In this guest post, Dr Ilaria Bertini, Research Fellow at Bios Centre, examines the recent decision of a Chamber of the Third Section of the European Court of Human Rights in Mortier v. Belgium, which examined Belgian law relating to euthanasia.
Introduction
The European Court of Human Rights recently delivered a landmark judgment, Mortier v. Belgium (78017/17), on a case of euthanasia.
The case concerns an adult Belgian citizen who underwent a euthanasia procedure at a time when she was suffering from severe depression, without her son or daughter being properly informed. Hence her son, Tom Mortier, claimed that the government failed to protect both her right to life (art. 2 ECHR) and her right to respect for private and family life (art. 8 ECHR).
According to the Belgian Act on Euthanasia (28th May 2002) it is legal for a physician to perform euthanasia if the following three criteria are met: the patient is legally competent and conscious at the time of the request, the request is made autonomously without external pressure, and the patient is suffering from a “medically futile condition of constant and unbearable physical or mental suffering that cannot be alleviated, resulting from a serious and incurable disorder caused by illness or accident.” An independent second opinion might be needed to assess the patient’s willingness to die. Once the euthanasia is approved, there is a cooling off period of one month before the act takes place. Afterwards a Commission of 16 persons seeks to check all the reports to make sure that the procedure has complied with the law.
Facts
The applicant in the case was acting on behalf of his mother: a woman in her 60’s with two apparently estranged adult children, who had been battling her chronic depression for many years with no signs of improvement. The applicant’s mother, since her general practitioner, doctor W., refused to assist her in the euthanasia process was referred to professor D. This was the beginning of her journey through doctors and paperwork in order to ensure the compliance of her request with Belgian law.
Initially she recounted to professor D. (and later to other specialists) her story of recent loneliness, her scepticism as regards further treatments and then, her desire to end her life. However, a second specialist, now a psychiatrist, doctor V., believed that her decision to undergo euthanasia was premature and he suggested she sees doctor V.D. At this point, fear of seeing the request for euthanasia finally rejected together with the doctor’s long waiting list put off the patient from doing this. Thus, the applicant’s mother decided to return to professor D., who referred her to doctor T., another psychiatrist, for a new consultation. She duly explained again her willingness to terminate her life and her desire not to contact her close relatives. Eventually an appointment with doctor V.D. was made and professor D. contacted her psychiatrist, doctor B., who confirmed the gravity of her psychopathology and addressed a letter to doctor T. to that effect.
Overall, the doctors’ general opinion was in favour of carrying out the euthanasia while, at the same time, they encouraged the patient to inform her adult children. She eventually sent them an email (her son did not receive it) a few days before her death in hospital on 19th April 2012.
The ECtHR decision
The ECtHR, called to examine the case, affirmed that while the Belgian law on euthanasia does not per se violate the Convention, the a posteriori control carried out by the Commission on the case’s procedure was ineffective. As a result, the Strasbourg judges unanimously established that Belgium has violated art. 2 of the ECHR, since the domestic authorities had not taken the appropriate positive measures to protect the applicant’s mother’s right to life in the a posteriori check on the euthanasia procedure and because of the significant length of the criminal investigation (§§184-185). In contrast the majority held that there had not been a violation of art. 2 of the ECHR in regard to the legislative framework established by the Belgian Act on Euthanasia and the conditions under which the euthanasia of the applicant’s mother was carried out (§§147-156). Furthermore, an even stronger majority held that the case did not breach art. 8 of the ECHR (§§204-209).
The Strasbourg judges held what the Court unanimously established in Pretty v. the United Kingdom (2346/02) two decades ago: the right to life must not be interpreted as bestowing either a right to die or the prerogative of choosing death rather than life (§120). However, national laws permitting euthanasia are not per se in violation of art. 2 of the ECHR providing their legal framework establishes appropriate “safeguards” to protect the right to life, as enshrined in the Convention, and these safeguards are properly applied to each case (§§139-140).
To better understand the reasoning of the Court in Mortier, the following analysis will also reflect on some problematical arguments raised in Judge Elosegui and Judge Serghides’ separate opinions.
- A priori “material safeguards”: problematic issues related to people with a chronic mental illness
When it comes to those suffering from chronic psychopathologies, the Belgian law on euthanasia established both an a posteriori control of the procedure – whose application in the present case was found in breach of art. 2 of the ECHR – and a priori “material safeguards” which must be followed. As the facts of this case illustrate, the procedure to get the green light for euthanasia can become very fraught when it comes to patients suffering from mental illnesses because of the nature of the disease itself. As judge Elosegui pointed out, it is not straightforward to establish whether a chronic psychopathology, in this case a chronic depression, is untreatable (§22, separate opinion). This is particularly so when the specialists consulted do not know the patient and her clinical history. Also, since euthanasia is considered a medical procedure, it must be autonomous and informed. However, when it comes to patients suffering from mental illnesses there are several problems to consider.
First, there may be disagreements among the doctors in charge of the assessment. It is worth noting that the applicant’s mother’s general practitioner did not agree on the euthanasia procedure and one of the doctors she met in the first instance thought that it was a “premature” decision. The further opinions requested were made by doctors all belonging to the same pro-euthanasia organisation, which, according to the Court, is not sufficient to prove their lack of independence (§§162-163). Second, there is a question whether a patient in this situation is legally competent and able to take such a decision (§23, separate opinion). Third, what if the patient’s reluctance to involve close relatives in the decision-making process is the result of the very psychopathology from which he or she suffers? (§26, separate opinion). It is worth noting that in the present case the patient’s decision not to contact her adult children to explain her desire to end her life was mainly motivated by the fact that in the past two years she had lost touch with them. On this point, the risk envisaged by Judge Elosegui, but not by the ECtHR, is that once a vulnerable patient is deprived of his or her fundamental relationships the patient-doctor relationship might become one-sided, compromising the decision-making process.
Nevertheless, the Court found the Belgian euthanasia law framework compliant with the positive obligation arising from art. 2 ECHR (§148).
- A posteriori “procedural safeguards”
In order to ensure the State’s adherence to the rule of law and not to leave any unlawful attacks on citizens’ lives unpunished, the Court maintains that it is always necessary to shed light on the cause of death through appropriate proceedings. The Belgian law on euthanasia establishes an a posteriori procedure to investigate deaths caused by euthanasia on the part of a 16-member Commission composed of doctors, lawyers, and professionals with an expertise on end-of-life issues. A criminal investigation might arise when someone close to the deceased indicates the existence of suspicious circumstances surrounding the death. The Belgian legal framework shows, then, a great deal of trust in the doctors involved in the euthanasia procedure since the only formal control takes place a posteriori, once the patient is dead.
The Court unanimously declared in the present case that both the length of the criminal investigation initiated by the applicant (more than 4 years) and the control system established by the domestic law breached art. 2 ECHR. The a posteriori procedure’s major failure was allowing the doctor who performed the euthanasia (professor D.) to be a member of the Commission and vote on his own case when his case was examined, thus breaching the duty of independence and anonymity of the Commission (§§177-178).
On this point, Judge Elosegui argued that here the Court of Strasbourg missed an opportunity to acknowledge that the a posteriori control system for euthanasia, being a posteriori, cannot be considered to offer sufficient safeguards against abuse regardless of the actual influence a person might have on the decision (§§4-5, separate opinion).
- Euthanasia and the right to life: do they really fit together?
As highlighted before, in Mortier the Court underlined that the right to die does not stem from the right to life. However, as Judge Serghides argued in his partially dissenting opinion since art. 2 ECHR is aimed at protecting and preserving life no legislative framework on euthanasia – regardless of the safeguards associated with them – complies with the fundamental principles enshrined by the Convention (§5-6, separate opinion). In fact, art. 15.2 of the ECHR forbids any derogation in respect of the right to life, except during wartime.
The state’s obligations to protect the right to life are then twofold: on the one hand, the state has the positive duty to take appropriate steps in multiple contexts to preserve the lives of people who live within its jurisdiction. On the other hand, the state has the negative duty to refrain from actively taking life.
In the current case the Court limited its decision to whether the procedure to end the life of the applicant’s mother conformed to art. 2 and art. 8 of the ECHR. As the Court stated, the Belgian legislative framework on euthanasia and the conditions under which euthanasia had been carried out in the current case complied with art. 2 of the ECHR and consequently art. 8 of the ECHR was not infringed (§203). Moreover, in regard to the right of the applicant to accompany his mother throughout the process and the patient’s right to autonomy the Court struck the balance in favour of the latter interest (§204-207).
However, as Judge Serghides pointed out in his opinion, the issue should have been addressed at a deeper level: whether art. 8 of the ECHR, which protects the right to privacy and family life, can be used to deny the right to life. Art. 2 of the ECHR can be considered the pillar of the Convention, since any human being deprived of his/her right to life cannot exercise or enjoy any other of his/her fundamental rights. Hence maintaining or preserving human life cannot depend on the margin of appreciation left to member states (§7, separate opinion) and the safeguards afforded by the Belgian law on euthanasia are only the tip of the iceberg.
Dr Ilaria Bertini is a Research Fellow at BIOS Centre
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