Positive obligations under the ECHR in the area of medical negligence

Transcription

1 Faculty of Law Academic Year Exam Session [1] Positive obligations under the ECHR in the area of medical negligence LLM Paper by Kateryna Lytovka Student number : Promoter: dr. Laurens Lavrysen

2 TABLE OF CONTENTS CHAPTER 1: INTRODUCTION Aims of the study State of art Scope of the study and research question.5 CHAPTER 2: GENERAL INTRODUCTION TO POSITIVE OBLIGATIONS IN THE AREA OF MEDICAL NEGLIGENCE General overview of positive obligations under ECHR Procedural positive obligations as the Court s traditional approach General characteristics of procedural obligations in medical negligence Right to a procedure Right to a remedy Procedural quality control Procedural obligations in substantive provisions vs. procedural provisions Specific issues arisen from positive obligations under Articles 3 and Conclusions 30 CHAPTER 3: EVOLUTION OF THE COURT S APPROACH TO THE POSITIVE OBLIGATIONS IN THE AREA OF MEDICAL NEGLIGENCE Distinction of positive obligations. An obligation to set up an adequate legal framework From procedural to substantive protection Implication of vulnerability concept for expanding positive obligations Conclusions.44 CHAPTER 4: GENERAL CONCLUSION...46 BIBLIOGRAPHY 49 1

3 CHAPTER 1: INTRODUCTION Right to life, right to human integrity, right to private life are supreme indispensable rights, that Member States, parties to the Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols (hereinafter the Convention), agreed to guarantee and protect. There is no doubt that the State is obliged to refrain from intentional killing, 1 is prohibited to commit torture, inhuman or degrading treatment or punishment in any case, and should respect and not interfere 2 in private life. However, the question arises when it comes to the non-intentional violations of such rights. Is the State responsible for the death occurred due to the malpractice of the doctor 3, or for medical intervention without parental consent, 4 or when medical personnel fails to inform a patient regarding risks to health? 5 When will matters such as an error of judgment of a doctor or negligent health professionals in the treatment of a particular patient amount to a breach of the state s positive obligations under the Convention? Will the issue of whether the doctor, who is allegedly guilty in medical negligence, works for public or private hospital influence the existence of the state s positive obligations under the Convention? Will the vulnerable status of an applicant influence the Court s finding of the violation of positive obligations by a state: in case the patient dies in psychiatric hospital, 6 or when a detainee suffers from inappropriate medical treatment, 7 or in case of the failure by state authorities to provide necessary medical assistance to military servicemen 8? The importance of the state s protection of conventional rights by fulfilling positive obligations is apparent. Though, in the specific sphere of health care, complexity of issues associated with allegations of medical negligence influence the findings of the European Court of Human Rights (hereinafter the Court) of whether the states are in violation of positive obligations Aims of the study The aims of this study is to describe the positive obligations in the area of medical negligence based on the analysis of the Court s case law, in order to gain better understanding of 1 Except in circumstances prescribed by the Convention. 2 Except when such interference meet the requirements set in the Article 8 of the Convention. 3 ECtHR (inadm.), 4 May 2000, Powell v. the United Kingdom, no /99; ECtHR (Grand Chamber), 17 January 2002, Calvelli and Ciglio v. Italy, no /96; ECtHR (Grand Chamber), 9 April 2009, Silih v. Slovenia, no /01; 4 ECtHR, 23 March 2010, M.A.K. and R.K. v. The United Kingdom, no /05 and 40146/06 5 ECtHR, 2 June 2009, Codarcea v. Romania, no /04; ECtHR, 15 January 2013, Csoma v. Romania, no. 8759/05. 6 ECtHR (GC), 17 July 2014, Centre for Legal Resource on behalf of Valentin Campeanu v. Romania, no /08 7 ECtHR, 9 January 2014, Budanov v. Russia, no /11 8 ECtHR, 13 October 2015, Akkoyunlu v. Turkey, no. 7505/06 2

4 the Court s substantive and procedural approaches in finding state s violations. The study will show the evolution of the way the Court deals with medical negligence cases and the increasing recourse to the substantive approach by the Court State of the art Although it may seem that the Court has developed a substantial body of case-law in the sphere of medical negligence, a single approach to positive obligations can not be easily defined due to the multiplicity of the subject. The recent Chamber judgement in Lopes de Sousa Fernandes v. Portugal case 9 with the considerable departure from the established case-law, which will be discussed hereunder 10, confirms such statement. State positive obligations in general gained limited scholarly attention, that can be connected with the complexity of the Court s positive obligations case law. 11 Despite this, significant input in the doctrine of the state positive obligations was made by the prominent researchers: D. Xenos 12, A. R. Mowbray 13, K. Starmer 14, C. Droge 15, J.-F. Akandji-Kombe 16 and others. The development of the theory of positive obligations of the state has risen to a new extent in the study of Laurens Lavrysen 17. The mentioned monographs and doctoral thesis provided the theoretical background for this study. However, the focus will be made on the more specific area of the Court s case law positive obligations in the area of medical negligence, that will be analysed in line with the scholarly findings concerning state obligations in the area of medical negligence in general, 18 and Kamber s analysis of procedural 9 ECtHR (referred to the Grand Chamber), 15 December 2015, Lopes de Sousa Fernandes v. Portugal, no /13 10 The explanation why Lopes de Sousa Fernandes v. Portugal case is seen as a considerable departure will be given in Section L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), D. Xenos, The Positive Obligations of the State under the European Convention on Human Rights (Abingdon, Routledge, 2012). 13 A. Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Oxford, Hart Publishing, 2004). 14 K. Starmer, Positive Obligations under the Convention in J. Lowell and J. Cooper (eds.), Understanding Human Rights Principles (Portland, Hart Publishing, 2001), Dröge, C., Positive Verpflichtungen der Staaten in der Europäischen Menschenrechtskonvention (Berlin, Springer-Verlag, 2003). 16 J.-F Akandji-Kombe, Positive obligations under the European Convention on Human Rights A guide to the implementation of the European Convention on Human Rights (Human rights handbooks, No. 7, Strasbourg, Council of Europe, 2007). 17 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016). 18 V. Harpwood, Negligence in Healthcare: Clinical Claims and Risk in Context (London: Informa, 2001); Filkins, J.A., Criminalization of Medical Negligence, in S.S. Sanbar and M.H. Firestone (eds.), Legal Medicine Seventh Edition (Philadelphia, Mosby 2007),

5 obligations in medical negligence under the Convention in particular. 19 For now it seems that the subject has not been widely developed by scholars with a view to describing the Court s approach evolving from the mere examination of state procedural obligations in the area of medical negligence to the assessment of positive obligations of states under the substantive limb Scope of the study and research question As it was indicated in the section 1.1. the evolution of the Court s approaches in dealing with medical negligence cases brings along the focus of this LLM-paper. Therefore, the notion of medical negligence will be given in order to limit the scope of the study to the appropriate extent. Medical negligence was defined by scholars as an act or omission of a physician rendered in the course of treating a patient, which is the cause in fact of harm to the patient and which fails to meet the appropriate standard of care, but which is rendered without any deliberate intent to harm the patient. 20 On the level of Council of Europe the fault of a doctor was characterised as a failure to act according to the required standard of care (a wrong diagnosis or treatment) 21 or failure to respect individual patients rights (failure to inform the patient properly concerning the risks related to the particular treatment). 22 Following this, in the current study state positive obligations will be assessed in cases, when the death of patient occurred as a cause of medical malpractice (Article 2), when a patient s sufferings were caused by negligent medical treatment, that, however, did not result in death (Article 2 23 or Article 3 24 ), when patient did not receive information regarding risks to his health (Article 8 25 ) and when medical intervention was performed without patient s consent (Articles 3 26 and 8 27 ). This paper will focus on positive obligations in mentioned and similar situations in the area of medical negligence without considering other health-related issues that could amount to 19 K. Kamber, Medical Negligence and International Human Rights Adjudication: Procedural Obligation in Medical Negligence Cases Under the American Convention on Human Rights and the European Convention on Human Rights. The inter-american Court of Human Rights: Theory and Practice, Present and Future. Ed. Yves Haeck, Oswaldo-Rafael Ruiz-Chiriboga, & Clara Burbano Herrera (Mortsel: Intersentia, 2015), J.A Filkins, Criminalization of Medical Negligence, in S.S. Sanbar and M.H. Firestone (eds.), Legal Medicine Seventh Edition (Philadelphia, Mosby 2007), H. Nys, European Committee on Legal Co-Operation: Report on medical liability in Council of Europe Member States. Strasbourg, 7 March 2005, Ibid 23 if the applicant survived by chance, but the most likely result was death (see ECtHR, 23 March 2010, Oyal v. Turkey, no. 4864/05) 24 ECtHR, 13 October 2015, Akkoyunlu v. Turkey, no. 7505/06 25 ECtHR, 15 January 2013, Csoma v. Romania, no. 8759/05 26 Infringement of one s physical integrity (see ECtHR, 8 November 2011, V.C. v. Slovakia, no /07) 27 ECtHR, 13 January 2015, Elberte v. Latvia, no /08. 4

6 breaches of state positive obligations under the Convention i.e. cases in which applicants complain about the requisite level of healthcare 28, or about the refusal of state authorities to allow patients access to unauthorized drugs. 29 In the recent case law, the Court seems to change the vector of implication of positive obligations from the procedural to the substantive. This observation was crucial in shaping the research questions of the present study. To what extent does the Court impose substantive positive obligations in medical negligence cases? And subsequently it will be interesting to see if the Court, when imposing substantive obligations, applies a purely substantive approach or rather a mixed approach in which it integrates substantive arguments in its traditional procedural approach? Analysis of the starting point of the evolution of Court s approaches in medical negligence cases is therefore a necessary first phase. Thus, it is indispensable to provide an overview of the general concept of positive obligations. Following this general introduction, the second chapter will continue with the review and assessment of procedural positive obligations as the Court s traditional approach in medical negligence cases. The different aspects of procedural guarantees of the Convention will be scrutinised. Acknowledging the emergence of substantive obligations in this area, the question of the notion of the substantive positive obligations of states and the distinction between them and procedural obligations arises. Therefore, the chapter will firstly review the distinction of positive obligations and the emergence of the state obligation to set up an adequate legal framework, and then the evolution of the Court s approach from procedure to substance in medical negligence cases will be addressed. At the end of the third chapter, the focus will be switched to the concept of vulnerability as deepening existing positive obligations, 30 as a result of the Court s dynamic interpretation of the Convention. A comprehensive analysis will be provided of different vulnerable groups and how their specific conditions affect the Court s finding of a state s failure to protect their conventional rights when medical negligence occurs. However, issues of expulsion of ill people and discrimination on the grounds of health fall outside the scope of this study. The LLM-paper will draw to a close by setting out the findings of the paper with regard to the evolution of the Court s approach to the assessment of state positive obligations in the area of medical negligence. 28 ECtHR (inadm.), 4 January 2005, no /03; 29 ECtHR, 13 November 2012, Hristozov and Others v. Bulgaria, nos /11 and 358/12 30 A. Timmer, Strengthening the Equality Analysis of the European Court of Human Rights: The Potential of the Concepts of Stereotyping and Vulnerability (PhD dissertation, Ghent University, 2013)

7 CHAPTER 2: GENERAL INTRODUCTION TO POSITIVE OBLIGATIONS IN THE AREA OF MEDICAL NEGLIGENCE 2.1. General overview of positive obligations under the ECHR To begin, it is worthy mentioning, that positive obligations rarely derive from the express wording of the Convention, but are developed by the Court in its case law. The doctrine of implied positive obligations was first debated almost 50 years ago in the Belgian Linguistics case, that concerned the right to education. Although, Judge Terje Wold disputed in his dissent that it was not justified by the wording of the Convention [to] insert into Article 2, first sentence (P1-2), a positive obligation 31, the majority were of the opposite opinion. Subsequently, the decisive development of positive obligations came with future cases (Marckx v. Belgium and Airey v. Ireland), enabling the Court to find a violation of conventional human rights in a way that was inconceivable according to the classical liberal model. 32 Article 2 is an example of a Convention provision of which the express wording allows positive obligations to be derived: everyone s right to life shall be protected by law. It is clear that Article 2 places a positive obligation on states to protect the right to life by legislative means. An opposite example is Article 3, that does not directly establish any positive obligations. However, within years the Court has gradually supplemented the relatively minimalist wording of Articles 2 and 3 of the Convention with a wide, and increasing, range of implied positive obligations, by establishing and subsequently reaffirming them in case law. 33 Thus, states have been found by the Court in breach of duty to prevent ill-treatment of persons under state surveillance, including harm caused by non-state actors; failing to carry out an effective investigation into incidents of death or ill-treatment; failing to provide a proper redress and other violations of positive obligations (will be discussed in more details in Section 2.2. and 3.1). In other words, states were found failing to take the range of measures, such as: legislative, regulatory, preventive, investigative and punitive. 34 Although as it was said the Court developed a wide range of implied positive obligations, the Court s case law does not provide a clear definition of the concept of positive obligations. However, Judge Martens in his dissenting opinion in Gül v. Switzerland 31 ECtHR (Plenary), 23 July 1968, Belgian Linguistic, nos. 1474/62 32 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), Ph. Leach, Positive Obligations from Strasbourg: Where Do the Boundaries Lie? 15 Interights Bulletin (2006), 123 at Ibid 6

8 remedy. 38 It should be noted that the Court acknowledges that the determined obligations should characterised them as requiring member states to take action 35. This at first sight simple definition resembles the most important element of the numerous positive obligations placed upon the states the duty to undertake specific affirmative tasks. 36 In Rees v. the United Kingdom the Court has held that with regard to the diversity of situations, the scope of obligations will inevitably vary. 37 The logical question then arises: how does the Court determine whether the state has positive obligations and what is the content and scope of such obligations? The general legal grounds for the existence of positive obligations can be found in the Convention. K. Starmer defined three inter-related principles: l) the requirement under Article l of the Convention that states should secure conventional rights to all persons within their jurisdiction; 2) the general principle of the effectiveness of rights guaranteed by the Convention (Airey v. Ireland); 3) the supplementing obligation under Article 13 to provide an effective not impose an impossible or disproportionate burden on the authorities. 39 However, the Court often interprets conventional rights as implying state positive obligations, that in the Court s view are derived from the general duty of states to secure respect for human rights under Article 1 of the Convention. In order to determine the content and the scope of positive obligations the principles of knowledge, proximity and effectiveness play an important role. 40 Thus, under the knowledge condition, the State can only be found responsible if the risk of harm was foreseeable. 41 According to the proximity principle, only state s omissions that have knowingly contributed to the harm suffered by the victim lead to state s responsibility, thus linking an alleged failure of a state to comply with a positive obligation to a particular harm. 42 The principle of effectiveness, further used as a general interpretative principle under the Convention, was established in the case Airey v. Ireland, where the Court held that [t]he Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. 43 Although the Court does not explicitly indicate which measures the State should take in order to comply with 35 ECtHR, 19 February 1996, Gül v. Switzerland, no /94 36 A. Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Oxford, Hart Publishing, 2004), Rees v. the United Kingdom, 17 October 1986, ECHR, App. no. 9532/81, para K. Starmer, European human rights law (London : Legal Action Group, 1999), Osman v. the United Kingdom, 28 October 1998, ECHR, App. no /94, para L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016). 41 Ibid, Ibid, Ibid, 137, citing ECtHR, 9 October 1979, Airey v. Ireland, no. 6289/73, 24 7

9 its positive obligations, such measures should be appropriate and sufficient in order to enable effective enjoyment of the Convention rights. 44 Moreover, the Court while contesting the existence of positive obligations in each case, makes assessments of the competing balance of rights and a consideration of the fairness of the imposition of burdens on the state. 45 Such assessment differs from case to case and evolves with a time, as the Convention is considered as a living instrument. 46 As the study is devoted to positive obligations in a particular sphere, continuing with deeper analysis of general tests and principles applied to positive obligations would go beyond the scope of this study. Some important issues concerning the content of positive obligations in the area of medical negligence will be discussed in the following chapters. For comprehensive analysis of duties of states in case of medical negligence, a typology of positive obligations will be provided. On the basis of the Court s positive obligations case law, scholars have developed different categorizations of positive obligations. C. Droge presents horizontal the protection of human rights between private parties and social obligations that enable the effective enjoyment of human rights in social reality (i.e. rights to legislative action) dimension. 47 L. Lavrysen points out that it is better to distinguish between horizontal and vertical positive obligations on one side and, what C. Droge calls rights to legislative action and positive obligations of a more ad hoc nature on another side. 48 He further stresses on the distinction between vertical and horizontal scenario, in order to accurately evaluate the responsibility of the state. Thus, the difference lays between the situations when a violation directly occurs as a result of the state s inaction (vertical scenario) and when violation occurs as a result of the action of third parties (horizontal scenario), meaning indirect state s failure to protect human rights. 49 However, the mere fact that a third party has breached conventional rights cannot lead to a finding against the state. 50 The state will be held liable if it failed, legally or materially, to prevent the violation of the right committed by a private party. For example, a violation on the 44 ECtHR, 8 November 2011, V.C. v. Slovakia, no /07, Leach, Ph., Positive Obligations from Strasbourg: Where Do the Boundaries Lie? 15 Interights Bulletin (2006), 123 at ECtHR, 25 April 1978, Tyrer v. The United Kingdom, no. 5856/72 47 C.Dröge, Positive Verpflichtungen der Staaten in der Europäischen Menschenrechtskonvention (Berlin, Springer- Verlag, 2003), L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), Ibid 50 J.-F Akandji-Kombe, Positive obligations under the European Convention on Human Rights A guide to the implementation of the European Convention on Human Rights (Human rights handbooks, No. 7, Strasbourg, Council of Europe, 2007), 14 8

10 part of a state will be found in case of the failure to provide an adequate legal framework to secure rights, or to set up effective judicial system, amounting sometimes to an absence of legal intervention 51, or the absence of an effective intervention. As it was mentioned above, it is not clear from the Court s case law whether there is a definite classification of positive obligations. 52 However, the Court in its reasoning regularly distinguished between two types of positive obligations: substantive and procedural ones. 53 The study will further focus on this particular classification while analysing the procedural and substantive obligation from the perspective of medical negligence case law Procedural positive obligations as the Court s traditional approach There are two distinct aspects to the States human rights responsibility in case of medical malpractice. 54 The first one is, when the state fails to regulate the health profession and health care, that is the substantive aspect of positive obligations, and the second one in case the state fails to provide effective procedural measures by which those responsible may be identified and held accountable the procedural aspect. 55 The medical negligence undoubtedly affects human rights. In most cases the violation of Convention rights found by the Court were directly connected with the the state s failure to provide an adequate procedural response to occurred medical malpractice. 56 In this chapter the focus will lie on the procedural aspect of state s positive obligations, as the Court s traditional approach to assess whether the State has complied with its human rights obligations in the area of medical negligence. negligence General characteristics of procedural obligations in the area of medical 51 Ibid, L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), Ibid, with reference to V. Stoyanova, Human Trafficking and Slavery Reconsidered (PhD dissertation, Lund University, 2015), K. Kamber, Medical Negligence and International Human Rights Adjudication: Procedural Obligation in Medical Negligence Cases Under the American Convention on Human Rights and the European Convention on Human Rights. The inter-american Court of Human Rights: Theory and Practice, Present and Future. Ed. Yves Haeck, Oswaldo-Rafael Ruiz-Chiriboga, & Clara Burbano Herrera (Mortsel: Intersentia, 2015), 173 at Ibid 56 ECtHR (Grand Chamber), 9 April 2009, Silih v. Slovenia, no /01 9

11 Generally, the Court, in its case law, has strengthened the guarantees for the protection of human rights set in substantial conventional provisions by adding a procedural layer. 57 From the majority of substantive rights, the Court derives procedural obligations, differing in the degree and consistency. 58 Such procedural obligations vary in nature and could be applied ex ante the procedure leading to the decision that breached the right (i.e. the procedure leading to the individual decision allegedly breaching the Convention; adoption of the normative framework regulating issues that gave rise to an alleged violation) as well as ex post facto the procedure that follows the violation occurred (i.e. investigation, remedies). 59 Examples of ex ante and ex post facto procedural obligations arisen in the area of medical negligence will be provided hereunder. The Court developed the procedural obligation in medical negligence cases by implication 60 from the requirement set in Article 2 of the Convention to protect everyone s life by the means of law, and the general duty of the state to secure respect for human rights under Article 1 of the Convention. 61 The Court emphasises on the fundamental importance of the first sentence of Article 2, which enshrines one of the basic values of the democratic societies making up the Council of Europe, and declares that Article 2 enjoins the State not only to refrain from the intentional taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. 62 In early cases arisen from medical negligence 63 the Court did not assess positive obligations separately from the procedural and the substantive limb, as it appears in later judgements. 64 In the 1999 case of Erikson v. Italy 65 concerning the death of the applicant s mother after prescribed X-rays by the public care doctor, the Court stated that positive obligations to protect life include two elements: 1) the requirement for hospitals to have regulations for the protection of their patients' lives; 57 E. Brems, Procedural protection An examination of procedural safeguards read into substantive Convention Rights in E. Brems and J. Gerards (eds.), Shaping Rights in the ECHR (Cambridge University Press, 2013), 137 at Ibid. 59 Ibid. 60 ECtHR (GC), 24 March 2011, Giuliani and Gaggio v. Italy, no /02, K. Kamber, Medical Negligence and International Human Rights Adjudication: Procedural Obligation in Medical Negligence Cases Under the American Convention on Human Rights and the European Convention on Human Rights. The inter-american Court of Human Rights: Theory and Practice, Present and Future. Ed. Yves Haeck, Oswaldo-Rafael Ruiz-Chiriboga, & Clara Burbano Herrera (Mortsel: Intersentia, 2015), 173 at ECtHR (inadm.), 27 November 2007, Rajkovska v. Poland, no /02 63 ECtHR (inadm.), 26 October 1999, Erikson v. Italy, no /97., ECtHR (inadm.), 4 May 2000, Powell v. the United Kingdom, no /9 64 ECtHR (referred to the Grand Chamber), 15 December 2015, Lopes de Sousa Fernandes v. Portugal, no /13, ECtHR, 9 April 2013, Mehmet Senturk and Bekir Senturk v. Turkey, no /09 65 ECtHR (inadm.), 26 October 1999, Erikson v. Italy, no /97. 10

12 2) the obligation to set up an effective judicial system for: establishing the cause of a death which occurs in hospital; establishing any liability on the part of the medical practitioners concerned. In later cases, the Court examined separately procedural and substantive positive obligations, and the Court stressed that finding a procedural breach did not depend on whether the substantive part was violated. 66 The evolution of the Court s approach and the distinction between positive obligations will be discussed in more detail in Chapter 3. Already in 1999 in the abovementioned judgement, the Court emphasised the importance of an effective investigation or scrutiny of the events that led to the death of the patient, and, not less significant, the importance of the disclosure of the facts to the public and in particular to the relatives of a victim. The Court defined its task as to review whether and to what extent the national judicial bodies have carried out the careful scrutiny required by Article 2 in order to maintain the deterrent effect of the judicial system in place and ensure that violations of the right to life are examined and redressed. 67 The requirements for the effective investigation set by the Court in the case law on medical malpractice will be described in following chapters. The duty to carry out an effective investigation, in order to establish the cause of death of the patient and to hold those liable accountable, are ex post facto procedural obligations. The state fails to adopt the measures after the death as a result of the medical negligence already occurred. However, not less important are obligations preceding the lethal outcome ex ante procedural obligations. The aim of ex ante obligations is the prevention of violations. For instance, through obliging the state to react appropriately to credible allegations of breach of human rights. 68 Or the positive procedural obligation to monitor activities of a public importance undertaken by private actors, in which human rights are likely to be affected, 69 as in Öneryildiz v. Turkey, the case about the death of thirty-nine people as a result of a methane explosion at a rubbish tip, where the Court established state obligation to monitor dangerous activities. 70 In this regard, the interesting question arises whether states are under obligation to monitor activities in the sphere 66 ECtHR (referred to the Grand Chamber), 15 December 2015, Lopes de Sousa Fernandes v. Portugal, no /13 67 ECtHR (Grand Chamber), 17 July 2014, Centre for Legal Resource on behalf of Valentin Campeanu v. Romania, no /08, 133; ECtHR (Grand Chamber), 30 November 2004, Öneryildiz v. Turkey, no /99, E. Brems, Procedural protection An examination of procedural safeguards read into substantive Convention Rights in E. Brems and J. Gerards (eds.), Shaping Rights in the ECHR (Cambridge University Press, 2013), 137 at L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), ECtHR (Grand Chamber), 30 November 2004, Öneryildiz v. Turkey, no /99,

13 of health care? According to Lavrysen, contrary to Öneryildiz, in other cases concerning activities of public importance the Court took another route. 71 He refers to the De Hert s concept of system responsibility, where the State is obliged within its legal system to ensure an efficient distribution of responsibilities in such a way, that private actors can be held accountable for human rights violations. 72 In cases in the area of medical malpractice, the positive obligation to organise the legal system in such a way as to protect the rights of patients was imposed on states by the Court: positive obligations therefore require States to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of their patients' lives. 73 In subsequent cases the Court upheld this line of reasoning. 74 The question should such positive obligation be addressed under procedural or rather substantive limb will be examined more extensively in Chapter 3. So, it seems that, if the obligation to put in place the legal system in the sphere of a healthcare is fulfilled, state monitoring of medical practice is not required. However, some authors are of the opinion that in certain circumstances the absence of such a control can lead to finding a state liable for violation of Article For example, according to Harpwood, in the absence of a proper system of supervision of vaccination scheme or of a public health protection programme, the state can be found contravening the Convention. 76 In Association X v UK, concerning children suffering from severe brain damage after vaccination, the parents complained that a state vaccination scheme was inefficiently administered and could even lead to death, in violation of Article Here, however, the Commission was persuaded by the evidence of the UK Government, that the scheme was properly controlled and administered: sufficient to comply with its [State] obligation to protect life under Article 2 of the Convention. 78 Still the case confirms that the absence of an appropriate system of control can sometimes amount to finding states liable for negligence in managing their health care systems under Article L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), Ibid, with reference to De Hert, P., Systeemverantwoordelijkheid voor de informatiemaatschappij als positieve mensenrechtenverplichting, in D. Broeders, C. Cuijpers and C. Prins (eds.), De staat van informatie (Amsterdam University Press, 2011), ECtHR (Grand Chamber), 17 January 2002, Calvelli and Ciglio v. Italy, no / Ibid 75 V. Harpwood, Negligence in Healthcare: Clinical Claims and Risk in Context (London: Informa, 2001), Ibid 77 ECtHR (inadm.), 12 July 1978, Association X. v. The United Kingdom, no. 7154/75 78 Ibid 12

14 Going back to the concept of system responsibility 79, the logical question arises, whether the distribution of responsibilities should be also applied to the public hospitals? Is the state more likely to be found liable, if the medical negligence was committed by the public doctor? It is apparent that public authorities (including employees) are obliged to act in accordance with the Convention rights. 80 However, as it appears from the case law, the type of ownership of the hospital does not influence the Court s assessment of the state s responsibility. The Court emphasises in its judgements that regulations concerning health care should be set up requiring hospitals be they private or public to take measures to ensure the protection of patients lives. 81 The same principle applies to the requirement to set up an effective independent judicial system in order to determine the cause of the death of a patient under the responsibility of health professionals whether they are working in the public sector or employed in the private structures, and to make those responsible accountable. 82 However, the slight departure from the established position can be seen in the Court s recent Chamber judgement Lopes de Sousa Fernandes v. Portugal case. The Court, while examining the patient s right to be duly informed about the foreseeable risk in advance by doctors under the procedural limb of Article 2, expressed the opinion, that if those doctors work in a public hospital, the State Party concerned may be directly liable for this lack of information. 83 The case was referred to the Grand Chamber, so soon it will be clear what the Court s final position is on whether the state should be found liable for mere medical negligence, and whether it is decisive that the negligence occurred in a public hospital. To sum, the Court interprets state positive procedural obligations in the area of medical negligence as follows: in the sphere of medical negligence the procedural obligation under Article 2 has been interpreted by the Court as imposing an obligation on the State to set up an effective judicial system for establishing both the cause of death of an 79 L. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship Between Positive and Negative Obligations Under the European Convention on Human Rights (Cambridge; Antwerp; Portland: Intersentia, 2016), 86, with reference to De Hert, P., Systeemverantwoordelijkheid voor de informatiemaatschappij als positieve mensenrechtenverplichting in D. Broeders, C. Cuijpers and C. Prins (eds.), De staat van informatie (Amsterdam University Press, 2011) 80 V. Harpwood, Negligence in Healthcare: Clinical Claims and Risk in Context (London: Informa, 2001), ECtHR (referred to the Grand Chamber), 15 December 2015, Lopes de Sousa Fernandes v. Portugal, no /13, ECtHR, 9 April 2013, Mehmet Senturk and Bekir Senturk v. Turkey, no /09, 81; ECtHR (Grand Chamber), 17 January 2002, Calvelli and Ciglio v. Italy, no /96, ECtHR (referred to the Grand Chamber), 15 December 2015, Lopes de Sousa Fernandes v. Portugal, no /13,

15 individual under the care and responsibility of health professionals and any responsibility on the part of the latter Right to a procedure Following the general introduction to state s procedural obligations in the area of medical negligence, the requirements set by the Court in order to comply with such obligations will be examined. The assessment will be given in accordance with the Brems categorization on 85 : 1) requirements for the procedure to be available the right to a procedure; 2) more specific requirements concerning guarantees that have to be included in procedures procedural quality control. State obligations arising from procedural provisions of the Convention will be discussed separately. In general terms it could be said that the Court, instead of interpreting the Convention provisions in such a way as to explicitly establish a new substantive right, has developed the right to a procedure in order to ensure the enjoyment of rights guaranteed by domestic law. 86 In many cases the Court has found that, while the right is already substantively protected under the national law, it can nonetheless not be enjoyed due to the lack of effective procedures. 87 According to Brems, the right to a procedure, that applies to the ex post procedures, is arguably the most important procedural right and includes: 1) right to an investigation into alleged violations; 2) right to a remedy. 88 The effective official investigation is required by implication 89 from states under the obligation to protect the right to life enshrined in Article 2 90, read in conjunction with the State's general duty under Article 1. However, the Court stresses that the obligation to conduct an effective investigation is not an obligation of result, but of means 91. The state is under the obligation to take whatever reasonable steps they can to secure the evidence concerning the 84 ECtHR (referred to the Grand Chamber), 15 December 2015, Lopes de Sousa Fernandes v. Portugal, no /13, E. Brems, Procedural protection An examination of procedural safeguards read into substantive Convention Rights in E. Brems and J. Gerards (eds.), Shaping Rights in the ECHR (Cambridge University Press, 2013), 137 at Ibid, 137 at Ibid 88 Ibid, 137 at ECtHR (GC), 24 March 2011, Giuliani and Gaggio v. Italy, no /02, Similar principles apply under Article 3 ECHR (ECtHR (Grand Chamber), 13 December 2012, El-Masri v. FYROM, no /09, 182). 91 ECtHR (GC), 24 March 2011, Giuliani and Gaggio v. Italy, no /02,

16 incident 92. The already mentioned case Erikson v. Italy, which was declared inadmissible by the Court, can serve as a good example. The Court upheld the Government s position that the judicial authorities carried out a thorough investigation into the events, and consequently there was no failure by the respondent State to comply with the positive obligations, including any procedural requirements, imposed by Article 2 of the Convention. However, the investigation did not lead to the establishment of the cause of death and no one was held responsible for the death of an old woman as a result of prescribed X-rays, that turned to be lethal for her. The requirements set by the Court in order for states to comply with the obligation to conduct an effective investigation will be discussed under the procedural quality control section Right to a remedy The procedural obligations under substantive provisions have been interpreted by the Court in such a way as to cover the issues of how the applicants should be involved in the proceeding, and the question of the compensation. 93 The Court has repeatedly recognized a procedural obligation to provide access to remedies: the concepts of lawfulness and the rule of law in a democratic society command that measures affecting fundamental human rights be, in certain cases, subject to some form of procedure before an independent body competent to review the reasons for the measures and the relevant evidence [ ]. In ascertaining whether this condition has been satisfied, a comprehensive view must be taken of the applicable procedures. 94 The effective judicial system required by the procedural limb of Article 2 must under certain circumstances include the recourse to the criminal law, because of the fundamental character and the importance of the right to life. However, due to the unintentional nature of the infringement of the right to life as a result of the medical error, a criminal investigation is typically not required. 95 The Court stated long ago in Erikson decision, that the Convention should not be interpreted as guaranteeing a right to secure a conviction in criminal proceedings, and indicated the probability to obtain a better result for the applicant, had the latter used civil proceedings to accuse a doctor in negligence. 96 This wording evolved in the fundamental principle from the case Calvelli and Ciglio v. Italy that has subsequently been used in the majority of cases arisen from medical negligence: 92 Ibid 93 E. Brems, Procedural protection An examination of procedural safeguards read into substantive Convention Rights in E. Brems and J. Gerards (eds.), Shaping Rights in the ECHR (Cambridge University Press, 2013), 137 at ECtHR, 20 March 2007, Tysiąc v. Poland, no. 5410/03, 117; the same principles are enshrined in ECtHR, 2 September 2010, Kaushal and others v. Bulgaria, no. 1537/08, ECtHR (GC), 17 January 2002, Calvelli and Cigli o v. Italy, no /96, ECtHR (inadm.), 26 October 1999, Vo v. France, no /00 15

17 if the infringement of the right to life or to personal integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case. 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 liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged. 97 In the present case, that concerned the death of the applicants baby shortly after birth, the parents claimed violation of Article 2 as no criminal penalty was imposed on the doctor found liable for the death of their child in the criminal proceedings. 98 The Court found that Italy had complied with the positive obligations, as its legal system ensured the access to a remedy for the injured party including both mandatory criminal proceedings and the possibility to bring a claim in the civil court. 99 The applicants had recourse to the both proceedings. In the course of civil proceeding the applicants had made a settlement with the doctor s and the clinic s insurers. 100 With regard to this, the Court came to the conclusion, that, in doing so, the applicants denied themselves access to the best means of elucidating the extent of the doctor's responsibility for the death of their child. 101 The Calvelli case cannot be regarded as a radical departure from the Court s prior case law, as the similar conclusions had been already made in Powell: where a relative of a deceased person accepts compensation in settlement of a civil claim based on medical negligence he or she is in principle no longer able to claim to be a victim in respect of the circumstances surrounding the treatment administered to the deceased person or with regard to the investigation carried out into his or her death. 102 So, in case the applicant used a possibility to have recourse to the civil proceedings and obtained compensation, the position of the Court is clear with respect to the right of the applicants to resort to criminal proceedings. However, the question arises, what will be the response of the Court on the admissibility of an application, if the applicant initiated only criminal proceedings, and intentionally did not bring a claim to the civil court? 103 Will the Calvelli principle influence the Court s ruling on the exhaustion of the domestic remedies? 97 ECtHR (GC), 17 January 2002, Calvelli and Cigli o v. Italy, no /96, Ibid, Ibid, Ibid, Ibid, ECtHR (inadm.), 4 May 2000, Powell v. the United Kingdom, no /9 103 If in the imaginary situation the applicant seeks the justice over the negligent doctor, not the compensation 16

18 After the analysis of the Court s case law, it would be wrong to conclude that the kind of remedy pursued by the applicant is the decisive factor. The Courts position is that the person is free to choose any remedy that addresses his or her essential grievance 104. The Court held in Šilih v. Slovenia that the state s obligation inherent in Article 2 includes the obligation to provide for the possibility of bringing civil or criminal proceedings as may be appropriate to the case. 105 The most important for the Court is to review whether the remedy was effective in practice. In this case, the Court rejected the Government s argument on the non-exhaustion of domestic remedies. The Government claimed that the applicants had a possibility to lodge a disciplinary complaint and that the civil proceedings were still pending. However, the Court found such remedies ineffective in the circumstances of the case. 106 The element of the effectiveness seems to be central in examining the issue of the exhaustion of domestic remedies. 107 In cases, when the applicant instituted only criminal proceedings and the government argues on non exhaustion of domestic remedies, as the the applicant did not attempt to regulate the dispute by means of civil proceedings, the Court examines whether such proceedings would have resulted in a more effective examination of the case. 108 For example, in Eugenia Lazăr v. Romania, the Court expressed doubts that, if the applicant had brought a civil claim, after unsuccessful criminal and disciplinary proceedings, it would have been effective under the circumstances. 109 To conclude, if another remedy has in essence the same objective but would not necessarily lead to a more effective examination of the case, the use of such remedy is not required. 110 It is an essential finding with respect to the right to a remedy in cases arisen from medical negligence, as the Court recognises, that the three avenues (criminal, civil and administrative) are cumulative with regard to the exhaustion of domestic remedies and examination of the merits of the states procedural obligation. 111 Kamber indicates on a potential flaw in the Court s manner of examining procedural obligations in medical negligence cases may arise due to the absence of a single Court s 104 ECtHR, 13 November 2012, Bajić v. Croatia, no /10, ECtHR (GC), 9 April 2009, Šilih v. Slovenia, no /01, Ibid K. Kamber, Medical Negligence and International Human Rights Adjudication: Procedural Obligation in Medical Negligence Cases Under the American Convention on Human Rights and the European Convention on Human Rights. The inter-american Court of Human Rights: Theory and Practice, Present and Future. Ed. Yves Haeck, Oswaldo-Rafael Ruiz-Chiriboga, & Clara Burbano Herrera (Mortsel: Intersentia, 2015), 173 at Ibid 109 ECtHR, 16 February 2010, Eugenia Lazar v. Romania, no /05, 72, ECtHR, 13 November 2012, Bajić v. Croatia, no /10, K. Kamber, Medical Negligence and International Human Rights Adjudication: Procedural Obligation in Medical Negligence Cases Under the American Convention on Human Rights and the European Convention on Human Rights. The inter-american Court of Human Rights: Theory and Practice, Present and Future. Ed. Yves Haeck, Oswaldo-Rafael Ruiz-Chiriboga, & Clara Burbano Herrera (Mortsel: Intersentia, 2015), 173 at