Z. v. Poland

In the case Z. v. Poland (Application no.46132/08) the ECtHR found no violation of Article 2 of the Convention in relation with the investigation carried out by the Polish authorities concenring the untimely death of the applicant's pregnant daughter in a hospital.

The applicant Z. is living in Pilah in Poland. Her daugther, Y.became pregmnant pregnant. Prior to or early in her pregnancy she developed ulcerative colitis (UC). Y. began experiencing the symptoms (nausea, abdominal pains, vomiting and diarrhoea) of the disease which were recurrent and caused pain and discomfort to her. Between May and September 2004, the applicant's daughter was admitted to six hospitals in three different Polish cities. She was operated on a number of occasion but received only basic treatment. concerning the UC. On 4 September 2004 Y’s condition deteriorated. She was transferred to a hospital where - immediately following her admission - she was sent for a surgical operation to establish the cause of an apparent sepsis. During the operation the doctors removed her appendix. Y’s condition worsened, consequently she was transferred to the intensive care unit of the hospital. On 5 September the doctors removed the foetus, which was dead, ten day later the doctors removed her uterus. Y. died two weeks later as a result of septic shock.

On 1 March 2005 an investigation of possible unintentional homicide of the applicant’s daughter was opened. The investigation of Y.'s death was extended several times. It was suspended, on 26 May 2006. due to the need - expressed by the prosecutor - to obtain expert opinions. Subsequently six medical opinions were submitted to the prosecutor’s office. Altogether the prosecution obtained opinions from eight medical experts. The experts were subsequently heard by the prosecutor. During the prosecution at least six prosecutors handled the investigation at different stages. On 11 June 2008 the District Prosecutor resumed and discontinued the investigation. According to the decision "on the basis of the experts’ opinions [...] no direct link had been established between the treatment and the death of the applicant’s daughter". This decision was subsequently upheld by the district court.

Two disciplinary proceedings were launched - on May 2005 and 20 June 2005 - against the doctors who had treated Y. Both procedures were discontinued.

The applicant complained - citing Articles 2 and 13 of the Convention - 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. In this regard the Court noted that

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 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.

The ECtHR therefore examined the facts of the case from the angle of the procedural requirement implicit in Article 2. In this connection the Court considered 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". It further observed that the only delay during the course of the prosecution was the rejection on behalf of the medical academies in Gdansk, Szczecin and Warsaw to give an opinion on the case. The Court also accepted the fact that the the medical questions involved in the case were of great complexity and required thorough analysis, consequently the period of two years and four months during which the case remained stayed  - and the prosecutor obtained six madical opinions - does not seem substantial. The ECtHR therefore considered 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".

The Court declared the remainder of the application inadmissible.

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An interesting - but disputed - fact of the case is the following: In August 2004 Y. was admitted to a hospital and was operated in relation with an abscess and rectovaginal fistula. Her doctors were aware of Y’s UC, her doctor however refused to perform a full endoscopy and no diagnostic imaging of the abdomen was performed on her. The applicant submitted that the doctor had justified not performing a full endoscopy by referring to his fear of endangering the life of Y.'s foetus. The doctor had stated - according to Z. - that his conscience did not allow him, but had not formalised his objection or directed Y to another doctor. THe Government argued this fact and the Court classified it as "Facts in dispute" and as a consequence did not examined it in depth.