power to order, without delay and on the basis of a ‘plain and obvious’ test, the necessary measures to protect fundamental freedoms. However, the urgent-applications judge must exercise his or her powers in a particular way when hearing an application under Article L. 521-2 ... concerning a decision taken by a doctor on the basis of the Public Health Code which would result in treatment being discontinued or withheld on grounds of unreasonable obstinacy and the implementation of which would cause irreversible damage to life. In such circumstances the judge, sitting where applicable as a member of a bench of judges, must take the necessary protective measures to prevent the decision in question from being implemented where it may not be covered by one of the situations provided for by law, while striking a balance between the fundamental freedoms in issue, namely the right to respect for life and the patient’s right to consent to medical treatment and not to undergo treatment that is the result of unreasonable obstinacy. In such a case, the urgent ‑ applications judge or the bench to which he or she has referred the case may, as appropriate, after temporarily suspending the implementation of the measure and before ruling on the application, order an expert medical report and, under Article   R.   625-3 of the Administrative Courts Code, seek the opinion of any person whose expertise or knowledge are apt to usefully inform the court’s decision.” 33.     The Conseil d’État found that it was clear from the very wording of the relevant provisions of the Public Health Code (Articles L. 1110 ‑ 5, L.   1111 ‑ 4 and R. 4127 ‑ 37) and from the parliamentary proceedings that the provisions in question were general in scope and applied to Vincent Lambert just as they did to all users of the health service. The Conseil d’État stated as follows. “It is clear from these provisions that each individual must receive the care most appropriate to his or her condition and that the preventive or exploratory acts carried out and the care administered must not subject the patient to disproportionate risks in relation to the anticipated benefits . Such acts must not be continued with unreasonable obstinacy and may be discontinued or withheld where they appear to be futile or disproportionate or to have no other effect than to sustain life artificially, whether or not the patient is in an end-of-life situation. Where the patient is unable to express his or her wishes, any decision to limit or withdraw treatment on the ground that continuing it would amount to unreasonable obstinacy may not be taken by the doctor, where such a measure is liable to endanger the life of the patient, without the collective procedure defined in the Code of Medical Ethics and the rules on consultation laid down in the Public Health Code having been followed. If the doctor takes such a decision he or she must in any event preserve the patient’s dignity and dispense palliative care. Furthermore, it is clear from the provisions of Articles L. 1110-5 and L. 1111-4 of the Public Health Code, as elucidated by the parliamentary proceedings prior to the passing of the Law of 22 April 2005, that the legislature intended to include among the forms of treatment that may be limited or withdrawn on grounds of unreasonable obstinacy all acts which seek to maintain the patient’s vital functions artificially. Artificial nutrition and hydration fall into this category of acts and may accordingly be withdrawn where continuing them would amount to unreasonable obstinacy.” 34.     The Conseil d’État went on to find that its task was to satisfy itself, having regard to all the circumstances of the case, that the statutory conditions governing any decision to withdraw treatment whose continuation would amount to unreasonable obstinacy had been met. To that end it needed to have the fullest information possible at its disposal, in particular concerning Vincent Lambert’s state of health. Accordingly, it considered it necessary before ruling on the application to order an expert medical report to be prepared by practitioners with recognised expertise in neuroscience. The experts – acting on an independent and collective basis, after examining the patient, meeting the medical team and the care staff and familiarising themselves with the patient’s entire medical file – were to give their opinion on Vincent Lambert’s current condition and provide the Conseil d’État with all relevant information as to the prospect of any change. 35.     The Conseil d’État decided to entrust the expert report to a panel of three doctors appointed by the President of the Judicial Division on proposals from the President of the National Medical Academy, the Chair of the National Ethics Advisory Committee and the President of the National Medical Council respectively. The remit of the panel of experts, which was to report within two months of its formation, read as follows. “(i)     To describe Mr. Lambert’s current clinical condition and how it has changed since the review carried out in July 2011 by the Coma Science Group of Liège University Hospital; (ii)     To express an opinion as to whether the patient’s brain damage is irreversible and as to the clinical prognosis; (iii)     To determine whether the patient is capable of communicating, by whatever means, with those around him; (iv)     To assess whether there are any signs to suggest at the present time that Mr   Lambert reacts to the care being dispensed to him and, if so, whether those reactions can be interpreted as a rejection of that care, as suffering, as a desire for the life-sustaining treatment to be withdrawn or, on the contrary, as a desire for the treatment to be continued.” 36.     The Conseil d’État also considered it necessary, in view of the scale and the difficulty of the scientific, ethical and deontological issues raised by the case and in accordance with Article R. 625-3 of the Administrative Courts Code, to request the National Medical Academy, the National Ethics Advisory Committee and the National Medical Council, together with Mr   Jean Leonetti, the rapporteur for the Law of 22 April 2005, to submit general written observations by the end of April 2014 designed to clarify for it the application of the concepts of unreasonable obstinacy and sustaining life artificially for the purposes of Article L. 1110-5, with particular regard to individuals who, like Vincent Lambert, were in a minimally conscious state. 37.     Lastly, the Conseil d’État rejected the applicants’ request for Vincent Lambert to be transferred to a specialised extended-care facility (see paragraph 29 above). F.     Expert medical report and general observations 1.     Expert medical report 38.     The experts examined Vincent Lambert on nine occasions. They familiarised themselves with the entire medical file, and in particular the report of the Coma Science Group in Liège (see paragraph 13 above), the treatment file and the administrative file, and had access to all the imaging tests. They also consulted all the items in the judicial case file of relevance for their expert report. In addition, between 24 March and 23 April 2014, they met all the parties (the family, the medical and care team, the medical consultants and representatives of UNAFTC and the hospital) and carried out a series of tests on Vincent Lambert. 39.     On 5 May 2014 the experts sent their preliminary report to the parties for comments. Their final report, submitted on 26 May 2014, provided the following replies to the questions asked by the Conseil d’État . (a)     Vincent Lambert’s clinical condition and how it had changed 40.     The experts found that Vincent Lambert’s clinical condition corresponded to a vegetative state, with no signs indicating a minimally conscious state. Furthermore, they stressed that he had difficulty swallowing and had seriously impaired motor functions of all four limbs, with significant retraction of the tendons. They noted that his state of consciousness had deteriorated since the assessment carried out in Liège in 2011. (b)     Irreversible nature of the brain damage and clinical prognosis 41.   The experts pointed out that the two main factors to be taken into account in assessing whether or not brain damage was irreversible were, firstly, the length of time since the accident which had caused the damage and, secondly, the nature of the damage. In the present case they noted that five and a half years had passed since the initial head injury and that the imaging tests showed severe cerebral atrophy testifying to permanent neuron loss, near-total destruction of strategic regions such as both parts of the thalamus and the upper part of the brain stem, and serious damage to the communication pathways in the brain. They concluded that the brain damage was irreversible. They added that the lengthy period of progression, the patient’s clinical deterioration since July 2011, his current vegetative state, the destructive nature and extent of the brain damage and the results of the functional tests, coupled with the severity of the motor impairment of all four limbs, pointed to a poor clinical prognosis. (c)     Vincent Lambert’s capacity to communicate with those around him 42.   In the light of the tests carried out, and particularly in view of the fact that the course of speech and language therapy carried out in 2012 had not succeeded in establishing a code of communication, the experts concluded that Vincent Lambert was not capable of establishing functional communication with those around him. (d)     Existence of signs suggesting that Vincent Lambert reacted to the care provided, and interpretation of those signs 43.     The experts observed that Vincent Lambert reacted to the care provided and to painful stimuli, but concluded that these were non ‑ conscious responses. In their view, it was not possible to interpret them as conscious awareness of suffering or as the expression of any intent or wish with regard to the withdrawal or continuation of treatment. 2.     General observations 44.   On 22 and 29 April and 5 May 2014 the Conseil d’État received the general observations of the National Medical Council, Mr Jean Leonetti, rapporteur for the Law of 22 April 2005, the National Medical Academy and the National Ethics Advisory Committee. The National Medical Council made clear in particular that, in using the expression “no other effect than to sustain life artificially” in Article   L.   1110 ‑ 5 of the Public Health Code, the legislature had sought to address the situation of patients who not only were being kept alive solely by the use of methods and techniques replacing key vital functions, but also, and above all, whose cognitive and relational functions were profoundly and irreversibly impaired. It emphasised the importance of the notion of temporality, stressing that where a pathological condition had become chronic, resulting in the person’s physiological deterioration and the loss of his or her cognitive and relational faculties, obstinacy in administering treatment could be regarded as unreasonable if no signs of improvement were apparent. Mr Leonetti stressed that the Law of 22 April 2005 was applicable to patients who had brain damage and thus suffered from a serious condition which, in the advanced stages, was incurable, but who were not necessarily “at the end of life”. Accordingly, the legislature had referred in its title to “patients’ rights and end ‑ of ‑ life issues” rather than “patients’ rights in end ‑ of ‑ life situations”. He outlined the criteria for unreasonable obstinacy and the factors used to assess it and stated that the reference to treatment having “no other effect than to sustain life artificially”, which was stricter than the wording originally envisaged (namely, treatment “which prolongs life artificially”) was more restrictive and referred to artificially sustaining life “in the purely biological sense, in circumstances where, firstly, the patient has major irreversible brain damage and, secondly, his or her condition offers no prospect of a return to awareness of self or relationships with others”. He pointed out that the Law of 22 April 2005 gave the doctor sole responsibility for the decision to withdraw treatment and that it had been decided not to pass that responsibility on to the family, in order to avoid any feelings of guilt and to ensure that the person who took the decision was identified. The National Medical Academy reiterated the fundamental prohibition barring doctors from deliberately taking another’s life, which formed the basis for the relationship of trust between doctor and patient. The Academy reiterated its long-standing position according to which the Leonetti Act was applicable not only to the various “end-of-life” situations, but also to situations raising the very difficult ethical issue of the “ending of life” in the case of patients in “survival” mode, in a minimally conscious or chronic vegetative state. The National Ethics Advisory Committee conducted an in ‑ depth analysis of the difficulties surrounding the notions of unreasonable obstinacy, treatment and sustaining life artificially, summarised the medical data concerning minimally conscious states, and addressed the ethical issues arising out of such situations. It recommended, in particular, a process of reflection aimed at ensuring that the collective discussions led to a genuine collective decision-making process and that, where no consensus could be reached, there was a possibility of mediation. G.     Conseil d’État judgment of 24 June 2014 45.     A hearing took place on 20 June 2014 before the Conseil d’État . In his submissions the public rapporteur stressed, in particular, the following:   “... [T]he legislature did not wish to impose on those in the caring professions the burden of bridging the gap which exists between allowing death to take its course when it can no longer be prevented and actively causing death by administering a lethal substance. By discontinuing treatment, a doctor is not taking the patient’s life, but is resolving to withdraw when there is nothing more to be done.” The Conseil d’État delivered its judgment on 24 June 2014. After granting leave to Marie ‑ Geneviève Lambert, Vincent Lambert’s half-sister, to intervene as a third party, and reiterating the relevant provisions of domestic law as commented on and elucidated in the general observations received, the Conseil d’État examined in turn the applicants’ arguments based on the Convention and on domestic law. 46.     On the first point the Conseil d’État reiterated that, where the urgent ‑ applications judge was called on to hear an application under Article   L. 521-2 of the Administrative Courts Code (urgent application for protection of a fundamental freedom) concerning a decision taken by a doctor under the Public Health Code which would result in treatment being discontinued or withheld on the ground of unreasonable obstinacy, and implementation of that decision would cause irreversible damage to life, the judge was required to examine any claim that the provisions in question were incompatible with the Convention (see paragraph 32 above). 47.     In the case before it the Conseil d’État replied in the following terms to the arguments based on Articles 2 and 8 of the Convention. “Firstly, the disputed provisions of the Public Health Code defined a legal framework reaffirming the right of all persons to receive the most appropriate care, the right to respect for their wish to refuse any treatment and the right not to undergo medical treatment resulting from unreasonable obstinacy. Those provisions do not allow a doctor to take a life-threatening decision to limit or withdraw the treatment of a person incapable of expressing his or her wishes, except on the dual, strict condition that continuation of that treatment would amount to unreasonable obstinacy and that the requisite safeguards are observed, namely that account is taken of any wishes expressed by the patient and that at least one other doctor and the care team are consulted, as well as the person of trust, the family or another person close to the patient. Any such decision by a doctor is open to appeal before the courts in order to review compliance with the conditions laid down by law. Hence the disputed provisions of the Public Health Code, taken together, in view of their purpose and the conditions attaching to their implementation, cannot be said to be incompatible with the requirements of Article 2 of the Convention ... , or with those of Article 8 ...” The Conseil d’État also rejected the applicants’ arguments based on Articles 6 and 7 of the Convention, finding that the role entrusted to the doctor under the provisions of the Public Health Code was not incompatible with the duty of impartiality flowing from Article 6, and that Article 7, which applied to criminal convictions, was not relevant to the case before it. 48.     Regarding the application of the relevant provisions of the Public Health Code, the Conseil d’État held as follows. “Although artificial nutrition and hydration are among the forms of treatment which may be withdrawn in cases where their continuation would amount to unreasonable obstinacy, the sole fact that a person is in an irreversible state of unconsciousness or, a fortiori , has lost his or her autonomy irreversibly and is thus dependent on such a form of nutrition and hydration, does not by itself amount to a situation in which the continuation of treatment would appear unjustified on grounds of unreasonable obstinacy. In assessing whether the conditions for the withdrawal of artificial nutrition and hydration are met in the case of a patient with severe brain damage, however caused, who is in a vegetative or minimally conscious state and is thus unable to express his or her wishes, and who depends on such nutrition and hydration as a means of life support, the doctor in charge of the patient must base his or her decision on a range of medical and non-medical factors whose relative weight cannot be determined in advance but will depend on the circumstances of each patient, so that the doctor must assess each situation on its own merits. In addition to the medical factors – which must cover a sufficiently long period, be assessed collectively and relate in particular to the patient’s current condition, the change in that condition since the accident or illness occurred, his or her degree of suffering and the clinical prognosis – the doctor must attach particular importance to any wishes the patient may have expressed previously, whatever their form or tenor. In that regard, where such wishes remain unknown, they cannot be assumed to consist in a refusal by the patient to be kept alive in the current conditions. The doctor must also take into account the views of the person of trust, where the patient has designated such a person, of the members of the patient’s family or, failing this, of another person close to the patient, while seeking to establish a consensus. In assessing the patient’s particular situation, the doctor must be guided primarily by a concern to act with maximum beneficence towards the patient...” 49.     The Conseil d’État went on to find that it was its task, in the light of all the circumstances of the case and the evidence produced in the course of the adversarial proceedings before it, in particular the expert medical report, to ascertain whether the decision taken by Dr Kariger on 11 January 2014 had complied with the statutory conditions imposed on any decision to withdraw treatment whose continuation would amount to unreasonable obstinacy. 50.     In that connection the Conseil d’État ruled as follows. “Firstly, it is clear from the examination of the case that the collective procedure conducted by Dr Kariger ..., prior to the taking of the decision of 11   January 2014, was carried out in accordance with the requirements of Article R. 4127-37 of the Public Health Code and involved the consultation of six doctors, although that Article simply requires that the opinion of one doctor and, where appropriate, of a second be sought. Dr Kariger was not legally bound to allow the meeting of 9 December 2013 to be attended by a second doctor designated by Mr Lambert’s parents in addition to the one they had already designated. Nor does it appear from the examination of the case that some members of the care team were deliberately excluded from that meeting. Furthermore, Dr Kariger was entitled to speak with Mr François Lambert, the patient’s nephew. The fact that Dr Kariger opposed a request for him to withdraw from Mr Lambert’s case and for the patient to be transferred to another establishment, and the fact that he expressed his views publicly, do not amount, having regard to all the circumstances of the present case, to a failure to comply with the obligations implicit in the principle of impartiality, which Dr Kariger respected. Accordingly, contrary to what was argued before the Châlons-en-Champagne Administrative Court, the procedure preceding the adoption of the decision of 11   January 2014 was not tainted by any irregularity. Secondly, the experts’ findings indicate that ‘Mr Lambert’s current clinical condition corresponds to a vegetative state’, with ‘swallowing difficulties, severe motor impairment of all four limbs, some signs of dysfunction of the brainstem’ and ‘continued ability to breathe unaided’. The results of the tests carried out from 7 to 11   April 2014 to assess the patient’s brain structure and function ... were found to be consistent with such a vegetative state. The experts found that the clinical progression, characterised by the disappearance of the fluctuations in Mr Lambert’s state of consciousness recorded during the assessment carried out in July 2011 by the Coma Science Group at Liège University Hospital and by the failure of the active therapies recommended at the time of that assessment, were suggestive of ‘a deterioration in the [patient’s] state of consciousness since that time’. Furthermore, according to the findings set out in the experts’ report, the exploratory tests which were carried out revealed serious and extensive brain damage, as evidenced in particular by ‘severe impairment of the structure and metabolism of the sub-cortical regions of crucial importance for cognitive function’ and ‘major structural dysfunction of the communication pathways between the regions of the brain involved in consciousness’. The severity of the cerebral atrophy and of the damage observed, coupled with the five-and-a-half-year period that had elapsed since the initial accident, led the experts to conclude that the brain damage was irreversible. Furthermore, the experts concluded that ‘the lengthy period of progression, the patient’s clinical deterioration since 2011, his current vegetative state, the destructive nature and the extent of the brain damage, the results of the functional tests and the severity of the motor impairment of all four limbs’ pointed to a ‘poor clinical prognosis’. Lastly, while noting that Mr Lambert was capable of reacting to the care administered and to certain stimuli, the experts indicated that the characteristics of those reactions suggested that they were non-conscious responses. The experts did not consider it possible to interpret these behavioural reactions as evidence of ‘conscious awareness of suffering’ or as the expression of any intent or wish with regard to the withdrawal or continuation of the treatment keeping the patient alive. These findings, which the experts reached unanimously following a collective assessment in the course of which the patient was examined on nine separate occasions, thorough cerebral tests were performed, meetings were held with the medical team and care staff involved and the entire file was examined, confirm the conclusions drawn by Dr Kariger as to the irreversible nature of the damage and Mr   Lambert’s clinical prognosis. The exchanges which took place in the adversarial proceedings before the Conseil d’État subsequent to submission of the experts’ report do nothing to invalidate the experts’ conclusions. While it can be seen from the experts’ report, as just indicated, that Mr Lambert’s reactions to care are not capable of interpretation and thus cannot be regarded as expressing a wish as to the withdrawal of treatment, Dr Kariger in fact indicated in the impugned decision that the behaviour concerned was open to various interpretations, all of which needed to be treated with great caution, and did not include this aspect in the reasons for his decision. Thirdly, the provisions of the Public Health Code allow account to be taken of a patient’s wishes expressed in a form other than advance directives. It is apparent from the examination of the case, and in particular from the testimony of Mrs Rachel Lambert, that she and