February 25
2021
Dolores Utrilla
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23rd February 2021
Consumer, Health & Environment Human Rights Justice & Litigation

ECtHR: delayed medical attention giving rise to severe disability does not breach human rights unless there are exceptional circumstances

Today, the European Court of Human Rights (ECtHR) gave its judgment in Vilela and Others v. Portugal (application no. 63687/14), a case concerning allegations of medical negligence and the alleged breach of several provisions of the European Convention on Human Rights (ECHR), namely the right to life (Article 2), the prohibition of inhuman or degrading treatment (Article 3), the right to a fair hearing (Article 6(1)), the right to respect for private and family life (Article 8), and the right to property (Article 1 of Protocol No. 1 to the ECHR).

The case concerns the alleged medical negligence during the hospitalisation of one of the applicants when she gave birth to her child (who was born with a 100% degree of disability in 1994 and died in 2017) as well as the lack of effective and fair remedies for the victims of this kind of negligence under Portuguese law. The ECtHR found that only the procedural dimension of Article 8 ECHR (but not its substantive dimension) had been breached, and declared the remainder of the complaints inadmissible.

The ECtHR recalled that, although the right to health is not as such among the rights guaranteed by the ECHR, the High Contracting Parties have a positive obligation under Article 8 ECHR to (i) put in place regulations requiring public and private hospitals to adopt appropriate measures to protect the physical integrity of their patients, and (ii) provide victims of medical negligence with a procedure enabling them to obtain, where appropriate, compensation for their injury.

On the alleged violation of the substantive limb of Article 8 ECHR, the Strasbourg-based court noted that the applicants did not claim that there had been a systemic or structural dysfunction in the hospital at hand, nor that the child’s disability was caused intentionally or that access to health care was denied. They rather argued that the required caesarean was performed too late, which, according to the ECtHR’s case law, is not one of the exceptional circumstances involving the responsibility of the State from the perspective of the substantive content of Article 8 ECHR. According to settled case law, such exceptional circumstances occur when (i) health services knowingly endanger the life of a patient by denying access to vital treatment, and (ii) there is no access to vital treatment due to systemic or structural dysfunction in the concerned hospital, provided that the authorities had or should have been aware of this risk and had not taken the necessary measures to prevent it.

As for the alleged violation of the procedural dimension of Article 8 ECHR, the ECtHR observed that the applicants had access to effective civil liability proceedings where their case was impartially examined. However, it noted that proceedings before administrative courts lasted more than nine years, after having gone through three levels of jurisdiction, and found that the Government did not offer convincing and plausible justifications for the delay and the duration of the domestic proceedings. 

The judgment is available here.

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