FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 27915/06 by Dobromir Borisov DASKALOV and Others against Bulgaria

The European Court of Human Rights ( Fifth Section), sitting on 23 November 2010 as a Chamber composed of:

Peer Lorenzen , President, Renate Jaeger , Karel Jungwiert , Rait Maruste , Mark Villiger , Isabelle Berro-Lefèvre , Zdravka Kalaydjieva , judges, and Claudia Westerdiek, Registrar ,

Having regard to the above application lodged on 28 June 2006,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Dobromir Borisov Daskalov, born in 1938, and his two sons, Galin Daskalov, born in 1975 and Dobromir Daskalov, born in 1970, are Bulgarian nationals who live in Varna .

A. The circumstances of the case

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

1. The events of 19 January 2005

Mrs Koina Daskalova, the first applicant ’ s wife and mother of the second and third applicants, died on 19 January 2005 at the age of 67 following complications resulting from h epatitis C .

Her hepatitis was diagnosed in 2001. Later she developed liver cirrhosis and o esophageal varices which resulted in haemorrhages.

She survived four major haemorrhages, the last one in April 2003. On each of these occasions she was treated in St Anne ’ s Hospital in Varna without the use of a Blakemore tube , as she had refused such treatment, fearing unbearable pain. St Anne ’ s Hospital is owned by the State and several municipalities and managed by them.

At 3.15 a.m. on 19 January 2005 Mrs Daskalova regurgitated blood and was transported by ambulance from her home to the emergency unit of St Anne ’ s Hospital, accompanied by the first applicant.

On her arrival, the doctors on duty proposed the use of a Blakemore tube , but she refused and signed a written refusal.

At about 4.30 a.m. Mrs Daskalova was admitted to the surgery unit of the same hospital and treated with medicines and transfusions. She was advised again to accept treatment with a Blakemore tube but refused, signing under the following text: “In full awareness I refuse the use of a Blakemore tube , having received explanations on the subject.”

During the night and in the morning the first applicant went three times to different pharmacies in Varna to purchase medicines which were unavailable at the hospital. The doctors treating his wife had told him to do so. He gave the medicines to the staff in the hospital and they were administered to his wife. Other medicines with similar effects were apparently available at the hospital and would have been used if the first applicant had not been available to purchase the medicines the doctors told him to buy.

At about 7.30 p.m. Mrs Daskalova had another haemorrhage.

At that point Dr Y., the doctor on duty, told her and the first applicant that in spite of her wishes it was imperative to use a Blakemore tube . The first applicant was rushed out of the room and the medical staff administered treatment with a Blakemore tube . The first applicant, who waited outside, heard his wife screaming.

The doctors ’ efforts were to no avail and the first applicant ’ s wife died at about 8.40 p.m.

2. Administrative investigation and criminal proceedings

In March 2005 the second applicant complained to the Ministry of Public Health, alleging that his mother had been unlawfully treated with a Blakemore tube against her will, that she had not been treated properly, that life-saving medicines had been unavailable at the hospital and that certain expenses had not been reimbursed or paid by the local branch of the national health insurance fund.

On 13 June 2005 the Ministry replied, stating, inter alia :

“Under section 90 § 1 of the Health Act patients or their relatives may refuse at any time the medical assistance offered or the continuation of medical treatment. The doctors of the emergency and surgery units [of St Anne ’ s hospital] initially respected [Mrs Daskalova ’ s] wish. However, where a patient ’ s condition becomes life-threatening (in this case, haemorrhagic shock), section 90 § 4 provides that the doctor (the head of the institution) may decide to administer life-saving treatment.”

On an unspecified date in 2005 the applicants complained to the local prosecutor in Varna, alleging that there had been medical negligence which had contributed to their close relative ’ s death and that the doctors had not complied with her explicit refusal to be treated with a Blakemore tube .

The prosecutor opened criminal proceedings. The investigator heard evidence from several persons including the first applicant and the medical staff involved, commissioned a medical expert report and collected other evidence.

Dr Y., the doctor on duty on the evening of 19 January 2005, stated, inter alia , that he had known about Mrs Daskalova ’ s refusal to be treated with a Blakemore tube but had decided to use it “because of the acute bleeding”.

The medical experts stated in their report that everything possible had been done to save Mrs Daskalova ’ s life and that she had been treated correctly. The essential treatment in cases such as hers was the use of a Blakemore tube .

By decree of 6 December 2005 the regional prosecutor terminated the proceedings. He found clear evidence that everything possible had been done in the circumstances. Appropriate treatment with medicines had been administered promptly, given Mrs Daskalova ’ s refusal to be treated with a Blakemore tube , which was the essential and potentially life-saving method. The prosecutor did not find any evidence of medical negligence. He did not comment on the applicants ’ complaint that it had been unlawful to administer treatment which Mrs Daskalova had refused.

The applicants appealed, drawing attention in particular to the fact that no answer had been given to their complaint about forced medical treatment. They submitted that section 90 § 4 of the Health Act, referred to in the Ministry ’ s letter to them, did not provide a legal basis for the forced treatment, since that provision concerned situations where a parent or guardian had refused treatment on behalf of the patient. Furthermore, that provision vested the right to overrule the refusal in the head of the hospital, not in the doctor treating the patient.

On 9 January 2006 the Varna Regional Court upheld the prosecutor ’ s decree. It found no evidence of medical negligence which could have contributed to the death of Mrs Daskalova. The court further stated:

“As regards the complaint concerning the use by Dr Y. of a Blakemore tube when Mrs Daskalova experienced her last [haemorrhagic] crisis, the court finds it ill-founded, given that the doctor treating her decided what treatment was appropriate in the particular case and administered it, the patient not having objected to its use on that occasion.”

The decision was final.

3. Civil proceedings concerning the events of 19 January 2005

In July 2005 the first applicant brought an action against the Ministry of Public Health claiming damages on the basis that his wife had died as a result of medical negligence, that she had been treated with a Blakemore tube despite her explicit refusal and that certain medicines which the first applicant had purchased and given to staff on 19 January 2005 should have been provided free of charge.

The first applicant was not legally represented in these proceedings. He was invited to clarify his claims and amended them several times, changing the legal grounds invoked and the defendant. Eventually, he abandoned the claim against the Ministry and sought damages from St Anne ’ s Hospital.

The court admitted documentary evidence and a medical expert report and examined witnesses.

By a judgment of 3 May 2007 the Varna District Court rejected the claims. It found that there was no causal link between the actions of the hospital staff and Mrs Daskalova ’ s death. There was no evidence of negligence.

Addressing the claim that damages were also due on grounds of forced treatment administered against Mrs Daskalova ’ s will, the court noted that the first applicant had not argued that the treatment in question had caused the fatal outcome but had referred only to the lack of consent and lack of authorisation by the head of the hospital. However, these facts were irrelevant in the circumstances. They would have been relevant only in the assessment of the amount of compensation had it been established that the medical treatment had been inappropriate in view of the patient ’ s condition.

This judgment was upheld on appeal by the Varna Regional Court on 30 April 2009. In the proceedings before it the Regional Court commissioned another medical expert report and admitted other evidence. It found that there was no evidence of any negligence, the doctors having administered the treatment that was appropriate and possible in the circumstances. The fact that the first applicant had been asked to purchase certain medicines did not mean that without his intervention Mrs Daskolova would have been deprived of the necessary medical treatment. Similar medicines had been available at the hospital and those purchased by the first applicant had not been of life-saving significance. With regard to the use of a Blakemore tube against the patient ’ s will, the Regional Court stated that there was no evidence that it had contributed to the fatal outcome.

The first applicant submitted an appeal on points of law.

On 9 November 2009 the Supreme Court of Cassation declared the appeal admissible. It held a hearing on 1 June 2010.

4. Other proceedings

On 26 July 2004 Mrs Daskalova brought an action seeking damages, alleging that for a period of over one year she had been deprived of certain benefits such as pension supplements and paid medical assistance at home as a result of the fact that her application for disability certification, submitted by her in 2003, had only been examined more than a year after the expiry of the forty-day statutory time-limit for such examination.

The court commissioned an expert report which was submitted in November 2004.

Following Mrs Daskalova ’ s death on 19 January 2005, delays in the proceedings occurred because one of the heirs could not be found and the applicants made unclear and repetitive amendments to their claims. In particular, the second applicant had come up with the idea of selling his share in the inheritance to the other applicants in the belief that this would make it possible for him to testify as an impartial witness, being no longer one of Mrs Daskalova ’ s heirs and therefore not a party to the proceedings.

A delay of two months, between May and July 2005, was caused by the District Court ’ s decision to terminate the proceedings. This decision was found unlawful and overturned on appeal.

Several hearings were held in 2005 and 2006.

By a judgment of 17 November 2006 the District Court partly granted the claims, awarding the applicants 770 Bulgarian levs (BGN) for pecuniary damage and BGN 3,000 for non-pecuniary damage (the equivalent of approximately EUR 1,700 in total).

The applicants appealed.

On 16 August 2007 the Regional Court upheld the lower court ’ s judgment.

The applicants ’ ensuing appeal on points of law was dismissed by the Supreme Court of Cassation on 22 July 2009.

Separately, in 2005, the applicants started proceedings concerning the alleged liability of the Ministry of Public Health and its local administration for the fact that between 2003 and 2004 Mrs Daskalova had spent BGN 112 on telephone costs which she would have saved if a decision on her application for disability certification had been taken on time. That would have enabled her to obtain earlier a special telephone subscription for disabled persons. The claim was rejected by the Varna District Court in a judgment of 16 November 2006 and by the Varna Regional Court in a final judgment of 28 August 2007.

B. Relev ant domestic law

The relevant provisions of the Health Act 2005, as in force at the relevant time, read as follows:

“ Section 87

(1) Medical procedures shall be carried out after the patient has expressed his or her informed consent...

Section 90

(1) The patient or his or her parent, general or special guardian, or the person [appointed by a court] under section 162(3), may refuse at any time the medical assistance offered or the continuation of medical treatment which is already under way.

(2) A refusal under the preceding paragraph shall be recorded in the medical file with the person ’ s signature...

(4) Where treatment has been refused by a parent or a general or special guardian under paragraph 1 and the patient ’ s life is in danger, the head of the medical institution may decide to carry out life-saving treatment.

Section 91

The cases in which medical treatment may be undertaken against the patient ’ s will shall be determined solely by Act of Parliament.

Section 220

The administering of medical treatment to another person without that person ’ s informed consent or in breach of the requirements for obtaining the patient ’ s informed consent shall be punishable by a fine of between BGN 500 and 1,500 or, in the event of repetition, by suspension of the licence to practice a medical profession for a period of between six months and one year.”

There is no reported case-law of relevance to the present case concerning these provisions, nor are there any relevant provisions to be applied in conjunction with section 91.

Some of the above provisions were amended with effect from 2 June 2009. In particular, the words “by a parent or a general or special guardian ” in paragraph 4 of section 90 were deleted, so that the amended paragraph reads:

“Where treatment has been refused under paragraph 1 and the patient ’ s life is in danger, the head of the medical institution may decide to carry out life-saving treatment.”

C . Relev ant international material

The Council of Europe ’ s Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (opened for signature in Oviedo on 4 April 1997 and in force in respect of Bulgaria since 1 August 2003) contains the following principles regarding consent:

“Chapter II – Consent

Article 5 – General rule

An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it.

This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks.

The person concerned may freely withdraw consent at any time.

...

Article 8 – Emergency situation

When because of an emergency situation the appropriate consent cannot be obtained, any medically necessary intervention may be carried out immediately for the benefit of the health of the individual concerned.”

COMPLAINTS

1. Relying on Article 3, the applicants complain that Mrs Daskalova was forced to undergo painful treatment which she had categorically refused. While none of the applicants witnessed the actual insertion of the Blakemore tube, it was clear that this must have happened by physically restraining Mrs Daskalova. The terror and pain she must have suffered – to which the screaming the first applicant heard through the door testified – was exacerbated by the doctor ’ s disrespect for her wishes and the fact that she was living the last minutes of her life. Moreover, this unlawful conduct was not punished.

2. The applicants complain under Article s 2 and 13 of the Convention that the State failed in its positive obligation to safeguard Mrs Daskalova ’ s life since her death was the result of inadequate medical treatment and the fact that the health authorities had not secured the availability of essential medicines. Furthermore, the applicants ’ ensuing complaints did not result in an effective investigation and punishme nt of those responsible for Mrs Daskalova ’ s death.

3. Relying on Article 6, the applicants complained that they were unable to take an active part in the criminal proceedings instituted at their request.

4. In addition, in relation to the delayed examination of Mrs Daskalova ’ s application for disability certification, the applicants complain, relying on Articles 3, 8, 13 and 14, that as a consequence of the unlawful delay she was unable for more than a year to take advantage of social-security benefits which, if available, would have alleviated the suffering related to her illness, and that Mrs Daskalova was discriminated against, since the health authorities had admitted that in view of the backlog of certification applications they had given priority to persons whose income was limited to a disability pension or who were jobless, or those who required certification in the context of protection against dismissal or temporary incapacity to work. The applicants also allege under Article 6 that the courts in the ensuing civil proceedings were partial and decided wrongly, and that the proceedings were excessively lengthy.

THE LAW

1. Having examined the applicants ’ complaint that on 19 January 2005 their close relative was subjected to medical treatment against her will and that the authorities failed to react to this conduct, the Court considers that it cannot, on the basis of the case file, determine its admissibility and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. As to the remainder of the applicants ’ complaints, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that the remainder of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants ’ complaint that on 19 January 2005 their close relative was forcibly treated with a Blakemore tube against her will and that the authorities failed to react to this allegedly unlawful conduct ;

Declares the remainder of the application inadmissible.

             Claudia Westerdiek Peer Lorenzen Registrar President