ITEMID: 001-61663
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF GLASS v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Matti Pellonpää;Nicolas Bratza;Scott Baker
TEXT: 7. The applicants, David (the first applicant) and Carol (the second applicant) Glass, are United Kingdom nationals. The first applicant, born in 1986, is a severely mentally and physically disabled child who requires twenty-four hour attention. The second applicant is his mother.
8. The facts of the case, as submitted by the parties, may be summarised as follows.
9. The first applicant had been particularly unwell since July 1998 when he was admitted to St Mary's Hospital, one of two hospitals belonging to the Portsmouth Hospitals National Health Service (NHS) Trust (“the Trust”). He was operated on in order to alleviate an upper respiratory tract obstruction. The first applicant suffered post-operative complications, including infections, and had to be put on a ventilator since he had become critically ill.
10. During the period of the first applicant's treatment, discussions took place at the hospital between the second applicant and intensive-care staff and paediatricians. Among the views expressed was that, despite the best care, the first applicant was dying and that further intensive care would be inappropriate. The second applicant and other family members were not happy with this opinion, although a note drawn up on 30 July 1998 by Dr Smith mentioned that the family had appeared to accept the situation “without distress or significant surprise”. However, on 31 July 1998, following an “unconstructive and confrontational” meeting with family members, the hospital offered to arrange for an outside opinion on David's condition and the suitability of further active intensive-care therapy. This offer was made twice and on both occasions was refused. The Trust consulted its solicitors and advised the applicants to consult their solicitors.
11. However, the first applicant's condition improved and on 31 July 1998 he was able to be returned from intensive care to the paediatric ward. The applicants draw attention to the fact that the first applicant's notes on being discharged from intensive care made reference to a “demanding family”. They also observe that a note of Dr Wozniak drawn up on 3 August 1998 stated:
“I think [the first applicant] would not survive this illness despite our efforts, but our efforts continue and we will continue his antibiotics, physio' and attempt to find feeds that he will tolerate ... We may need to consider measures to relieve distress e.g. hyoscine for the secretions, morphine and the risk of those measures and mum felt that this was not appropriate at present.”
12. The first applicant was eventually able to return home on 2 September 1998. However, he had to be readmitted to the hospital on several occasions thereafter on account of respiratory tract infections.
On one such occasion, on 8 September 1998, the doctors discussed with the second applicant the use of morphine to alleviate distress. The second applicant expressed her opposition to the use of morphine or other drugs to relieve distress. She told the doctors that in the event that the first applicant's heart stopped she would expect resuscitation, including intubation. Dr Walker considered that this would not be in the first applicant's best interests, and stated that if death were inevitable all that was on offer was “morphine and TLC [tender loving care]”. Dr Walker's case notes recorded that:
“These replies [of the second applicant] are contrary to decisions particularly previously made and I do not believe that further intensive care is in [the first applicant's] best interest. This needs to be resolved before it becomes necessary and I have therefore said that we need a second opinion – if necessary appointed by the courts to ensure an impartial decision by which we would all comply.”
That same day the applicants' general practitioner informed the hospital that he had been contacted by the applicants' solicitor about the family's concern that the first applicant would be “helped on his way” with morphine.
13. Dr Walker reported as follows on a discussion which she had with the second applicant on 8 September 1998:
“If [the first applicant] deteriorates rapidly he should receive bag and mask positive pressure respiration, but no cardiac massage and no intravenous or other drugs to resuscitate him.”
14. As to the use of morphine, Dr Walker stressed at the meeting that the doctors would never prescribe it or other sedatives without first discussing this with the second applicant. Dr Walker stated in her notes:
“I have told [the second applicant] that we can give morphine to alleviate distress even vs. their wishes (and we can – I am assured by the Official Solicitor that no judge has ever overturned a doctor's decision to withdraw treatment/alleviate symptoms) but we wouldn't without telling them.”
15. According to the Government, the agreement as regards non-resuscitation was confirmed with the second applicant on 9 September 1998 by Dr Hallet. Dr Hallet's contemporaneous notes on the matter state:
“The position appears to me to be precarious. He may recover with the antibiotics but the inability to cough secretions makes it possible that he will deteriorate and die. I have discussed the latter scenario. Mother says that she would like bag and mask but understands that it would not be appropriate to go on to full intubation and ITU treatment. This is as discussed with Dr Walker.”
16. Dr Hallet and the second applicant also discussed on that occasion the use of morphine in therapeutic doses. The applicants point out that Dr Hallet recognised that:
“In the event of total disagreement we should be obliged to go to the courts to provide support for decision. Mother says she does not understand this.”
17. Dr Hallet's notes record the following:
“Mother said that she would not contemplate euthanasia and I said that we would not either. The question of morphine came up and she agrees with the use of morphine in therapeutic doses to overcome pain if necessary.
... in view of today's and yesterday's discussions with mother which appear to have achieved a common ground, involvement of the court may not be necessary.”
18. The first applicant's condition deteriorated. He was admitted to St Mary's Hospital on 15 October 1998, and then again on 18 October 1998 following respiratory failure.
19. The first applicant was treated over the course of 19 October 1998. His condition was reviewed on separate occasions by two doctors, both of whom expressed serious concern about his prospects of surviving. Dr Walker observed that the first applicant looked “ghastly” and “exhausted”.
20. At 1.30 p.m. on 20 October 1998, the medical opinion was that the first applicant “was going into the terminal phase of respiratory failure”.
21. At 5.45 p.m. on 20 October 1998, Dr Hallet noted that the first applicant was “dying from his lung disease”.
22. The doctors treating the first applicant advised that diamorphine should be administered to him, believing that he had entered a terminal phase and required pain relief. The second applicant and other members of the family did not agree with the doctors' view that her son was dying and were very concerned that the administration of diamorphine (previously morphine had been mentioned) would compromise his chances of recovery. The second applicant voiced her concerns at a meeting with Drs Walker and Hallet and the Chief Executive of the Trust. A woman police officer was also present. The hospital persisted in its wish to give the first applicant diamorphine, while the second applicant was given an assurance that he would only be given “the smallest possible dose”. According to the applicants, the Chief Executive of the Trust had an influential role at the meeting and made it clear to the second applicant that diamorphine would be given to the first applicant. They refer in this connection to a letter written by the Chief Executive to the applicants' MP on 23 November 1998, in which he stated that he had instructed the doctors to administer diamorphine to the first applicant at the minimum dosage over a twenty-four hour period. The Government assert that the Chief Executive had no role to play whatsoever in the exercise of clinical judgment in the first applicant's case.
23. The notes of Drs Walker, Ashton and Hallet all stressed that the administration of morphine was not intended to kill the first applicant but to relieve his distress. Dr Hallet observed in his notes that the doctors who had met with the second applicant had stressed that the “use of morphine is NOT euthanasia – it is to relieve [the first applicant's] distress ...”.
24. The second applicant subsequently expressed the wish to take the first applicant home if the doctors were correct in their view that he was dying. A police officer in attendance advised her that if she attempted to remove him, she would be arrested. The hospital also indicated that unless the family members present allowed the doctors to commence diamorphine the police would remove them also. The second applicant tried without success to contact her solicitor, including at the latter's home.
25. A diamorphine infusion was commenced at 7 p.m. on 20 October 1998. The applicants maintain that the dose administered, namely 1 mg per hour, was in reality an adult dose and excessive for a child of the first applicant's age. The Government deny this and point to the first applicant's weight and to the fact that previous treatment with opiates had rendered the first applicant more tolerant to them.
26. A dispute broke out in the hospital involving the family members (but not the second applicant) and the doctors. The family members believed that the first applicant was being covertly euthanased and attempted to prevent the doctors from entering the first applicant's room. The hospital authorities called the security staff and threatened to remove the family from the hospital by force.
27. A do-not-resuscitate order (DNR) was put in the first applicant's medical notes without consulting the second applicant.
28. The dosage was reduced by half at 10 a.m. on 21 October 1998 in response to the family's continuing objections. The Government draw attention to the views of the doctors that the dose administered to the first applicant had improved his condition. Dr Walker found that it was:
“a real relief and pleasant to see [the first applicant] peaceful and settled ... and his overall condition including agitation and distress had markedly improved”.
29. The following day the second applicant found that her son's condition had deteriorated alarmingly and was worried that this was due to the effect which the diamorphine was having on him. The family became extremely agitated and demanded that diamorphine be stopped. Dr Walker stated that this was only possible if the family agreed not to resuscitate or stimulate the first applicant. The Government contend that Dr Walker's objective was to prevent the family from disturbing the first applicant by creating undue noise and touching him, since at that time he was peaceful, breathing deeply and was not in distress.
30. The family tried to revive the first applicant and a fight broke out between certain members of the family and Drs Walker and Ashton.
31. The second applicant successfully resuscitated her son while the fight was going on. At some stage the police were summoned to the hospital in response to the assaults on Drs Walker and Ashton. Several police officers were injured and the mother of another patient on the ward was pushed against a wall. All but one of the children on the ward had to be evacuated. The injuries sustained by Drs Walker and Ashton were such that they were unable to perform their normal duties for a time.
32. The first applicant's condition improved and he was able to respond to stimuli from his relatives. He was able to be discharged on 21 October 1998.
33. The second applicant states that the Trust made no arrangements for any alternative care on discharge for the first applicant. They mention that the Trust did not arrange for him to be given an antidote for diamorphine and that the second applicant had to acquire equipment for measuring his oxygen saturation. In this connection, the Government draw attention to a report by Dr Hallet, which states:
“It was felt that further care within the hospital setting was impossible and that he would be better managed at home, provided that we could obtain oxygen for the home. Arrangements were made to obtain oxygen and I discussed with his general practitioner to take on the responsibility of caring for his major chest problems at home. I then telephoned the Clinical Director at Southampton General Hospital to enquire whether they would accept him if he had to be readmitted in view of the severe disturbances to the hospital staff. I discussed going home with his mother who agreed to this and we then made telephone calls to community nurses and made arrangements for home oxygen. Following this transport was arranged to take the patient home.”
34. On 23 June 2000 some of the family members involved in the fracas with the doctors were convicted of assault and ordered to be excluded from the hospital. On 28 July 2000 their sentences were reduced on appeal. On 26 October 1999 the Trust had dropped its civil action for trespass against the second applicant for want of a legal basis.
On 5 November 1998 the Medical Director of the Trust notified the second applicant in a letter that the paediatric staff at the hospital were anxious about a repetition of the problems which arose when her son was last admitted and were no longer confident of being able to give him the treatment he required. The letter continued:
“Unfortunately [Portsmouth Hospital] believe that all we could offer [the first applicant] would be to make his remaining life as comfortable as possible and take no active steps to prolong life. This obviously means withholding or giving treatment with which you may not agree. As there seems no easy way to resolve these differences it would be sensible, if [the first applicant] required further inpatient care, for this to be provided at another hospital.”
35. The second applicant was informed that Southampton General Hospital, about twenty-five miles from her home, was willing to admit and treat her son should he suffer a further attack.
36. The family's general practitioner subsequently contacted Southampton General Hospital with a view to discussing arrangements for the first applicant's admission in the event of a future emergency.
37. The second applicant applied for judicial review of the decisions made by the Trust with regard to the medical treatment of her son. The matter came before Mr Justice Scott Baker.
38. On 21 April 1998 Mr Justice Scott Baker ruled that the Trust's decision was not susceptible to review because the situation had passed and would not arise again at the hospitals managed by it or, it was to be hoped, at any other hospital. He added:
“If there is serious disagreement, the best interests procedure can be involved at short notice and the court will resolve it on the basis of the facts as they are then. They will almost inevitably be different from the facts as they were in October 1998. ... In any event it is unclear precisely what the facts were in October 1998 on the evidence that is before this court. ... Furthermore, if there is a crisis in the future, I am confident that if the matter is brought before the court the Official Solicitor will again provide assistance.”
39. In Mr Justice Scott Baker's view, judicial review was too blunt an instrument for the sensitive and on-going problems of the type raised by the case. In particular, he considered that it would be very difficult to frame any declaration in meaningful terms in a hypothetical situation so as not to restrict unnecessarily proper treatment by the doctors in an on-going and developing matter. He stressed in conclusion:
“Nothing, I would finally say, should be read into this judgment to infer that it is my view that [Portsmouth Hospital] in this case acted either lawfully or unlawfully.”
40. The second applicant applied for permission to appeal to the Court of Appeal. The application was refused on 21 July 1999. Giving judgment, Lord Woolf, Master of the Rolls, was of the view that the considerations which might arise in relation to the first applicant and other children who suffered from similar disabilities were almost infinite and for the courts to try and produce clarity would be a task fraught with danger. He stated:
“There are questions of judgment involved. There can be no doubt that the best course is for a parent of a child to agree on the course which the doctors are proposing to take, having fully consulted the parent and for the parent to fully understand what is involved. That is the course which should always be adopted in a case of this nature. If that is not possible and there is a conflict, and if the conflict is of a grave nature, the matter must then be brought before the court so the court can decide what is in the best interests of the child concerned. Faced with a particular problem, the courts will answer that problem. ...
... The difficulty in this area is that there are conflicting principles involved. The principles of law are clearly established, but how you apply those principles to particular facts is often very difficult to anticipate. It is only when the court is faced with that task that it gives an answer which reflects the view of the court as to what is in the best interests of the child. In doing so it takes into account the natural concerns and the responsibilities of the parent. It also takes into account the views of the doctors, and considers what is the most desirable answer taking the best advice it can obtain from, among others, the Official Solicitor. That is the way, in my judgment, that the courts must react in this very sensitive and difficult area.”
41. Lord Woolf disagreed with Mr Justice Scott Baker's view that the applicants had used the wrong legal procedure. In his opinion, “particularly in cases regarding children, the last thing the court should be concerned about is whether the right procedure has been used in the particular case”.
42. The second applicant complained to the General Medical Council about the conduct of the doctors involved in her son's care, in particular that they had assaulted him by administering heroin to him against her wishes and without a court authorisation.
43. On 7 January 2000 the General Medical Council concluded that its investigation revealed that the doctors involved had not been guilty of serious professional misconduct or seriously deficient performance and that the treatment complained of had been justified in the light of the emergency situation which confronted the doctors at the material time. According to the General Medical Council, the test for bringing disciplinary proceedings against the doctors was not satisfied on the evidence. It had asked itself in this connection whether the doctors put themselves in a reasonable position from which to arrive at the decision they did and whether the decision reached was so “outrageous” that no reasonably competent doctor could have reached it.
44. The second applicant also complained to the Hampshire police about the conduct of the doctors who had treated her son. An investigation was opened. The doctors were interviewed and a report sent to the Crown Prosecution Service.
On 8 May 2000 the second applicant's solicitors informed her that the Crown Prosecution Service had decided not to bring charges against the doctors involved for lack of evidence. In a letter dated 16 June 2000 to her solicitors, the Crown Prosecution Service indicated the reasons which led to this finding as well as the various materials relied on in reaching its conclusion on the advisability of bringing charges against the doctors in relation to the offences of attempted murder and conspiracy to murder and offences under the Offences against the Person Act 1861.
45. Paragraph 24 of the General Medical Council's guidance “Seeking patients' consent: the ethical considerations” provides:
“Where a child under 16 years old is not competent to give or withhold the informed consent, a person with parental responsibility may authorise investigations or treatment which are in the child's best interests. This person may also refuse any intervention where they consider that refusal to be in the child's best interest, but you are not bound by such a refusal and may seek a ruling from the court. In an emergency, where you consider that it is in the child's best interest to proceed, you may treat the child, provided it is limited to that treatment which is reasonably required in an emergency.”
In Re J. (A Minor) (Wardship: Medical Treatment) ([1990] 3 All England Law Reports), Lord Donaldson, Master of the Rolls, stated:
“The doctors owe the child a duty to care for it in accordance with good medical practice recognised as appropriate by a competent body of professional opinion ... This duty is however subject to the qualification that, if time permits, they must obtain the consent of the parents before undertaking serious invasive treatment.
The parents owe the child a duty to give or withhold consent in the best interests of the child and without regard to their own interests.
The court when exercising the parens patriae jurisdiction takes over the rights and duties of the parents, although this is not to say that the parents will be excluded from the decision-making process. Nevertheless in the end the responsibility for the decision whether to give or to withhold consent is that of the court alone.
...
No-one can dictate the treatment to be given to the child – neither court, parents nor doctors. There are checks and balances. The doctors can recommend treatment A in preference to treatment B. They can also refuse to adopt treatment C on the grounds that it is medically contra-indicated or for some other reason is a treatment which they could not conscientiously administer. The court or parents for their part can refuse to consent to treatment A or B or both, but cannot insist on treatment C. The inevitable and desirable result is that choice of treatment is in some measure a joint decision of the doctors and the court or parents.
...”
In A National Health Service Trust v. D. ([2000] Family Court Reports 577), it was held:
“The court's clear respect for the sanctity of human life must impose a strong obligation in favour of taking all steps capable of preserving life, save in exceptional circumstances.”
46. In that case, the court accepted the views of doctors treating a child that resuscitation of the child in the event of respiratory or cardiac arrest would be inappropriate.
47. According to the Government, English law recognises that it may be in the best interests of a child or of an adult to be treated with medication which relieves his symptoms but has the side-effect of hastening death.
According to Part 3B of the British Medical Association guidance “Withholding and withdrawing medical treatment: guidance for decision making”:
“... where there is reasonable uncertainty about the benefit of life-prolonging treatment, there should be a presumption in favour of initiating it, although there are circumstances in which active intervention (other than basic care) would not be appropriate since best interests is not synonymous with prolongation of life ... If the child's condition is incompatible with survival or where there is broad consensus that the condition is so severe that treatment would not provide a benefit in terms of being able to restore or maintain the patient's health, intervention may be unjustified. Similarly, where treatments would involve suffering or distress to the child, these and other burdens must be weighed against the anticipated benefit, even if life cannot be prolonged without treatment.”
Paragraph 15.1 of the 2001 British Medical Association guidance “Withholding and withdrawing life-prolonging medical treatment” states:
“Those with parental responsibility for a baby or young child are legally and morally entitled to give or withhold consent to treatment. Their decisions will usually be determinative unless they conflict seriously with the interpretation of those providing care about the child's best interests.”
Paragraph 15.2 states:
“The law has confirmed that best interests and the balance of benefits and burdens are essential components of decision making and that the views of parents are a part of this. However, parents cannot necessarily insist on enforcing decisions based solely on their own preferences where these conflict with good medical evidence.”
48. At the time of the facts giving rise to the instant application, guidance had been published by the Royal College of Paediatrics and Child Health indicating the procedures that should normally be followed in the event of a parent dissenting from the opinion of the health-care team that treatment should be withheld from a child. The guidance states that a second opinion should normally be offered and the parent should be allowed time to consult advisers of their choice. Paragraph 3.4.3 states:
“In most cases, with proper explanation and adequate time, parents can accept medical advice, but if the parents do not consent to withdrawal or withhold consent, a second opinion should be obtained and then the courts should be consulted. The Official Solicitor's Office can be telephoned for advice which will help clarify the need for court involvement.”
Guidance published by the Department of Health in 2001, entitled “Consent: working with children”, deals explicitly with the situation where clinicians believe that treatment which the parents want is not appropriate. It states:
“One example would be where a child is very seriously ill, and clinicians believe that the suffering involved in further treatment would outweigh the possible benefits. Parents cannot require you to provide a particular treatment if you do not believe that it is clinically appropriate, but again the courts can be asked to rule if agreement cannot be reached. While a court would not require you to provide treatment against your clinical judgment, it could require you to transfer responsibility for the child's care to another clinician who does believe that the proposed treatment is appropriate.”
49. In Re A. (Conjoined Twins: Surgical Separation), Lord Justice Ward stated:
“Since the parents are empowered at law, it seems to be that their decision must be respected and in my judgment the hospital would be no more entitled to disregard their refusal than they are to disregard an adult person's refusal. I derive this from Re (A Minor) (Wardship: Consent to Treatment) [1992] Fam. 11, 22, where Lord Donaldson of Lymington, Master of the Rolls, said:
'It is trite law that in general a doctor is not entitled to treat a patient without the consent of someone who is authorised to give that consent. If he does so, he will be liable in damages for trespass to the person and may be guilty of a criminal assault'”
50. Under English law, there may be circumstances in which it is not practicable to seek a declaration from the courts, for example in an emergency situation where speedy decisions have to be taken concerning appropriate treatment. In Re C. (A Minor) ([1998] Lloyd's Reports: Medical 1), Sir Stephen Brown affirmed that the decision of a doctor whether to treat a child
“is dependent upon an exercise of his own professional judgment, subject only to the threshold requirement that save in exceptional cases usually of an emergency he has the consent of someone who has authority to give that consent”.
51. This is reflected in paragraph 14 of the Reference guide to consent for examination or treatment, which states:
“In an emergency it is justifiable to treat a child who lacks capacity without the consent of a person with parental authority, if it is impossible to obtain consent in time and if the treatment is vital to the survival or health of the child.”
52. In Re T (Adult: Refusal of Treatment) ([1994] 1 Weekly Law Reports Fam. 95), Lord Donaldson stated:
“If in a potentially life-threatening situation or one in which irreparable damage to the patient's health is to be anticipated, doctors or health authorities are faced with a refusal by an adult patient to accept essential treatment and they have real doubts as to the validity of that refusal, they should in the public interest, not to mention that of the patient, at once seek a declaration from the courts as to whether the proposed treatment would or would not be lawful. This step should not be left to the patient's family, who will probably not know of the facility and may be inhibited by questions of expense. Such cases will be rare, but when they do arise ... the courts can and will provide immediate assistance.”
53. The Department of Health's aide-mémoire on consent provides:
“4. Giving and obtaining consent is usually a process, not a one-off event. Patients can change their minds and withdraw consent at any time. If there is any doubt, you should always check that the patient still consents to your caring for or treating them.
Can children consent for themselves?
5. Before examining, treating or caring for a child, you must also seek consent. Young people aged 16 and 17 are presumed to have the competence to give consent for themselves. Younger children who understand fully what is involved in the proposed procedure can also give consent (although their parents will ideally be involved). In other cases, someone with parental responsibility must give consent on the child's behalf, unless they cannot be reached in an emergency. ...
What information should be provided?
...
7. Parents need sufficient information before they can decide whether to give their consent: for example information about the benefits and risks of the proposed treatment, and alternative treatments. If the patient is not offered as much information as they reasonably need to make their decision, and in a form they can understand, their consent may not be valid.”
54. Guidelines published in March 1993 by the British Medical Association and the Royal College of Nursing in conjunction with the Resuscitation Council provide in paragraph 1:
“It is appropriate to consider a do-not-resuscitate order (DNR) in the following circumstances:
a. Where the patient's condition indicates that effective Cardiopulmonary Resuscitation (CPR) is unlikely to be successful.
b. Where CPR is not in accord with the recorded, sustained wishes of the patient who is mentally competent.
c. Where successful CPR is likely to be followed by a length and quality of life which would not be acceptable to the patient.”
55. Paragraph 3 states:
“The overall responsibility for a DNR decision rests with the consultant in charge of the patient's care. This should be made after appropriate consultation and consideration of all aspects of the patient's condition. The perspectives of other members of the medical and nursing team, the patient and with due regard to patient confidentiality, the patient's relatives or close friends, may all be valuable in forming the consultant's decision.”
56. Paragraph 10 provides:
“Discussions of the advisability or otherwise of CPR will be highly sensitive and complex and should be undertaken by senior and experienced members of the medical team supported by senior nursing colleagues. A DNR order applies solely to CPR. It should be made clear that all other treatment and care which are appropriate for the patient are not precluded and should not be influenced by a DNR order.”
57. Current departmental guidance is set out in “Resuscitation policy” (HSC Circular 2000/028). It states:
“Resuscitation decisions are amongst the most sensitive decisions that clinicians, patients and parents may have to make. Patients (and where appropriate their relatives and carers) have as much right to be involved in those decisions as they do in other decisions about their care and treatment. As with all decision making, doctors have a duty to act in accordance with an appropriate and responsible body of professional opinion.”
“Chapter II – Consent
Article 5 – General rule

An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it.
This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks.
The person concerned may freely withdraw consent at any time.
Article 6 – Protection of persons not able to consent
1. Subject to Articles 17 and 20 below, an intervention may only be carried out on a person who does not have the capacity to consent, for his or her direct benefit.
2. Where, according to law, a minor does not have the capacity to consent to an intervention, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law.
The opinion of the minor shall be taken into consideration as an increasingly determining factor in proportion to his or her age and degree of maturity.
3. Where, according to law, an adult does not have the capacity to consent to an intervention because of a mental disability, a disease or for similar reasons, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law.
The individual concerned shall as far as possible take part in the authorisation procedure.
4. The representative, the authority, the person or the body mentioned in paragraphs 2 and 3 above shall be given, under the same conditions, the information referred to in Article 5.
5. The authorisation referred to in paragraphs 2 and 3 above may be withdrawn at any time in the best interests of the person concerned.
Article 7 – Protection of persons who have a mental disorder
Subject to protective conditions prescribed by law, including supervisory, control and appeal procedures, a person who has a mental disorder of a serious nature may be subjected, without his or her consent, to an intervention aimed at treating his or her mental disorder only where, without such treatment, serious harm is likely to result to his or her health.
Article 8 – Emergency situation
When because of an emergency situation the appropriate consent cannot be obtained, any medically necessary intervention may be carried out immediately for the benefit of the health of the individual concerned.
Article 9 – Previously expressed wishes
The previously expressed wishes relating to a medical intervention by a patient who is not, at the time of the intervention, in a state to express his or her wishes shall be taken into account.”
VIOLATED_ARTICLES: 8


ITEMID: 001-105102
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF CIECHOŃSKA v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 2 (substantive aspect);Non-pecuniary damage - award
JUDGES: Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1943 and lives in Warsaw.
6. On 10 July 1999 the applicant’s husband died after being hit by a tree in a health resort at Kudowa Zdrój, where he had been staying in a sanatorium. The tree toppled over and fell on the applicant while he was walking on the pavement. Three other people were injured in the accident.
7. The police arrived at the scene, examined the tree and took some black-and-white photographs. The police report stated that the tree was partly rotten and the roots had torn. The police heard an eye witness and a post mortem examination of the applicant’s husband was conducted. The Kłodzko District Prosecutor (Prokurator Rejonowy) opened an investigation into the incident.
8. On 15 July 1999 the Kłodzko District Prosecutor (Prokurator Rejonowy) discontinued the investigation into the applicant’s husband’s death, finding that it had been an unfortunate accident and that no offence had been committed. He established that the tree had fallen in strong winds. The cause of death was a fractured skull. The prosecutor also established that the Kudowa Municipal Office (Urzad Miasta) was responsible for the condition of trees in the city, and heard evidence from Ms A.P., the Inspector for Environmental Protection (inspektor do spraw ochrony środowiska), who testified that she had carried out a visual inspection of the tree in April and June 1999, together with a Mr Z.K. who worked for a company specialising in the protection and care of trees and shrubs. She said that the tree had looked healthy and there had been no indication that its removal was required. The prosecutor considered that that assessment was consistent with the examination of the tree after the accident as there were no visible signs that it had been unhealthy or rotten.
9. The applicant appealed against that decision.
10. On 7 September 1999 she obtained an opinion from the Institute of Meteorology and Water Management (IMGW) on weather conditions in Kudowa on 10 July 1999. According to the opinion, the wind had been weak or moderate that day and there had been no violent atmospheric conditions.
11. On 9 December 1999 the Kłodzko District Court (Sąd Rejonowy) allowed the applicant’s appeal and returned the case to the prosecutor to continue the investigation. It considered that the prosecuting authorities had failed to establish what had caused the tree to fall or to examine whether the visual inspection allegedly carried out by A.P. prior to the accident could be considered appropriate. It also pointed to the discrepancy between the police report, which had stated that the tree was partly rotten, and the prosecutor’s finding that it was healthy. The court instructed the prosecutor to question the police officers who had attended the scene and the persons who had been injured in the accident.
12. On 31 March 2000 the Kłodzko District Prosecutor discontinued the investigation finding that no offence had been committed. From his questioning of the police officers, he established that the tree had looked healthy but that after the accident it had become apparent that it had been partly rotten and had a weak root system. The prosecutor also considered that although the Institute for Meteorology had not recorded any violent wind there could have been local gusts. He concluded that the fall of the tree and the death of the applicant’s husband had not been caused by any negligence on the part of those responsible for maintaining the trees.
13. On 17 April 2000 the applicant appealed against that decision.
14. On 29 May 2000 the Świdnica Regional Prosecutor allowed the appeal and remitted the case to the District Prosecutor. The appellate prosecutor stressed the need to order expert opinions to establish the condition of the tree.
15. On 3 June 2000 an expert, E.M., submitted to the District Prosecutor his opinion on the condition of the fallen sycamore tree (klon jawor). On the basis of the testimonies of the police officers the expert established that the fallen tree was rotten inside and had been totally deprived of its roots. The photographs taken after the accident also showed that the tree’s root system had already been badly damaged beforehand. On the picture the trunk could be seen to have been completely deprived of its roots, which would not have been the case if the only thing which had caused it to fall had been strong winds. Nevertheless, the expert concluded that it was possible that such damage to the tree had not been visible from the outside, and that persons responsible for tree maintenance could not normally conduct a comprehensive examination of the roots.
16. On 9 June 2000 the Kłodzko District Prosecutor discontinued the proceedings, mainly on the basis of the expert opinion.
17. The applicant appealed.
18. On 3 July 2000 the Świdnica Regional Prosecutor allowed the appeal and remitted the case to the District Prosecutor. The appellate prosecutor emphasised that given the gravity of the accident, in which a person had died, all the circumstances had to be comprehensively clarified.
19. On 16 August 2000 the District Prosecutor ordered another expert opinion to determine the exact location of the tree and the owner of the property.
20. On 22 September 2000 the Kłodzko District Prosecutor again decided to discontinue the investigation into the applicant’s husband’s death, finding that it had been an accident for which nobody could be held responsible.
21. The applicant appealed and on 4 December 2000 the Świdnica Regional Prosecutor remitted the case to the District Prosecutor and ordered him to continue the investigation. On 15 December 2000 the case was transferred to another prosecutor and the prosecutor who had been dealing with the case up to that point was reprimanded for not following the instructions of the appellate authorities and for delaying the proceedings.
22. On 22 January 2001 the Kłodzko District Prosecutor ordered a further expert opinion.
23. On 19 March 2001 the expert inspected the scene of the accident and on 24 March 2001 submitted his opinion to the prosecutor.
24. On 18 May 2001 the prosecutor closed the investigation into the death of the applicant’s husband and on 25 May 2001 lodged a bill of indictment against Ms A.P., the Inspector for Environmental Protection, with the Kłodzko District Court, on charges of having failed to carry out her duty to prevent the sycamore tree from falling, and thereby causing the death of the applicant’s husband and injuries to three other persons.
25. On 31 May 2002 the applicant lodged a civil claim with the trial court for compensation in the amount of PLN 400,000 under Article 62 of the Code of Criminal Procedure. She also requested the court to begin the trial and hold a hearing. The applicant indicated her wish to act as an auxiliary prosecutor (oskarżyciel posiłkowy).
26. On 13 November 2002 the trial court held the first hearing. However, the court failed to examine the admissibility of the applicant’s civil claim.
27. On 2 December 2002 the applicant applied for legal aid as she could not afford to pay for a lawyer of her choice, was in poor health and – given the substantial distance of 550 kilometres between her home in Warsaw and the place of trial – it would be difficult for her to commute to hearings. It is not clear whether her application was ever examined.
28. Subsequently, until 28 May 2003 the court held hearings at regular intervals, heard evidence from witnesses and ordered an expert opinion. All hearings scheduled thereafter were cancelled owing to the illness of either the accused or the judge rapporteur.
29. At the next hearing, held on 7 October 2004, the composition of the court changed, so the trial had to start from the beginning. Subsequently witnesses were heard and on 4 January 2005 the trial court ordered an expert opinon. The expert failed to submit his opinion within the time-limit and on 27 June 2005 the trial court fined him. The expert finally submitted the opinion on 20 August 2005.
30. On 15 February 2006 the applicant, who had standing in the proceedings as an auxiliary prosecutor, lodged a complaint with the Świdnica Regional Court (Sąd Okręgowy) under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (“the 2004 Act”).
31. On 31 March 2006 the Świdnica Regional Court allowed her complaint, found that there had been a breach of her right to a trial within a reasonable time and awarded her PLN 3,000 in compensation. It found that there had been several lengthy periods during which the trial court had been totally inactive, for example, no action had been taken for twelve months after the bill of indictment was lodged with the trial court.
32. On 4 April 2006 the trial court held a hearing.
33. On 26 April 2006 it gave a judgment in which it acquitted Ms A.P. after finding that no offence had been committed. It found that she had conducted a proper inspection of the tree prior to the accident and had established that it was healthy. The experts had concluded that the tree looked healthy from the outside and that there had been no signs that the roots were badly damaged. The court considered that the event of 10 July 1999 was an unfortunate accident which had no direct link with the actions of the accused.
34. On 9 August 2006 the applicant appealed against the judgment. She submitted that Ms A.P. did not possess the relevant expertise and had been negligent in the manner in which she had inspected the trees or marked them out for removal. In particular, there was no evidence that the inspections had been carried out on the dates given by the accused. Moreover, the tree had been growing on an escarpment and the roots had apparently been removed during the installation of a gas pipeline directly underneath it. The applicant contended that these elements had not been examined by the trial court.
35. On 3 November 2006 the Świdnica Regional Court allowed the appeal and remitted the case. It pointed to several inconsistencies in the district court’s findings as to the relevant facts. In particular, it was not clear to what extent the tree had been leaning or whether the angle had been calculated with reference to the slope or the pavement.
36. The trial court held hearings on 11 April, 9 May and 7 September 2007.
37. On 7 September 2007 the Kłodzko District Court gave a judgment in which it acquitted Ms A.P. It established that she had not been under an obligation to inspect the trees or to prevent them from falling because that was not part of her duties.
38. The applicant and the prosecutor lodged appeals against the judgment.
39. On 11 December 2007 the Świdnica Regional Court quashed the judgment and remitted the case. It found that the trial court had failed to analyse the legal regulations in force at the material time. It pointed out that issues concerning trees in public places were the responsibility of the municipal authorities and that they could be held criminally liable for failure to carry out their duties properly. Thus, the Mayor of Kudowa Zdrój was obliged by law to order the removal of trees that were unsafe. Moreover, it appeared from the documents in the file that a gas pipeline had been laid under the tree, making it necessary to remove some of the roots, and that that issue had not been clarified. Lastly, the court noted that the trial court had failed to deal with the complaint, raised by the applicant in her appeal, that her claim for compensation had never been examined.
40. On an unspecified date in 2007 the applicant received from the office of the Mayor of Kudowa Zdrój a reply to her letter requesting compensation for her husband’s death. The Mayor refused to acknowledge the liability of the municipality and stated that the criminal court had not held the municipality responsible for her husband’s death. The applicant was further informed that if she lodged a civil claim for compensation it would most probably be stayed until the termination of the criminal proceedings.
41. The trial court held hearings on 5 May, 16 June, 23 July and 1 October 2008.
42. On 6 April 2009 it gave a judgment in which it again acquitted Ms A.P. The court established that the root system of the tree in question had been seriously damaged. However the disease had not been visible on the external parts of the tree – in particular on its crown. Thus persons checking the state of the tree could not have established that the tree had become a danger to the public and ordered its removal. Furthermore, the court established that there had been no grounds to believe that since the tree had grown on a slope it had been necessary to take any preventive measures by, for example, installing special supports.
The court considered that there had been many shortcomings in the preparatory proceedings. Consequently, many issues relating to the exact location of the tree, its condition, and whether it had been leaning, had not been elucidated. For example, it was not possible to establish if the roots of the fallen tree could have been damaged during the installation of the gas pipeline because it had not been clear where exactly the tree had been growing. Moreover, the tree, or its part, had not been secured for further examination but had been destroyed immediately after the accident. The photographic evidence was of poor quality, black-and-white, and blurred so the reason for the fall of the tree, and where it actually grew, could not be unambiguously clarified. According to the court, the expert opinions prepared on the basis of such poor evidentiary material could not make it possible to conclude that there had been grounds for removal of the tree or use of supports.
As regards the liability of Ms A.P. the court agreed with the previous findings and concluded that the accused had not been obliged to carry out controls of trees and to order their removal. Although her duties included “issuing of decisions to remove shrubs and trees”, such decisions had in fact been given by the Mayor and she had only been preparing files for his examination. The court acknowledged that Ms A.P. admitted to having carried out some controls of the trees together with a specialist. However, it considered that she had been doing so either directly in accordance with instructions of the Mayor or following complaints made by the public.
The court considered that the absence of clear regulations regarding who was responsible for the care of green areas and for carrying out checks of trees amounted to clear organisational negligence on the part of the municipality, for which the accused should not be held liable.
Finally, the court found that the applicant’s request for compensation had been pointless in the light of the acquittal of Ms A.P. because the obligation to compensate damage could arise only in the event of a conviction.
43. The applicant and the prosecutor each lodged appeals against the judgment.
44. On16 July 2009 the Świdnica Regional Court upheld the judgment. It agreed with the first-instance court in that, according to her contract of employment, the accused had not been required to undertake any actions aimed at protecting trees from falling. According to the law, the legal responsibility for care of the greenery lay with the municipality which should have secured the means and organised a system to fulfil its obligations. A failure of the municipality to take necessary measures to eliminate a danger to the public could result in criminal liability. The court however underlined that it had not been proved that the carrying out of these duties had been vested in the accused. Thus, she could not be held criminally liable for having failed to do so.
The court also established that taking into account the state of the trees discovered during an inspection on 19 March 2001, and the lengthy process of development of pathologies in trees, the Kudowa Zdrój Municipality had not been correctly carrying out the above-mentioned duty of care in respect of its green areas. Nevertheless, the responsibility for that failure could not be attributed to the accused.
45. The Regional Court’s judgment was final and binding (prawomocny). However, the parties could lodge a cassation appeal with the Supreme Court. On 15 October 2009 the Świdnica Regional Court dismissed the applicant’s request for legal aid for the purposes of lodging a cassation appeal. The applicant submits that a lawyer of her choice refused to lodge a cassation appeal on her behalf because it had no prospects of success.
46. Article 62 of the Code of Criminal Procedure provides as follows:
“The victim may, until the start of the judicial examination at the main trial, lodge a civil claim against the accused in order to determine, within the framework of the criminal proceedings, his pecuniary property claims directly resulting from the offence.”
47. Article 63 of the Code allows a deceased victim’s next-of-kin to institute a civil action under Article 62.
Article 65 reads as follows:
“1. Before commencing its examination, the court shall reject a civil claim if:
1) it is inadmissible by reason of some special provision;
2) it has no direct connection with the charges included in the indictment;
3) it has been filed by an unauthorised person;
4) it is the object of other proceedings or a valid and final decision; or
5) a public, local-government social institution or a person who is not an accused in the criminal proceedings needs to be joined as a defendant.
2. If the civil claim is in proper form, and the circumstances set forth in § 1 do not apply, the court shall issue a decision regarding the admissibility of the civil claim.
3. The court shall not hear the civil claim, even if previously declared admissible, if after it has commenced its judicial examination, any of the circumstances listed in § 1, comes to light.
4. No interlocutory appeal shall lie against the refusal of the court to declare a civil claim admissible, or the fact that it has not been heard pursuant to § 3.”
VIOLATED_ARTICLES: 2