Medical Care Failure
In Glass v UK a mother of a severely mentally and physically disabled child wished that he be refused morphine and diamorphine to relieve pain in circumstances of terminal respiratory failure. The decision to interfered with the child’s private life and physical integrity was not necessary as the authorities could have taken steps earlier to apply to court, for consent to administer the medicine.
Center of Legal Resources on behalf of Valentin Câmpeanu v. Romania 2014 (Grand Chamber) The application was lodged by a non-governmental organization (NGO), on behalf of Valentin Câmpeanu, who died in 2004 at the age of 18 in a psychiatric hospital. Abandoned at birth and placed in an orphanage, he had been diagnosed as a young child as being HIV-positive and as suffering from a severe mental disability.
The Court found that, in the exceptional circumstances of the case, and bearing in mind the serious nature of the allegations, it was open to the NGO to act as a representative of Valentin Câmpeanu, even though the organisation was not itself a victim of the alleged violations of the Convention.
In this case the Court held that there had been a violation of Article 2 (right to life) of the Convention, in both its substantive and its procedural aspects. It found in particular: that Valentin Câmpeanu had been placed in medical institutions which were not equipped to provide adequate care for his condition; that he had been transferred from one unit to another without proper diagnosis; and, that the authorities had failed to ensure his appropriate treatment with antiretroviral medication. The authorities, aware of the difficult situation – lack of personnel, insufficient food and lack of heating – in the psychiatric hospital where he had been placed, had unreasonably put his life in danger. Furthermore, there had been no effective investigation into the circumstances of his death.
Clinical trial of new medicine
In Hristozov v Bulgaria the refusal to authorise the giving of experimental cancer drugs which may prolong life was challenged. The state was within its margin of appreciation as the drugs were novel and not authorised elsewhere.
Traskunova v. Russia 2022 This case concerned the death of the applicant’s daughter while she was participating in the clinical trial of a new drug for schizophrenia, namely asenapine. The ensuing inquiry revealed that her daughter had slipped into a coma and died because of heart disease which had gone undetected and which had been aggravated by the experimental drug. The applicant unsuccessfully attempted to have disciplinary proceedings instituted against those responsible and to bring criminal proceedings into the death.
The Court held that there had been a violation of Article 2 (right to life) of the Convention in the present case, finding that the respondent State has failed to comply with its substantive and procedural obligations under Article 2. In particular, the Court noted that the State had not ensured an effective implementation and functioning of the legal framework with a view to protecting the right to life of the applicant’s daughter – a mentally ill and thus vulnerable individual – in the context of clinical trials of experimental medicinal products, and it had not provided an adequate judicial response to the applicant in that connection.
Exposure to Environmental Hazards
Guerra v Italy there was a breach of a positive obligation to give information to residents living within a kilometre of a factory causing severe environmental pollution of the dangers. This was necessary to allow the residents to assess the risk to their health.
In McGinley v UK a claim for increased army pension was claimed based on exposure to nuclear material in a test in the Pacific many years earlier. The refusal to allow disclosure of governmental information did not breach the protection, but only because there were of procedures by which the document could have been requested.
Brincat and Others v. Malta 2014 concerned ship-yard repair workers who were exposed to asbestos for a number of decades beginning in the 1950s to the early 2000s which led to them suffering from asbestos related conditions. The applicants complained in particular about their or their deceased relative’s exposure to asbestos and the Maltese Government’s failure to protect them from its fatal consequences.
The Court held that there had been a violation of Article 2 (right to life) of the Convention in respect of the applicants whose relative had died, and a violation of Article 8 (right to respect for private and family life) of the Convention in respect of the remainder of the applicants. It found in particular that, in view of the seriousness of the threat posed by asbestos, and despite the room for manoeuvre (“margin of appreciation”) left to States to decide how to manage such risks, the Maltese Government had failed to satisfy their positive obligations under the Convention, to legislate or take other practical measures to ensure that the applicants were adequately protected and informed of the risk to their health and lives. Indeed, at least from the early 1970s, the Maltese Government had been aware or should have been aware that the ship-yard workers could suffer from consequences resulting from the exposure to asbestos, yet they had taken no positive steps to counter that risk until 2003.
Positive obligations under Article 2 (right to life) of the Convention “require States to make regulations compelling hospitals … to adopt appropriate measures for the protection of their patients’ lives” and “an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable …” (Calvelli and Ciglio v. Italy, judgment (Grand Chamber) of 17 January 2002, § 49).
Gray v. Germany concerned the death of a patient in his home in the United Kingdom as a result of medical malpractice by a German doctor, who had been recruited by a private agency to work for the British National Health Service. The patient’s sons complained that the authorities in Germany, where the doctor was tried and convicted of having caused the death by negligence, had not provided for an effective investigation into their father’s death.
The Court held that there had been no violation of Article 2 (right to life) of the Convention, finding that the criminal proceedings in Germany against the doctor responsible for the applicants’ father’s death had been adequate.
Asiye Genç v. Turkey 2015 concerned a prematurely born baby’s death in an ambulance, a few hours after birth, following the baby’s transfer between hospitals without being admitted for treatment. The applicant complained in particular about alleged deficiencies in the investigation into her son’s death.
The Court held that there had been a violation of Article 2 (right to life) of the Convention. It considered, firstly, that the Turkish State had not sufficiently ensured the proper organisation and functioning of the public hospital service, or its health protection system. The child died because it had not been offered any treatment.
Such a situation, the Court observed, constituted a denial of medical care such as to put a person’s life in danger. Secondly, the Court considered that the Turkish judicial system’s response to the tragedy had not been appropriate for the purposes of shedding light on the exact circumstances of the child’s death. The Court therefore found that it could be considered that Turkey had failed in its obligations under Article 2 of the Convention in respect of the child, who had died a few hours after birth.
Altuğ and Others v. Turkey This case concerned the death of a relative of the applicants at the age of 74 as the result of a violent allergic reaction to a penicillin derivative administered by intravenous injection in a private hospital.
The Court held that there had been a violation of Article 2 (right to life) of the Convention. It pointed out in particular that it was not its role to speculate on the possible responsibility of the medical team in question in the applicants’ mother’s/grandmother’s death. It considered, nevertheless, that the authorities had failed to ensure appropriate implementation of the relevant legislative and statutory framework geared to protecting patients’ right to life.
Aydoğdu v. Turkey 2016The applicants, whose daughter was born prematurely and died two days later at the hospital to which she had been transferred for emergency treatment, alleged that the death of their daughter had been caused by professional negligence on the part of the staff of the hospital where she had been treated. They also complained that the criminal proceedings had been unfair.
The Court held that there had been a violation of Article 2 (right to life) of the Convention under both its substantive and procedural heads. It found in particular that the baby had been the victim of a lack of coordination between health-care professionals, coupled with structural deficiencies in the hospital system, and that she had been denied access to appropriate emergency treatment, in breach of her right to protection of her life.
Ioniță v. Romania 2017 concerned the death of the applicants’ four-year-old son following an operation. The applicants complained that the authorities had failed to effectively investigate the incident, despite their repeated claims that it had been caused by the negligence of medical staff.
The Court held that there had been a violation of Article 2 (right to life) of the Convention under its procedural head, finding that there had not been a proper investigation into the death of the applicants’ son, for the following reasons in particular. First, the medical authorities had failed to provide an additional forensic report about the incident, even though one was necessary.
Furthermore, the authorities had never established whether the supervising nurse had properly carried out her duties, even though these were highly relevant to the alleged cause of death. Moreover, the domestic courts had also found no medical negligence on behalf of the doctors – even though disciplinary tribunals had found that they had failed to obtain the applicants’ informed consent for the procedure, and this consent had been required under Romanian law. Finally, the proceedings had taken an unjustifiably long amount of time, given that six and a half years had elapsed between the death of the applicants’ son and the final decision in the case.
Erdinç Kurt v. Turkey concerned two high-risk operations performed on a patient – the applicants’ daughter – which left her with severe neurological damage (92% disability). The applicants maintained that the authorities were responsible for the damage in question, and complained of the lack of an effective remedy by which to assert their rights in the civil proceedings. They alleged that they had contested, without success, the relevance and sufficiency of the expert report on which the domestic courts had based their dismissal of the applicants’ compensation claim.
The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention, finding that the applicants had not received an adequate judicial response that satisfied the requirements inherent in the protection of the right to physical integrity of the patient. The Court considered that only where it was established that the doctors had carried out the operation in accordance with the rules of medical science, taking due account of the risks involved, could the damage caused be regarded as an unforeseeable consequence of treatment; were it otherwise, surgeons would never be called to account for their actions, since any surgical intervention carried a degree of risk.
Lopes de Sousa Fernandes v. Portugal concerned the death of the applicant’s husband following nasal polyp surgery and the subsequent procedures opened for various instances of medical negligence. The applicant alleged that her husband’s death had been caused by negligence and carelessness on the part of the medical staff, and that the authorities had not elucidated the precise cause of the deterioration in her husband’s health.
The Grand Chamber held that there had been no violation of the substantive limb of Article 2 (right to life) of the Convention with regard to the applicant’s husband’s death. It considered in particular that the present case concerned allegations of medical negligence rather than denial of treatment. That being so, Portugal’s obligations were limited to the setting-up of an adequate regulatory framework compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients’ lives. However, the Grand Chamber held that there had been a violation of the procedural limb of Article 2, finding that that the domestic system as a whole, when faced with an arguable complaint by the applicant of medical negligence resulting in the death of her husband, had failed to provide an adequate and timely response regarding the circumstances of the latter’s death.
S.A. v. Turkey (no. 62299/09)This case concerned the applicant’s claim that his son had sustained physical harm as a result of an allegedly botched circumcision. The applicant complained that his son had sustained physical harm as a result of complications from surgery.
The Court declared the application inadmissible as being manifestly ill-founded, finding that, having regard to the case file, the Turkish courts’ decision had been neither arbitrary nor manifestly unreasonable. It noted in particular that the national authorities had opened, of their own motion, an internal administrative investigation for disciplinary purposes and that, in dismissing the claims of the applicant, the domestic authorities had relied on medical assessments
Mehmet Günay and Güllü Günay v. Turkey
This case concerned allegations of medical negligence in relation to the death of the applicants’ daughter ten days after a hospital operation. The applicants alleged that the domestic proceedings had failed to identify those responsible for their daughter’s death and complained about the length of proceedings.
The Court declared inadmissible, as being manifestly ill-founded, the applicants’ complaint under Article 2 (right to life) of the Convention. It noted in particular that the expert medical assessments and the conclusions of the domestic courts, which had been properly reasoned, had ruled out any medical error or negligence. It also reiterated that it was not its task to question the findings of expert assessments. The Court held, however, that there had been a violation of Article 6 § 1 (right to a fair trial within a reasonable time) of the Convention, finding that a period of some seven years and four months to adjudicate the applicants’ claim for compensation did not satisfy the “reasonable length” requirement.
Refund of medical expenses
Nitecki v. Poland 2002 The applicant, who had a very rare and fatal disease, alleged that he did not have the means to pay for his medical treatment. He complained before the Court of the authorities’ refusal to refund the full cost of his treatment (under the general sickness insurance scheme only 70% of the costs were covered).
The Court declared the application inadmissible (manifestly ill-founded). While an issue could arise under Article 2 (right to life) of the Convention where it was shown that the authorities of a Contracting State put an individual’s life at risk through the denial of health care which they had undertaken to make available to the population generally, it found that that was not the case with the applicant.
Panaitescu v. Romania The applicant alleged in particular that the authorities had cynically and abusively refused to enforce final court decisions acknowledging his father’s right to appropriate free medical treatment, and that this had put his life at risk.
The Court held that there had been a procedural violation of Article 2 (right to life) of the Convention on account of the Romanian authorities’ failure to provide the applicant’s father with the specific anti-cancerous medication he needed for free, in accordance with the domestic courts’ judgments.