FOURTH SECTION

DECISION

Application no . 46863/09 Mieczysława BARAŃSKA against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 16 December 2014 as a Chamber composed of:

Ineta Ziemele , President, Päivi Hirvelä , George Nicolaou , Ledi Bianku , Zdravka Kalaydjieva , Krzysztof Wojtyczek , Faris Vehabović , judges, and Françoise Elens-Passos, Section Registrar ,

Having regard to the above application lodged on 24 August 2009 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms Mieczysława Barańska , is a Polish national, who was born in 1949 and lives in Busko Zdró j . She is represented before the Court by Ms M. Pecyna , a lawyer practising in Cracow .

2. The Polish Government (“the Government”) are represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. The applicant ’ s daughter , E. , had been suffer ing from schizophrenia since approximately 1998. She had been hospitali s ed on numerous occasions.

5. On 4 March 2008 E. was admitted to a psychiatric hospital in Morawica ( Świętokrzyskie Centrum Psychiatrii ). She had already been admitted to that hospital on six previous occasions.

6. E. was placed in room no. 8 in the observation area of w ard n o. 5. The ward was divided into two areas – an “observation” area and a “peaceful ” area for male patients. The areas were separated by a lockable door. The patients were free to circulate in their own areas and to use the bathroom.

According to her medical records, at the time of her admission E. had been behaving strangely . She showed symptoms of restlessness and agitation, and her behaviour was aggressive and loud. Contact with her was difficult and communication was limited. On 16 March 2008 she made an unsuccessful attempt to flee the ward, but was prevented from doing so by the staff.

7. A copy of the medical record kept by the hospital staff from 4 to 17 March 2008 was submitted to the Court. No reference to suicidal tendencies or thoughts on E. ’ s part was made throughout that time.

8. At 4.15 a.m. on 16 March 2008 three nurses on duty in the ward were dealing with an aggressive patient in room no. 8. A nurse from w ard n o. 6, M.P., was called to help them.

9. While the nurses were busy trying to overpower the patient, E. tried to commit suicide by hanging herself in the bathroom, using torn sheets from her bed. Another patient found her there and alerted the nurses. Nurse L.G. removed the “rope” made from the torn sheets from E. ’ s neck . T hree nurses on duty , W.K., T.N. and L.G. , attempted to resuscitate E. The doctor who was on duty that night was alerted , and participated in the resuscitation attempt . A n a mbulance equipped with intensive-care equipment was called.

10. The ambulance left the Kielce Regional Specialist Hospital ( Wojewódzki Szpital Specjalistyczny w Kielcach ) at 5.12 a.m. and arrived at the psychiatric hospital at 5.24 a.m. The ambulance doctors took over the resuscitation attempts and took E. to the Kielce h ospital . They arrived there at 5.52 a.m. and the resuscitation attempt continued.

E. did not regain consciousness and remains in a coma .

11. The police arrived at t he psychiatric hospital at 6.30 a.m. on 1 6 March 2008 . On the same date they started an investigation into the circumstances of the accident with a view to establishing whether the offence of exposing someone to the risk of loss of life or detriment to health , within the meaning of Article 160 of the Criminal Code, had been committed . A note drawn up by the police on the same day stated that E. had not been suffering from depressive tendencies.

The applicant was questioned on 18 March 2008. She stated that E. had been diagnosed with paranoid schizophrenia ten years earlier and had been admitted on numerous occasions to Morawica hospital.

12. The applicant was informed that an official note had been prepared to the effect that E. had hanged herself from the bars of the bathroom window by a rope made of torn sheets which she had taken from her bed. The applicant commented that it was difficult to understand how E. could have hanged herself as the bars on the window were covered by wire mesh. She was also of the view that the staff had failed to exercise their duty to sup ervise the patients properly.

The applicant made no comments at that stage about possible third ‑ party involvement in the incident.

13. Nurse W.K. was questioned on 19 March 2008. She stated that she had been on duty on the critical night with nurses L.G. and T.N. A t a round 4 a.m. one of the patients had started to behave aggressively towards her and other patients. The witness had requested the assistance of other nurses in overpower ing that patient and taking her to the isolation room. She had earlier checked on E., who had not been asleep but had been lying on her bed.

Shortly afterwards, W.K. had been checking on the patient in the isolation room when she had heard nurse L.G. cry out. W.K. had run to the bathroom , where she had seen E. hanging from the window bars . L.G. had been trying to hold her aloft . Together they had taken E. down, carried her to the corridor and started resuscitat ion . They had called T.N., who in turn had alerted the doctor on duty . R esuscitation attempts had continued until the arrival of the ambulance from the Kielce h ospital. E . ’ s heartbeat had been restored after the arrival of the ambulance. E. had been a patient of the hospital on many occasions; she had never had suicidal tendencies and there had been no indication that she might try to take her life.

14. Nurses L.G. and T.N. were also questioned on 19 March 2008. Their testimon ies were essentially concordant with the account of the facts given by W.K.

L.G. stated that she had been alerted by one of the patients crying out that someone had hanged herself in the bathroom. She ran to the bathroom and saw E. hanging by a rope from the window bars. She had tried to hold her aloft and called for the help of other nurses. After W.K. had arrived, L.G. untied the sheet from E. ’ s neck. They carried E. to the corridor and started to resuscitate her.

T.N. stated that at around 4 a.m. the cries of the aggressive patient in room no. 8 had woken up other patients in that room, including E., who had covered herself with a blanket. W.K. uncovered her head to check on her, to which E. objected. T.N. heard L.G. cry out five to ten minutes after the nurses had finished dealing with the aggressive patient. In T.N. ’ s view, there had been no indication that E. would try to commit suicide.

15. When question ed subsequently on 24 May 2008, T.N. stated that the window frames in the bathroom were old and had no handles . T he windows could be easily opened , as the frames were dilapidated . It had already happened before that the patients had been able to open them. For that reason , bars had been fixed on the outside to prevent the patients from jumping out of the window. It was allowed to open the windows in order to air the bathroom.

16. O n 23 April 2008 the police visited the bathroom and found that the window had no handles inside , and had bars on the outside. The window ledge was 95 cm from the floor .

17. On the same day the applicant submitted written comments, having been given access to the case file. She expressed the view that the investigation had been insufficient. She still failed to understand how it had been possible for her daughter to hang herself from the outside bars of the window. She asked the prosecution to check what ha d been happening between 4.15 a.m. and 6 a.m. on the critical date; whether the medical records properly recorded E. ’ s suicide attempt ; whether there were records available concerning the handling of the aggressive patient; and whether blood samples had been taken to establish which medication E. had been on. She further stated that during her visits to the ward she had often seen patients left without reasonable supervision.

18. On 8 May 2008 M.O., the chief physician of the intensive ‑ care ward of the Kielce h ospital, was questioned. He stated that E. remained in a coma and that her condition had not improved since she had been brought to the hospital o n 17 March 2008. On the day in question there had been a bruise on the patient ’ s neck caused by hanging; no blood samples had been taken on that day as there had been no grounds for doing so.

19. On 16 May 2008 A.K., the chief physician of the psychiatric ward, was questioned. He stated t hat he had spoken with E. on 16 March 2008 and that she had been calm and reasonable . S he had not demonstrated any symptoms of depression or suicidal tendencies.

20. On 24 May 2008 W.K. was questioned again. She confirmed her previous statement (see paragraph 13 above). She further stated that the bars were on the outside of the window and that they had been installed to prevent the patients from fleeing. There was no obligation to keep the windows closed and in any event it was easy to open them, despite the fact that they had no handles, as the window frames were old. T.K., who was questioned again on the same date, confirmed W.K. ’ s statement.

21. On 30 May 2008 the Kielce d istrict p rosecutor discontinued the investigation. Th e written grounds for that decision read as follows :

“ The i nvestigation into the circumstances in which E.B. had been exposed to a risk to her life was conducted under the supervision of the Kielce- Zachód District Prosecutor.

All the witnesses in the case were questioned. An o n-the-spot inspection of the scene of the suicide attempt was carried out.

As the findings of fact did not lead to the conclusion that the incident had been caused by any acts of third persons, the investigation was discontinued , as a criminal o ffence punishable under Article 160 § 2 of the Criminal Code had not been committed.”

22. The applicant appealed. She argued that the decision had been excessively succinct and had failed to give a reasonably detailed account of the relevant facts. In particular, no findings had been made as to whether the hospital staff had complied with their duty of care. It had not been explained how it could have been possible for E. to leave her room unobserved, take her bed sheets with her, go to the bathroom, tear the sheets, open the window and hang herself from the window bars on a kind of rope she had made from the torn sheets . The o nly people to have been questioned were nurses who had a vested interest in giving their own version of events. No forensic examination of E. had been carried out to check whether she had any injuries or bruises. In particular, it had not been established whether she had any injuries on her neck typical of hanging . The orderly of the ward had not been questioned. The report on the handling of the aggressive patient by the nurses on duty during the night at issue had not been included in the file. No steps had been taken to establish whether and how it had been possible to open the window in the bathroom and how that window was secured, if at all.

The applicant added that E. had not been suffering from depression at that time. On the whole, the contested decision was obviously flawed and the investigation should be conducted again in a thorough manner .

23. Following an appeal lodged by the applicant, on 23 June 2008 the Kielce Zachód d istrict p rosecutor set the contested decision aside , finding that the applicant ’ s objections should be addressed by way of further investigative measures. The investigation was resumed.

24. On 15 August 2008 Dr M.O. was questioned again as to the circumstances of E . ’ s admission to the hospital.

25. A further four witnesses were heard . Neither their professions nor their connection to the facts of the case were specified.

26. On 18 August 2008 the Kielce d istrict p rosecutor discontinued the investigation. The relevant decision read:

“ The i nvestigation into the circumstances in which E.B. had been exposed to a risk to her life was conducted under the supervision of the Kielce- Zachód District Prosecutor.

All the witnesses in the case were questioned. An o n-the-spot inspection of the scene of the suicide attempt was carried out.

As the findings of fact did not lead to the conclusion that the incident had been caused by any acts of third persons, the investigation was discontinued as a criminal offence punishable under Article 160 § 2 of the Criminal Code had not been committed.”

27. The applicant appealed, essentially reiterating the arguments which she had raised in her earlier appeal. She argued in particular that the decision had been excessively succinct and had failed to give a reasonably detailed account of the relevant facts.

28. On 19 February 2009 the Kielce District Court, Municipal Division ( SÄ…d Grodzki ) , upheld the contested decision. It was of the view that no one had a case to answer and that it could not be said that the staff had failed in their duty to take appropriate care of E. It further stated that the prosecuting authorities had taken all the necessary evidence and examined it carefully.

B. Relevant domestic law

29. Article 160 of the Criminal Code reads as follows:

“1. Anyone who exposes a human being to an immediate risk of loss of life, serious bodily injury, or a serious impairment of health shall be subject to the penalty of deprivation of liberty for up to 3 years.

2. If the perpetrator has a duty to take care of the person exposed to danger, he shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.”

COMPLAINT

30. Invoking Article 2 of the Convention, the applicant complained that the authorities had failed in their substantive duty to protect her daughter ’ s life. Her daughter had attempted to commit suicide because of the insufficient supervision of the patients in the hospital and the inadequate arrangements made to prevent patients from taking their lives. The patients in the psychiatric ward should not have had access to the bathroom and to window bars. Her daughter had remained in a coma ever since.

31. The applicant further argued that the prosecuting authorities had failed in their duty to elucidate the circumstances of the incident. The relevant decisions had been exceedingly succinct, which had made it impossible to establish the liability for her daughter ’ s suicide attempt.

THE LAW

32. The applicant complained that the authorities had failed in their substantive duty to protect her daughter ’ s life. She further submitted that the prosecuting authorities had failed to elucidate the circumstances of E. ’ s suicide attempt by not conducting a thorough investigation.

33. The applicant invoked Article 2 of the Convention which, in so far as relevant, reads:

“1. Everyone ’ s right to life shall be protected by law ...”.

34. T he Government were of the view that the applicant had not exhaust ed domestic remedies. She sho uld have sought redress by bringing a civil action against the hospital, re lying on the provisions of civil liability in tort . The civil action sh ould have been related to the event s during the night of 16 March 2008 and to the damage to E. ’ s health resulting from it.

35. The Government further argued that u nder Polish law it was possible to institute civil proceedings seeking compensation in tort regardless of the outcome of the criminal case , as the two legal procedures were not linked. The civil and criminal courts could take evidence relating to the same event giving rise to alleged damage independently of each other, although it was open for them to refer to evidence obtained by another court . Under Article 11 of the Code of Civil Procedure only a final conviction in criminal proceedings was binding on the civil court.

36. The applicant disagreed. She submit ted that it was indeed possible to seek compensation for damage caused by the negligence of medical staff on the basis of tort law. However, in the present case it had been impossible for her to prove that the staff were responsible for her daughter ’ s suicide attempt because of the gross errors and omissions made in the criminal investigation. In the circumstances of the case a proper investigation of the facts by way of a n in ‑ depth criminal investigation was a conditio sine qua non for the effective recourse to the civil remedy. While it was true that civil and criminal proceedings were independent in law, they were de facto dependent on each other.

37. The Court considers that it is appropriate to leave open the issue of whether the applicant exhausted domestic remedies within the meaning of Article 35 of the Convention, because the application is in any event inadmissible for the following reasons.

38. In so far as the applicant alleges that the authorities failed in their substantive duty to protect her daughter ’ s life, the Court reiterates that the acts and omissions of the aut horities in the field of health ‑ care policy may in certain circumstances engage their responsibility und er the positive limb of Article 2. However, where a Contracting State has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients – which was not contested in the present case – it cannot accept that matters such as an error of judgment on the part of a heal th professional or negligent co ‑ ordination among health professionals in the treatment of a particular patient, assuming such to have been established, are sufficient of themselves to call a Contracting State to account from the standpoint of its pos itive obligations under Article 2 of the Convention to protect life (see Powell v. the United Kingdom ( dec. ), no. 45305/99 , ECHR 2000 ‑ V; Byrzykowski v. Poland , no. 11562/05 , § 104, 27 June 2006; TrzepaÅ‚ko v. Poland ( dec. ), no. 25124/09 , 13 September 2011; and Z . v. Poland , no. 46132/08 , § 76 , 13 November 2012 .)

39. The Government acknowledged that the hospital had been responsible for E. ’ s safety. However, they disagree d with the supposition that the suicide attempt could have be en carried out because of insufficient supervision and because insufficient arrangements had been made to prevent patients from taking their lives. The supervision had been adequate and sufficient.

40. Firstly, several days prior to the incident the medical staff had prevented E. from escaping from the ward.

41. Secondly, it transpire d from the testimonies of the hospital staff that E. had been under the constant care of nurses on duty during the night. They had been temporarily unavailable only while dealing with an aggressive patient. Immediately after the suicide attempt had been discovered, the medical staff began resuscitation and called an ambulance. The patient was promptly transported to the Regional Specialist Hospital in Kielce. No negligence can thus be discerned in the actions taken by the staff.

42. The Government stress ed that while in hospital, E. had presented no suicidal tendencies. That had been confirmed by the witnesses ’ testimonies. The staff had had no justified reason to suspect any suicidal tendencies on her part.

43. With regard to the bathroom window, the Government note d that the purpose of the bars on the outside of the window was to prevent the patients from jump ing out . The bars therefore served a protective purpose.

44. Furthermore, the outcome of the domestic proceedings indicate d that the patients did not have access to the space in which bed sheets were stored . However, patients were not prohibited from going alone to the bathroom. That approach respected patients ’ dignity and intimacy. It was not proven that there had been insufficient supervision of the patients in the hospital ward and that insufficient arrangements had been made in the ward to prevent patients from taking their lives.

45. The applicant argued that E. had never had suicidal tendencies prior to her admission to the hospital on 4 March 2008. There had been no indication that she might try to take her life. No explanation had been offered in the investigation as to how it had been possible for a patient of a psychiatric hospital to take her s heets and to go to the bathroom un noticed . The old and decaying window frames in the bathroom had made it possible for her to open the window and to tie a rope made from sheets to the bars . The staff had known that the frames were falling to pieces but nothing had been done to change or repair them . The staff had thereby failed in their duty to supervise the patients.

46 . The Court notes , with respect to the substantive aspect of the case, that E. wa s admitted to the p sychiatric hospital on 4 March 2008 . Following her admission s he showed symptoms of restlessness and agitation, and her behaviour was aggressive and loud. The doctors established that c ontact with her was difficult and communication was limited.

It was true that E. had a long history of mental illness as she had been diagnosed with schizophrenia in 1998. However, neither immediately on her admission nor subsequently did she show any signs of suicidal tendencies. The applicant herself acknowledged expressly in her observations to the Court that E. had never had suicidal tendencies and there had been no indication that she might try to take her life. A relevant note was made by the police in a memorandum drawn up on the morning of 17 March 2008. Nurse W.K. and Dr A.K. confirmed this when they were later questioned for the purposes of the investigation.

The hospital staff knew the patient from her numerous previous admissions to the same establishment, and could assess her condition in a competent manner. It has not been argued, let alone shown, either before the Court or before the domestic authorities, that the medical assessment made following E. ’ s admission was superficial or that the t reatment she received between 4 and 16 March 2008 was inadequate.

47. Thus, there is no indication that the hospital staff knew or ought to have known that the applicant ’ s daughter posed a real and immediate risk of suicide (compare and contrast, Keenan v. the United Kingdom , no. 27229/95 , § 93, ECHR 2001 ‑ III ; Trubnikov v. Russia , no. 49790/99, § 75, 5 July 2005; Perevedentsevy v. Russia , no. 39583/05 , 24 April 2014; and Mitić v. Serbia , no. 31963/08, 22 January 2013).

48. It is fur ther noted that shortly after 4 a.m. on the night in question, all three nurses on duty in the ward were engaged in an attempt to calm down an aggressive patient in room no. 8 where E. had been sleeping. It created a commotion which woke E. up. She must have gone to the ward ’ s bathroom shortly afterwards and tried to commit suicide. Resuscitation attempts were undertaken immediately after she was found by all three nurses on duty and by the doctor, who had been called instantly. An ambulance was called immediately and arrived fifteen minutes later. E. was taken to a hospital equipped with an intensive ‑ care unit where resuscitation efforts continued.

The Court therefore notes that the response to E. ’ s suicide attempt was immediate and conducted with the requisite promptness.

The applicant seems to be of the view that a third party was involved in E. ’ s hanging, but no persuasive arguments have been submitted in this respect .

49. Given the absence of indications of suicidal tendencies on E. ’ s part, which is not in dispute between the parties, and the prompt action taken after her attempt to commit suicide had been discovered, the Court is of the view that the hospital staff cannot be blamed for their response to the behaviour of the applicant ’ s daughter .

50. The Court further notes that the bars on the window in the patients ’ bathroom had been installed there with the purpose of preventing the patients from fleeing the ward. It is further noted that the patients in the observation area, including E., were allowed to move freely in the ward and go to the bathroom by themselves on the basis of an assessment of their clinical condition. The fact that E. found a way to go to the bathroom cannot therefore be held against the staff.

51. The Court concludes this part of its analysis by finding that the authorities did not fail to protect E. ’ s right to life.

52. In so far as the applicant complain ed that no thorough investigation had been conducted with a view to elucidating the circumstances of her daughter ’ s suicide attempt , the Government argued that the investigation had been effective and conducted within a reasonable time. The circumstances of E . ’ s suicide attempt had been examined by the prosecutor to ascertain whether an offence of exposure to an immediate risk of loss of life had been committed and also whether there might have been a possible involvement of a third party. The procedural actions had been taken without delay. Important witnesses who could have relevant knowledge had been questioned. The n ecessary medical documents , including E. ’ s medical records, had been included in the file and the scene of the incident had been examined.

53. The Government averred that the applicant had had full access to the case file and had actively participated in the investigation. The prosecutor ’ s decision had ultimately been reviewed by the court. Contrary to the views expressed by the applicant in her appeal s , the investigation had covered every aspect of the case , including the possible negligence of the medical staff. Not only had the nurses from the psychiatric h ospital been questioned , but also other witnesses , including the doctor from the hospital where E. had been taken after the incident.

54 . The applicant submitted that the investigation had been inadequate and ineffective. The prosecution had been wrong in assuming that E. had tried to commit suicide. Neither the police nor the prosecutor had seen the rope made of torn sheets , as that evidence had not been secured . No medical forensic report had been prepared for the purposes of the case, incl uding a toxicological report. No photographs had been taken of E.s body on the day following the incident . No proper forensic analysis of the marks on her body had been made , which would have been crucial for establishing whether she had really tried to commit suicide. It had not been established what medication E. had received prior to the incident and whether it could have contributed to the fact that she fell into coma afterwards. It had not been established whether she had a bruise on her neck caused by hanging. The orderly who had been present on the ward that night had not been questioned; only the nurses had been questioned, and they had had a vested interest in presenting their version of events in order to avoid criminal liability for negligence .

The prosecutor ’ s decisions had been exceedingly succinct, which had made it impossible to establish liability for E. ’ s suicide attempt.

55. T he Court reiterates that the proce dural obligation of Article 2 requires States to set up an effective 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, Calvelli and Ciglio v. Italy [GC], no. 32967/96 , § 49, ECHR 2002 ‑ I; Vo v. France [GC], no. 53924/00 , § 89, ECHR 2004 ‑ VIII; and Å ilih v. Slovenia [GC], no. 71463/01 , § 192, 9 April 2009). T his procedural obligation is not an obligation of result but of means only ( see Paul and Audrey Edwards v. the United Kingdom , no . 46477/99, § 71, ECHR 2002 ‑ II).

56. Ev en if the Convention does not as such guarantee a right to have criminal proceedings instituted against third parties, the Court has said many times that the effective judi cial system required by Article 2 may, and under certain circumstances must, include recourse to the criminal law. However, if the infringement of the right to life or to personal integrity is not caused intentionally, the procedura l obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal ‑ law remedy in every case. In the specific sphere of medical negligence the obligation may for instance also 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, such as an order for damages and/or for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged ( see Calvelli and Ciglio , § 51; Vo , § 90; and Å ilih , § 194, all cited above).

57. A requirement of promptness and reasonable expedition is implicit in this context (see Šilih , § 195, cited above).

58. With regard to the effectiveness of the criminal investigation, the Court notes that t he inv estigation was instituted on 16 March 2008, literally hours after the incident. The poli ce arrived at the hospital at 6 a.m. on that day. They started to interview the nurses already on 19 March 2008. They twice questioned all the nurses on duty on the night in question. The chief physician of the psychiatric ward, the doctor who had admitted E. to the hospital where the resus citation efforts were continued, and four other witnesses were also questioned.

Hence, the prosecution made adequate efforts to gather information from all those involved in the medical care of E. who could have had knowledge of the relevant facts. The prosecuting authorities also conducted an inspection of the bathroom where E. had been found. The decision to discontinue the proceedings was ultimately examined by the independent common court.

59. As to the applicant ’ s involvement in the investigation, she was questioned the day after the incident. There is no indication that she was prevented in any way from making submissions to the prosecuting authorities, either during the interview or later, in writing. She availed herself of tha t opportunity, submitting on 23 May 2008 a detailed list of the alleged shortcomings of the investigation. She subsequently appealed against the first decision given on 30 May 2008 by which the investigation was discontinued, and raised her objections as to the thoroughness of the investigation. Her appeal was allowed, that decision was quashed and the investigation was conducted anew. Dr M.O. was questioned again as to the circumstances of E. ’ s admission to the Kielce hospital.

60. In conclusion, the Court finds that the procedural obligation to carry out an effect ive investigation under Article 2 was complied with in the present case.

61. It follows that the application is m anifestly ill ‑ founded and must be rejected in accordance with Art icle 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

             Françoise Elens-Passos Ineta Ziemele Registrar President