19 June 2009 FOURTH SECTION Application no. 46132/08 by Z

19 June 2009
FOURTH SECTION
Application no. 46132/08
by Z
against Poland
lodged on 16 September 2008
STATEMENT OF FACTS
THE FACTS
The applicant, Z, is a Polish national who was born in 1951 and lives in Piła. She is represented
before the Court by Ms M. Gąsiorowska and Ms B. Namysłowska-Gabrysiak, lawyers practising in
Warsaw.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Treatment of the applicant’s daughter
On 5 May 2004, the applicant’s daughter, Y, was informed that she was between 4 and 5 weeks
pregnant. Prior to or early during 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. At first her symptoms were taken to be
characteristic of the beginning of a pregnancy. Y, accompanied by the applicant, attended the
following hospitals in Poland:
- Local Medical Clinic in Piła (3-4 visits in late 2003),
- Head of the Obstetrics Department in Piła (13 May 2004),
- Specialist Hospital in Piła, Gynaecology and Obstetrics Department (18-19 May 2004),
- Internal Medicine Department, Regional Specialist Hospital in Piła (19 May – 1 June 2004, 4-8
June 2004),
- Clinic of Gastroenterology and Nutrition, Independent Public Teaching Hospital No. 2, H.
Święcicki Medical Academy in Poznań (8 June – 1 July 2004, 19 July 2004 – 28 July 2004),
- Obstetrics and Gynaecology Department III, Gynaecology and Obstetrics Teaching Hospital,
Independent Public Medical Facility in Poznań (13-15 July 2004),
- Surgery Department of the Clinic of Gastroenterology and Nutrition, Independent Public Teaching
Hospital No. 2, H. Święcicki Medical Academy in Poznań (refused a bed on 19 July 2004),
- Hospital of Obstetrics and Women’s Illnesses in Poznań (refused a bed on 19 July 2004),
- Surgery Department of the Specialist Hospital in Piła (28 July - August 2004),
- M. Pierogow Regional Specialist Hospital in Łódź, General and Vascular Surgery Department (17
August – 4 September 2004),
- M. Madurtowicz Regional Specialist Hospital in Łódź (4 September 2004, diagnosed with sepsis),
- Intensive Therapy Department, Norbert Barlicki University Teaching Hospital No. 1 in Łódź (4-29
September 2004).
The applicant’s daughter was formally diagnosed with UC in around early June 2004 at the Internal
Medicine Department in Piła. However, certain examinations (a second endoscopy, and especially a
colonoscopy) which would have made it possible to gather more information on the location and
extent of the problem were not performed on the applicant’s daughter.
During the visits listed above, the applicant’s daughter received some diagnostic tests and basic
treatment. While she was in hospital she was given pharmacological treatment (for example,
intravenous and oral administration of steroids and antibiotics). On 19 July 2004 she was diagnosed
with an abscess. Three operations to remove it were performed.
The applicant states that during her daughter’s stay at the Surgery Department of the Specialist
Hospital in Piła, the Head of the Department made a comment that “it is absurd to treat an abscess
for a whole week. [Y] is too busy with her bottom, instead of taking care of something else”, and
was referring to the pregnancy. The applicant states that this comment and its context humiliated
and angered her and her daughter.
During the applicant’s daughter’s stay at the M. Pierogow Regional Specialist Hospital in Łódź in
August 2004, the doctor refused to perform a full endoscopy. He stated that “my conscience does
not allow me”, but did not formalise his objection or direct the patient to another doctor. The doctor
justified not performing a full endoscopy by referring to his fear of endangering the life of the
foetus.
The applicant states that at the end of August 2004 she and her daughter’s fiancée urged the doctor
at the clinic in Łódź to commence any necessary treatment, irrespective of the consequences for the
life of the foetus, to save Y’s life. These demands produced no result.
The applicant’s daughter lost the foetus on 5 September 2004. On 29 September 2004 she died of
septic shock caused by sepsis.
2. Investigation into the death of the applicant’s daughter
On 6 December 2004 the applicant’s lawyer asked the Łódź District Prosecutor to institute criminal
proceedings into the circumstances of the applicant’s daughter’s death. The applicant was
interviewed by the prosecutor on 6 January 2005 and on 1 March 2005 the prosecutor opened an
investigation.
On 20 June 2005 the Regional Agent for Disciplinary Matters (Okręgowy Rzecznik
Odpowiedzialności Zawodowej) 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. The proceedings were discontinued by a decision of
25 October 2006.
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 the irregularities in Y’s treatment
and her death. However, the Collegium Medicum informed the prosecutor that following the
applicant’s daughter’s death, no autopsy had been carried out and that exhumation of her body at a
later stage would not have enabled an opinion to be given on the cause of death.
The applicant states that the prosecutor did not obtain the necessary information, such as full
medical records, to assist experts in forming their opinions. She also states that the prosecutor 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.
In addition, at some time in 2005 the Minister of Health convened a special expert committee to
investigate Y’s treatment and the circumstances of her death. The committee concluded that the
death had been directly caused by sepsis.
The investigation into the death of the applicant’s daughter was extended several times and was
suspended on 26 May 2006. During its course, there were several changes of prosecutor: at least six
prosecutors handled the investigation at different stages. In addition four medical experts’ opinions
were obtained.
On 11 June 2008 the prosecutor discontinued the investigation, concluding that on the ground of the
experts’ opinions, there was no basis for any doubts or objections as to the treatment received by the
applicant’s daughter, and no direct link between the treatment and death of the applicant’s daughter
had been established. The applicant appealed.
On 5 September 2008 the District Court discontinued the proceedings. Meanwhile, in September
2007 the applicant had brought a compensation claim in the Łódź District Court against the M.
Pierogow Regional Specialist Hospital in Łódź. The civil proceedings are still pending.
B. Relevant domestic law and practice
Under section 39 of the Medical Profession Act, a doctor may refuse to carry out a medical service,
invoking his or her objections on the ground of conscience. He or she is obliged to inform the
patient where the medical service in question can be obtained and to enter a note concerning the
refusal in the patient’s medical records. Doctors employed in health-care institutions are also
obliged to inform their supervisors in writing about the refusal.
COMPLAINTS
1. The applicant complains that the proceedings that she instituted did not allow the prompt and
effective establishment of responsibility for her daughter’s death.
2. The applicant claims under Article 2 that the State failed to adopt a legal framework that would
have prevented the death of her daughter. She specifically challenges the manner in which the law
governing conscientious objection is regulated and overseen.
3. The applicant alleges under Article 2 that the doctors treating her daughter failed to undertake
the necessary diagnostic tests and to provide the required treatment.
4. The applicant complains that her daughter was subjected to inhuman and degrading treatment as
a result of the doctors’ intentional failure to provide the necessary medical treatment.
5. The applicant alleges under Article 8 that the doctors did not provide her and her daughter with
reliable and timely information about her daughter’s health. She further complains about the
conscientious objection law and about her lack of access to the relevant medical records.
6. The applicant submits under Article 14, in connection with Articles 2, 3 and 8, that her daughter
was discriminated against on the ground of her pregnancy.
7. Lastly, the applicant complains under Article 13 that the authorities failed to carry out a
competent and thorough investigation.
QUESTIONS TO THE PARTIES
1. Has the applicant exhausted the domestic remedies given that the civil proceedings are still
pending?
2. Do the facts of the case disclose a failure on the part of the State to protect the applicant’s
daughter’s right to life, as guaranteed by Article 2 of the Convention?
3. Having regard to the procedural protection of the right to life (see Salman v. Turkey [GC], no.
21986/93, § 104, ECHR 2000-VII), was the investigation in the present case by the domestic
authorities in breach of Article 2 of the Convention?
4. Furthermore, with reference to the procedural obligations under Article 2 and under Article 8
after Y was refused a full endoscopy on the basis of the conscientious objection law was she
provided with a list of places where this service could have been obtained?
5. Has there been an interference with or failure to respect, the applicant’s private and/or family life,
within the meaning of Article 8 § 1 of the Convention? Reference is made to the fact that the
applicant could not obtain access to her daughter’s medical files.
6. Has there been a violation of Article 14 in conjunction with Articles 2 and 8 of the Convention on
the ground of the applicant’s daughter’s pregnancy?
Z v. POLAND – STATEMENT OF FACTS AND QUESTIONS
Z v. POLAND – STATEMENT OF FACTS AND QUESTIONS