| Applicant name | MAYBORODA |
| Applicant type | natural person |
| Number of applicants | 1 |
| Country | UKRAINE |
| Application no. | 14709/07 |
| Date | 13/04/2023 |
| Judges | Georges Ravarani, President, Carlo Ranzoni, Mārtiņš Mits, Stéphanie Mourou-Vikström, Lado Chanturia, Mattias Guyomar, Mykola Gnatovskyy |
| Institution | Court |
| Type | Judgment |
| Outcome Art. 8 | Violation |
| Reason | Positive obligation |
| Type of privacy | Procedural privacy; Informational privacy; private life |
| Keywords | Emergency medical procedure; right to information |
| Facts of the case | The case concerns, under Article 8 of the Convention, the applicant’s allegations that the respondent State failed to protect her right to informed consent in relation to a nephrectomy (surgical removal of a kidney) to which she was subjected as a matter of emergency and while she was unconscious and from concealment by her physicians, in the post-operative period, of the information concerning the kidney removal. |
| Analysis | The applicant’s daughter has locus standi and can pursue the proceedings after the applicant’s death. The domestic courts found the applicant’s consulting physician liable for a breach of his duties to inform either the applicant, or at least her relatives, of the fact that her kidney had been removed. The applicant was awarded compensation for the distress she had suffered. Insofar as the applicant complained that she remained the victim of a breach of her Convention rights because her complaints against other defendants had been dismissed, the Court reiterates that its task is not to decide on the liability of an individual defendant for a breach of domestic legal provisions, but to determine the State’s responsibility for observance of its obligations under the Convention. The Court finds that neither the record-keeping system in the Hospital nor any other national or local regulatory instrument envisaged any formalised procedure obliging the general practicioner to document his decision to derogate from his general disclosure duty. It appeared the the GP was instructed to hide information by his boss. Interestingly, in their solidarity declaration in support of that instruction., members of the Lviv Medical Association endorsed hiding from patients of information which could arouse in them fear or anguish and advocated an approach to patients’ information rights that was completely opposite to that laid out in the applicable legislation. In these circumstances, the applicant could have understandably felt distressed by what appeared to her to be a failure to put in place the mechanism for implementing the legislative provisions protecting her right to information concerning her medical treatment and to ensure high professional standards among the medical practitioners. However, the Court finds, the dismissal, in the civil proceedings, of some of the applicant’s arguments and her claims against the hospital and other defendants does not disclose any appearance of arbitrariness or manifestly deficient approach. The Court considers that the applicant’s grievance as regards the alleged failure of the State to protect her from concealment of information by her physicians was sufficiently addressed by the domestic judicial system. She can no longer claim to be a victim on that point. However, the applicant’s consent to the disputed surgical intervention was sought and, indeed given, albeit without any discussion as regards a possible kidney removal to achieve the stated aim of halting the bleeding. The applicant argued that her medical team had an obligation to discuss a possibility of kidney removal with her prior to the disputed operation or at least to consult her relatives on the matter as soon as the need to remove the kidney had become apparent. The Court finds that neither the civil courts, nor the authorities, which carried out the official inquiries and ordered expert conclusions in that context, scrutinised the relevant matters in detail. Instead, they essentially confined their analysis to a general finding that the applicant’s kidney had been removed on life-saving grounds. It appears from the file that the difficulty in addressing the applicant’s relevant and important arguments stemmed from the lack of necessary guidelines, regulations, professional standards, hospital records or other pertinent documents. The Court reiterates that the States generally have a broad margin of appreciation as regards laying down their healthcare policy and that the mere fact that the regulatory framework may be deficient in some respect is not sufficient in itself to raise an issue under Convention. Nevertheless, it considers that the setting up of some standard guidelines and formalised procedures, either at the national or the local institutional level, detailing key elements of the right to informed consent. In the applicant’s case, such guidelines and procedures would have been equally necessary for guiding her medical practitioners in their day-to-day work, for enabling the supervisory authorities to intervene promptly in the event of any omissions, and for protecting both: the applicant from malpractice and her medical team from any possibly unfounded accusations. The Court considers that the respondent State has not fulfilled its positive duty to set up an appropriate regulatory framework to protect the applicant’s right to informed consent. |
| Other Article violation? | No violation 3 and 13 ECHR |
| Damage awarded | a) that the respondent State is to pay Mrs Myroslava Korostelova, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 4,500 (four thousand and five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; |
| Documents | Judgment |