Guide on Article 8 of the Convention – Right to respect for private and family life
sured that the applicant’s rights, will and preferences were taken into account. The applicant had been involved at all stages of the proceedings, had been heard in person and had been able to express his wishes. The fact that the authorities had not complied with the applicant’s wishes, in the interests of protecting his health and wellbeing, was found not to have breached Article 8.
5. Health care and treatment 21 135. Although the right to health is not as such among the rights guaranteed under the Convention or its Protocols, Contracting States are under a positive obligation to take appropriate measures to protect the life and health of those within their jurisdiction (see notably Vavřička and Others v. the Czech Republic [GC], § 282, and their obligation “to place the best interests of the child, and also those of children as a group, at the centre of all decisions affecting their health and development”, § 288). The High Contracting Parties have, parallel to their positive obligations under Article 2 of the Convention, a positive obligation under Article 8 firstly, to have in place regulations compelling both public and private hospitals to adopt appropriate measures for the protection of their patients’ physical integrity and, secondly, to provide victims of medical negligence access to proceedings in which they could, in appropriate cases, obtain compensation for damage (Vasileva v. Bulgaria, § 63; Jurica v. Croatia, § 84; Mehmet Ulusoy and Others v. Turkey, § 82, and Vilela v. Portugal, §§ 73-79, § 87 in relation to a child born with a 100% disability). Positive obligations are therefore limited to the duty to establish an effective regulatory framework obliging hospitals and health professionals to adopt appropriate measures to protect the integrity of patients. Consequently, even where medical negligence has been established, the Court will not normally find a violation of the substantive aspect of Article 8 - or of Article 2. However, in very exceptional circumstances State responsibility may be engaged because of the actions and omissions of health care providers. Such exceptional circumstances may arise where a patient’s life is knowingly endangered by the denial of access to life-saving treatment; and where a patient did not have access to such treatment because of systemic or structural dysfunction in hospital services, and where the authorities knew or ought to have known of this risk and did not take the necessary measures to prevent it from being realized (Mehmet Ulusoy and Others v. Turkey, §§ 83-84, citing Lopes de Sousa Fernandes v. Portugal [GC]). Those principles emerging from the Court’s Article 2 case-law also apply under Article 8 in the event of injury which falls short of threatening the right to life as secured under Article 2 (İbrahim Keskin v. Turkey, § 61). 136. The Court’s task is to verify the effectiveness of the remedies used by the applicants and thus to determine whether the judicial system ensured the proper implementation of the legislative and statutory framework designed to protect patients’ physical integrity (İbrahim Keskin v. Turkey, § 68 and Mehmet Ulusoy and Others v. Turkey, § 90). In all cases, the system put in place to determine the cause of the violation of the integrity of the person under the responsibility of health professionals must be independent. This presupposes not only a lack of a hierarchical or institutional link, but also the formal as well as the concrete independence of all the parties responsible for assessing the facts in the context of the procedure to establish the cause of the impugned infringement (Mehmet Ulusoy and Others v. Turkey, § 93). There is a requirement of promptness and reasonable diligence in the context of medical negligence (Vilela v. Portugal, §§ 87-88; Eryiğit v. Turkey, § 49). For example, proceedings lasting almost seven years are incompatible with Article 8 (İbrahim Keskin v. Turkey, §§ 69-70). 21
See also Disability issues.
European Court of Human Rights
37/161
Last update: 31.08.2021
