CASE OF LOPES DE SOUSA FERNANDES v. PORTUGAL

1. The case originated in an application (no. 56080/13) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Portuguese national, Ms Maria Isabel Lopes de Sousa Fernandes (“the applicant”), on 23 August 2013.
2. The applicant complained under Article 2 of the Convention about the death of her husband in hospital as a result of a hospital-acquired infection and of carelessness and medical negligence. She further complained that the authorities to which she had applied had failed to elucidate the precise cause of the sudden deterioration in her husband ’ s state of health. Relying on Articles 6 § 1 and 13 of the Convention, the applicant also complained about the duration and outcome of the domestic proceedings she had brought in that connection.
3. The application was allocated to the First Section and then to the Fourth Section of the Court (Rule 52 § 1). A Chamber of that Section composed of András Sajó, President, Vincent A. De Gaetano, Nona Tsotsoria, Paulo Pinto de Albuquerque, Krzysztof Wojtyczek, Iulia Antoanella Motoc and Gabriele Kucsko ‑ Stadlmayer, judges, and Françoise Elens-Passos, Section Registrar, delivered a judgment on 15 December 2015. The Court unanimously declared the application admissible. It held, by a majority, that there had been a violation of the substantive aspect of Article 2 of the Convention. It concluded, unanimously, that there had been a violation of the procedural aspect of Article 2 of the Convention. The joint dissenting opinion of Judges Sajó and Tsotsoria was annexed to the judgment.
4. On 10 March 2016 the Government requested the referral of the case to the Grand Chamber under Article 43 of the Convention and Rule 73. On 2 May 2016 the panel of the Grand Chamber granted the request.
5. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court.
6. By letter dated 2 June 2016 the applicant was invited to complete and return to the Registry by 23 June 2016 an authority form authorising an advocate to represent her in the proceedings before the Court, in accordance with Rule 36 §§ 2 and 4 of the Rules of Court. On 22 June 2016 the applicant submitted an authority form authorising Mr Sá Fernandes, a lawyer practising in Lisbon, to represent her in the proceedings before the Court. The applicant was granted legal aid on 8 December 2016.
7. The applicant and the Government each filed further written observations on the merits (Rule 59 § 1).
8. In addition, third-party comments were received from the United Kingdom and Irish Governments, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3).
9. A hearing took place in public in the Human Rights Building, Strasbourg, on 16 November 2016 (Rule 59 § 3).
There appeared before the Court:
(a) for the GovernmentMs M.F. da Graça Carvalho, Deputy Attorney-General, Agent, Ms A. Garcia Marques, lawyer at the Office of the Agent, Ms M.E. Sousa Pina, retired doctor from the National
(b) for the applicantMr R. Sá Fernandes, lawyer, Counsel, Ms I. Rogeiro, lawyer, Ms A. Martins, lawyer, Mr D. Machado, doctor, Advisers.
The Court heard addresses by Mr Sá Fernandes and Ms da Graça Carvalho and their replies to the questions from judges.
I. THE CIRCUMSTANCES OF THE CASE
10. The applicant was born in 1969 and lives in Vila Nova de Gaia. The applicant ’ s husband, Mr António Rui Calisto Fernandes, was born in 1957. He died on 8 March 1998 following a series of medical problems that occurred after he had undergone minor surgery for the removal of nasal polyps.
A. The sequence of events leading to the death of the applicant ’ s husband
1. Treatment in Vila Nova de Gaia Hospital
11. On 26 November 1997 Mr Fernandes was admitted to the ear, nose and throat (ENT) department of Vila Nova de Gaia Hospital (“the CHVNG”) for a nasal polypectomy. He underwent the operation on 27 November 1997 and was discharged from hospital on 28 November 1997 at 10 a.m.
12. On 29 November 1997, at 1 a.m., the applicant took her husband to the emergency department of the CHVNG because he was suffering from violent headaches and was in an agitated state. There he was examined by the doctors on duty, in particular by a neurologist. The doctors considered that Mr Fernandes was suffering from psychological problems and prescribed tranquilisers. The applicant claims that they recommended her husband ’ s discharge but that she objected.
13. In the morning Mr Fernandes was examined by the new medical team on duty. At 10 a.m. he underwent a lumbar puncture which revealed that he had bacterial meningitis. He was transferred to the hospital ’ s intensive care unit.
14. On 30 November 1997 a scan revealed a cerebral oedema. On 2 December 1997 another scan revealed that the cerebral oedema had diminished.
15. On 5 December 1997, following an improvement in his clinical condition, Mr Fernandes was transferred to the hospital ’ s general D. ward, where he was under the care of Dr J.V. He was diagnosed with two duodenal ulcers on 10 December 1997.
16. Mr Fernandes was discharged from hospital on 13 December 1997 as his condition was considered to be stable. A follow-up scan as an outpatient was recommended.
17. On 18 December 1997 Mr Fernandes, who was suffering from vertigo and headaches, was admitted to the emergency department of the CHVNG. He was examined by Dr J.V., who kept him under observation because he had acute diarrhoea, abdominal pain and severe anaemia. Mr Fernandes received blood transfusions.
18. On 19 December 1997 an endoscopy was performed on Mr Fernandes, confirming that he had a gastroduodenal ulcer.
19. On 23 December 1997 Mr Fernandes was discharged from hospital. He was prescribed a special diet and medication. A medical appointment was fixed for 9 February 1998.
20. The applicant ’ s husband continued to suffer from severe abdominal pain and diarrhoea. On 9 January 1998 he returned to the emergency department of the CHVNG. He was examined by Dr J.V., who did not consider it necessary to admit him. Mr Fernandes therefore returned home the same day.
21. On 25 January 1998 Mr Fernandes was readmitted to the CHVNG. A colonoscopy revealed infectious ulcerative colitis. Bacteriological tests showed the presence of the Clostridium difficile bacterium. Mr Fernandes was placed on a drip and treated with antibiotics.
22. At the request of the applicant and her husband, Dr J.V. discharged the latter on 3 February 1998. Dr J.V. prescribed oral treatment and referred Mr Fernandes for further treatment in the hospital ’ s outpatient department.
2. Treatment in Santo António General Hospital in Oporto
23. On 17 February 1998 Mr Fernandes was admitted to Santo António General Hospital in Oporto after he was found to be suffering from chronic diarrhoea and microcytic anaemia. He underwent various examinations including a colonoscopy, an endoscopy and blood tests. The medical team considered several possible causes, including an infection with the Clostridium difficile bacterium, but all these possibilities were subsequently ruled out. However, a cytomegalovirus was detected and treatment was given.
24. On 5 March 1998 Mr Fernandes was examined by a doctor who judged the situation to be under control.
25. On 6 March 1998 Mr Fernandes ’ s condition deteriorated. He was examined by a doctor who suspected a possible perforated viscus. An X ‑ ray and an abdominal ultrasound were carried out. The latter showed ascites in the abdomen but did not confirm the initial diagnosis. At 5.30 p.m. the applicant ’ s husband was examined by another doctor who detected some resistance to abdominal palpation. A gas analysis showed metabolic alkalosis, but there were no signs of hypocalcaemia. A sigmoidoscopy was performed which showed that the applicant ’ s husband had rectocolitis.
26. On 7 March 1998 at 1 p.m. the applicant ’ s husband was placed on oxygen because he had difficulty breathing. At 3 p.m. Mr Fernandes was examined by a general physician and subsequently by a surgeon. The latter decided that urgent surgery was needed as there was widespread peritonitis. Mr Fernandes was taken to the operating theatre at 4 p.m. and was brought out again a few minutes later in order to be prepared for surgery, in particular by being given a blood transfusion. He re-entered the operating theatre at 8 p.m. He died the following day at 2.55 a.m.
27. According to the death certificate issued by Santo António Hospital, the applicant ’ s husband died from septicaemia caused by peritonitis and a perforated viscus.
B. Proceedings brought by the applicant
28. On 13 August 1998 the applicant wrote a joint letter to the Ministry of Health, the regional health authority for the North region and the Medical Association, stating that she had received no response from the hospitals to explain the sudden deterioration in her husband ’ s health and his death.
1. Proceedings before the Inspectorate General for Health
29. On 30 October and 23 December 1998 the regional health authority for the North region sent the applicant copies of the reports drawn up by the CHVNG and Santo António Hospital on the basis of her husband ’ s medical records.
30. On 30 May 2000 the applicant requested an update on progress in the proceedings from the regional health authority, stating that she had still received no clear explanations concerning the events preceding her husband ’ s death. In a letter of 5 July 2000 the authority informed her that the file had been sent to the Inspectorate General for Health ( Inspeção ‑ Geral da Saúde – “the IGS”) with a view to the opening of an investigation.
31. By an order of 20 September 2000 the Inspector General for Health ordered an investigation ( processo de averiguações ).
32. On 6 November 2001 an inspector was appointed to head the investigation.
33. On 7 February 2002 the IGS informed the applicant that evidence would be taken from the members of the medical team which had treated her husband and that an expert medical report would be prepared.
34. The applicant gave evidence on 3 April 2002.
35. On 23 September 2002 expert medical reports were requested. Reports prepared by experts in the fields of internal medicine, gastroenterology and general surgery were submitted in November 2002. According to the reports, in view of the deterioration in his state of health after the nasal polypectomy, it would not have been possible to save the applicant ’ s husband ’ s life.
36. The report of the investigation was submitted on 28 November 2002. It found, on the basis of the expert medical reports received, that the treatment administered to the applicant ’ s husband had been appropriate.
37. In an order of 12 December 2002 the Inspector General for Health declared the investigation closed, finding that there had been no medical negligence and that there were no grounds for instituting disciplinary proceedings against the doctors who had treated the applicant ’ s husband.
38. In a letter of 17 February 2003 the applicant appealed against the order. She argued that the final report had not answered her questions, complaining about areas of uncertainty and about the duration of the investigation and its findings.
39. On 28 March 2003 the Inspector General for Health informed the applicant that he had set aside the order of 12 December 2002 and ordered the reopening of the investigation.
40. On 26 September 2005, in view of the questions raised by the applicant, the medical experts were requested to provide additional information.
41. A new investigation report was submitted on 23 November 2005, clarifying the facts and taking account of the answers provided by the three medical experts. The report stated that there were no grounds for criticising the health-care personnel who had been involved in the care of the applicant ’ s husband in the CHVNG and Santo António Hospital, as the patient had received proper and appropriate medical assistance in terms of his diagnosis, supervision and treatment. The report further noted that his discharge had been justified on each occasion in view of the improvement in his state of health. The report concluded as follows:
“The results of the investigation ... following the reopening of the proceedings and the fresh inquiries and medical reports do not indicate that there was any negligent or careless conduct in breach of good medical practice. There is therefore no need to take legal or disciplinary action against any persons involved in the [patient ’ s] care ...”
42. Taking this report into account, the Inspector General for Health made a fresh order discontinuing the proceedings on 27 December 2005.
43. In a letter of 1 February 2006 the applicant appealed against that order, complaining of unclear points and omissions. She also raised the possibility that the sudden deterioration in her husband ’ s health and his eventual death might have been caused by bacteria present in the operating theatre on the day of the nasal polypectomy, that the diagnoses may have been made in haste and that there may have been negligence and carelessness in the medical treatment administered to her husband. She further complained that the internal medicine and gastroenterology reports had been prepared each time by the same experts. The applicant therefore requested the reopening of the investigation and the preparation of a fresh expert medical report.
44. The Inspector General for Health wrote to the applicant on 2 March 2006 informing her that he had set aside his previous order and ordered fresh expert assessments to be carried out by different experts in the fields of internal medicine and gastroenterology.
45. The applicant gave evidence again on 27 April 2006.
46. The medical experts submitted their reports on 20 May and 10 July 2006. The expert in gastroenterology stated that it was possible, albeit rare, for a nasal polypectomy to cause meningitis. He further considered that the applicant ’ s husband had received appropriate treatment but that his discharge on 3 February 1998 may not have been wise in view of his clinical condition. The expert concluded that the applicant ’ s husband had suffered a series of complications which were uncommon but could occur, and that he had received proper medical care at the CHVNG. As to the care in Santo António Hospital, the expert considered that the condition of the applicant ’ s husband had been extremely complicated and had given rise to doubts as to the best way to proceed. In his report, the expert in internal medicine rejected the idea of a hospital-acquired infection on the grounds that, had that been the case, the antibiotics administered to the patient would have had no effect. In his view, the meningitis had developed unexpectedly. He further took the view that the applicant ’ s husband ’ s discharge on 3 February 1998 had been appropriate but that he should have continued to be monitored as an outpatient.
47. On 25 July 2006 a report was drawn up on completion of the investigation, which concluded as follows:
The content of the most recent expert medical reports shows ... that there are no grounds for a finding of disciplinary liability for negligence against any of the health ‑ care professionals involved in A. ’ s medical treatment...
... the decision by the assistant doctor [J.V.] to refer the patient for outpatient treatment was not appropriate and sufficient from a clinical viewpoint in so far as, in order to prevent a recurrence of the colitis caused by Clostridium difficile ..., the patient should have remained in hospital under close medical supervision ...
Hence, the doctor in question did not act with the necessary care and diligence, thereby incurring disciplinary liability on account of his negligent conduct in the medical assistance provided ... in D. ward of the CHVNG ’ s medical department between 25 January and 3 February 1998.
The medical opinions make no criticisms of the assistance provided in the gastroenterology department of Santo António General Hospital in Oporto ...”
48. In the light of this report the Inspector General made an order on 26 July 2006 for the opening of disciplinary proceedings against Dr J.V.
49. By a letter dated 31 July 2006 the applicant was informed that the disciplinary proceedings initiated against Dr J.V. would be stayed pending the outcome of the criminal proceedings (see paragraphs 59-68 below).
2. Proceedings before the Medical Association
50. In the meantime, on 31 August 1998, the Medical Association acknowledged receipt of the applicant ’ s letter of 13 August 1998, informing her that steps would be taken in response to it.
51. The case was referred to the Medical Association ’ s regional disciplinary council for the North region. The latter obtained the patient ’ s medical records and sought the opinions of four specialist panels: gastroenterology, infectious diseases, general surgery and ear, nose and throat (ENT).
52. In its report of 14 July 1999, the gastroenterology panel issued the following conclusions:
A simple X-ray of the abdomen performed the day before the patient ’ s death did not detect any dilatation or perforation of the colon.
The patient ’ s death was caused by peritonitis as a result of the perforation of the duodenal ulcer. The difficulties in diagnosing the condition were understandable in view of the patient ’ s serious clinical condition and the fact that his abdominal pains were explained by the inflammatory disease in the colon.
The role of the corticosteroids in aggravating or reactivating the peptic ulcer ... is not currently considered a risk factor ... However, given that the patient had already experienced one episode of intestinal bleeding, there would have been grounds for weighing up the use of these drugs.
The decisions to discharge the patient [from hospital] may have delayed the diagnosis or the commencement of treatment. Nevertheless, after examining the documents submitted to me, I am unable to confirm whether these discharge decisions adversely affected his diagnosis or programme of treatment.
53. The conclusions of the report of 17 April 2000 by the infectious-diseases panel read as follows:
“1. In our opinion the diagnosis of meningitis, most likely resulting from the nasal polypectomy, was inexplicably delayed. The fact that there was no one on the medical team trained in this type of diagnosis (for example, a specialist in infectious diseases) may be regarded as the only explanation for such an incident. However, this was not the immediate cause of the patient ’ s death.
2. In our view, too long a period elapsed between the diagnosis of the perforation in the duodenal ulcer and surgery.
3. The procedure has been undermined to an incalculable extent by the fact that no autopsy was performed, although an autopsy is mandatory ( mandatória ) in cases of this type in order to shed light on the chain of events.”
In its report the panel further held as follows:
“The inhuman conditions described in this process, as regards how the patient was treated, are another example of the situation encountered on a daily basis in our hospitals; a reflection of the appalling structural and operational conditions which require urgent analysis and change.
This board of the Infectious-Diseases Panel of the Medical Association must have a fundamental role in advocating the rights of patients and doctors in order to create better conditions of care for the former and better working conditions for the latter.
We reiterate, once more, the need to consider the creation of infectious-diseases departments/units in hospitals of the same type as Vila Nova de Gaia Hospital, in order to improve the quality of care in this regard.”
54. In a report of 24 April 2001 the general-surgery panel found that there had been no negligence or medical malpractice in the hospitals concerned. The report read as follows:
“1. A perforated duodenal ulcer requires immediate surgery. In the present situation the perforated ulcer ... was difficult, if not impossible, to diagnose given the clinical context in which it occurred. Furthermore, in view of the seriousness of the patient ’ s clinical condition, the approach to surgery had to be given careful consideration and the patient had to be prepared by means of various measures.
55. In a report dated 1 August 2001 the ENT panel concluded as follows:
“1. Meningitis following micro-endoscopic surgery for nasal polyps is described as one of the (major) complications of this type of surgery, estimated in the literature to occur in between 0.6% and 1% of cases. These figures will be higher in the event of a repeat operation, as in the present case (surgery was performed in 1993 as stated on page 314 of the file concerning the operation).
2. The post-operative CT scan of the brain carried out on 29 November 1997 does not show any discontinuity in the bones at the base of the skull ... which suggests that no invasive endocranial surgery was carried out.
3. The description of the surgery performed on the patient on 26 November 1997 (page 310 of the file) does not give any indication of clinical malpractice or negligence.
4. No ENT procedures were performed during any of the patient ’ s subsequent stays in Vila Nova de Gaia Hospital or in Santo António Hospital.”
56. In an order of 28 December 2001 the regional disciplinary council for the North region decided, after having examined the conclusions of the different specialist panels, to take no further action on the applicant ’ s complaint, on the ground that there was no evidence of misconduct or medical negligence.
57. The disciplinary council observed the following:
( i ) meningitis was a complication that could arise in between 0.6% and 1% of cases following a nasal polypectomy; the figures were liable to be higher for a repeat operation, as in the case in question;
(ii) the applicant ’ s husband had received appropriate treatment during his various hospital stays;
(iii) the patient ’ s bacterial meningitis ( Pseudomonas ) had been treated properly;
(iv) although the infectious-diseases panel had suggested that the presence of a specialist in that discipline might have enabled a diagnosis to be made sooner, this had not been a decisive factor in the development of the clinical situation;
(v) the perforation of the duodenal ulcer had been the cause of the peritonitis. This had been difficult to diagnose in view of the patient ’ s serious clinical condition, a fact acknowledged by the gastroenterology and general-surgery panels;
(vi) although the infectious-diseases panel had considered that too long a period had elapsed between the diagnosis of the perforated duodenal ulcer and surgery, the time taken to prepare for the operation had been justified since the patient had been suffering from intestinal disease and had severe anaemia, sepsis and a fluid and electrolyte imbalance, as noted by the general-surgery panel.
58. On 29 April 2002 the applicant lodged an appeal against that order with the Medical Association ’ s National Disciplinary Council. On 18 March 2003 the appeal was declared inadmissible as being out of time.
3. Criminal proceedings before the Vila Nova de Gaia District Court
59. On 29 April 2002 the applicant lodged a complaint for negligent homicide with the Oporto criminal investigation and prosecution department.
60. She gave evidence on 7 June 2002.
61. By order of the Criminal Investigation Court of 27 September 2002 the applicant was given leave to intervene in the proceedings as an assistant to the public prosecutor ( assistente ).
62. On 7 December 2007 the public prosecutor ’ s office made its submissions, charging Dr J.V. with homicide by gross ( grosseira ) negligence. In support of their decision the prosecuting authorities referred to the report appended to the IGS order of 25 July 2006. They considered that Dr J.V. should not have discharged the applicant ’ s husband on 3 February 1998 in so far as the patient ’ s clinical condition had been problematic and he had been infected with the Clostridium difficile bacterium.
63. The case was referred to the Vila Nova de Gaia District Court. During the trial the court heard evidence from the applicant, the accused, eight doctors who had been involved in treating the applicant ’ s husband in the CHVNG and in Santo António Hospital, and the five medical experts appointed in the context of the proceedings before the IGS. The court also sought the opinion of the Medical Association ’ s Disciplinary Council.
64. On 15 January 2009 the District Court acquitted Dr J.V. of the charges against him. In particular, it took the view that the findings made by the IGS in its order of 26 July 2006 could not be taken into consideration as they had not been confirmed by the five medical experts who had given evidence during the trial.
65. As to the facts, the District Court considered, inter alia, the following to be established :
“The patient ’ s hospitalisation on 18 December 1997 ... was not the result of a lack of medical supervision of his clinical condition ... since it was unconnected to the complications arising out of the meningitis. In fact, it resulted from acute anaemia caused by intestinal bleeding from a duodenal ulcer; ...
The decisions to discharge the patient on 13 and 23 December 1997 were appropriate, given that, in the former case, the problem of bacterial meningitis had been resolved, [the patient] had completed the course of antibiotics, he no longer had any symptoms or fever, had a slightly increased white-blood cell count, a falling neutrophil count and normal sedimentation rate, and was not complaining ... and, in the latter case, that is to say, the patient ’ s hospitalisation from 18 to 23 December 1997, the patient was not complaining of abdominal pain, diarrhoea or bleeding ... with the result that it was possible to continue treating his ulcer with a dietary regime while monitoring him on an outpatient basis ...
When the patient was admitted to Santo António Hospital, laboratory tests were carried out for Clostridium difficile. The results were negative on two occasions.”
66. On the subject of the surgery preceding the death of the applicant ’ s husband, the District Court observed as follows:
“... the patient was in a very serious clinical state, with septic shock and multiple organ dysfunction. For that reason, he was placed on artificial ventilation and vasoactive drugs and fluids were administered ..., together with hydrocortisone to deal with possible acute adrenal insufficiency ( falência supra-renal aguda ), and broad-spectrum antibiotics;
... in this medical context the patient ’ s prospects of survival were very uncertain, in view of the septic shock and multiple organ dysfunction;
... a simple abdominal X-ray and an abdominal and pelvic ultrasound scan were therefore requested, which did not reveal a perforation of the intestine.”
67. In the District Court ’ s view, it had not been demonstrated that the care provided to the applicant ’ s husband during his stay in hospital from 25 January to 3 February 1998 had not been in accordance with good medical practice, or that he should have been kept in hospital for longer. The court therefore concluded that there was no causal link between the treatment administered by Dr J.V. to the applicant ’ s husband in the CHVNG and his death, which had been caused by a perforated viscus that was unconnected to the colonic disease treated by the accused. It held:
“...there was no evidence to show that the treatment administered by the accused for the Clostridium difficile infection was incomplete, that the patient was discharged prematurely on 3 February 1998 or, in sum, that the accused was responsible for the death of the patient on 8 March 1998.”
68. The applicant did not appeal against that judgment.
4. Proceedings before the Oporto Administrative and Fiscal Court
69. On 6 March 2003 the applicant brought an action in the Oporto Administrative and Fiscal Court against the CHVNG, Santo António Hospital and the eight doctors who had been involved in treating her husband while he was in hospital, claiming compensation for the damage she had suffered on account of her husband ’ s death. She alleged, inter alia,
( i ) that her husband ’ s meningitis had been caused by Pseudomonas cepacia bacteria which, she alleged, had been present in the operating theatre during the nasal polypectomy;
(ii) that the meningitis had been diagnosed too late, allowing the illness to become serious;
(iii) that the administering of excessive doses of medication and the lack of a suitable prophylactic had caused the duodenal ulcer which had led to her husband ’ s death.
70. In the context of these proceedings the applicant was granted legal aid in the form of exemption from payment of the court fees and the fees of a lawyer of her own choosing.
71. Between 4 and 24 April 2003 the eight doctors contested their standing to be sued ( ilegitimidade passiva ), relying on Article 2 of Legislative Decree no. 48051 of 21 November 1967.
72. On 16 April 2007 the court gave a preparatory decision ( despacho saneador ) specifying which facts were considered to be established and which remained to be established. In accordance with Article 2 of Legislative Decree no. 48051 of 21 November 1967 it further held that the doctors among the defendants did not have standing in so far as they had been sued only for negligent conduct. Accordingly, it declared the claim admissible only in respect of the hospitals.
73. On 17 January 2011 the applicant gave evidence.
74. During the three hearings the court heard evidence from the following witnesses:
( i ) eleven doctors who had been involved in treating the applicant ’ s husband during his various stays in the CHVNG and Santo António Hospital;
(ii) the general practitioner of the applicant ’ s husband;
(iii) two doctors who were friends of the family;
(iv) the inspector who had written the final report on completion of the investigation within the IGS; and
(v) the medical experts in gastroenterology and internal medicine whose reports had formed the basis for the last IGS decision.
75. On 24 May 2011 the court made an order concerning the facts. Taking into account the medical records of the applicant ’ s husband and the various statements made by the witnesses who had given evidence, the court considered it established, inter alia,
( i ) that a polypectomy was a straightforward surgical operation which posed minimal risk and that the patient had been informed accordingly;
(ii) that the operating theatre had been aseptic and sterilised at the time of the polypectomy;
(iii) that the origin of the bacterium linked to the patient ’ s meningitis had not been proven. The court dismissed the possibility of a hospital-acquired infection, pointing out that in that case the prescribed treatment would have had no effect;
(iv) that the medication prescribed in the CHVNG and Santo António Hospital could cause intestinal problems and hence could give rise to colitis;
(v) that the applicant ’ s husband had been treated with drugs to protect his stomach in the CHVNG;
(vi) that the gastroduodenal perforation had not been detected until the operation was being performed; and
(vii) that the applicant ’ s husband had died from septicaemia caused by peritonitis resulting from a perforated viscus.
76. On 23 January 2012 the Oporto Administrative and Fiscal Court delivered a judgment in which it dismissed the applicant ’ s claims. On the facts, the judgment stated, inter alia, as follows:
“The Pseudomonas bacterium was resistant to the various antibiotics that were tried ...
When the patient attended Vila Nova de Gaia Hospital on 18 December 1997 he had completely recovered from his bacterial meningitis.
On 25 January 1998 the patient again attended Vila Nova de Gaia Hospital, where he was diagnosed with pseudomembranous colitis caused by Clostridium difficile ... The colitis was successfully treated in that hospital ...;
Throughout his stay in Vila Nova de Gaia Hospital he was given treatment to protect his stomach.
When he was admitted (to Santo António Hospital on 17 February 1998) he had chronic diarrhoea ... and was diagnosed with suspected inflammatory bowel disease. Medication was prescribed in keeping with that diagnosis.
While in Santo António Hospital he was kept under observation, received daily medication and underwent various tests.
On 6 March 1998 ... nothing had made it possible to predict the gastroduodenal perforation ... the tests carried out that day ... did not confirm the existence of any duodenal perforation such that the situation had to be kept under review;
It was not until 7 March 1998 that the patient ’ s acute abdominal syndrome was diagnosed, calling for urgent surgery ... it was only during the operation that the patient was found to be suffering from a duodenal perforation;
The perforation had occurred 24 hours before surgery.”
77. The judgment concluded as follows:
“ ... in view of the facts that have been established, it is not possible to determine at what point the defendants, by their actions or omissions, breached the rules of good medical practice ...
It is considered established that [Mr Fernandes ’ s ] death was caused by sepsis due to peritonitis resulting from the perforation of his duodenal ulcer...
No doubts persisted regarding the diagnosis of meningitis, the procedure adopted, the sequence of treatment and the resolution of the problem, as all the various after ‑ effects were duly explained.
Hence there were no differences of opinion regarding the need to prescribe and use antibiotics in the context of [Mr Fernandes ’ s ] meningitis and other conditions, although it was explained that colitis is a bacterial imbalance caused by antibiotics (the very ones which have undesirable effects on intestinal flora).
Nevertheless, it was not possible to determine the agent or identify the cause of the bacterium linked to the meningitis and it could therefore not be established with certainty whether the sinus surgery was the source of the problem or was simply one factor causing the infection. The other factors and circumstances preceding the operation ... thus cease to be relevant.
It is nonetheless surprising that the death of the claimant ’ s husband should have occurred ... given that he had been strong and in good health and that the microsurgery on his sinuses was a straightforward operation. However, it has not been demonstrated that the therapy or medication administered to [Mr Fernandes ] at any point was unsuited to his clinical condition. There was therefore no breach of the rules of good medical practice (either by action or omission). Accordingly, one of the cumulative conditions for establishing civil liability, namely an unlawful act, is absent.”
78. The applicant appealed against the judgment to the Supreme Administrative Court. She contested the facts deemed to be established, arguing that only by studying the circumstances before, during and after the operation would it be possible to understand what type of bacterium her husband had contracted. She further reiterated that her husband had contracted a hospital-acquired infection and had not received adequate treatment either in the CHVNG or in Santo António Hospital.
79. On 26 February 2013 the Supreme Administrative Court dismissed the applicant ’ s claims, upholding the judgment of the Oporto Administrative and Fiscal Court. It first of all declined to review the facts considered by the lower court to have been established, on the grounds that the hearings had not been recorded and that no new documents had been submitted which could cast doubt on the evidence forming the basis for the court ’ s decision. The Supreme Administrative Court summed up its judgment as follows:
“The lower court considered, in sum, that it had not been possible to identify the nature and origin of the bacterium that caused the meningitis and that it had not been demonstrated that the illnesses subsequent to [the patient ’ s] treatment and recovery from that illness ... had been the consequence of incorrect diagnosis or treatment.
For that reason it found that no breach of the rules of good medical practice had been demonstrated that might have caused the patient ’ s death.
The claimant takes a different view of the matter. However, she bases her arguments mainly on allegations that have not been proven, and in particular the allegation that the meningitis was caused by the Pseudomonas bacterium, allegedly acquired in hospital ... and that the patient did not receive appropriate prophylactic treatment to protect his stomach during his treatment with antibiotics.
Accordingly, these claims can be summed up as allegations of medical negligence which are unsupported by the established facts.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
80. The relevant provisions of the Criminal Code read as follows:
“1. Anyone who kills another person through negligence shall be punishable by imprisonment for a period of up to three years or to a fine.
2. Gross negligence shall be punishable by imprisonment for up to five years.”
2. Where the persons referred to in the previous paragraph, in pursuit of the aims indicated therein, perform surgery or provide treatment in a manner which breaches the rules of good medical practice and thereby endangers a patient ’ s life or health or creates a risk of serious bodily harm, their conduct shall be punishable by a period of imprisonment up to two years or by up to 24 day-fines, unless a heavier penalty has been imposed under another provision of the law.”
81. The head of the relevant health-care establishment has a duty to inform the competent judicial authority of any suspicious death of a hospital patient, by forwarding the medical records so as to enable an investigation to be carried out to establish the circumstances of death (Article 51 of Legislative Decree no. 11/98 of 24 January 1998 on forensic medical matters). An autopsy is performed in cases of violent or unexplained deaths, except where the clinical data and other elements are sufficiently convincing to preclude any suspicion of a crime; in that case, no autopsy needs to be carried out (Article 54).
B. Civil and Administrative law
82. The relevant provision of the Civil Code reads as follows:
“1. It is for the injured party to prove liability for damage through negligence ( culpa ), unless there is a legal presumption of it.
2. In the absence of any other legal criteria, negligence is assessed with reference to the diligence of the bonus pater familias, in view of the circumstances of the case.”
83. At the material time the State ’ s non-contractual liability was governed by Legislative Decree no. 48051 of 21 November 1967, Article 2 of which read as follows:
“1. The State and other public-law entities shall be liable in civil law vis-à-vis third parties for any acts infringing those parties ’ rights or the legal provisions designed to protect their interests, as the result of unlawful acts committed negligently by State or public agencies or officials in the performance of their duties or as a consequence thereof.
2. Where they have paid compensation under the terms of the preceding paragraph, the State and other public-law entities shall be entitled to claim reimbursement ( direito de regresso ) from those in charge of the agencies or the officials responsible, if these have not performed their duties with the requisite care and diligence.”
84. Article 6 of the aforementioned Legislative Decree reads:
“ For the purposes of the present Legislative Decree, legal acts which infringe the relevant legal and regulatory norms or general principles shall be deemed unlawful, as shall material acts which infringe the said norms or principles or the technical rules or principles of due caution which must be taken into account.”
C. Relevant disciplinary provisions
85. Article 2 of the Disciplinary Regulations for Doctors defines a disciplinary offence as follows:
“A doctor who, by action or omission, fails, either intentionally or by negligence, to comply with one or more of the duties arising out of the Medical Association Statute, the Code of Ethics, the present Code, internal regulations, or any other applicable provision, shall be considered to have committed a disciplinary offence.”
86. The Disciplinary Regulations governing public officials and employees, in force at the material time, were contained in Legislative Decree no. 24/84 of 16 January 1984. Article 3 § 1 characterised a disciplinary offence as follows:
“A disciplinary offence consists in the failure, not exceeding the status of a fault, by a public official or employee to comply with one of the general or specific obligations attaching to his or her functions.”
87. The duty of diligence was defined in Article 3 § 6 as follows:
“The duty of diligence consists in being familiar with the relevant regulations and with the instructions from one ’ s hierarchical superiors, while possessing and perfecting the technical skills and working methods required to perform one ’ s duties correctly and efficiently.”
D. Regulatory framework in the field of health care
88. Article 64 of the Portuguese Constitution guarantees the right to health and to a national universal health-care service focused on providing free health care while taking account of citizens ’ economic and social circumstances.
89. The Health Act, which was approved by virtue of Law no. 48/90 of 24 August 1990, establishes the principle whereby health care is dispensed by State services and establishments and by other public or private, profit ‑ making or non-profit entities under State supervision (section I, paragraph 4).
90. Under Basic Principle XIV of the Act, the users of the health-care system have, among other rights, the right freely to choose their doctor and health-care establishment, the right to receive or refuse the treatment offered, the right to be treated in an appropriate and humane manner, promptly and with respect, the right to be informed of their situation, of possible alternative treatments and of the likely development of their condition, and the right to complain of the manner in which they have been treated and to receive compensation for any damage suffered.
91. The rules applying the framework Health Act are laid down by Legislative Decree no. 11/93 of 15 January 1993, which approved the National Health-care System Regulations ( Estatuto do sistema nacional de saúde ). Under Article 38, the State has the task of supervising health-care establishments; the Ministry of Health is responsible for setting health-care standards, without prejudice to the functions assigned to the Medical Association and the Pharmacists ’ Association.
92. The Hospital Management Act, established by Legislative Decree no. 19/88 of 21 January 1988 and in force until 2002, stated in its preamble as follows:
“All citizens have the right to expect hospitals (institutions whose social purpose must never be forgotten) to provide treatment of a standard that can reasonably be expected having regard to the respect due to citizens and the human and material resources available. Assessment of the services provided in hospitals, in terms of cost ‑ effectiveness but also and perhaps above all in terms of quality assurance, is an increasingly complex and essential task, one to which the authorities must give full attention and which must be addressed within the management of hospitals.”
93. Article 3 § 2 of the aforementioned Legislative Decree provided, in particular, for the Minister of Health to:
“... define standards and criteria for service provision in hospitals, establish guidelines to be followed by service provision plans and programmes, monitor their implementation and evaluate the results obtained and the quality of the health care provided to the population, and request any information and documentation needed for this purpose.”
94. The principles governing service provision, set out in Article 6 of that Legislative Decree, included: respect for patients ’ rights; promptness and quality of the assistance provided within the limits of the available resources; lawful and efficient use of those resources; deployment of best endeavours to provide the services, as far as possible, with the necessary organisational structures, personnel and equipment; and observance of professional ethics by all those working in hospitals.
95. Article 27 of Legislative Decree no. 73/90 of 6 March 1990 on Medical Careers lays down the duties of hospital doctors. It reads, inter alia, as follows:
“( a ) Reception of patients, duly registered in the outpatient records, with recourse to hospitalisation where necessary, and provision of appropriate information to the patient ’ s general practitioner in the form of a confidential written report.
(b) Diagnosis and treatment of patients, supported by an effective professional relationship with the patient ’ s general practitioner and with the other doctors involved in his or her treatment outside the hospital.
(c) Reception in hospital emergency departments.
96. Article 7 of Legislative Decree no. 373/79 of 8 September 1979 on the status of medical practitioners laid down the duties of health professionals, including ensuring continuous professional development and contributing to the establishment and preservation of sound technical and human working conditions, with a view to providing an effective service and enhancing the prestige of the health-care service to which they belonged.
97. Relevant legislation concerning the health sector also includes the General Regulations on Hospitals, approved by Order no. 48358 of 27 April 1968, which lay down the forms of organisation and operation applicable to all hospitals, without prejudice to the fact that each establishment has its own local regulations.
98. At the relevant time, under Legislative Decree no. 291/93 of 24 August 1993, the Inspectorate General for Health was a department within the Ministry of Health with technical and administrative autonomy (Article 1) which was responsible, among other tasks, for supervising the activities and operation of health-care establishments (Article 3 § 1 (a)), and instituting disciplinary proceedings (Article 3 § 2 (b)). The IGS was headed by an Inspector General whose tasks included ordering the opening of investigative proceedings and issuing a decision when they had been completed (Article 5 (h)). Under the terms of Legislative Decree no. 275/2007 of 30 June 2007, the Inspectorate General for Health became the Inspectorate General for Health-Care Activities (IGAS). The IGAS has wider-ranging powers which extend to private bodies.
99. The Medical Association was governed at the material time by the Medical Association Statute, adopted by Legislative Decree no. 282/77 of 5 July 1977 as amended by Legislative Decree no. 217/94 of 20 August 1994. It is an independent body which is responsible for maintaining standards among members of the medical profession and ensuring observance of the Medical Code of Ethics. To be able to exercise their profession doctors must be registered with the Medical Association; in this context, emphasis is placed upon the need for them to observe the professional standards governing their profession.
100. The Medical Association also has disciplinary powers, although these do not preclude other disciplinary procedures provided for by law (Article 3 of the Disciplinary Regulations for Doctors, approved by Legislative Decree no. 217/94 of 20 August 1994). The regional disciplinary councils are responsible for instituting disciplinary proceedings against doctors in their region (Article 4). The decisions of the regional disciplinary councils are open to appeal before the National Disciplinary Council ( Conselho Nacional de Disciplina ) within an eight-day period (Articles 44 and 45).
101. The specialist panels ( Colégios de especialidades ) are bodies within the Medical Association composed of specialists in different branches of medicine (Article 87 of the Medical Association Statute). They are tasked, among other duties, with giving opinions to the Association ’ s National Executive Council.
102. The Code of Ethics contains the rules of an ethical nature which doctors must observe and from which they must draw inspiration in the course of their professional practice. According to the principle of independence of doctors, the latter, in the exercise of their profession, are “technically and ethically independent and accountable for their acts; they may not, in performing their clinical duties, receive technical or ethical directions from persons outside the medical profession”, a provision which “does not conflict with the existence of institutional technical hierarchies established by law or by contract; a doctor may in no circumstances be forced to perform acts against his or her will.”
103. In Portugal an Infectious-Diseases Control Plan (1988-98) was under way in late 1997. In the framework of this plan, a publication entitled Livro da mão cor -de- rosa (Book of the pink hand), containing a set of recommendations for the prevention and control of nosocomial infections acquired in health-care establishments, was issued in 1996.
104. In the introduction to the 1996 report reference was made to the following information:
“In 1988 the Infectious-Diseases Control Plan was initiated .... It was aimed at developing the methods to be used in the study of infections .... The first study concerning the prevalence of infection was carried out in 1988 with 10,177 patients from 71 hospitals; this was followed by a second study in 1993, with 9,331 patients from 65 hospitals. Other studies were also carried out with regard to the incidence of urinary-tract infections in patients with catheters, surgical infections, and nosocomial pneumonia in intensive care, for example. These studies show that, at any given time, approximately 30 % of hospital inpatients have an infection and one-third of them acquired the infection while in hospital.”
105. The report ’ s recommendations required each health-care establishment to define a comprehensive infectious-diseases control programme, which was to be coordinated and implemented by one of the interdisciplinary infectious-diseases control commissions created that same year under an instruction issued by the Directorate General for Health.
106. The infectious-diseases control commissions were established under an instruction issued by the Directorate General for Health on 23 October 1996. According to Article 4 of this instruction these commissions were required, among other tasks, to “define, implement and monitor a system of epidemiological surveillance addressing structures, processes and outcomes with regard to situations posing the gravest threats, propose recommendations and standards for the prevention and control of infectious diseases and the corresponding monitoring arrangements, carry out epidemiological inquiries and disseminate the information within the establishment, and contribute to training within the service and to other training actions undertaken by the establishment in the field of infection control.”
107. A working group dedicated to the issue of hospital-acquired infections was established in Vila Nova de Gaia Hospital in 1994. It published, from at least 1996 onwards, an information booklet on these issues and the procedures to be adopted.
108. In the meantime, the Council of Europe recommendations concerning the control of infectious diseases, and in particular Recommendation no. R (84) 20 (see paragraph 116 below), were circulated to public and private hospitals.
109. The aforementioned Plan (see paragraph 103 above) was replaced by the National Infectious-Diseases Control Programme adopted on 14 May 1999.
III. INTERNATIONAL LAW AND PRACTICE
1. The International Covenant on Economic, Social and Cultural Rights
110. Article 12 of the International Covenant on Economic, Social and Cultural Rights provides:
“1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
2. The steps to be taken by the State Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:
(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;
(b) The improvement of all aspects of environmental and industrial hygiene;
(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;
(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.”
111. In its General Comment No. 14 on the right to the highest attainable standard of health, the Committee on Economic, Social and Cultural Rights (CESCR) held as follows:
“9. ... the right to health must be understood as a right to the enjoyment of a variety of facilities, goods, services and conditions necessary for the realization of the highest attainable standard of health.”
In this connection the CESCR required that the necessary public-health and health-care facilities should satisfy the following criteria: availability, accessibility, acceptability and quality.
The CESCR stressed that the obligations to protect included, inter alia, the duties of States to adopt legislation or to take other measures ensuring equal access to health care and health-related services provided by third parties, as well as to ensure that medical practitioners and other health professionals met appropriate standards of education, skill and ethical codes of conduct (paragraph 35).
It also required that any person or group that was the victim of a violation of the right to health should have access to effective judicial or other appropriate remedies at both national and international levels (paragraph 59).
2. The documents of the World Health Organisation (WHO)
112. The relevant parts of the World Health Organisation ’ s Declaration on the Promotion of Patients ’ Rights in Europe (1994) read as follows:
“5.1 Everyone has the right to receive such health care as is appropriate to his or her health needs, including preventive care and activities aimed at health promotion. Services should be continuously available and accessible to all equitably, without discrimination and according to the financial, human and material resources which can be made available in a given society.
6.5 ... Where patients feel that their rights have not been respected they should be enabled to lodge a complaint ... Patients have the right to have their complaints examined and dealt with in a thorough, just, effective and prompt way and to be informed about their outcome.”
113. The WHO has also adopted a number of technical medical guidelines relating to safe health care and surgical facilities, such as the WHO guidelines for safe surgery (2009), which provide checklists and set out ten objectives and recommendations, including the use of methods known to minimise the risk of surgical site infection and the establishment, by hospitals and public health systems, of routine surgical surveillance.
114. Article 11 of the European Social Charter, 1961, entitled “The right to protection of health”, reads as follows:
“With a view to ensuring the effective exercise of the right to protection of health, the Contracting Parties undertake, either directly or in co-operation with public or private organisations, to take appropriate measures designed inter alia :
1. to remove as far as possible the causes of ill-health;
2. to provide advisory and educational facilities for the promotion of health and the encouragement of individual responsibility in matters of health;
3. to prevent as far as possible epidemic, endemic and other diseases.”
2. The Oviedo Convention on Human Rights and Biomedicine
115. The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (known as the Oviedo Convention on Human Rights and Biomedicine), which was adopted in 1997 and entered into force on 1 December 1999, has been ratified by twenty-nine of the Council of Europe member States. Its relevant provisions read as follows:
Article 3 – Equitable access to health care
“Parties, taking into account health needs and available resources, shall take appropriate measures with a view to providing, within their jurisdiction, equitable access to health care of appropriate quality.”
Article 4 – Professional standards
“Any intervention in the health field, including research, must be carried out in accordance with relevant professional obligations and standards.”
Article 24 – Compensation for undue damage
“The person who has suffered undue damage resulting from an intervention is entitled to a fair compensation according to the conditions and procedures prescribed by law.”
“Parties shall provide for appropriate sanctions to be applied in the event of infringement of the provisions contained in this Convention.”
3. Recommendation Rec( 84)20 on the prevention of hospital infections
116. The Committee of Ministers, in its Recommendation Rec(84)20 on the prevention of hospital infections, recommended to the Governments of member States that they promote the application of the strategy for the prevention of hospital infections described in detail in the Appendix to the Recommendation.
C. The Inter-American Court of Human Rights
117. The relevant provisions of the American Convention on Human Rights read as follows:
“1. Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.
“1. Every person has the right to have his physical, mental, and moral integrity respected.
118. In the case of Suárez Peralta v. Ecuador (Preliminary objections, merits, reparations and costs, Judgment of 21 May 2013, Series C No. 261), which concerned allegations of medical negligence, the Inter-American Court of Human Rights reiterated the obligation of the State to guarantee the right to personal integrity in the context of health, as follows:
“ 132. ... States must establish an adequate normative framework that regulates the provision of health care services, establishing quality standards for public and private institutions that allow any risk of the violation of personal integrity during the provision of these services to be avoided. In addition, the State must create official supervision and control mechanisms for health care facilities, as well as procedures for the administrative and judicial protection of victims, the effectiveness of which will evidently depend on the way these are implemented by the competent administration.”
A. Charter of Fundamental Rights of the European Union
119. The relevant provisions of the Charter of Fundamental Rights of the European Union read as follows:
“1. Everyone has the right to life.”
“Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities.”
B. Council Recommendation on patient safety, including the prevention and control of healthcare associated infections
120. On 9 June 2009 Council Recommendation on patient safety, including the prevention and control of healthcare associated infections (2009/C 151/01) was adopted. In particular, the text recommends that Member States:
(d) [ regularly review and update] safety standards and/or best practices applicable to healthcare provided on their territory;
(f) [ include] a specific approach to promote safe practices to prevent the most commonly occurring adverse events such as medication-related events, healthcare associated infections and complications during or after surgical intervention.”
(a) implement prevention and control measures at national or regional level to support the containment of healthcare associated infections and in particular:
(iii) to make guidelines and recommendations available at national level.”
121. The text also recommends informing patients about:
“I. 2. (b) ( iii ) complaints procedures and available remedies and redress and the terms and conditions applicable;”
122. It transpires from the materials available to the Court on the legislation of member States of the Council of Europe that all of the thirty ‑ one member States surveyed offer a civil remedy with the possibility to claim compensation for medical negligence in either the civil or the administrative courts. In the majority of countries, liability can be both contractual and extra-contractual (for instance, in Austria, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Estonia, Georgia, Germany, Italy, Luxembourg, Monaco, Poland, Spain and Switzerland). Tort liability is the exclusive or main form of liability in Lithuania, Malta, Moldova, Serbia, Russia, Ukraine and the United Kingdom.
123. It is also a common feature of all countries that medical negligence can amount to a criminal offence, either as manslaughter or as unintentional bodily injury or another offence against health (such as failure to provide assistance). In several countries, medical negligence constitutes a distinct offence (for instance, in Armenia, Bosnia and Herzegovina, Croatia, Slovenia, the former Yugoslav Republic of Macedonia and Ukraine).
124. The great majority of the countries surveyed have professional bodies (that is, medical councils, chambers, associations) with the power to impose disciplinary sanctions. In the absence of such bodies sanctions may be imposed by the head of the health establishment concerned or the Ministry of Health (for example, in Armenia and Russia). In certain countries, even if disciplinary proceedings exist, they appear to play no role in medical negligence cases, or only a very limited one (for example, Azerbaijan and Estonia).
125. Administrative complaints to various State supervisory bodies (such as the Ministry of Health, the Health Inspectorate, the Health Board, and so on) are possible in some countries including Bulgaria, Croatia, Estonia and Hungary. In Azerbaijan, Russia, Spain and Ukraine a breach of the rules and regulations relating to health care constitutes an administrative offence.
126. Finally, apart from contentious proceedings, several countries provide for a system of settlement, mediation or no-fault compensation schemes (for example, Austria, Belgium, France, Germany, Poland and the United Kingdom).
A. Compliance with the six-month rule
127. The Court reiterates that the Grand Chamber is not precluded from examining, where appropriate, questions concerning the admissibility of an application under Article 35 § 4 of the Convention, as that provision enables the Court to dismiss applications it considers inadmissible “at any stage of the proceedings”. Therefore, even at the merits stage and subject to Rule 55, the Court may reconsider a decision to declare an application admissible where it concludes that it should have been declared inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Convention (see, for example, Muršić v. Croatia [GC], no. 7334/13, § 69, ECHR 2016).
128. Although the respondent State did not raise any objection before the Grand Chamber based on the six-month time limit as it had done previously before the Chamber, this issue, as a public policy rule, calls for consideration by the Court of its own motion (see Sabri Güneş v. Turkey [GC], no. 27396/06, § 29, 29 June 2012).
129. The Court reiterates that the object of the six-month time-limit under Article 35 § 1 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (ibid., §§ 39 and 40).
130. In this regard the Court emphasises that the requirements contained in Article 35 § 1 concerning the exhaustion of domestic remedies and the six-month period are closely interrelated (see Jeronovičs v. Latvia [GC], no. 44898/10, § 75, ECHR 2016), since they are not only combined in the same Article, but also expressed in a single sentence whose grammatical construction implies such a correlation (see Gregačević v. Croatia, no. 58331/09, § 35, 10 July 2012, and the references cited therein).
131. Thus, as a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies (see Blokhin v. Russia [GC], no. 47152/06, § 106, ECHR 2016). Article 35 § 1 cannot therefore be interpreted in a manner which would require an applicant to inform the Court of his complaint before his position in connection with the matter has been finally settled at the domestic level, otherwise the principle of subsidiarity would be breached (see Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 260, ECHR 2014 (extracts)).
132. However, this provision allows only remedies which are normal and effective to be taken into account as an applicant cannot extend the strict time-limit imposed under the Convention by seeking to make inappropriate or misconceived applications to bodies or institutions which have no power or competence to offer effective redress for the complaint in issue under the Convention (see, for example, Fernie v. the United Kingdom ( dec. ), no. 14881/04, 5 January 2006; Beiere v. Latvia, no. 30954/05, § 3 8, 29 November 2011; and, a contrario, Hizb ut-tahrir and Others v. Germany ( dec. ), no. 31098/08, §§ 58-59, 12 June 2012, and Petrović v. Serbia, no. 40485/08, § 60, 15 July 2014).
133. The Court observes that in the Chamber judgment the Government ’ s objection as regards the six-month time limit was dismissed because the application had been lodged on 2 3 August 2013, that is, within six months following the final domestic decision, namely the Supreme Administrative Court judgment delivered on 26 February 2013 following the proceedings for civil liability.
134. At the outset, the Court stresses that determining whether a domestic procedure constitutes an effective remedy within the meaning of Article 35 § 1, which an applicant must exhaust and which should therefore be taken into account for the purposes of the six-month time-limit, depends on a number of factors, notably the applicant ’ s complaint, the scope of the obligations of the State under that particular Convention provision, the available remedies in the respondent State and the specific circumstances of the case.
135. For example, the Court has held that, in the area of unlawful use of force by State agents – and not mere fault, omission or negligence – civil or administrative proceedings aimed solely at awarding damages, rather than ensuring the identification and punishment of those responsible, were not adequate and effective remedies capable of providing redress for complaints based on the substantive aspect of Articles 2 and 3 of the Convention (see Jeronovičs, § 76, and Mocanu and Others, § 227, both cited above). It has further held that the Contracting Parties ’ obligation under Articles 2 and 3 of the Convention to conduct an investigation capable of leading to the identification and punishment of those responsible in cases of assault could be rendered illusory if, in respect of complaints under those Articles, an applicant were required to bring an action leading only to an award of damages (see Jeronovičs, cited above, § 77 ).
136. In cases such as these, therefore, the Court considered that any subsequent civil proceedings undertaken by the applicant were not an adequate and effective remedy within the meaning of Article 35 § 1 which the applicants had to exhaust and which should therefore be taken into account for the purposes of the six-month time-limit. Accordingly, the Court dismissed those cases as having been lodged out of time (see, among others, Jørgensen and Others v. Denmark ( dec. ), no. 30173/12, § 63, 28 June 2016; Narin v. Turkey, no. 18907/02, § 49, 15 December 2009; and Bedir v. Turkey ( dec. ), no. 25070/02, 2 October 2007).
137. By contrast, in medical negligence cases the Court has considered that the procedural obligation imposed by Article 2, which concerns the requirement to set up an effective judicial system, will be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any responsibility of the doctors concerned to be established and any appropriate civil redress to be obtained. It has also accepted that disciplinary measures may also be envisaged (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002 ‑ I, and Vo v. France [GC], no. 53924/00, § 90, ECHR 2004 ‑ VIII). In such cases, therefore, the Court, having regard to the particular features of a respondent State ’ s legal system, has required the applicants to exhaust the legal avenues whereby they could have their complaints duly considered. This is because of the rebuttable presumption that any of those procedures, notably civil redress, are in principle apt to satisfy the State ’ s obligation under Article 2 of the Convention to provide an effective judicial system.
138. In the present case, the applicant used all the avenues of redress that were available to her in the Portuguese legal system. The Court finds that none of the proceedings instituted by her can be regarded as inappropriate or misconceived applications to bodies or institutions with no power or competence to offer effective redress for the complaint in issue under the Convention. Nor has it been demonstrated that, at the time when the applicant brought an action for compensation – the most appropriate avenue for establishing any alleged causal link between the initial surgery and Mr Fernandes ’ s tragic death three months later and for shedding light on the extent of the doctors ’ alleged responsibility for his death – it was obvious that these proceedings would be bound to fail from the outset and hence should not be taken into account for the calculation of the six-month period (see, for example, Musayeva and Others v. Russia ( dec. ), no. 74239/01, 1 June 2006, and Rezgui v. France ( dec. ), no. 49859/99, ECHR 2000-XI).
139. In the light of the above the Court considers, like the Chamber (see paragraph 133 above), that the application was not lodged out of time.
B. Government ’ s preliminary objection
140. The Government asked the Court to declare the application inadmissible as being manifestly ill-founded (see paragraph 213 below).
141. The applicant did not specifically comment on this issue.
142. The Court considers that the preliminary objection raised by the Government is so closely linked to the substance of the applicant ’ s complaint that it must be joined to the merits of the application (see, for example, O ’ Keeffe v. Ireland [GC], no. 35810/09, § 121, ECHR 2014 (extracts)).
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
143. The applicant alleged a breach of her husband ’ s right to life. She claimed that her husband had been the victim of a hospital-acquired infection and that the medical personnel had been careless and negligent in their diagnoses and treatment and in discharging her husband from hospital. In particular, she complained of delays in providing him with treatment and of the administration of medication in excessive doses. She did not, however, call into question her husband ’ s discharge from hospital authorised by Dr J.V. on 3 February 1998, that decision having been taken with her assent and that of her husband. She further complained that the authorities to which she had applied had failed to elucidate the precise cause of the sudden deterioration in the health of her husband, who had previously been perfectly fit. She also complained about the length of the domestic proceedings and the fact that she had not been informed of the exact cause of her husband ’ s death.
144. The applicant relied on Articles 2, 6 § 1 and 13 of the Convention, the first of which reads as follows:
“1. Everyone ’ s right to life shall be protected by law.”
145. Reiterating that the Court was master of the characterisation to be given in law to the facts of the case and finding that these complaints covered the same ground, the Chamber found it appropriate to examine the applicant ’ s allegations solely under Article 2 of the Convention. The Grand Chamber agrees with this approach. It will therefore proceed in the same manner (see Bouyid v. Belgium [GC], no. 23380/09, § 55, ECHR 2015).
146. The Chamber held that there had been a violation of the substantive aspect of Article 2 of the Convention. It noted that the second gastroenterology expert who gave evidence before the IGS, and also the ENT and infectious-diseases panels in the proceedings before the Medical Association, had all indicated that meningitis was a complication that could arise in exceptional cases after a polypectomy. The Chamber further noted that doubts had been expressed by the infectious-diseases panel in the Medical Association proceedings as to the promptness with which the patient ’ s meningitis had been diagnosed.
147. The Chamber held the view that the mere fact that the patient had undergone a surgical operation presenting a risk of infectious meningitis should have warranted immediate medical intervention in conformity with the medical protocol on post-operative supervision. However, this had not been done. Without wishing to speculate on the chances of survival of the applicant ’ s husband if his meningitis had been diagnosed earlier, it considered that the lack of coordination between the ENT department and the emergency unit at the hospital disclosed failings in the public hospital service, depriving the patient of the possibility of accessing appropriate emergency care. This fact was considered sufficient to find that the State had failed in its obligation to protect the physical integrity of Mr Fernandes.
148. The applicant submitted that, according to the more recent understanding of Article 2 of the Convention (she referred to Dodov v. Bulgaria, no. 59548/00, 17 January 2008; Mehmet Şentürk and Bekir Şentürk v. Turkey, no. 13423/09, ECHR 2013; Arskaya v. Ukraine, no. 45076/05, 5 December 2013; Asiye Genç v. Turkey, no. 24109/07, 27 January 2015; and Elena Cojocaru v. Romania, no. 74114/12, 22 March 2016), for the Court to find that there had been a violation of Article 2 under its substantive limb, it had to be established that in concrete terms the promptness and diligence which could reasonably have been expected in the circumstances of the case had been lacking and, further, that this failing had contributed to putting the victim ’ s life at risk. The applicant noted that in the aforementioned cases the factor which had weighed most heavily in the Court ’ s judgment was the absence of the timely medical treatment which, in the circumstances of each case, could reasonably have been expected and whose absence had contributed significantly to the chain of events which put at risk the life of patients who, in the end, had died. She stressed that in these various situations the Court had emphasised that there was no call to speculate on what the victims ’ chances of survival might have been if the failings identified had not occurred; what counted was the unreasonable risk to which, in the circumstances of each case, the patient had been exposed and which had contributed to the chain of events leading to his or her death. The applicant observed that, in determining the relevant facts, the Court had applied the “beyond reasonable doubt” test, according to which the requisite proof could follow from a sufficiently persuasive combination of inferences and presumptions. She submitted, contrary to the Portuguese Government ’ s view, that the Chamber judgment provided a concrete application of these principles to the facts of the case. The applicant emphasised in this connection that the Court had subsequently applied the same principles in the Elena Cojocaru case, cited above.
149. The applicant agreed with the facts as laid down in the Chamber judgment as well as the reasoning adopted in finding a substantive violation of Article 2 of the Convention. She further submitted that the Court should also take into account at least one other aggravating factor. In this connection the applicant argued that, irrespective of the origin of the bacterium which caused the meningitis, the treatment had not been administered as promptly as the situation demanded. The emergency team which had taken charge of the applicant ’ s husband at the CHNVG had been entirely unaware of, or else had disregarded, the fact that a nasal polypectomy had been performed two days earlier in the same hospital, and instead had treated the patient on the assumption that he was suffering from psychological problems. The applicant contended that the patient had not received any treatment between his arrival at the emergency department at about 1.30 a.m., and 10 a.m., when the lumbar puncture had been performed.
150. The applicant submitted that while the bacterial meningitis had not been the immediate cause of her husband ’ s death, it was undeniable that this event had given rise to the succession of clinical complications which had continued up to his death on 8 March 1998 as a direct result of septicaemia caused by peritonitis. She argued that the clinical complications from which her husband had suffered between 29 November 1997 and 8 March 1998 could not be viewed in isolation from each other, as though there was no connection between them. Relying on the report which formed the basis for the final report of the IGS, the applicant submitted that, in the present case, there had been a series of clinical complications (opportunistic infections, ulcers and other illnesses or pathological symptoms), each of which could be attributed to a greater or lesser extent to a previous event in the chain. She emphasised that the starting-point in this chain of events had been an occurrence of meningitis, attributable to a hospital-acquired bacterium, which had not been treated with the promptness the situation demanded, with the consequent need to intensify the antibiotic treatment, resulting in a worsening of the victim ’ s state of health. This had contributed to the appearance of complications – and in particular of opportunistic infections and ulcers – which, occurring in succession, had resulted in the patient ’ s death.
151. The applicant further submitted that there had been other instances of medical negligence, such as the four occasions on which her husband had been imprudently discharged from hospital (13 December 1997, 23 December 1997, 9 January 1998 and 3 February 1998). In addition, she argued that the direct cause of her husband ’ s death on 8 March 1998 undeniably amounted to medical negligence. She alleged that there had been an inexplicable delay in performing surgery, which should have taken place on 6 March but had in fact not been performed until 7 March at 8 p.m., by which time it had been too late to cure the peritonitis which had set in. In this connection she contended that it was undisputed that peritonitis, attributable in her husband ’ s case to a duodenal ulcer and the resulting perforated viscus, called for urgent surgery in order to avoid the onset of uncontrollable septicaemia, as in the present case. There was thus no reasonable explanation for the fact that the surgery had not been performed until 8 p.m. the following day. To that extent, the applicant submitted that this circumstance formed part of the series of unjustifiable delays in the delivery of appropriate medical treatment to her husband, which had deprived him of the possibility of access to such care. This constituted a further violation of the substantive limb of Article 2 of the Convention. In this connection she argued that even if the need for surgery had not become apparent until 7 March, this still did not explain why a surgeon had not been called until 3 p.m., thus leaving the patient without effective assistance until that time, and why he had been taken to the operating theatre without the necessary preparation, with the result that he had to be taken out of the theatre and then returned there around 8 p.m., by which time he had been in a very serious condition, between life and death.
152. The Government submitted at the outset that the validity of the contention underpinning the applicant ’ s complaint – that the entire course of her deceased husband ’ s clinical treatment had been marked by a series of interconnected shortcomings and errors – had not been demonstrated in any of the proceedings at domestic level. It had never been proven that the death of the applicant ’ s husband was attributable to medical negligence. They argued that the Chamber judgment had accepted that no medical negligence had been established and that the death of the applicant ’ s husband had not been caused by an event occurring on 29 November 1997, an event identified and characterised by the Chamber as a lack of coordination between the ENT department and the emergency department of the first hospital. This, according to the Chamber, attested to “failings in the public hospital service” and had “deprived the patient of the possibility of access to appropriate emergency care”. Notwithstanding the absence of medical negligence and of a causal link the Chamber had deemed this finding to be “sufficient for the Court to consider that the State failed in its obligation to protect his physical integrity” in breach of the substantive aspect of Article 2 of the Convention.
153. The Government, referring to the Court ’ s case-law ( Byrzykowski v. Poland, no. 11562/05, § 104, 27 June 2006; Eugenia Lazăr v. Romania, no. 32146/05, §§ 68-72, 16 February 2010; Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 130, ECHR 2014; and Powell v. the United Kingdom ( dec. ), no. 45305/99, ECHR 2000 ‑ V), maintained that in the area of health care the positive obligation arising for the Contracting States under Article 2 of the Convention with a view to preventing death caused by medical negligence was essentially of a procedural nature and involved a duty to put in place a regulatory structure requiring that hospitals, be they private or public, take appropriate steps to ensure that patients ’ lives were protected. In view of the facts of the case and the Court ’ s case-law, the Government submitted that the conclusion of the Chamber judgment raised serious doubts in that regard.
154. In the Government ’ s submission, the health-care system in Portugal at the material time was supported by a comprehensive and appropriate regulatory scheme; patients were covered by a charter which included their rights and obligations, and could present and formally lodge complaints; doctors were subject to ethical rules and, in the performance of their duties, were required to comply with good medical practice and apply technical and scientific knowledge in accordance with best practice and the relevant clinical protocols. Moreover, all hospital activity was subjected to a system of supervision and doctors who failed to comply with the duty of diligence or the ethical rules were liable to disciplinary measures; in the event of an allegation of negligence resulting in the death of a patient, criminal proceedings for the crime of negligent homicide could be instituted and an action for civil liability could be brought.
155. They noted that no expert opinions, documents or other evidence submitted at the domestic level had confirmed the allegations made by the applicant. The latter, in the Government ’ s view, had disputed the diagnoses made, the medications prescribed, the timing of the operation and the discharge decisions, with the exception of the discharge granted on 3 February 1998 which she and her husband had themselves requested. However, the Government stressed that the conclusion reached by the various domestic bodies, which had heard evidence from a great number of doctors and other experts, was that the assistance which the doctors concerned had provided to the patient had disclosed no negligent conduct, and no errors had been committed. The Government further asserted that all necessary care and treatment had been provided to the applicant ’ s husband; in particular, there had been no manifest failure to provide essential care or refusal to admit and attend to the patient. Having regard to the regulatory framework, they considered that the circumstances of the present case did not reveal any failure on the part of the Portuguese authorities to comply with the positive obligation imposed upon them by virtue of Article 2 of the Convention.
156. The Government reiterated that the Chamber judgment had been insufficiently reasoned and that it had departed from the Court ’ s existing line of case-law in an area of fundamental importance, thereby creating legal uncertainty for the State. They argued that in finding a violation of the right to life under the substantive limb of Article 2, in the absence of medical negligence, of any established causal link with the patient ’ s death, or of any failure to provide treatment by refusing to admit or attend to the patient, but simply on the basis of a possible lack of coordination between hospital services that had no consequences for the value protected by the rule, the Chamber had acted as a fourth instance and had expanded the Court ’ s area of competence to include the assessment in abstracto of the functioning of domestic health-care services. This should not be its role.
(a) The United Kingdom Government
157. The United Kingdom Government noted that the present case raised questions as to the extent to which a Contracting State could be in breach of the substantive aspect of Article 2 of the Convention as a result of deficiencies in the provision of medical treatment. In this regard they submitted that Contracting States had a positive obligation under Article 2 § 1 to make regulations compelling hospitals to adopt appropriate measures for the protection of their patients ’ lives. A failure to discharge that obligation to regulate medical treatment could amount to a breach of the substantive aspect of Article 2, where that failure led to the death of a person within the Contracting State ’ s jurisdiction. However, in the view of the United Kingdom Government, deficiencies in the provision of medical treatment by health-care professionals and hospital staff did not engage the responsibility of the Contracting State under the substantive aspect of Article 2, but could only engage the procedural aspect of Article 2. The United Kingdom Government, referring to a number of cases determined by this Court, emphasised that previous cases had been decided consistently with these general principles.
158. As to the substantive aspect of Article 2 in connection with a failure to provide health care, the United Kingdom Government emphasised that the Convention contained no express provision recognising a right to the provision of any kind of health care, nor a right to be provided with health care of any particular standard. In this connection they submitted that the Court, in Mehmet Şentürk and Bekir Şentürk and Asiye Genç, both cited above, had relied on an obiter dictum in Cyprus v. Turkey ([GC], no. 25781/94, ECHR 2001 ‑ IV), which concerned a claim of denial of medical treatment to a whole section of a population. They further considered that in any event the circumstances in the aforementioned cases had been particular and severe. The United Kingdom Government further noted that in these cases, and also in the case of Aydoğdu v. Turkey (no. 40448/06, 30 August 2016), the Court had applied the Osman line of case-law (see Osman v. the United Kingdom, 28 October 1998, Reports of Judgments and Decisions 1998 ‑ VIII). They maintained that this case-law could not be extended to cases where medical treatment had been provided to a person but had been provided deficiently (for example, because there had been medical negligence). Finally, the United Kingdom Government observed that the Turkish cases referred to above and the case of Elena Cojocaru, cited above, suggested that there could be a breach of the substantive aspect of Article 2 where there was a dysfunction in the health ‑ care system. However, they were of the view that a dysfunction in the management of a particular hospital or hospital department, or dysfunctional coordination between two different hospitals, would not of itself be sufficient to engage the Contracting State ’ s obligations under the substantive aspect of Article 2, unless it was established that the dysfunction was the result of a failure by the Contracting State to meet its regulatory obligations referred to above.
159. The Government of Ireland provided the Court with a detailed account of the regulation of medical practice in Ireland. They submitted that Ireland had made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients. The Chamber judgment appeared to suggest however that, notwithstanding this, a Contracting State might still be found to be in breach of Article 2 by reason of an error of judgment on the part of a health professional. The Government of Ireland submitted that the Chamber judgment further suggested that, even where a case had been rigorously examined by an adequate national system and no error identified, the Court might nevertheless substitute its own reasoning for that of the national courts and tribunals. In this regard they submitted that the Chamber judgment in this case represented a departure from established jurisprudence.
160. Analysing the medical negligence and health-care cases dealt with by the Court over the last sixteen years, the Government of Ireland submitted that there was a consistent approach by the Court in relation to the application of Article 2 in both its substantive and procedural aspects. According to them, the principles which emerged were as follows: (1) where a Contracting State had made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, matters such as an error of judgment on the part of a health professional or negligent coordination among health professionals in the treatment of a particular patient were not sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life; (2) there might be an exception where the negligence attributable to that hospital ’ s medical staff went beyond a mere error or medical negligence. These circumstances seemed to occur where the domestic courts found the relevant staff in a hospital setting responsible and liable for more than negligence and/or where there was a denial of care/medical treatment simpliciter, resulting in the patient ’ s life being put in danger.
161. The Government of Ireland submitted that no such exception had existed in the facts of the present case. They underlined the pertinence of the dissenting opinions annexed to the Chamber judgment, as well as Judge Sajó ’ s dissent in the case of Elena Cojocaru, cited above. In conclusion, the Government of Ireland submitted that the existing line of reasoning established in the case-law prior to the current case should be adopted and continued in the case at hand. In their view any departure from this case-law would lead to legal uncertainty in the application of obligations under Article 2 and would undermine the validity of domestic efforts and authorities involved in the regulation of health care, especially in circumstances where there was no causation between an alleged breach of duty and an injury or death.
(a) Summary of the relevant case-law
162. The Court is frequently called upon to rule on complaints alleging a violation of Article 2 of the Convention in the context of health care. A considerable number of these cases concern allegations of negligence occurring in the context of medical treatment in hospitals. In this regard the Court considers that the present case provides an opportunity to reaffirm and clarify the scope of the substantive positive obligations of States in such cases.
163. The Court would emphasise at the outset that different considerations arise in certain other contexts, in particular with regard to the medical treatment of persons deprived of their liberty or of particularly vulnerable persons under the care of the State, where the State has direct responsibility for the welfare of these individuals (see, for example, Slimani v. France, no. 57671/00, ECHR 2004 ‑ IX (extracts), and Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, §§ 143-44). Such circumstances are not in issue in the present case.
164. The Court reiterates that the first sentence of Article 2, which ranks as one of the most fundamental provisions in the Convention and also enshrines one of the basic values of the democratic societies making up the Council of Europe, requires the State not only to refrain from the “intentional” taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see Calvelli and Ciglio, § 48, and Vo, § 88, both cited above).
165. The Court has stressed many times that, although the right to health – recognised in numerous international instruments – is not as such among the rights guaranteed under the Convention and its Protocols (see Vasileva v. Bulgaria, no. 23796/10, § 63, 17 March 2016), the aforementioned positive obligation must be construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake (see Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 130), including in the public ‑ health sphere.
166. In the particular context of health care the Court has interpreted the substantive positive obligation of the State as requiring the latter to make regulations compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients ’ lives (see, among many other authorities, Oyal v. Turkey, no. 4864/05, § 54, 23 March 2010, and Lambert and Others v. France [GC], no. 46043/14, § 140, ECHR 2015 (extracts)).
167. However, it has not excluded the possibility that the acts and omissions of the authorities in the context of public health policies, may, in certain circumstances, engage the Contacting Parties ’ responsibility under the substantive limb of Article 2 (see Powell, cited above).
(ii) Case-law on medical negligence
168. In cases where allegations of medical negligence were made in the context of the treatment of a patient, the Court has consistently emphasised that, where a Contracting State has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, matters such as an error of judgment on the part of a health professional or negligent coordination among health professionals in the treatment of a particular patient are not sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life (see, among many other authorities, Powell, cited above, and Sevim Güngör v. Turkey ( dec. ), no. 75173/01, 14 April 2009).
169. To date, in cases concerning medical negligence, the Court has rarely found deficiencies in the regulatory framework of member States as such ( see Arskaya, cited above, § 91, and, a contrario, Z v. Poland, no. 46132/08, §§ 110-12, 13 November 2012; see also Altuğ and Others v. Turkey, no. 32086/07, § 73, 30 June 2015; Glass v. the United Kingdom, ( dec. ), no. 61827/00, 18 March 2003; and Sevim Güngör, cited above).
170. In the case of Arskaya v. Ukraine, cited above, the applicant alleged that her son, who had been hospitalised for pneumonia and tuberculosis, had died as a result of medical negligence on account of inadequate health-care regulations concerning patients refusing to consent to treatment. The Court, when finding a substantive violation of Article 2, noted that the local regulations governing patients ’ admission to intensive care were inadequate. It further found that there was a lack of appropriate rules for establishing patients ’ decision-making capacity, including their informed consent to treatment. It considered therefore that the authorities had not taken sufficient steps to put in place a regulatory framework ensuring that the life of the applicant ’ s son was properly protected by law as required by Article 2 of the Convention ( ibid. §§ 84-91).
171. In a number of cases the Court has also addressed the substance of the applicants ’ medical negligence claims. However, in all those cases, such claims were considered unfounded on the facts because no medical negligence had been established at the domestic level, notably by medical experts (see, for example, Skraskowski v. Poland ( dec. ), no. 36420/97, 6 April 2000; Sieminska v. Poland, no. 37602/97, 29 March 2001; Buksa v. Poland ( dec. ), no. 75749/13, § 13, 31 May 2016; and Mihu v. Romania, no. 36903/13, § 67, 1 March 2016). The Court reiterates that it is not for it to speculate, on the basis of the medical information submitted to it, on whether the conclusions of the medical experts on which domestic court decisions were founded were correct (see Sayan v. Turkey, no. 81277/12, § 112, 11 October 2016, and Balcı v. Turkey ( dec. ), no. 58194/10, § 45, 20 October 2015, and the cases cited therein).
172. The Court has usually reviewed such factual issues under the procedural limb, considering that the events leading to the death of the patient and the responsibility of the health professionals involved were matters which must be addressed from the angle of the adequacy of the mechanisms that were in place for shedding light on the course of those events, allowing the facts of the case to be exposed to public scrutiny, not least for the benefit of the applicants ( see, for example, Trzepalko v. Poland ( dec. ), no. 25124/09, § 24, 13 September 2011; Oyal, cited above; Eugenia Lazăr, cited above, §§ 69-70; Rinkūnienė v. Lithuania ( dec. ), no. 55779/08, 1 December 2009; and Zafer Öztürk v. Turkey, no. 25774/09, § 46, 21 July 2015).
(iii) Case-law on denial of health care
173. The Court has further held that an issue may arise under Article 2 where it is shown that the authorities of a Contracting State have put an individual ’ s life at risk through the denial of the health care which they have undertaken to make available to the population generally (see Cyprus v. Turkey, cited above, § 219).
174. Until recently, the type of cases which were examined by the Court with reference to the aforementioned principle concerned applicants who were claiming that the State should pay for a particular form of conventional treatment because they were unable to meet the costs it entailed (see, for example, Nitecki v. Poland ( dec. ), no. 65653/01, 21 March 2002; Pentiacova and Others v. Moldova ( dec. ), no. 14462/03, ECHR 2005 ‑ I; Gheorghe v. Romania ( dec. ), no. 19215/04, 22 September 2005; and Wiater v. Poland ( dec. ), no. 42290/08, 15 May 2012) or that they should have access to unauthorised medicinal products for medical treatment (see Hristozov and Others v. Bulgaria, nos. 47039/11 and 358/12, ECHR 2012 (extracts)). The Court did not find a breach of Article 2 in any of these cases, either because it considered that sufficient medical treatment and facilities had been provided to the applicants on an equal footing with other persons in a similar situation (see Nitecki and Gheorghe, both cited above) or because the applicants had failed to adduce any evidence that their lives had been put at risk (see Pentiacova and Others, cited above). In Hristozov and Others, cited above, the Court did not find fault with the regulations governing access to unauthorised medicinal products in situations where conventional forms of medical treatment appeared insufficient, and considered that Article 2 of the Convention could not be interpreted as requiring access to unauthorised medicinal products for terminally-ill patients to be regulated in a particular way ( ibid. § 108).
175. In this connection the Court reiterates that issues such as the allocation of public funds in the area of health care are not a matter on which the Court should take a stand and that it is for the competent authorities of the Contracting States to consider and decide how their limited resources should be allocated, as those authorities are better placed than the Court to evaluate the relevant demands in view of the scarce resources and to take responsibility for the difficult choices which have to be made between worthy needs (see Wiater, § 39, Pentiacova and Others and Gheorghe, all cited above).
176. The Court found a procedural violation in the case of Panaitescu v. Romania ( no. 30909/06, 10 April 2012) where it considered that the State had failed to prevent the applicant ’ s life from being avoidably put at risk by not providing him with the appropriate health care as ordered by the national courts. This was a very exceptional case which concerned the refusal of the domestic authorities to provide the patient with a particular, costly cancer drug free of charge, in circumstances where the domestic courts had found that the individual in question had such an entitlement.
(iv) Recent case-law developments
177. The Court observes that the parties, in their submissions, focused on some recent cases concerning a failure to provide emergency medical care in the context of pre- or post-natal care.
178. A substantive violation of Article 2 was found in the context of denial of health care in Mehmet Şentürk and Bekir Şentürk, cited above, where the first applicant ’ s wife, who was pregnant, died in an ambulance because of the doctors ’ refusal to carry out an urgent operation owing to her inability to pay medical fees. In this connection the Court held that it was not disputed that the patient had arrived at the hospital in a serious condition and that she required emergency surgery, failing which there were likely to be extremely grave consequences. While the Court did not want to speculate on the chances of survival of the first applicant ’ s wife had she received medical treatment, it considered that the medical staff had been fully aware that transferring the patient to another hospital would put her life at risk. In this regard it took note that domestic law did not have any provisions in this area capable of preventing the failure to give the patient the medical treatment she had required on account of her condition. The Court therefore considered that the first applicant ’ s wife, victim of a flagrant malfunctioning of the relevant hospital departments, had been deprived of the possibility of access to appropriate emergency care ( ibid. §§ 96-97).
179. In the case of Asiye Genç, cited above, the applicant ’ s new ‑ born baby died in an ambulance after being refused admission to a number of public hospitals owing to a lack of space or adequate equipment in their neonatal units. The Court, considering that the State had not sufficiently ensured the proper organisation and functioning of the public hospital service, or more generally its health protection system, held that the applicant ’ s son had been the victim of a dysfunction in the hospital services, as he had been deprived of access to appropriate emergency treatment. It emphasised that the baby had not died because there had been negligence or an error of judgment in his medical care, but because no treatment whatsoever had been offered. The Court therefore concluded that there had been a refusal to provide medical treatment, resulting in the patient ’ s life being put in danger (ibid. §§ 80-82).
180. In Elena Cojocaru, cited above, the applicant ’ s pregnant daughter, who was suffering from a serious pre-natal condition, died after a doctor at the public hospital had refused to perform an emergency C-section and she was transferred to another hospital, 150 km away, without a doctor ’ s supervision. The new-born baby died two days later. The Court found that the circumstances in that case constituted a failure to provide adequate emergency treatment ( ibid. § 125) since, irrespective of the reason, the patient ’ s transfer had delayed the emergency treatment she needed. The apparent lack of coordination of the medical services and the delay in administering the appropriate emergency treatment attested to a dysfunction in public hospital services ( ibid. § 111).
181. The case of Aydoğdu, cited above, concerned the death of a premature baby due to a combination of circumstances, notably on account of a dysfunction in the health system in a particular region of Turkey ( ibid. §§ 55 and 76). In that case the Court considered that the authorities responsible for health care must have been aware at the time of the events that there was a real risk to the lives of multiple patients, including the applicant ’ s baby, owing to a chronic state of affairs which was common knowledge, and yet had failed to take any of the steps that could reasonably have been expected of them to avert that risk. The Court noted that the Government had not explained why taking such steps would have constituted an impossible or disproportionate burden for them, bearing in mind the operational choices that needed to be made in terms of priorities and resources ( ibid. § 87). It therefore held that Turkey had not taken sufficient care to ensure the proper organisation and functioning of the public hospital service in this region of the country, in particular because of the lack of a regulatory framework laying down rules for hospitals to ensure protection of the lives of premature babies. The Court, noting that, apart from the negligent behaviour of the medical staff, there was a causal link between the baby ’ s death and the above ‑ mentioned structural problems, held that the baby had been the victim of negligence and structural deficiencies. This had effectively prevented her from receiving appropriate emergency treatment and amounted to a refusal to provide medical treatment, resulting in the patient ’ s life being put in danger ( ibid. § 88).
182. The predominant features which stand out in the aforementioned cases - apart from the case of Elena Cojocaru which follows the line taken in the Chamber judgment in the present case - clearly demonstrate that the Court has distinguished these cases, where there is an arguable claim of a denial of immediate emergency care, from cases which concern allegations of mere medical negligence (see Mehmet Şentürk and Bekir Şentürk, §§ 85, 104 and 105; Aydoğdu, §§ 62, 76 and 80; and Asiye Genç, §§ 73, 76 and 82, all cited above; see also M. v. Turkey, no. 4050/10 ( dec ), 15 October 2013, and Sayan, cited above, §§ 111-12, where the applicants were unable to substantiate the alleged denial of health care). Thus, the approach adopted in those cases cannot be transposed to cases where the allegations concern mere medical negligence.
183. These cases are, in the Court ’ s view, exceptional ones in which the fault attributable to the health-care providers went beyond a mere error or medical negligence. They concerned circumstances where the medical staff, in breach of their professional obligations, failed to provide emergency medical treatment despite being fully aware that a person ’ s life would be put at risk if that treatment was not given (see Mehmet Şentürk and Bekir Şentürk, cited above, § 104).
184. Moreover, as observed by the United Kingdom Government, the Court ’ s approach, particularly in the case of Aydoğdu, cited above, is akin to the test which it applies when examining the substantive positive obligation of the State to undertake preventive operational measures to protect an individual whose life is imminently at real risk (see, for general principles, Osman, cited above, §§ 115-16 ). In Aydoğdu the failure to provide emergency medical treatment resulted from a dysfunction in the hospital services in that particular region, a situation of which the authorities were or ought to have been aware but which they had failed to address by undertaking the necessary measures to prevent the lives of patients being put at risk. In this regard the Court emphasises that the dysfunctioning of the hospital services referred to in Aydoğdu and Asiye Genç, both cited above, did not concern negligent coordination between different hospital services or between different hospitals vis-à-vis a particular patient. It concerned a structural issue linked to the deficiencies in the regulatory framework (see Aydoğdu, cited above, § 87).
185. Having regard to its case-law summarised above, the Court considers that the approach adopted hitherto should be clarified.
186. In this regard the Court reaffirms that in the context of alleged medical negligence, the States ’ substantive positive obligations relating to medical treatment are limited to a duty to regulate, that is to say, a duty to put in place an effective regulatory framework compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients ’ lives.
187. Even in cases where medical negligence was established, the Court would normally find a substantive violation of Article 2 only if the relevant regulatory framework failed to ensure proper protection of the patient ’ s life. The Court reaffirms that where a Contracting State has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, matters such as an error of judgment on the part of a health professional or negligent coordination among health professionals in the treatment of a particular patient cannot be considered sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life (see, among many other authorities, Powell and Sevim Güngör, both cited above).
188. For the Court ’ s examination of a particular case, the question whether there has been a failure by the State in its regulatory duties calls for a concrete assessment of the alleged deficiencies rather than an abstract one. In this regard, the Court reiterates that its task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicant gave rise to a violation of the Convention (see Roman Zakharov v. Russia [GC], no. 47143/06, § 164, ECHR 2015 and the cases cited therein ). Therefore, the mere fact that the regulatory framework may be deficient in some respect is not sufficient in itself to raise an issue under Article 2 of the Convention. It must be shown to have operated to the patient ’ s detriment (compare and contrast Z v. Poland, cited above, §§ 110-12, and Arskaya, cited above, §§ 84-91).
189. It must, moreover, be emphasised that the States ’ obligation to regulate must be understood in a broader sense which includes the duty to ensure the effective functioning of that regulatory framework. The regulatory duties thus encompass necessary measures to ensure implementation, including supervision and enforcement.
190. On the basis of this broader understanding of the States ’ obligation to provide a regulatory framework, the Court has accepted that, in the very exceptional circumstances described below, the responsibility of the State under the substantive limb of Article 2 of the Convention may be engaged in respect of the acts and omissions of health-care providers.
191. The first type of exceptional circumstances concerns a specific situation where an individual patient ’ s life is knowingly put in danger by denial of access to life-saving emergency treatment ( see, for example, Mehmet Şentürk and Bekir Şentürk, and, by contrast, Sayan, both cited above). It does not extend to circumstances where a patient is considered to have received deficient, incorrect or delayed treatment.
192. The second type of exceptional circumstances arises where a systemic or structural dysfunction in hospital services results in a patient being deprived of access to life-saving emergency treatment and the authorities knew about or ought to have known about that risk and failed to undertake the necessary measures to prevent that risk from materialising, thus putting the patients ’ lives, including the life of the particular patient concerned, in danger (see, for example, Asiye Genç and Aydoğdu, both cited above).
193. The Court is aware that on the facts it may sometimes not be easy to distinguish between cases involving mere medical negligence and those where there is a denial of access to life-saving emergency treatment, particularly since there may be a combination of factors which contribute to a patient ’ s death.
194. However, the Court reiterates at this juncture that, for a case to fall into the latter category, the following factors, taken cumulatively, must be met. Firstly, the acts and omissions of the health-care providers must go beyond a mere error or medical negligence, in so far as those health-care providers, in breach of their professional obligations, deny a patient emergency medical treatment despite being fully aware that the person ’ s life is at risk if that treatment is not given (see Mehmet Şentürk and Bekir Şentürk, cited above, § 104).
195. Secondly, the dysfunction at issue must be objectively and genuinely identifiable as systemic or structural in order to be attributable to the State authorities, and must not merely comprise individual instances where something may have been dysfunctional in the sense of going wrong or functioning badly (see, in particular, Aydoğdu, cited above, § 87, and, by contrast, Eugenia Lazăr, cited above, §§ 69-70).
196. Thirdly, there must be a link between the dysfunction complained of and the harm which the patient sustained. Finally, the dysfunction at issue must have resulted from the failure of the State to meet its obligation to provide a regulatory framework in the broader sense indicated above (see paragraph 189 above and, for example, Mehmet Şentürk and Bekir Şentürk, cited above, § 96, and Aydoğdu, cited above, §§ 87-88).
(c) Application of those criteria to the present case
197. The Court observes that, in the instant case, the applicant did not allege or imply that her husband ’ s death had been caused intentionally. She submitted that her husband had lost his life as a result of a hospital-acquired infection and of various instances of medical negligence which occurred throughout his treatment, and that the doctors in charge of treating him had failed to undertake the necessary measures to save her husband ’ s life. In particular, she claimed that her husband had been infected at the hospital by the Pseudomonas cepacia bacterium, which had caused her husband ’ s meningitis; that a serious error of diagnosis had been made when her husband had attended the emergency department of the CHVNG on 29 November 1997; that this delay in diagnosis had allowed a life-threatening infection to develop, which had then had to be treated with very high doses of medication with extremely damaging gastrointestinal side-effects; that the decision to discharge her husband from the CHVNG on various dates had not been accompanied by the requisite medical follow-up; and that the perforated duodenal ulcer had been diagnosed well before the surgery performed on 7 March 1998.
198. At the outset, the Court emphasises that it is not for the Court to call into question the medical professionals ’ assessment of the health status of the now deceased patient, or their decisions regarding how he should have been treated (see Glass, cited above). Those clinical assessments and decisions were made against the background of the patient ’ s state of health at the time and the conclusions of the medical staff as to what steps needed to be taken for his treatment. In this connection the Court observes that the medical treatment provided to the applicant ’ s husband was subjected to domestic scrutiny and that none of the judicial or disciplinary bodies which examined the applicant ’ s allegations ultimately found any fault with his medical treatment. Moreover, while some experts voiced concerns or criticism with regard to certain aspects of his treatment, none of the medical expert evidence conclusively established the existence of medical negligence in the treatment of the applicant ’ s husband.
199. The Court reiterates in this regard that, except in cases of manifest arbitrariness or error, it is not the Court ’ s function to call into question the findings of fact made by the domestic authorities, particularly when it comes to scientific expert assessments, which by definition call for specific and detailed knowledge of the subject (see Počkajevs v. Latvia ( dec. ), no. 76774/01, 21 October 2004). It follows that the examination of the circumstances leading to the death of the applicant ’ s husband and the alleged responsibility of the health professionals involved are matters which must be addressed from the angle of the adequacy of the mechanisms in place for shedding light on the course of those events. These aspects fall to be examined under the procedural obligation of the State as addressed below (see, among other authorities, Eugenia Lazăr, § 70; Powell ( dec. ); Sevim Güngör ( dec. ); and Mihu, § 68, all cited above).
200. The Court observes that in the present case the applicant did not complain that her husband had been denied access to medical treatment in general or emergency treatment in particular. Nor is there any information in the case file which would suggest such an issue in the present case. Rather, the applicant complained that the medical treatment provided to her husband had been deficient because of the negligence of the doctors who had treated him. In the Court ’ s view, an alleged error in diagnosis leading to a delay in the administration of proper treatment, or an alleged delay in performing a particular medical intervention, cannot in themselves constitute a basis for considering the facts of this case on a par with those concerning denial of healthcare.
201. Moreover, the Court considers that no sufficient evidence has been adduced in the present case to demonstrate that there existed, at the material time, any systemic or structural dysfunction affecting the hospitals where the applicant ’ s husband was treated, which the authorities knew or ought to have known about and in respect of which they failed to undertake the necessary preventive measures, and that such a deficiency contributed decisively to the death of the applicant ’ s husband (compare Asiye Genç, § 80, and Aydoğdu, § 87, both cited above). In this respect, while the Court does not disregard the critical remarks which were made by the infectious ‑ diseases panel (see paragraph 53 above), it observes, firstly, that this panel neither mentioned any supporting evidence for these general remarks nor considered that this alleged deficiency contributed decisively to the death of the applicant ’ s husband. Secondly, these views were not endorsed by the Medical Association ’ s regional disciplinary council for the North region in its decision, which was given after having examined the conclusions of five different specialist panels, including that of the infectious ‑ diseases panel. Finally, no similar views were mentioned by any other experts who gave evidence in the different proceedings at the national level.
202. It has not been demonstrated, either, that the alleged fault attributable to the health-care professionals went beyond a mere error or medical negligence or that the health-care professionals involved in the treatment of the applicant ’ s husband failed, in breach of their professional obligations, to provide emergency medical treatment to him despite being fully aware that his life was at risk if that treatment was not given. In this regard the Court, contrary to the Chamber ’ s finding, considers that the alleged lack of coordination between the ENT department of the CHVNG and the hospital ’ s emergency department does not, by itself, amount to a dysfunction in hospital services capable of engaging the State ’ s responsibility under Article 2. In the present case, the Court does not have at its disposal any evidence or other elements that would enable it to make any findings or reach any conclusions establishing a situation of structural or systemic dysfunctions in the health-care services in question.
203. In view of the above considerations, the Court takes the view that the present case concerns allegations of medical negligence. In these circumstances Portugal ’ s substantive positive obligations are limited to the setting-up of an adequate regulatory framework compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients ’ lives (see paragraphs 186 and 189 above).
204. Having regard to the detailed rules and standards laid down in the domestic law and practice of the respondent State in the area under consideration (see paragraphs 88-109 above), the Court considers that the relevant regulatory framework does not disclose any shortcomings as regards the State ’ s obligation to protect the right to life of the applicant ’ s husband. Nor has the applicant argued otherwise.
205. Therefore, the Court finds that there has been no violation of Article 2 of the Convention in its substantive aspect.
206. The Chamber found that there had been a violation of the procedural aspect of Article 2 of the Convention. It considered at the outset that the Portuguese legal system provided citizens with means which, theoretically, met the requirements of Article 2 of the Convention.
207. With regard, however, to the effectiveness of the mechanisms the Chamber noted, firstly, the excessive length of the domestic proceedings before the IGS, the Vila Nova de Gaia District Court and the Oporto Administrative and Fiscal Court, which did not meet the requirement of promptness under the procedural limb of Article 2 of the Convention. Secondly, it considered that none of the decisions taken, nor any of the experts ’ assessments presented, had addressed satisfactorily the question of the possible causal link between the various illnesses suffered by the patient two days after the surgery. The Chamber observed that in each set of proceedings the events had been described in chronological order in isolation from each other. Finally, the Chamber considered that if meningitis was a possible complication following this type of surgery, then the issue as to whether the applicant ’ s husband had been duly informed of the risks he faced so that he could give his informed consent had to be addressed by the domestic courts. No explanation had been provided in the domestic proceedings regarding the pre- and post ‑ operative medical protocol for this surgery. The Chamber therefore considered that the domestic authorities had not dealt with the applicant ’ s case concerning her husband ’ s death in a manner compatible with the procedural requirements of Article 2 of the Convention.
208. The applicant submitted that where a death occurred in a hospital without the cause being clarified, there was in principle an obligation to establish an appropriate procedural mechanism for determining that cause, for holding any persons at fault to account and for correcting any shortcomings in the functioning of the system. In this regard she stressed that she had consistently set in motion the appropriate mechanisms at the domestic level. According to the Court ’ s case-law, compliance with the procedural obligation under Article 2 required: ( i ) that effective legal mechanisms exist for establishing the facts and the responsibility of those at fault; (ii) that the task of establishing such facts and responsibilities be assumed by impartial persons; (iii) that the procedures concerned be set in motion and carried through in good time and with suitable promptness, without unnecessary or unjustified delays; and (iv) that any specific steps required by the circumstances be taken.
209. In this regard the applicant did not contest that the first two requirements had been satisfied in the circumstances of the present case. However, she claimed that the national authorities had failed to react to the situation with the necessary promptness, responsiveness and diligence, as established in paragraphs 132-37 of the Chamber judgment, with which she agreed. She further considered that there had been a number of failings which had compromised the decision-making process. Firstly, as the Chamber had noted, no comprehensive, thorough and satisfactory assessment had been made by the domestic authorities. Secondly, as the Chamber had likewise emphasised, the risks attendant on the intended surgery had not been made clear to the patient. Thirdly, the authorities had not even tried to determine the origin of the bacterium which had caused the meningitis and, fourthly, in the absence of a properly substantiated explanation for the chain of events in question an autopsy should have been mandatory.
210. The Government submitted that the death of a patient in hospital could not be compared to the death of someone who was under the control of the authorities or the deaths of vulnerable persons in the care of public services. They considered that the death of a patient following a medical procedure in hospital did not require the automatic institution of an inquiry, particularly where the death did not give rise to doubts as to its cause or raise suspicions as to the existence of an intentional act or medical negligence. In the Government ’ s view an examination of all the circumstances was, however, necessary in order to determine the cause of death, with the performance of an autopsy being required only where it had not been possible to determine that cause. The Government submitted that, in the present case, there was no evidence or indication of medical negligence, and the cause of death was known. They stated that, pursuant to Article 54 of Legislative Decree no. 11/98 of 24 January 1998, autopsies were undertaken in the event of violent death or where the cause of death was unknown.
211. They noted, nonetheless, that when the applicant had made her allegations, a number of proceedings of a different nature had been initiated and had gone on to run their full course; all the actions that were requested had been carried out, as had all the appropriate steps that had been necessary in order to help establish the facts and determine possible responsibilities. The Government provided a detailed description of the steps taken in the course of each set of proceedings. They maintained that the courts and the disciplinary bodies involved in the present case had had a clear and detailed set of facts at their disposal concerning, in particular, the causes of death, which had allowed them to conclude without any doubt that there had been no medical negligence. In this connection the Government stressed that the applicant had at every stage participated in the proceedings, presented her arguments and evidence in full adversarial proceedings, lodged complaints and appealed against decisions. Moreover, the judicial proceedings had taken place before independent and impartial judges and the hearings had been public.
212. The Government conceded that the proceedings had been lengthy. However, they considered that this had not stood in the way of effective observance of the procedural obligation. They argued that the length of the criminal and civil proceedings and those before the IGS could be attributed precisely to the efforts made by the competent authorities to address with rigour all the facts of the case and all the doubts expressed by the applicant. In such circumstances, the Government considered that the duration of the proceedings could not be a ground for finding a violation of the procedural obligation under Article 2 of the Convention. At most, they argued, the lengthy proceedings might breach Article 6 § 1 of the Convention, which was incidentally the complaint lodged by the applicant.
213. The Government reiterated that, in accordance with the Court ’ s case ‑ law, the obligation deriving from the procedural limb of Article 2 was one of means and not of result. In this regard, if some doubts had persisted concerning the events surrounding the applicant ’ s husband ’ s death, this was simply because there were always situations in which medical science was unable to predict, diagnose or explain. However, this was not in any way attributable to a lack of effort on the part of the domestic authorities. The Government therefore considered that the procedural obligations deriving from Article 2 of the Convention had been fulfilled in the present case. Accordingly, they called for the application to be rejected as inadmissible under Article 35 § 4 of the Convention, on the ground that it was manifestly ill-founded.
214. The Court has interpreted the procedural obligation of Article 2 in the context of health care as requiring States to set up an effective and independent judicial system so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable (see, among other authorities, Šilih v. Slovenia [GC], no. 71463/01, § 192, 9 April 2009, and the cases cited therein).
215. While, in some exceptional situations, where the fault attributable to the health-care providers went beyond a mere error or medical negligence, the Court has considered that compliance with the procedural obligation must include recourse to criminal law (see, for example, Mehmet Şentürk and Bekir Şentürk, §§ 104-105, and Asiye Genç, § 73, both cited above), in all other cases where the infringement of the right to life or to personal integrity is not caused intentionally, the procedural obligation imposed by Article 2 to set up an effective and independent judicial system does not necessarily require the provision of a criminal-law remedy (see paragraph 137 above; see also Cevrioğlu v. Turkey, no. 69546/12, § 54, 4 October 2016 ).
216. The Court reiterates that the choice of means for ensuring the positive obligations under Article 2 is in principle a matter that falls within the Contracting State ’ s margin of appreciation. There are different avenues for ensuring Convention rights, and even if the State has failed to apply one particular measure provided by domestic law, it may still fulfil its positive duty by other means (see Cevrioğlu, cited above, § 55 ). However, for this obligation to be satisfied, such proceedings must not only exist in theory but also operate effectively in practice (see, for example, Byrzykowski, cited above, § 105, and Spyra and Kranczkowski v. Poland, no. 19764/07, § 88, 25 September 2012).
217. A requirement of independence of the domestic system set up to determine the cause of death of patients in the care of the medical profession is implicit in this context. This requires not only a lack of hierarchical or institutional connection but also that all parties tasked with conducting an assessment in the proceedings for determining the cause of death of patients enjoy formal and de facto independence from those implicated in the events (see Bajić v. Croatia, no. 41108/10, § 90, 13 November 2012). This requirement is particularly important when obtaining medical reports from expert witnesses (see Karpisiewicz v. Poland ( dec. ), no. 14730/09, 11 December 2012), as the medical reports of expert witnesses are very likely to carry crucial weight in a court ’ s assessment of the highly complex issues of medical negligence, which gives them a particularly important role in the proceedings (see Bajić, cited above, § 95).
218. Likewise, the procedural obligation under Article 2 in the context of health care requires, inter alia, that the proceedings be completed within a reasonable time (see Šilih, cited above, § 196). In that connection the Court emphasises that, apart from the concern for the respect of the rights inherent in Article 2 of the Convention in each individual case, more general considerations also call for a prompt examination of cases concerning medical negligence in a hospital setting. Knowledge of the facts and of possible errors committed in the course of medical care is essential to enable the institutions and medical staff concerned to remedy the potential deficiencies and prevent similar errors. The prompt examination of such cases is therefore important for the safety of all users of health-care services (see Oyal, cited above, § 76).
219. This is why the Court has held that, in Article 2 cases, particularly in those concerning proceedings instituted to elucidate the circumstances of an individual ’ s death in a hospital setting, the lengthiness of proceedings is a strong indication that the proceedings were defective to the point of constituting a violation of the respondent State ’ s positive obligations under the Convention, unless the State has provided highly convincing and plausible reasons to justify the length of the proceedings (see, for example, Bilbija and Blažević v. Croatia, no. 62870/13, § 107, 12 January 2016).
220. Unlike in cases concerning the lethal use of force by State agents, where the competent authorities must of their own motion initiate investigations, in cases concerning medical negligence where the death is caused unintentionally, the States ’ procedural obligations may come into play upon the institution of proceedings by the deceased ’ s relatives (see Šilih, cited above, § 156).
221. Finally, the Court stresses that this procedural obligation is not an obligation of result but of means only ( ibid., § 193). Thus, the mere fact that proceedings concerning medical negligence have ended unfavourably for the person concerned does not in itself mean that the respondent State has failed in its positive obligation under Article 2 of the Convention (see Besen v. Turkey ( dec. ), no. 48915/09, § 38 in fine, 19 June 2012, and E.M. and Others v. Romania ( dec. ), no. 20192/07, § 50, 3 June 2014).
(b) Application of these principles to the present case
222. The Court observes that the applicant ’ s husband, who had been in good health, underwent a routine operation in hospital and ended up suffering from bacterial meningitis, ulcers, colitis and other medical complications which led to his death three months later from septicaemia caused by peritonitis and a perforated viscus. In view of the aforementioned sequence of events, the Court considers that the applicant had arguable grounds to suspect that her husband ’ s death could have been the result of medical negligence. The respondent State ’ s duty to ensure compliance with the procedural obligations arising under Article 2, in the proceedings instituted with regard to her husband ’ s death, is therefore engaged in the present case (see Šilih, cited above, § 197). This obligation came into play upon the institution of proceedings by the applicant ( ibid., § 156).
223. The Court notes that in cases of medical negligence Portuguese law provides, in addition to the possibility of criminal proceedings, for the option of bringing proceedings for civil liability in the administrative courts against public hospitals. The hospitals may in turn be entitled to claim reimbursement of the damages payable from the officials who acted in breach of their professional duty. Furthermore, an application may be made to the Ministry of Health and the Medical Association seeking to establish disciplinary liability on the part of members of the health-care profession.
224. On this basis the Court concludes that the Portuguese legal system offers litigants remedies which, in theory, meet the requirements of the procedural obligations under Article 2. The applicant has not argued otherwise.
225. In the instant case, the applicant made use of all of the procedures mentioned above. The question is therefore whether, in the concrete circumstances of the case, given the fundamental importance of the right to life guaranteed under Article 2 of the Convention and the particular weight the Court has attached to the procedural requirement under that provision, the legal system as a whole dealt adequately with the case at hand (see Dodov, cited above, § 86; Arskaya, cited above, § 66; and Kudra v. Croatia, no. 13904/07, § 107, 18 December 2012 ).
226. At the outset the Court observes that the applicant did not contest the independence and impartiality of the domestic authorities or the experts who gave evidence in the various proceedings. It further considers that the applicant did have the possibility to participate actively in the different proceedings and availed herself of her procedural rights to influence their course. There is nothing in the case file to demonstrate – nor has the applicant argued before the Grand Chamber – that she was placed at a procedural disadvantage vis-à-vis the medical institutions or doctors in any of these proceedings. It therefore remains to be ascertained whether the domestic proceedings were effective in terms of being thorough, prompt and concluded within a reasonable time.
227. As regards the thoroughness, the Court finds it appropriate to respond first to the specific complaints raised by the applicant in her written submissions regarding the lack of an autopsy and of her husband ’ s consent to his operation (see paragraph 209 above). As regards the first of these issues, the Court agrees with the Chamber ’ s view that the cause of the applicant ’ s husband ’ s death had not raised any doubts which would have required an autopsy to be performed under the statutory provisions in that regard. As to the second issue, in the absence of a specific substantive complaint on the matter, the Court finds that the domestic judicial and other bodies cannot be faulted for not delving into that issue in depth (see, for example, Vasileva, cited above, § 76).
228. The Court will now proceed with the examination of the manner in which the domestic proceedings were conducted.
229. As regards the proceedings before the IGS the Court observes, firstly, that it took the IGS two years to order the opening of an investigation, and a further year to appoint an inspector to head the investigation. Secondly, evidence was heard from the applicant for the first time almost three years and six months after she had contacted the authorities. The investigation before this body therefore lacked promptness. The Court further observes that the proceedings before the IGS had already lasted for slightly more than seven years and ten months before the applicant was informed that the disciplinary proceedings initiated against Dr J.V. would be stayed pending the outcome of the criminal proceedings. During this period the Inspector ’ s report was set aside twice by the Inspector General for Health in order to obtain additional information or to order fresh expert assessments to be carried out by different experts in the fields of internal medicine and gastroenterology. The successive adoption of such decisions within one set of proceedings disclosed, in the particular circumstances of the present case, a deficiency in the manner in which the Inspector General investigated the case.
230. As to the proceedings before the Medical Association, the Court observes that the latter responded promptly to the applicant ’ s request by seeking the opinions of five of its specialist panels immediately after receiving the patient ’ s medical records, and that the overall length of the proceedings before the Medical Association was approximately four years and five months at two levels. This cannot be considered per se as unreasonable. However, the Court cannot lose sight of the fact that the proceedings before this specialised body consisted merely in examining the patient ’ s medical records and the opinions of the specialist panels. The proceedings were written and no evidence was heard. Seen from this angle and in the absence of any explanation from the Government, the duration of these proceedings was also unreasonable.
231. In view of the above, the Court considers that the disciplinary proceedings in the present case can hardly be regarded as effective for the purposes of Article 2. It is further necessary to examine the effectiveness of the criminal proceedings.
232. In this connection the Court notes that, in the instant case, there is nothing to indicate that the death of the applicant ’ s husband was caused intentionally, and the circumstances in which it occurred were not such as to raise suspicions in that regard. Therefore, Article 2 did not necessarily require a criminal-law remedy. However, if deemed effective, such proceedings would by themselves be capable of satisfying the procedural obligation of Article 2 (see Šilih, cited above, § 202 ).
233. The Court observes, firstly, that the prosecuting authorities initiated criminal proceedings against Dr J.V. merely on the basis of the report adopted by the Inspector in the proceedings before the IGS, without conducting any further investigation (see paragraph 62 above). As a result the criminal proceedings were concerned only with the narrow issue set out in the charges that had been brought, and did not deal with any of the other instances of alleged medical negligence complained of by the applicant. This in itself is sufficient to consider that they were deficient. Having regard to the limited scope of the criminal proceedings, the applicant could not be faulted for not appealing against the court ’ s judgment. Secondly, the proceedings were neither prompt nor was their overall duration reasonable. No significant procedural steps – save for those mentioned in paragraphs 60 and 61 above – were undertaken by the prosecuting authorities between 29 April 2002 and 7 December 2007, a period of almost five years and seven months. The proceedings in total lasted for six years, eight months and nineteen days.
234. In view of the above shortcomings, the Court considers that the criminal proceedings in the present case were also ineffective for the purposes of Article 2. The Court further finds it necessary to examine the effectiveness of the action for compensation brought by the applicant before the administrative courts.
235. As mentioned above (see paragraph 138 above), in the Court ’ s view those proceedings were, in principle, capable of providing the most appropriate redress in relation to the death of the applicant ’ s husband. However, the Court does not consider that they did so in the instant case, for the following reasons.
236. The Court observes that the first striking feature of these proceedings is their considerable length. It notes that the compensation proceedings before the Oporto Administrative and Fiscal Court commenced on 6 March 2003 and ended on 26 February 2013. They therefore lasted for nine years, eleven months and twenty-five days over two levels of jurisdiction. Contrary to the Government ’ s assertion, the case file does not suggest that such lengthy proceedings were justified by the circumstances of the case. In particular, the Court stresses that the Oporto Administrative and Fiscal Court took more than four years to give a preliminary decision, and a further four years to arrange the hearings. The Court considers that such a lengthy time prolongs the ordeal of uncertainty not only for the claimants but also for the medical professionals concerned.
237. Secondly, the Court considers that, for the purposes of the procedural obligation of Article 2, the scope of an investigation faced with complex issues arising in a medical context cannot be interpreted as being limited to the time and direct cause of the individual ’ s death. The Court cannot speculate on the reasons why the origin of the bacterium which caused the applicant ’ s husband to contract meningitis could not be established at domestic level. It finds however that, where there is a prima facie arguable claim of a chain of events possibly triggered by an allegedly negligent act that may have contributed to the death of a patient, in particular if an allegation of a hospital-acquired infection is concerned, the authorities may be expected to conduct a thorough examination into the matter. The Court considers that no such examination was conducted in the instant case, in which the domestic courts, instead of carrying out an overall assessment, approached the chain of events as a succession of medical incidents, without paying particular attention to how they may have related to each other.
238. In sum, the Court considers that the domestic system as a whole, when faced with an arguable case of medical negligence resulting in the death of the applicant ’ s husband, failed to provide an adequate and timely response consonant with the State ’ s obligation under Article 2. Accordingly, there has been a violation of the procedural aspect of that provision.
239. The Court reiterates that there has been no violation of the substantive limb of Article 2 of the Convention and that there has been a violation of the procedural limb of Article 2 of the Convention. The Court therefore dismisses the Government ’ s preliminary objection that the application is manifestly ill-founded.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
240. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
241. In the proceedings before the Chamber, the applicant claimed 174,580 euros (EUR) and EUR 100,000 respectively by way of pecuniary and non-pecuniary damage.
242. With regard to the sum claimed in respect of pecuniary damage, the Chamber found, besides the lack of evidence in support of the claim, no causal link between the violation found and the alleged pecuniary damage. Accordingly, it rejected that claim. By contrast, it considered that just satisfaction should be awarded on account of the fact that the violation of the substantive and procedural aspects of Article 2 had caused the applicant non-pecuniary damage by placing her in a position of distress and frustration. It awarded the applicant EUR 39,000 under that head.
243. Before the Grand Chamber, in her observations of 31 August 2016, the applicant did not make any specific claims for just satisfaction. However, at the hearing before the Grand Chamber the applicant ’ s representative referred to her claim before the Chamber and emphasised that the applicant accepted the decision made by the latter with regard to just satisfaction.
244. The Government did not comment on the question of just satisfaction after it was raised by the applicant ’ s representative at the hearing before the Grand Chamber.
245. The Court reiterates that Article 41 empowers it to afford the injured party such satisfaction as appears to it to be appropriate (see Karácsony and Others v. Hungary [GC], no. 42461/13, § 179, ECHR 2016 (extracts)).
246. It observes in this regard that there is no doubt that a claim for just satisfaction was duly made during the communication procedure before the Chamber, within the required time-limits (see, a contrario, Schatschaschwili v. Germany [GC], no. 9154/10, § 167, ECHR 2015, and Nagmetov v. Russia [GC], no. 35589/08, § 62, 30 March 2017), leading to an award of compensation to the applicant in respect of non-pecuniary damage.
247. The Court further notes that, while the applicant did not make any fresh claim for just satisfaction within the required time-limit in the proceedings before the Grand Chamber, she subsequently referred to her claim before the Chamber and affirmed that she accepted the decision made by the latter with regard to just satisfaction. The Government, who had the opportunity to respond to this claim at the hearing, did not object.
248. In view of the above, the Court is satisfied that a “claim” for just satisfaction has been made before the Court in the present case.
249. Like the Chamber, the Court does not discern any causal link between the violation found and the unsubstantiated pecuniary damage alleged, and dismisses this claim.
250. As regards non-pecuniary damage, the Court observes that the State was not found liable for the death of the applicant ’ s husband. Nevertheless, it considers that the applicant must have experienced severe distress and frustration on account of the inadequacy and protracted nature of the proceedings initiated by her in order to elucidate the circumstances surrounding the death of her husband. Ruling in equity, as required under Article 41, the Court awards her EUR 23,000 under this head.
251. As the applicant, who was granted legal aid for the proceedings before the Grand Chamber, submitted no claim for costs and expenses, the Court makes no award under this head (see Perdigão v. Portugal [GC], no. 24768/06, § 87, 16 November 2010).
252. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
1. Joins to the merits, unanimously, the Government ’ s preliminary objection that the application is manifestly ill-founded and dismisses it;