Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27594/95

by Mauri SANTANIEMI

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 10 September 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms. M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 21 October 1994

by Mauri SANTANIEMI against Sweden and registered on 13 June 1995 under

file No. 27594/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Finnish citizen, born in 1946 and resident in

Lödöse, Sweden. He brings the application both in his own name and on

behalf of his late daughter, born in 1970 and deceased in 1988.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant's daughter was seriously disabled from birth,

suffering from skeletal deformities and other illnesses. Inter alia,

during 1971-1988 she was treated about 20 times at the children's

hospital in Vänersborg, Sweden, for various illnesses.

On 18 January 1988 the applicant's daughter was brought to the

children's clinic of Norra Älvsborg hospital in Trollhättan, Sweden,

where she was diagnosed as having pneumonia. She died in the hospital

on 22 January 1988.

The applicant reported his daughter's death to the Disciplinary

Board of Health and Medical Care (Hälso- och sjukvårdens ansvarsnämnd).

He argued that Dr BR who had tended to his daughter had failed to X-ray

her lungs, to put her on a respirator, to call the physician in charge

to see her, to transfer her to an intensive care unit and to make sure

that she was constantly looked after. The applicant maintained that the

physician had made mistakes and been negligent in her duties and that

this had caused his daughter's death.

The Disciplinary Board obtained a copy of the patient records as

well as written submissions from the hospital staff and an expert. It

also invited the applicant to comment on the submissions.

It appeared from the patient records, inter alia, that the

applicant's daughter's lung problems had been caused by the

deformities. She had been practically confined to a wheelchair since

1982 and was cared for by her parents in their home. In January 1988

she contracted a lung infection and came to the hospital on 18 January

after consulting a doctor. The doctor on duty, W, decided against an

X-ray examination of the lungs. During the night between

18 and 19 January 1988 her condition deteriorated.

Dr BR who treated the applicant's daughter submitted, inter alia,

that she saw the applicant's daughter on 19 January 1988 together with

the chief physician, MT, and another colleague. The diagnosis of

pneumonia was clinically clear and therefore a lung X-ray was not

needed. Since the patient's condition deteriorated on 19 January, the

treatment, including the possibility of a respirator being used, was

discussed with MT. The doctors decided to change the patient's

medication. No request for respirator treatment was made by the

parents. The mother of the patient accepted the treatment given to her

daughter.

Dr MT submitted, inter alia, that the patient had had breathing

problems which had been investigated since 1982. Also heart problems

had been discovered. In 1983 she had been diagnosed as having a lung

infection. She was treated but nevertheless continued to contract lung

infections which during 1984-1987 demanded hospital care. Lung X-rays

were taken but they were difficult to interpret because of the

patient's severe scoliosis. On 18 January 1988 X-rays were not ordered

since they had not proved helpful earlier. Respirator treatment was

dismissed on the ground that the patient had a chronic breathing

deficiency due to her scoliosis. On 21 January her condition was

clearly better. On 22 January, however, a sudden deterioration set in

and the patient died.

In his observations the applicant submitted that during his

daughter's terminal illness he demanded that she be given respirator

treatment but to no avail.

In his expert statement professor AL, a member of the Scientific

Council of the National Board of Health and Social Welfare

(Socialstyrelsens vetenskapliga råd), deemed it obvious that respirator

treatment was not discussed with the parents although it should have

been. The benefit of respirator treatment was the facilitation of

breathing and the disadvantages were that the patient could become

dependent on the treatment, lose her speech ability and need sedatives.

It was impossible to judge whether the decision not to order respirator

treatment was right or wrong. X-rays had not been necessary on

18 January but could have been resorted to when the patient's condition

deteriorated. Judging from the patient records intensive care was not

necessary.

In its decision of 20 February 1992 the Disciplinary Board

considered that as to allegations concerning X-ray examination,

respirator treatment, failure to call the chief physician, intensive

care and constant observation, no cause for criticism was apparent. The

Disciplinary Board noted that the patient records concerning the

applicant's daughter were terse. The Disciplinary Board further noted

that in this case it was excusable not to have informed the parents

about the possibility of respirator treatment, since it was not planned

to be given to their daughter. The Disciplinary Board decided to take

no action.

In his appeal to the Stockholm Administrative Court of Appeal

(kammarrätten) the applicant referred to the above-mentioned arguments.

He also maintained that his daughter had not received medication for

poor circulation nor had certain operations been performed which he

considered should have been.

On 17 December 1993 the Administrative Court of Appeal dismissed

the appeal as regards complaints concerning medication and operations

since they were new allegations which had not been examined previously

by the Disciplinary Board and otherwise upheld the Board's decision.

On 8 September 1994 the Supreme Administrative Court (Regerings-

rätten) refused the applicant leave to appeal.

COMPLAINTS

1. Without invoking any Articles of the Convention the applicant

complains both in his own name and on behalf of his deceased daughter

that his daughter was not afforded the medical treatment she needed.

He maintains that proper treatment would have relieved her heart

problems, poor circulation and lung problems. Furthermore he claims

that a necessary operation was not performed. He also contends that she

was not put on a respirator even though such treatment was necessary

and that intensive care was not given to her. The applicant submits

that the right to life includes the right to proper treatment.

2. Moreover, the applicant complains that a thorough investigation

was not performed by the Disciplinary Board, whose decision was upheld.

THE LAW

1. The applicant complains both in his own name and on behalf of his

deceased daughter of an alleged failure to give his daughter correct

medical treatment. The applicant does not invoke any Articles of the

Convention.

The Commission notes that the applicant did not raise before the

Disciplinary Board some of the allegations of lack of treatment which

he now brings before the Commission. However, the Commission does not

find it necessary to consider whether this would raise any issues under

Article 26 (Art. 26) of the Convention as to the exhaustion of domestic

remedies since the application is in any event manifestly ill-founded

for the following reasons.

The Commission has examined the applicant's complaints under

Article 2 (Art. 2) of the Convention which protects the right to life.

The applicant submits that the right to life includes the right to

proper treatment.

The Commission recalls that the first sentence of Article 2

para. 1 (Art. 2-1) of the Convention imposes an obligation on the

Contracting State not only to refrain from taking life "intentionally"

but also to take appropriate steps to safeguard life. The State's

positive obligation to protect life implies regulatory measures for

hospitals and an effective judicial system permitting the cause of

death in a hospital and the possible liability of the doctors or the

hospital to be established. If there is no indication that the

authorities arbitrarily assessed the evidence before them, the

Commission must rely on the facts established by those authorities (see

No. 21236/93, Dec. 25.10.96, unpublished, No. 20948/92, Dec. 22.5.95,

D.R. 81-B, pp. 35, 39-40 and the further reference therein; cf. also

No. 23412/94, Dec. 30.8.94, D.R. 79-A, pp. 127, 135-137).

The Commission notes that the applicant's daughter's death was

investigated by the Disciplinary Board of Health and Medical Care. The

Disciplinary Board had regard to an expert opinion. It also heard the

hospital staff either directly involved in, or ultimately responsible

for, the applicant's daughter's treatment on 18-22 January 1988.

The Commission considers that there is no indication that the

authorities assessed the evidence before them arbitrarily. Given that

no fresh evidence has been brought before the Commission, it must rely

on the facts established on the domestic level. In the circumstances

of the present case it cannot find any appearance of negligence on the

part of hospital staff. Accordingly, there is no appearance of a

violation of Article 2 para. 1 (Art. 2-1) of the Convention.

On the basis of the application the Commission does not find any

indication that the medical treatment at issue violated any other

provision of the Convention or of its Protocols.

It follows that this part of the applicant's complaints must be

rejected as being manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

2. The applicant complains, without invoking any Articles of the

Convention, that the matter was not thoroughly investigated.

The Commission notes that the matter was examined by the

Disciplinary Board, the Administrative Court of Appeal and, as regards

leave to appeal, by the Supreme Administrative Court. The applicant has

not presented any evidence to support his allegation. Therefore the

Commission considers that the complaint is unsubstantiated.

This part of the application must therefore be rejected as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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SANTANIEMI v. SWEDEN

SANTANIEMI v. SWEDEN

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