FOURTH SECTION
CASE OF Z v. POLAND
(Application no.
46132/08)
JUDGMENT
STRASBOURG
13 November 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Z v. Poland,
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
Päivi Hirvelä, President,
Lech Garlicki,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Nebojša Vučinić,
Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 23 October 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
46132/08) against the Republic of Poland lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Polish national, Ms Z (“the applicant”), on 16 September 2008.
The President of the Section acceded to the applicant’s request not to have her
name disclosed (Rule 47 § 3 of the Rules of Court).
The applicant was represented by Ms M.
Gąsiorowska and Mrs B. Namysłowska-Gabrysiak, lawyers
practising in Warsaw. The Polish Government (“the Government”) were represented
by their Agent, Mr J. Wołąsiewicz of the Ministry for
Foreign Affairs.
The applicant complained that her daughter had
died as a result of medical negligence and that her rights under Articles 2, 8
and 14 of the Convention had been breached.
On 16 June 2009 the Court decided to give notice
of the application to the Government. It also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
The parties replied in writing to each other’s
observations.
In addition, third-party comments were received
from the International Reproductive and Sexual Health Law Programme, University
of Toronto, Canada; Amnesty International and Global Doctors for Choice, who
had been given leave by the President to intervene in the written procedure
(Article 36 § 2 of the Convention and Rule 44 § 2).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1951 and lives in Piła.
The facts of the case, as submitted by the parties,
may be summarised as follows.
A. Treatment of the applicant’s daughter
1. Undisputed facts
On 5 May 2004 the applicant’s daughter, Y, was
informed that she was between four and five weeks pregnant. Prior to or early in
her pregnancy she developed ulcerative colitis (“UC”). The applicant’s daughter
began experiencing the symptoms of UC, such as nausea, abdominal pains,
vomiting and diarrhoea. Those symptoms were recurrent and caused pain and
discomfort.
Y was repeatedly admitted to a number of
hospitals. Y, accompanied by the applicant, attended the following hospitals in
Poland: 18 to 19 May 2004, Specialist Hospital in Piła,
Gynaecology and Obstetrics Department (Szpital Specjalistyczny w Pile,
Oddział Ginekologiczno-Położniczy); 19 May
to1 June 2004 and 4 to 8 June 2004, Specialist Hospital in
Piła Internal Medicine Department (Szpital specjalistyczny w Pile,
Oddział Chorób Wewnetrznych) (“Piła Hospital”); 8 June to
1 July 2004 and 19 to 28 July 2004, Clinic of Gastroenterology
and Nutrition, Independent Public Teaching Hospital No. 2, H. Święcicki Medical Academy in Poznań (Samodzielny Publiczny Szpital Kliniczny Nr 2 im. H. Święcickiego
Akademii Medycznej w Poznaniu, Oddział Kliniczny Gastroenterologii,
Żywienia Człowieka i Chorób Wewnętrznych) (“Święcicki Hospital”); 13 to 15 July 2004 Obstetrics
and Gynaecology Department III, Gynaecology and Obstetrics Teaching Hospital,
Independent Public Medical Facility in Poznań (Oddział Położniczo-Ginekologiczny
III, Ginekologiczno-Położniczy Szpital Kliniczny Akademii Medycznej w
Poznaniu); 28 July to August 2004, Surgery Department of the
Specialist Hospital in Piła (Szpital Specjalistyczny w Pile,
Oddział Chirurgiczny); 17 August to 4 September 2004, Pirogow
Regional Specialist Hospital in Łódź, General and Vascular Surgery
Department (Wojewódzki Szpital Specjalistyczny im. Pirogowa w Łodzi,
Oddział Chirurgii Ogólnej i Naczyniowej) (“Pirogow Hospital”);
4 September 2004, M. Madurowicz Regional Specialist Hospital in
Łódź (Wojewódzki Szpital Specjalistyczny im. M. Madurowicza
w Łodzi); 4 to 29 September 2004, Intensive Care Department, Norbert
Barlicki University Teaching Hospital No. 1 in Łódź (Uniwersytecki
Szpital Kliniczny Nr 1 im. N. Barlickiego
Uniwersytetu Medycznego w Łodzi, Oddział Kliniczny Anestezjologii i
Intensywnej Terapiii) (“Barlicki Hospital”).
The applicant’s daughter was formally diagnosed
with UC during her stay in Piła Hospital between 19 May and 1 June 2004.
She underwent a number of tests, including an endoscopy and a fibro-sigmoidoscopic
examination of the anus.
During the visits in the hospitals listed above,
the applicant’s daughter received some diagnostic tests and basic treatment. She
was given pharmacological treatment (for example, intravenous and oral
administration of steroids and antibiotics).
On 8 June 2004 Y was admitted to Swiecicki Hospital. Between 8 June and 1 July and 19 and 28 July 2004 she was an
inpatient in that hospital. On 19 July 2004 she was diagnosed with an abscess.
On 28 July 2004 Y left the clinic.
The next day, 29 July 2004, she was admitted to Piła Hospital, where she underwent an operation to remove the abscess.
On 17 August 2004 Y was admitted to Pirogow Hospital due to a new abscess and rectovaginal fistula. On the same date she
was operated on to remove the abscess. Medical files confirm that at the time Y
was admitted to hospital the doctors were aware of Y’s ulcerative colitis .
During the applicant’s daughter’s stay in Pirogow Hospital in August 2004 the doctor refused to perform a full endoscopy. In
addition, no diagnostic imaging of the abdomen (diagnostyka obrazowa jamy
brzusznej) was performed.
On 4 September 2004 Y’s condition deteriorated.
She was transferred to Madurowicz Hospital. Immediately following her admission
she was sent for a surgical operation to establish the cause of the apparent
sepsis. During the operation the doctors removed her appendix. Y’s condition
deteriorated, consequently immediately after the operation she was transferred to
the intensive care unit of Barlicki Hospital.
On 5 September 2004 the doctors removed the
foetus, which was dead. On 15 September 2004 the doctors removed Y’s
uterus. Altogether the applicant’s daughter was operated on six times in Barlicki Hospital. On 29 September 2004 she died of septic shock caused by
sepsis.
By letter, dated 30 September 2004, Y’s brother
asked the hospital not to perform an autopsy. He submitted that the cause of Y’s
death was known to him.
2. Facts in dispute
The Government
maintained that on 28 July 2004 Y left the hospital at her own request due to a
planned wedding ceremony. In this respect they submitted a copy of Y’s medical
file, which in its relevant part reads as follows:
“27 July 2004 ...Due to a planned wedding ceremony, the patient
is to be released tomorrow at her own request.”
The applicant disagreed. She maintained that Y
had not requested to leave the hospital, but had been sent home.
The applicant further submitted that during her
daughter’s stay in the surgical department of Piła Hospital the head of that
department commented that “it is absurd to spend a whole week treating an
abscess. [Y] is too busy with her bottom, instead of taking care of something
else”, referring to the pregnancy. The applicant stated that this comment and
its context had humiliated and angered her and her daughter.
The Government argued that Piła Hospital maintained that no such comment had been made, either by the head of the department or
by any other doctor of that hospital. Also, the Regional Agent for Disciplinary
Matters in Poznań, in the course of disciplinary proceedings instituted
against doctors who had treated Y, did not confirm the applicant’s allegations.
The applicant also submitted that the doctor at Pirogow Hospital had justified not performing a full endoscopy (in August 2004) by
referring to his fear of endangering the life of the foetus. The applicant
submitted that the doctor had stated that “my conscience does not allow me”,
but had not formalised his objection or directed Y to another doctor.
The Government argued that during the
investigation instituted by the Regional Agent for Disciplinary Matters in
Łódź it had been established that none of the doctors at Pirogow Hospital had based their refusal to perform a full endoscopy on a “conscience
clause” (klauzula sumienia). The decision not to perform a full
endoscopy was taken because there were no medical grounds for such an
examination, and not because of Y’s pregnancy.
B. Criminal proceedings
1. Undisputed facts
On 6 December 2004 the applicant’s lawyer asked
the Łódź District Prosecutor to institute criminal proceedings in
relation to the circumstances of the applicant’s daughter’s death. The lawyer submitted
medical charts from three hospitals and asked the prosecutor to obtain full
medical documentation. The applicant was questioned by the prosecutor on
6 January 2005.
On 10 February 2005 the prosecution requested
the Collegium Medicum in Kraków and the Medical University in Łódź to
issue an opinion as to whether an exhumation would be possible in Y’s case.
Both universities replied that an exhumation of Y’s body would not have enabled
an opinion to be given on the cause of her death.
On 1 March 2005 the prosecutor opened an
investigation of possible unintentional homicide of the applicant’s daughter
(Article 155 of the Criminal Code).
On 24 June 2005 the prosecutor decided to
appoint an expert from the Forensic Medicine Department of the Collegium Medicum
in Kraków, to evaluate the treatment provided to the patient, and to establish
whether there was a direct causal link between any irregularities in Y’s
treatment and her death. However, Collegium Medicum informed the prosecutor
that no autopsy was carried out following the applicant’s daughter’s death, and
that exhumation of her body at a later stage would not have enabled an opinion
to be given on the cause of death. A similar opinion was issued by the Medical University in Łódź.
On 20 July 2005 the Medical Academy in
Gdańsk, on 22 July 2005 the Forensic Medicine Department in Szczecin, and
on 19 July 2005 the Medical Academy in Warsaw refused to provide an opinion in
Y’s case due to their workload in other cases and lack of staff.
Meanwhile, on 14 June 2005 the Minister of Health
convened a special expert committee to investigate Y’s treatment and the
circumstances of her death. The aim of the committee was to inquire in respect
of all the hospitals involved in Y’s treatment as regards their organisation
and methods of treatment and the availability of those methods. On 15 November
2005 the committee concluded that the death had been directly caused by sepsis.
The committee noted however, that during Y’s stay in Pirogow Hospital, despite her history of inflammatory bowel disease the doctors failed to perform a
diagnostic imaging test on her abdomen. In addition, an earlier diagnosis of
sepsis and the establishment of its original cause in Pirogow Hospital (most probably Lesniewski-Crohn disease) and a possible decision about surgical
treatment would have had an impact on Y’s situation. The committee’s report was
signed by several national consultants in various fields of health care. Two
members of the committee, who were not medical experts, did not sign the
report: professor of criminal law E.Z., and W.N., the head of an NGO working in
the field of reproductive rights.
On 8 August 2005 the prosecutor’s office asked
national consultants in gastroenterology, gynaecology and vascular surgery to
submit opinions on Y’s treatment.
On 12 December 2005 an expert gastroenterologist
stated in her opinion that the original cause of sepsis could not be determined
due to the fact that an autopsy had not been performed on Y’s body.
The investigation of the death of the applicant’s
daughter was extended several times. It was then suspended, on 26 May 2006. The prosecutor
referred to the need to obtain expert opinions and the fact that the waiting
time for such opinions was at least twelve months.
Subsequently six medical opinions were submitted
to the prosecutor’s office on 12 March, 10 April, 10 May, 4 June, and 27 September
2007, and 25 April 2008. Altogether the prosecution obtained opinions from
eight medical experts. The experts were subsequently heard by the prosecutor.
During the investigation, there were several
changes of prosecutor: at least six prosecutors handled the investigation at
different stages.
On 10 May 2007 M.K, an expert gastroenterologist,
considered it surprising that Y had not undergone an ultrasonographic
examination of the abdomen. He further stressed that she could have had an MRI
(magnetic resonance imaging) to determine the cause of the abscess.
Lastly, an autopsy would have allowed the original cause of the sepsis to be
determined. In an additional opinion of 25 April 2008 M.K. considered that in
both hospitals, Piła and Pirogow, the doctors failed to do an MRI. However,
he stressed that the lack of adequate examination in Y’s case should be treated
not as medical malpractice but as lack of due diligence.
On 11 June 2008 the District Prosecutor resumed
and discontinued the investigation. The prosecutor concluded that on the basis of
the experts’ opinions there was no ground for any doubts or objections as to
the treatment received by the applicant’s daughter. Failure to conduct an MRI
should be considered a lack of due diligence and not medical malpractice.
It could no longer be said that an earlier operation would have saved Y’s
life. Consequently, no direct link had been established between the treatment
and the death of the applicant’s daughter.
The applicant appealed.
On 5 September 2008 the Lódz District Court
upheld the prosecutor’s decision. The court referred to the complicated nature
of the case and the fact that no autopsy was performed, and therefore it was
impossible to establish whether Y suffered from Lesniewski-Crohn’s disease. The
court considered that there were no grounds for continuation of the
investigation of Y’s death.
2. Facts in dispute
The applicant stated that the prosecutor had not
obtained the necessary information, such as full medical records, to assist
experts in forming their opinions. The Government maintained that the
prosecutor had obtained full medical records from all the hospitals attended by
the applicant’s daughter in Piła, Poznań and Łódź.
The applicant also stated that the prosecutor had
failed to address the critical issue of whether in the circumstances of the
case it had been advisable to perform a colonoscopy. The investigation was
instead focused on whether an abortion was necessary to provide appropriate
treatment to the applicant’s daughter. The Government argued that the
prosecutor had examined the issue of colonoscopy and the investigation had been
focused on Y’s cause of death: in particular, on the question whether her
treatment had been adequate to the diagnosis and whether further tests, such as
a full endoscopy and a diagnostic imaging test, could have prevented Y’s death.
The applicant claimed that the two members of
the special expert committee (see paragraph 32 above) who had not signed the
report of 15 November 2005 had not been allowed to participate in the
committee’s discussions and therefore did not have access to the medical files.
The Government disagreed. They drew the Court’s attention to the fact that
all the medical specialists had signed the report.
C. Disciplinary proceedings
On 20 June 2005 the Łódź Regional Agent for Disciplinary Matters (Okregowy Rzecznik
Odpowiedzialnosci Zawodowej) (“Disciplinary Agent”) instituted
disciplinary proceedings against the doctors who had treated Y. After
consulting several experts and hearing witnesses, he concluded that there was
no evidence of medical malpractice. During the proceedings the applicant and Y’s
fiancé refused to testify before the Disciplinary Agent. The proceedings were
discontinued by a decision of 25 October 2006.
In late May 2005 the Poznań Disciplinary Agent instituted disciplinary proceedings against the
doctors who had treated Y. On 6 December 2006 three specialists from the Wrocław Medical Academy issued a medical opinion, that there was no evidence of
medical malpractice. The proceedings were discontinued by a decision of
8 January 2007.
The applicant did not appeal against the Poznan and Lodz Disciplinary Agents’ decisions to the Chief Agent for Disciplinary Matters
in Warsaw (Naczelny Recznik Odpowiedzialnosci Zawodowej).
D. Civil proceedings
In September 2007
the applicant had brought a compensation claim in the Łódź District
Court against Pirogow Hospital.
On 7 April 2009
the applicant modified her claim and asked for 300,000 Polish zlotys (PLN) in compensation.
Consequently, the case was transferred to the Łódź Regional Court.
On 17 March 2011 the Łódź Regional Court dismissed the applicant’s claim for compensation. The applicant did not
appeal against this judgment. In addition, none of the parties asked to be
served with the written reasoning of the judgment.
E. Access to the medical files
1. Uncontested facts
There is no indication in the medical files of Y’s
stay in Piła Hospital (19 May-1 June 2004) that she had given permission
for third parties to have access to these files. For these reasons, in 2004 the
hospital refused the applicant access to the medical files
Medical files of Y’s stay in Swiecicki Hospital (8 June to 1 July 2004 and 19-28 July) indicate that Y specified
that the applicant was entitled to obtain documentation on her stay in the hospital.
The hospital granted access to these files to the Lodz District Prosecutor (on
14 March and 9 May 2005 and 27 February 2006) and to the Ministry of Health on
27 June 2005.
Medical files in Pierogow Hospital do not
indicate that Y allowed third-party access to her medical files. For this
reason the hospital refused the applicant access to these files.
2. Facts in dispute
The Government maintained that the applicant
had not requested the Swiecicki hospital to give her access to Y’s files. The
applicant disagreed. She submitted, without specifying any details, that she
had twice asked the hospital for these files but had not been granted access.
The Government submitted that on 1 March 2005
the prosecutor’s office requested the relevant hospitals to provide files on Y’s
treatment. In this connection they submitted copies of the prosecutor’s
decisions.
The applicant disagreed: she claimed that the
relevant files were requested only in February and April 2006.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Conscientious objection
Under section 39 of the Medical Profession Act of
1996 (ustawa o zawodzie
lekarza i lekarza dentysty) (“the 1996 Act”), as applicable at the
material time, a doctor may refuse to carry out a medical procedure, citing her
or his objections on the ground of conscience. He or she is obliged to inform
the patient where the medical procedure concerned can be obtained and to
register the refusal in the patient’s medical records. Doctors employed in
health-care institutions are also obliged to inform their supervisors of their
refusal in writing.
B. Autopsy
Sections 24-26 of the Health-Care Institutions
Act of 1991 (ustawa o zakładach opieki zdrowotnej), as
applicable at the material time, specified situations in which an autopsy is to
be performed. In general, when a person died in a hospital, the authorities
might carry out an autopsy unless that person’s statutory representative objected
or the patient expressed such a wish whilst alive. However, an autopsy was
obligatory if the cause of the patient’s death could not be unequivocally established
or in situations specified in the code of criminal procedure.
C. Access to medical records
Under section 41 of the 1996 Act and the
ordinance of 2001 on types of individual medical documentation, keeping them and
detailed conditions of granting access to them (Rozporzadzenie Ministra Zdrowia
w sprawie rodzajów indywidualnej dokumentacji medycznej, sposobu jej
prowadzenia oraz szczegółowych warunków jej udostepniania) as
applicable at the material time, a doctor was obliged to grant access to
individual medical files to a patient, his statutory representative or a person
authorised by the patient; to another doctor or person authorised to conduct
the patient’s treatment; other organs under separate legislation (such as courts
or a prosecutor’s office).
D. The Civil Code
Under Article 417 of the Polish Civil Code, the
State is liable for damage caused by its agents in the exercise of their
functions. There is established case-law of the Polish courts to the effect
that this liability of the State also includes liability for damage caused by
medical treatment in a public system of medical care, run either by the
State or by the municipalities.
E. The Criminal Code
Article 155 of the Criminal Code of 1997
provides that a person who unintentionally causes the death of another human
being shall be liable to a sentence of imprisonment between three months
and five years
F. Disciplinary proceedings
The Chambers of Physicians Act of 1989 (ustawa
o izbach lekarskich) (“The 1989 Act”) no longer in force, established
Chambers of Physicians. The disciplinary responsibility of physicians for
professional misconduct may be determined in proceedings before organs of the
Chambers, agents for disciplinary matters and disciplinary courts. Agents and
members of the courts for each region are elected by members of a local
chamber. The Chief Agent for Disciplinary Matters and the Principal Court are
elected by the National Congress of Physicians, composed of delegates of local
chambers.
Pursuant to Article 42 of the Act, the following
penalties may be imposed in disciplinary proceedings: a warning, a reprimand,
suspension of the right to practise medicine for a period from six months to
three years, and being struck off the register of physicians.
The agent for disciplinary matters must
investigate the matter if he obtains credible information that the rules of
professional conduct have been infringed. When investigating such a complaint,
the agent may question a physician charged with professional misconduct,
may appoint experts and question witnesses and take such other evidence as he
or she sees fit. A physician charged with professional misconduct is
entitled to make any submissions which in his or her opinion are relevant.
The agent shall discontinue proceedings if he
concludes that the material gathered in the case does not suffice for drawing
up a motion for a penalty to be imposed.
THE LAW
I. THE GOVERNMENT’S PRELIMINARY OBJECTION ON NON-EXHAUSTION
The Government in their observations of 4
December 2009 raised a preliminary objection that the applicant had failed
to exhaust the available domestic remedies. They stressed that the case
concerned medical malpractice, and therefore the applicant’s complaints
relating to the death of her daughter should have been made first to a civil
court. They submitted several judgments of domestic courts awarding compensation
to victims of medical malpractice (damage sustained during delivery and
infection with hepatitis C).
The Government submitted that the Polish legal
system provided two avenues of recourse for victims alleging illegal acts attributable
to the State’s agents a civil procedure and a request to the prosecutor for an
investigation to be opened. In their opinion, in the instant case there was no
need to institute criminal proceedings because civil proceedings initiated by
the applicant would have enabled her to establish the liability of doctors
concerned and to obtain full redress for damage resulting from the doctors’
alleged negligence. They stressed that not every instance of death in a hospital,
although always tragic and traumatic for relatives, would engage criminal
responsibility on the part of doctors.
The applicant contested the Government’s
arguments. She submitted that she was entitled to choose a remedy that addressed
her grievance best, and also that a civil remedy was not an effective remedy in
the present case. In this respect the applicant pointed out that she had made
use of the criminal remedy available to her. On 30 November 2004 she had made an
application to the prosecutor for an investigation to be instituted in respect
of Y’s death. She had further appealed against the decision to discontinue the
proceedings in 2008. The applicant maintained, referring to Zdebski, Zdebska
and Zdebska v. Poland (Zdebski, Zdebska
and Zdebska v. Poland (dec.), no. 27748/95, 6 April 2000,
unreported) that her request to the prosecutor for a criminal investigation
satisfied the exhaustion requirement and that it was irrelevant whether the
civil proceedings were pending.
The Court reiterates that the rule of exhaustion
of domestic remedies referred to in Article 35 § 1 of the
Convention obliges applicants first to use the remedies that are normally
available and sufficient in the domestic legal system to enable them to obtain
redress for the breaches alleged. The existence of the remedies must be
sufficiently certain, in practice as well as in theory, failing which they will
lack the requisite accessibility and effectiveness.
Article 35 § 1 also requires that the complaints intended to be
brought subsequently before the Court should have been made to the appropriate
domestic body, at least in substance and in compliance with the formal
requirements laid down in domestic law, but not that recourse should be had to
remedies which are inadequate or ineffective (see Aksoy v. Turkey, 18 December 1996,
§§ 51-52, Reports of Judgments and
Decisions 1996-VI, and Akdivar
and Others v. Turkey, 16 September 1996, §§ 65-67, Reports 1996-IV, ).
The Court observes that the Polish legal system
provides, in principle, two avenues of recourse for victims alleging illegal
acts attributable to the State or its agents, namely a civil procedure and a
request to the prosecutor to open a criminal investigation.
With regard to the criminal investigation of the
applicant’s daughter’s death, the Court notes that the applicant initiated
criminal proceedings directly after Y’s death. The prosecutor discontinued the
investigation and this decision was upheld by the District Court on
5 September 2008. The applicant and the Government disagree as to the
effectiveness of this investigation. The Court will return to that issue at the
merits stage.
As regards a civil action to obtain redress for
the damage sustained through alleged illegal acts or unlawful conduct on the
part of State agents, the Court notes that the applicant brought a civil claim against
the Poznan hospital before the domestic courts; however, it was dismissed by
the Regional Court on 17 March 2011.
Although the applicant failed to lodge an appeal
against the above-mentioned decision of the Regional Court, and the Court will
revert to that matter in the context of Article 8 (see paragraph 127 below), it
finds that in the particular circumstances of the case the applicant cannot be
faulted for having used the criminal remedy as her primary means of redress.
She should therefore be considered as having exhausted domestic remedies for
the purposes of Article 35 § 1 of the Convention (see Baysayeva v. Russia, no. 74237/01,
§ 109, 5 April 2007, and Dzieciak, cited above). For these reasons,
the Government’s plea of inadmissibility on the ground of non-exhaustion of
domestic remedies must be dismissed.
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE
CONVENTION
The applicant complained that the doctors
treating her daughter failed to provide her with adequate treatment. She also complained
that no effective investigation was conducted which would have allowed the establishment
of responsibility for her daughter’s death. Lastly, referring to the law
governing objection on grounds of conscience, she maintained that the State had
failed to adopt a legal framework which would have prevented the death of her
daughter. She cited Articles 2 and 13 of the Convention. Article 2 of the
Convention provides, in so far as relevant:
“1. Everyone’s right to life shall be protected by
law ...”
A. Effective investigation
1. The scope of the case
With regard to any possible substantive aspect
of the applicant’s complaint under Article 2 of the Convention, the Court
observes that the applicant did not in any way allege or imply that her
daughter had been intentionally killed by the doctors responsible for her care
and treatment at the material time. She averred, on the other hand, that the
doctors treating her had not administered treatment adequate to her condition.
She further complained under Article 13 of the Convention alleging lack of a competent
and thorough investigation.
. Admittedly, the first sentence of
Article 2 enjoins the State not only to refrain from the intentional and
unlawful taking of life, but also to take appropriate steps to safeguard the
lives of those within its jurisdiction (see, among other
authorities, L.C.B. v. the United Kingdom,
9 June 1998, § 36, Reports of Judgments
and Decisions 1998-III, and Jasińska
v. Poland, no. 28326/05, § 57, 1 June 2010). The Court accepts that it cannot be excluded
that acts and omissions by the authorities in the field of health-care policy
may in certain circumstances engage their responsibility under the positive
limb of Article 2. However, where a Contracting State has made adequate
provision to secure high professional standards among health professionals and
the protection of the lives of patients, it cannot accept that matters such as an
error of judgment on the part of a health professional or failure to coordinate
by health professionals in the treatment of a particular patient, assuming such
negligence to have been established, are sufficient of themselves to call
a Contracting State to account from the standpoint of its positive
obligations under Article 2 of the Convention to protect life (see Powell v. the United Kingdom
(dec.), no. 45305/99, ECHR 2000-V).
Having regard to the above, the Court considers
that the applicant’s grievances are more appropriately examined from the angle
of the procedural requirement implicit in Article 2 of the Convention
2. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3(a) of the
Convention. It also notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
3. Merits
(a) The parties’ submissions
(i) The applicant
The applicant submitted that the State had violated
its procedural obligations under Article 2 of the Convention by failing to
carry out an effective investigation of the circumstances surrounding the
applicant’s daughter’s death. Even if a civil remedy would have been an appropriate
remedy in this case, the flawed investigation carried out after Y’s death
rendered a possible civil remedy ineffective.
The applicant maintained that the investigation
was extended several times and suspended on 29 May 2006. The prosecutors
responsible for the case changed numerous times with at least six different
prosecutors being involved over the course of the investigation. The
authorities failed to conduct an autopsy after Y’s death, which would have been
necessary to determine the errors made in treatment she had received. In
addition, inappropriate questions had been directed at experts during the
investigation focusing not on the cause of Y’s death but on whether an abortion
had been necessary to treat her. Lastly, the applicant had not been properly
informed about its progress.
With reference to the disciplinary proceedings,
she submitted that they could not be regarded as an effective remedy against a
breach of the Convention. They were conducted by a physicians’ chamber, which
was not an independent body but consisted solely of doctors.
She concluded that the failure to carry out an
autopsy at all, together with other shortcomings of the investigation,
“undermined any attempt” to determine liability on the part of the doctors and
hospitals responsible for Y’s care and ultimate death.
(ii) The Government
The Government claimed that the doctors’ allegedly
inadequate treatment of the applicant’s daughter could not amount to a breach
of the State’s duty to protect the right to life. They maintained that the
applicant’s daughter received treatment in various specialised hospitals and underwent
various medical tests. In their opinion it would have been difficult to
conclude that the quality and promptness of the medical care provided to the
applicant’s daughter during her stay in hospitals put her health and life in
danger.
In respect of the failure to conduct an autopsy,
the Government submitted that according to Polish law there were no compelling
reasons to carry out an autopsy. Despite that, the hospital management asked
the family their opinion, and Y’s brother requested the hospital not to perform
an autopsy on his sister’s body.
As regards the effectiveness of the investigation,
the authorities took all reasonable steps to establish the identity of those responsible
for the alleged medical malpractice and bring them to justice. The prosecutor
ordered eight expert opinions, and voluminous evidence was gathered. Doctors
responsible for Y’s treatment were questioned and the agent for disciplinary
matters carried out extensive investigations. The investigation was focused on
the cause of death of Y: in particular, whether her treatment was adequate to
the diagnosis and whether further diagnostic tests with full endoscopy and
computer scan could have prevented Y’s death.
As regards the number of prosecutors who had
dealt with the investigation, the Government noted that it was in compliance
with the Code of Criminal Procedure. They stressed that there were questions of
territorial jurisdiction, and also that the Regional Prosecutor’s Office had
exercised its supervisory function.
They stressed that the applicant had not been
hindered from taking part in the proceedings
In addition, both sets of proceedings (criminal and
disciplinary) ended without criminal or disciplinary responsibility of doctors
who treated Y being established. In this respect the Government again
underlined that in the framework of civil proceedings the court could have
examined all the circumstances surrounding the applicant’s daughter’s death.
(iii) Third parties
(α) The International Reproductive and
Sexual Health Law Programme, Faculty of Law, University of Toronto
The International Reproductive and Sexual Health
Law Programme in its observations of 28 October 2009 submitted that access to
comprehensive maternal care was an essential component of women’s right to
health.
They maintained that the rights of pregnant
women in protection of life and physical integrity were recognised to prevail
over foetal interests.
(β) Amnesty International
Amnesty International submitted in its
observations of 27 November 2009 that regardless of whether doctors in
the present case had in fact refused information, diagnosis or treatment for
reasons of conscientious objection, effective legal and policy guidelines were
not in place to ensure that doctors were transparent in disclosing their
reasons when they refused a patient treatment.
(γ) Global Doctors for Choice
Global Doctors for Choice submitted observations
on 11 September 2009. Their comments addressed medical standards
concerning the treatment of pregnant women who have ulcerative colitis. They
stressed that any suggestion of a conflict between maternal treatment and
foetal well-being in cases of UC was unfounded.
(b) The Court’s assessment
(i) Relevant principles
As the Court has held on several occasions, the
procedural obligation of Article 2 requires the States to set up an effective
independent judicial system 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 (see, among other
authorities, Calvelli
and Ciglio, cited above, § 49,
and Powell
v. the United Kingdom, cited above). The Court reiterates that
this procedural obligation is not an obligation of result but of means only (Paul
and Audrey Edwards v. the United Kingdom,
no. 46477/99, § 71, ECHR 2002-II).
Even though the Convention does not as such
guarantee a right to have criminal proceedings instituted against third
parties, the Court has said many times that the effective judicial system
required by Article 2 may, and under certain circumstances must, include
recourse to the criminal law. In the specific sphere of medical negligence the
obligation may for instance also be satisfied if the legal system affords
victims a remedy in the civil courts, either alone or in conjunction with a
remedy in the criminal courts, enabling any responsibility of the doctors
concerned to be established and any appropriate civil redress, such as an order
for damages and/or for the publication of the decision, to be obtained.
Disciplinary measures may also be envisaged (see Calvelli
and Ciglio, cited above, § 51, and Vo,
cited above, § 90).
A requirement of promptness and reasonable
expedition is implicit in this context. Even where there may be obstacles or
difficulties which prevent progress in an investigation in a particular
situation, a prompt response by the authorities is vital to the maintenance of public
confidence in their adherence to the rule of law and to the prevention of any
appearance of collusion in or tolerance of unlawful acts (see
Paul and Audrey Edwards, cited above, § 72). The same applies
to Article 2 cases concerning medical negligence. The State’s obligation
under Article 2 of the Convention will not be satisfied if the protection
afforded by domestic law exists only in theory: above all, it must also operate
effectively in practice, and that requires a prompt examination of the case
without unnecessary delays (see Calvelli
and Ciglio, cited above, § 53; Lazzarini and Ghiacci v. Italy
(dec.), no. 53749/00, 7 November 2002; and Byrzykowski, cited above,
§ 117).
Lastly, apart from concern for the respect of
the rights inherent in Article 2 of the Convention in each individual case,
more general considerations also call for a prompt examination of cases
concerning death in a hospital setting. Knowledge of the facts and of possible
errors committed in the course of medical care are essential to enable the
institutions concerned and medical staff to remedy potential deficiencies and
prevent similar errors. The prompt examination of such cases is therefore
important for the safety of users of all health services (see Šilih v. Slovenia [GC], no. 71463/01, § 192-96, 9 April 2009).
(ii) Application of the above principles in the
instant case
Turning to the facts of the present case, the
Court notes that the applicant’s daughter died in hospital on 29 September 2004.
It further observes that following her death, on
6 December 2004 the applicant’s lawyer asked the District Prosecutor to
institute an investigation. Shortly afterwards the prosecutor instituted an
investigation on 1 March 2005.
In the course of the investigation the
prosecutors heard evidence from the applicant, doctors treating Y and further
relied on eight expert reports. The experts established that the death of the
applicant’s daughter had been directly caused by sepsis. With regard to the
treatment administered, the experts concluded that there had been no grounds
for any doubts. Failure to conduct certain examinations should have been
considered a lack of due diligence and not medical malpractice (see paragraphs
27, 36 and 39 above).
In so far as the applicant alleged that the
authorities failed to conduct an autopsy after Y’s death the Court observes
that the hospital merely complied with the applicant’s brother’s request (see
paragraphs 20 and 84 above). The Court further notes that the prosecutor
raised the issue of possible exhumation with experts (see paragraph 28 above).
However due to the time elapsed exhumation would not have enabled an opinion to
be given on the causes of Y’s death.
By a decision of 11 June 2008 the District
Prosecutor discontinued the investigation, considering, in the light of all the
evidence and, in particular, the conclusions of the experts’ opinions, that
there had been no direct link between the treatment and the death of the
applicant’s daughter. The prosecutor’s findings were subsequently fully
endorsed by the District Court on 5 September 2008 (see paragraph 39 and 41
above).
In this respect, the Court also notes that in
2005, two sets of disciplinary proceedings were conducted before the Poznań and Łódz Disciplinary Agents (see paragraphs 45, 46 above). Both agents
concluded that there was no evidence of medical malpractice. While indeed it
has not been shown that such proceedings before the Disciplinary Agent would
have afforded an effective remedy at the material time, the Court sees no
reason to doubt the thoroughness and correctness of the disciplinary
proceedings.
The Court considers that the investigation
succeeded in elucidating the circumstances which were relevant to the issue of determining
any responsibility on the part of the medical personnel for the death of the
applicant’s daughter. It does not find any grounds to contest the findings of
the investigation. Further, the results of the investigation cannot be
undermined by the fact that, as submitted by the applicant, six different
prosecutors were consecutively in charge of it. In this respect, the Court
accepts the Government’s argument that changes were inevitable as there were
some issues of jurisdiction (see a contrario, Šilih, cited above
§ 212).
As regards the applicant’s allegations of delays
in the investigation, the Court observes that the only delay in the
investigation occurred when the medical academies in Gdansk, Szczecin and Warsaw refused to prepare medical opinions due to lack of time and resources (see paragraph
31 above). It is true that between 26 May 2006 and 11 June 2008 the
proceedings remained stayed (see paragraphs 35 and 39 above). However, during
that time the prosecutor’s office obtained six medical opinions and also heard
evidence from several experts (see paragraph 36 above). The Court accepts that
the medical questions involved in the case were of great complexity and
required thorough analysis. Consequently, in the context
of the present case, the period of two years and four months during which the
case remained stayed does not seem substantial.
Having regard to the above background, the
Court considers that the domestic authorities dealt with the applicant’s claim
arising out of her daughter’s death with the level of diligence required by
Article 2 of the Convention. Consequently, there has been no violation of
Article 2 in its procedural aspect.
B. Alleged absence of legal framework
1. Admissibility
(a) The parties’ submissions
(i) The applicant
The applicant submitted that the State’s
regulations and provisions were lacking in that they did not clearly set out
the rights of a pregnant woman vis-ŕ-vis the foetus, and did not
regulate the conscientious objection clause in a sound manner. She further
claimed that the prioritisation of the foetus’s life over the life of her
daughter was exacerbated by Poland’s complete lack of a regulatory system to
monitor the practice of conscientious objection. In this respect she pointed out
that the State failed to properly implement and monitor the conscientious
objection provisions.
In conclusion she submitted that the State’s
failure to prioritise the woman’s life over the foetus, together with its
stringent and unclear abortion laws and lack of oversight of its laws governing
conscientious objection, created a situation which facilitated refusal of legal
and necessary treatment to the applicant’s daughter. After the doctors refused
to perform the necessary medical services, she was unable to access alternative
medically necessary treatment, and this led to her death.
(ii) The Government
The Government submitted that the medical case
file of the applicant’s daughter did not state that any of the doctors treating
her had refused a full endoscopy on the basis of the conscience clause. In
addition, the applicant had not raised this issue at any stage of the domestic
proceedings.
(b) The Court’s assessment
(i) The findings of fact
The Court observes at the outset that the
parties gave somewhat differing accounts
of certain matters concerning the application of the conscience clause
in the present case. The applicant submitted that her daughter was refused a
full endoscopy on moral grounds (see paragraph 25 above), whereas the
Government’s argument referred to the findings of the disciplinary courts that
this examination was refused on medical grounds (see paragraph 26 above). No
additional evidence in support of the applicant’s claims was submitted to the
Court. Consequently, on the material before it, the Court cannot find that the
applicant’s allegation that her daughter was refused a medical examination on
the ground of conscientious objection has been substantiated.
(ii) The relevant principles and its application to
the present case
The Court notes that the applicant expressly challenged the adequacy of the domestic legal
framework, in particular the law governing conscientious objection as the
principal shortcoming of that framework. It further reiterates that it
had already held in the case of Tysiąc
(Tysiąc v. Poland, no. 5410/03, ECHR 2007-IV).
that Polish law did not contain any effective procedural mechanisms capable of
determining whether the conditions existed for obtaining a legal abortion on
the grounds of danger to the mother’s health which the pregnancy might present,
or of addressing the mother’s legitimate fears (see Tysiąc
, cited above, §§ 119-24).
. However, contrary to the Tysiąc
case, it has not been established that
this was a case of conscientious objection. In this respect the Court
reiterates that its task is not to review the relevant domestic law and
practice in
abstracto, but only in relation to the specific application of such
laws to the particular circumstances of an applicant’s situation (see Brogan
and Others v. the United Kingdom, 29 November 1988, § 53, Series A
no. 145-B)
Having regard to the above considerations, the
Court concludes that the applicant’s complaints concerning the regulatory
framework must be rejected as manifestly ill-founded, pursuant to Article 35 §§
3 and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
The applicant complained that she could not have
prompt access to her daughter’s medical records. She also alleged that the
doctors did not provide her and her daughter with reliable and appropriate information
about her daughter’s health and the treatment options available to her, having
regard in particular to the fact that she was pregnant. She cited Article 8 § 1
of the Convention, which reads as follows:
“1. Everyone has the right to respect for his
private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals, or for
the protection of the rights and freedoms of others.”
A. The parties’ submissions
1. The applicant
The applicant submitted that the authorities
failed to provide her with timely access to her daughter’s medical records. The
prosecutor only requested Y’s files in February and April 2006, that is one and
a half years after Y’s death and one year after the institution of criminal
proceedings. She further stressed that as she was not able to get access to the
medical records herself, but only within the scope of legal proceedings, the
prosecutor’s failure to request them promptly was particularly significant.
The applicant
submitted that the doctors’ failure to provide her and her daughter with
adequate information about her daughter’s health and the treatment options
available to her, in particular in view the continuation or termination of her
pregnancy, violated her daughter’s right to autonomy, and in particular to take
decisions regarding her own physical health. She also maintained that because
her complaint involved fundamental values a civil, compensatory remedy was not
effective in her case.
Lastly, she stressed that since the information
had concerned the health of her daughter, whose rights she had been trying to
vindicate, the matter was linked to her private life within the meaning of
Article 8 of the Convention.
2. The Government
The Government submitted that there was no
interference with the applicant’s private and family life, as she could, and in
fact did, obtain access to her daughter’s medical records during the criminal
proceedings.
They further pointed that the applicant could
only have been granted access to her daughter’s medical records with her
daughter’s express consent. Since Y authorised her mother to access her files
on only one occasion, she was not entitled to see them on all the other
occasions.
Furthermore, apart from Pierogow Hospital, the applicant had not asked to see her daughter’s medical records held in other hospitals
where Y had been treated. Nor had she raised the issue of lack of access
before any of the domestic authorities.
B. The Court’s assessment
1. Access to documents
(a) Findings of fact
The parties gave partly different descriptions
of certain of the events in relation to the applicant’s access to her daughter’s
medical records (see paragraphs 54-56 above).
The applicant claims that despite the fact that
Y authorised her mother to see her medical files the hospital twice refused to
disclose them to the applicant. The Government disagreed. In addition, the
applicant claimed that the relevant medical records were requested by the
prosecutor only in February and April 2006. However, according to copies of the
prosecutor’s decisions submitted by the Government, it is clear that these
decisions were issued on 1 March 2005.
(b) The Court’s assessment
The Court reiterates that Article 8 § 1 of the
Convention can be understood to denote a positive obligation on the authorities
to make a full, frank and complete disclosure of the medical records of a deceased
child to the latter’s parents (cf. Powell v. the United Kingdom (dec.),
no. 45305/99, ECHR 2000-V). The Court further considers that the complaint
in issue concerns the exercise by the applicant of her right of effective
access to information concerning her daughter’s health and is linked to the
applicant’s private and family life within the meaning of Article 8 (see also K.H.
and Others v. Slovakia, no. 32881/04, § 44, ECHR 2009 ). It follows
that the instant complaint falls within the scope of Article 8 of the
Convention.
The Court further observes that it has not been unequivocally established that the
applicant had no access to any of her daughter’s medical files. On the
contrary, she had a possibility to consult Y’s
medical records within the scope of criminal proceedings (see paragraph 117).
. Consequently,
the Court considers that the applicant failed to substantiate her allegation that Article 8 of the Convention had been
breached. Therefore, in the light of all the material in its possession, and in
so far as the matters complained of are within its competence, the Court finds
that they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention or its Protocols.
. It
follows that this part of the application is manifestly ill-founded and
must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the
Convention.
2. Access to information
In so far as the applicant alleged that the
doctors’ failure to provide her and her daughter with adequate medical
information violated their right to autonomy, and in particular to take
decisions regarding her daughter’s physical health in full knowledge of
possible risks to her and her unborn child, the Court notes, contrary to what
the applicant asserts, that this grievance would have been most appropriately
addressed in the civil proceedings which the applicant initiated (see paragraph
48 above). However, the Court observes that she failed to pursue her civil claim,
as she did not appeal against the first-instance judgment (see paragraph 50
above).
It follows that this complaint must be rejected
under Article 35 §§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE
CONVENTION
Lastly, the applicant complained under Article 14 of the Convention,
in conjunction with Articles 2, 3 and 8, that her daughter had been
discriminated against on the basis of her pregnancy. This complaint falls to be
examined under Article 14 in conjunction with Article 2 and 8 of the
Convention.
Article 14 of the Convention reads as follows:
“The enjoyment of the rights and
freedoms set forth in [the] Convention shall be secured without discrimination
on any ground such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national minority,
property, birth or other status.”
A. The parties’ submissions
1. The applicant
The applicant claimed that her daughter’s
doctors had not provided her with the standard of care that would have been
given to a non-pregnant woman or to a man with ulcerative colitis, amounting to
differential treatment based on her pregnancy, which constituted sex discrimination.
The applicant submitted that there were no
“weighty reasons” or “objective and reasonable justification” for the discriminatory
treatment her daughter received and which violated her personal autonomy and
right to life.
She further maintained that her daughter had
been subjected to discriminatory treatment because of various aspects of the Polish
legal system, in particular the restrictive abortion laws, the unregulated
practice of conscientious objection and the right to life given to the foetus.
2. The Government
The Government maintained that Y’s pregnancy
had not constituted a ground for discrimination under Article 14 of the Convention.
They stressed that her pregnancy was not a main determinative factor for her
medical treatment. She had been treated in the same matter as other patients
diagnosed with UC. She had had fibro-sigmoidoscopy, histopathology and a bacteriological
test. She had been hospitalised in clinics which specialised in combating this
particular disease.
B. The Court’s assessment
Noting that the
Court has found that Articles 2 and 8 of the Convention applied in the instant
case (see paragraphs 77 and 123 above), it observes that the applicant in the
instant case failed to submit precise data to substantiate her allegation that her
daughter had been discriminated against.
Even if there had been a difference in the
treatment of the applicant’s daughter due to her pregnancy, the Court observes
that it cannot be excluded that that difference may have arisen for medical reasons.
In particular, there is no convincing evidence which would indicate that Y was
deliberately refused proper medical treatment on the ground of her pregnancy (see,
mutatis mutandis, Moskal v. Poland, no. 10373/05, § 100, 15
September 2009).
In consequence, this complaint must be rejected
as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the
Convention.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant also complained that her daughter
had been subjected to inhuman and degrading treatment as a result of the
doctors’ deliberate failure to provide the necessary medical treatment.
While the Court has not doubt that the
applicant’s daughter’s illness caused her inordinate pain, it notes that she
had received treatment in various specialised hospitals and was subject to
various medical tests (see paragraphs 10 and 12 above). In this respect
the Court observes that it is not its function to question the doctors’
clinical judgment as regards the seriousness of Y’s condition or the
appropriateness of the treatment they proposed (see, mutatis mutandis Glass v.
the United Kingdom, no. 61827/00, § 87, ECHR 2004-II). Lastly,
it cannot be said that the quality and promptness of the medical care provided
to Y had put her health and life in danger (see, a contrario, Dzieciak
v. Poland, no. 77766/01, § 101, 9 December 2008).
It follows that this complaint must be rejected
as manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the
Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares
the complaint under the procedural limb of Article 2 admissible and the
remainder of the application inadmissible;
2. Holds that
there has been no violation of Article 2 of the Convention in its procedural
limb.
Done in English, and notified in writing on 13 November
2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Päivi
Hirvelä Registrar President
