5. Health care and treatment

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 treatment21

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.

137. The objectivity of expert opinions in cases of medical negligence cannot automatically be called into doubt on account of the fact that the experts are medical practitioners working in the domestic health-care system. Moreover, the very fact that an expert is employed in a public medical institution specially designated to provide expert reports on a particular issue and financed by the State does not in itself justify the fear that such experts will be unable to act neutrally and impartially in providing their expert opinions. What is important in this context is that the participation of an expert in the proceedings is accompanied by adequate procedural safeguards securing his or her formal and de facto independence and impartiality (Jurica v. Croatia, § 93). Furthermore, in view of the fact that medical expertise belongs to a technical field beyond the knowledge of judges, and is therefore likely to have a predominant influence on their assessment of the facts, the extent to which the parties are permitted to comment on that evidence, and the extent to which the courts take their comments into account, will be crucial (Mehmet Ulusoy and Others v. Turkey, §§ 109-110). 138. When it comes to access to health services, the Court has been cautious to extend Article 8 in a manner that would implicate extensive State resources because in view of their familiarity with the demands made on the healthcare system as well as with the funds available to meet those demands, the national authorities are in a better position to carry out this assessment than an international court (Pentiacova and Others v. Moldova (dec.)). 139. The Court ruled that an application against a decision by UK authorities not to implement a needle exchange programme for drug users in prisons was inadmissible (Shelley v. the United Kingdom (dec.)). In that case the Court held that there was no authority that placed any obligation under Article 8 on a Contracting State to pursue any particular preventive health policy. It also found that there was no violation of Article 8 as a result of Bulgaria’s refusal to allow terminally ill patients to use unauthorised, experimental drugs (Hristozov and Others v. Bulgaria; Durisotto v. Italy (dec.)) and rejected an application challenging legislation on the prescription of cannabis-based medication (A.M. and A.K.v. Hungary (dec.)), while referring to the State’s obligations in this area (§§ 46-47). In Abdyusheva and Others v. Russia, the Court ruled that a lack of access to replacement therapy with methadone or buprenorphine for opioid addicts did not violate Article 8 because it was within the State’s margin of appreciation to assess the risks of replacement therapy for public health and the applicant’s individual situation. 140. Regarding access to health care for people with disabilities, the Court declared a case inadmissible in which a severely disabled individual sought a robotic arm to assist his mobility (Sentges v. the Netherlands (dec.)). The Court did, however, find that reducing the level of care given to a woman with limited mobility violated Article 8, but only for a limited period during which the UK did not comply with its own laws (McDonald v. the United Kingdom). 141. In Gard and Others v. the United Kingdom (dec.) the Court rejected the arguments submitted by the parents of a seriously ill child that the question of their son’s treatment was not a matter for the courts to decide, holding on the contrary that it had been appropriate for the treating hospital to turn to the courts in the event of conflict between the parents and the hospital (§ 117). The Court left open the question of whether the appropriate test was the “best interests of the child” or whether the courts should instead ask if following the parents’ wishes would give rise to a risk of “significant harm” to the child (§§ 118-119). However, in Parfitt v. the United Kingdom (dec.), the Court found that the decision to apply the “best interests of the child” test in a case similar to that of Gard did not fall outside the margin of appreciation afforded to States in striking a balance between the protection of patients’ right to life and the protection of their right to respect for their private life and their personal autonomy (§ 51 - see Vavřička and Others v. the Czech Republic [GC], §§ 279, 280, 286-288).