By: Penelope Morrison Boettiger
Impunity Watch Staff Writer
FRANCE – On December 1, 2022, the European Court of Human Rights (ECHR) declined to support a stay of execution under Rule 39 of the Rules of Court directed at the French Government to withdraw life-support treatment being provided to Mr. A. Medmoune. In the case of Medmoune v. France, the family of Mr. Medmoune sought the stay of execution of physicians looking to withdraw life-support treatment against the wishes he had expressed in writing in his Advanced Directive which clearly stated he would like to be kept alive should he be in an irreversible coma. Under Rule 39 of the Rules of Court, the Court may determine interim measures for urgent issues to any State Party to the European Convention on Human Rights.
In France, Advanced Directives came quite late, established by law for the first time in 2005 through law n° 2005-370. To this day they are little known and not widely used, and as such this court request by applicants is one which has not been extensively litigated in France. Advanced Directives in France allow patients to request specific end of life care, including the wishes of patients concerning withdrawing life support. However, unlike in the United States, physicians in France are not required to follow a patient’s Advanced Directives. It is up to the physician to determine whether to respect an advanced directive and whether to discontinue care which results in a very weak position of self-determination.
In the present case, Mr. Medmoune is a 44-year-old man who had a serious accident and has been on life support in an irreversible coma since May 2022. In July 2022 the medical decision to remove Mr. Medmoune was made by a team of his physicians reviewing his case and prognosis. Applicants are his wife and sister, who argue his Advanced Directive to continue receiving life support treatment is clear and should be followed. Specifically, they argued life support removal would breach his right to life (Article 2 of the Convention) as well as his right to respect for private life in determining how his life should end (Article 8 of the Convention), and to his right to freedom of conscience and religion (Article 9 of the Convention).
The French court first put forth a question to the Constitutional Council regarding the constitutionality of Article L. 1111-11 of the Public Health Code, which states where “’the advance directives are manifestly inappropriate or incompatible with the medical situation’ the medical team may, subject to certain conditions, override those directives in the patient’s interest.” On November 10, 2022, the Constitutional Council rule the law in place was not antithetical to human dignity or personal freedom. Shortly thereafter, on November 30, 2022, applicants applied to the ECHR under Rule 39 to stay the withdrawal of life support while the merits of the case were in review. On December 1, 2022, the ECHR decided not to stay the French Court’s decision authorizing the withdrawal of life support treatment clearing the way for Mr. Medmoune’s life support to be imminently removed.
The forthcoming decisions on the merits have serious implications for the future of self-determination in Advanced Directives not only in France, but also in other countries around the world with similar laws. At the same time, the Court’s decision not to stay the withdrawal of life support under Rule 39 appears to close the door on those in France who would rely on this stay in order to stay alive while the merits of Advanced Directive cases continue.
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