Interrelation between right to life and emergency medical care in light of article 2 of the European Convention on Human Rights



INTRODUCTION

The European Convention on Human Rights is the key legal document that outlines the basic human rights and freedoms. It’s a comprehensive, universal document with broad regulation despite its laconic nature. In general human rights and freedoms envisaged by the European Convention on Human Rights may be regarded as democratic rights.T he European Court of Human Rights constantly uses the terms of ,,democracy” and ,,democratic society” in connection with the fundamental human rights and freedoms. In Handyside Case the court notes, freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to [legitimate restrictions] it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. This means, amongst other things, that every “formality”, “condition”, “restriction” or “penalty” imposed in this sphere must be proportionate to the legitimate aim pursued” [6]. The court goes much further and puts the democratic principle of the protection of human rights above the formal requirement to prosecute criminals. This is especially visible in cases related to article 3 of the European convention of human rights.

The legal context of the European Convention of Human Rights is quite extensive and, among other things, it deals with a whole range of the so called, medical rights”, such as the avalaibility of medical care and its timeliness, including on specialized treatment and medical research, informed consent to medical procedures and its results, etc. In addition, the European Court of Human Rights in the Sunday Times v. UK stipulates: ,,In the Court’s opinion, the following are two of the requirements that flow from the expression “prescribed by law”. Firstly, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able — if need be with appropriate advice — to foresee, to a degree that is reasonable in the circumstances, the consequences, which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice” [13].

Article 2 of the European Convention on Human Rights — General Overview

Article 2 of The European Convention on Human Rights provides:,, 1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection” [14].

The right to life is a fundamental human right, which is the basis for other rights. It protects persons from the actions of state or individuals. Article 2 of the convention protects persons from the arbitrary deprivation of life. At the same time, a person may appeal the action of the state when the offense occurs in the absence of adequate protection from the government or by omissions from state officials. In Osman v. UK Case the European Court of Human Rights notes: ,,The Court notes that the first sentence of Article 2 § 1 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 the L. C. B. v. the United Kingdom judgment of 9 June 1998, Reports of Judgments and Decisions 1998-III, p. 1403, § 36). It is common ground that the State’s obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression OSMAN JUDGMENT OF 28 OCTOBER 1998 33 and sanctioning of breaches of such provisions. It is thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. The scope of this obligation is a matter of dispute between the parties” [10].

The right to life is not an absolute right. Part 2 of article 2 lists the situations in which use of force is permitted, which can lead to the unintentional loss of life. The use of force must be absolutely necessary for the purposes specified in sub-paragraphs of article. In addition, the use of force must strictly correspond with the legitimate aim. Proportionality should be assessed taking into account the nature of the aim pursued, the possible danger to life and the risk that the use of force can lead to life. At the same time, the intent of the person whose actions caused death should be directed at preventing certain consequences and prevention of certain actions, rather than deprivation of a person’s life. The proportionality principle is not directly envisaged in article 2, but is established in the Court’s case-law. For instance, Wasiliewska and Kalucka v. Poland Case ,,concerned the death of a suspect during an anti-terrorist operation”. In this case the court found the violation of article 2 of the convention stating that,, the Polish Government had failed to submit any comments regarding the proportionality of the level of force used by the police, the organization of the police action and whether an adequate legislative and administrative framework had been put in place to safeguard people against arbitrariness and abuse of force” [12].

Scholars argue that,, the purpose of this article is to require a duty on a state institutions to prevent unlawful killing and foreseeable loss of life as well to investigate deaths in suspicious circumstances, such as where an older person may die as a result of neglect or appalling care standard. As this is a qualified right, there may however be exceptions such as self-defence or in legitimate war. It is possible, however, that some may interpret this article to mean that treatment should be afforded to all regardless of the benefit that they may derive from the treatment. Possible criminal offences which may follow could be ,,murder” ,,,manslaughter”, or ,,gross negligence manslaughter” [2]. Article 2 of the European Convention on Human Rights does not encompass a right die. In Pretty v UK Case the court notes: ,,The consistent emphasis in all the cases before the Court has been the obligation of the State to protect life. The Court is not persuaded that the right to life” guaranteed in Article 2 can be interpreted as involving a negative aspect. While, for example in the context of Article 11 of the Convention, the freedom of association has been found to involve not only a right to join an association but a corresponding right not to be forced to join an association, the Court observes that the notion of a freedom implies some measure of choice as to its exercise (see Young, James and Webster v. the United Kingdom, judgment of 13 August 1981, Series A no. 44, pp. 21–22, § 52, and Sigurđur A. Sigurjónsson v. Iceland, judgment of 30 June 1993, Series A no. 264, pp. 15–16, § 35). Article 2 of the Convention is phrased in different terms. It is unconcerned with issues to do with the quality of living or what a person chooses to do with his or her life. To the extent that these aspects are recognized as so fundamental to the human condition that they require protection from State interference, they may be reflected in the rights guaranteed by other Articles of the Convention, or in other international human rights instruments. Article 2 cannot, without a distortion of language, be interpreted as conferring the diametrically opposite right, namely a right to die; nor can it create a right to self determination in the sense of conferring on an individual the entitlement to choose death rather than life.

Emergency medical care and case law of the European Court of Human Rights Asiye Genc v. Turkey. ECHR. 2015.

On March 31, 2005, the applicant underwent a caesarian section. Almost immediately after the birth, the baby’s breathening was disrupted. Due to the fact that the hospital didn’t have a specialized department of neonatology, the doctors decided to take him to another hospital, located at distance of 110 kilometers.

On April 1, 2005, initially the state hospital refused to take the child on the basis that in the department of resuscitation for newborns were no empty seats. Finally, the child was taken to the medical-surgical and maternity department. There the doctor explained that they do not have the incubator for newborn care, and suggested parents to return to the state hospital. When they arrived there, the doctors said that they could not ensure the reception of a premature baby, as the neonatology ward was full. Consequently, the child died in an ambulance car on the way back.

On April 6, 2005, the couple filed a complaint on the basis of which two investigations were initiated. Eventually, the criminal case against the medical workers were terminated due to the lack of evidences, and the results of an administrative investigation carried out by the Ministry of Health of Turkey. It was concluded that the personnel of the hospital didn’t commit any wrongdoing, so that there was no reason to bring them to justice [1].

In this case the court held that ,,there had been a violation of the right to life in Article 2 ECHR because the Turkish authorities had failed to ensure the proper organization and functioning of the public hospital service. The child died because it had not been offered any treatment. According to the Court, this situation constituted a denial of medical care such as to put a person’s life in danger. Secondly, the Court found that the Turkish judicial system’s response to the tragedy had not been appropriate for the purposes of shedding light on the exact circumstances of the child’s death. With respect to medical care,, the Court comes remarkably close to the right to (protection of) health as recognized in Article 11 of the European Social Charter (ESC) and Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). It is also interesting that the Court refers in this respect to the ‘quantity’ and ‘state’ of the medical services. In General Comment 14 on the right to health in Article 12 ICESCR, the ESCR Committee formulates the so-called ‘AAAQ’, containing the obligations on the part of the State to ensure the availability, accessibility, acceptability and quality of health services. The ‘quantity’ and ‘state’ of medical services, as mentioned in this judgment, can be traced back to ‘availability’ and ‘quality’ in the AAAQ. In this case, the ECtHR formulates a bottom line or possibly a ‘minimum core’ for the right to health or medical care: there is a violation of the right to life when emergency medical care is structurally absent and the patient will die as a result of this” [3].

This judgment forms part of a growing body of case law from the European Court of Human Rights addressing the State’s duty to provide adequate and timely medical services. By recognizing the duty to provide treatment, the Court clearly touches on the scope of the right to health, even though this right is not explicitly recognized in the ECHR” [8].

Mehmet Şenturk and Bekir Şenturk v. Turkey. ECHR. 2013.

The first applicants wife and second applicant’s mother, who was thirty-four weeks pregnant, went to state hospital complaining of pain. She was examined by a midwife, who considered that there was no need to call for the duty doctor. The couple then went to İzmir State Hospital, where Mrs Şentürk was again examined by a midwife without the duty doctor being called. As Mrs Şentürk continued to suffer pain, her husband drove her to Atatürk Training and Research Hospital. She was examined this time by a urologist, who prescribed medication for her.

As her pain did not lessen after she returned home, Mrs Şentürk was admitted to Ege University Hospital that evening. She was examined by an emergency doctor and transferred to the gynaecology department, where the doctors found that the child was dead. Mrs Şentürk was told that she would have to be operated on to remove the child and, according to the applicants, was then asked to pay a deposit to cover the costs of her hospital admission and the surgery. As they did not have the sum required, the couple were sent to İzmir Gynaecology and Obstetrics Hospital. Mrs Şentürk died without receiving any medical assistance while being transferred in the ambulance.

In this case the court found a violation of article 2 of the convention. On the one hand, the court noted that the state failed to protect the physical integrity of the applicants, because the hospital was primarily occupied with the financial aspect of the medical intervention knowing that the absence of medical intervention could have serious consequences [9]. From the procedural standpoint, the court noted that,, The procedure took more than nine years, among which three years had been taken up only for the administrative part concerning the leave to bring prosecutions in front of the domestic courts. The Court considers a prompt reaction as vital in maintaining public confidence and support for the rule of law and concludes that this promptness in examining the Şentürk’s case was not present” [10].

This case reinforced the principle according to which ,,an issue may arise under Article 2 of the Convention where it is shown that the authorites of a Contracting State put an individual’s life at risk through the denial of health care which they have undertaken to make avalaible to the population generally” [4].

CONCLUSION

As we have seen, the court firmly protects fundamental human rights and freedoms of individuals recognizing the supremacy of human rights and freedoms. The issues of emergency medical treatment falls under article 2 of the European Convention on Human Rights. In this respect states have a number of positive obligations. Moreover, according to the court, the emergency medical care ,,is not dependent upon the patient’s ability to pay for such treatment, and that (in the absence of an explicit right to health) the right to life includes an obligation to provide timely emergency medical treatment, irrespective of state financial resource constraints” [7]. Thus, the contracting parties of the convention have an obligation to do, “all that could have been required of it to prevent the applicant’s life from being avoidably put at risk” [5].

References:

1. Asiye Genc v. Turkey.ECHR. 2015. Press Release. http://healthrights.mk/healthrightsmk/pdf/Vesti/2015/02.2015/Judgment/20Asiye/20Genc/20v./20Turkey.pdf
2. Buka Р. Davis M. Pereira Madalene.,,Care of vulnerable older people”. Palgrave Macmillan. 2016 Р. 75.
3. Case Law Discussion on AsiyeGenc v. Turkey.ECtHR. 2015. https://escrblog.wordpress.com/2015/03/23/case-law-discussion-on-asiye-genc-v-turkey-ecthr-27-january-2015/
4. Cyprus v. Turkey.ECtHR. 2001. Paragraph 219.
5. Grand Chamber of the Court in Calvelli and Ciglio v. Italy. 2002.] ECtHR 32967/96 (17 January 2002, Grand Chamber https://strasbourgobservers.com/2013/05/24/mehmet-senturk-and-bekir-senturk-v-turkey-the-court-could-have-shown-more-empathy/.
6. Handyside v. UK, ECtHR. 1976. Paragraph 49.
7. https://www.hhrjournal.org/2013/12/advancing-human-rights-in-patient-care-through-strategic-litigation-challenging-medical-confidentiality-issues-in-countries-in-transition/
8. Lack of medical assistance for a pregnant woman requiring emergency treatment breached Article 2 of the Convention. PressRelease.
9. Mehmet Senturk and BekirSenturk v. Turkey: The court could have shown more empathy https://strasbourgobservers.com/2013/05/24/mehmet-senturk-and-bekir-senturk-v-turkey-the-court-could-have-shown-more-empathy/.
10. Osman v. UK.ECtHR. 1999. Paragraph 115.
11. Powell v United Kingdom (2000) 30 EHRR CD 362 and also L. C. B. v. the United Kingdom (1999) 27 EHRR 212)
12. Right to life. General Overview. European Court of Human Rights.Factssheet. http://www.echr.coe.int/Documents/FS_Life_ENG.pdf
13. The Sunday Times v. UK, ECtHR. 1979. Paragraph 49.
14. The European Convention on Human Rights. Article 2. http://www.echr.coe.int/Documents/Convention_ENG.pdf