Communicated on 9 February 2017

THIRD SECTION

Application no. 43399/13 Y .P . against Russia lodged on 11 June 2013

STATEMENT OF FACTS

The applicant, Ms Y . P ., is a Russian national.

A. The circumstances of the case

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

1. Background events

On 18 September 2007 the applicant had an urgent operation in municipal hospital no. 4 in connection with an ectopic pregnancy. The applicant ’ s right fallopian tube was removed.

On 24 September 2007 the applicant was discharged from hospital with a recommendation to avoid getting pregnant for the next six months. It appears that the applicant became pregnant three months after the surgery.

2. Sterilisation of the applicant

On 1 August 2008 the applicant, who was then in the thirtieth or thirty ‑ first week of pregnancy, was admitted to municipal maternity hospital no. 2 as she showed symptoms of rhesus incompatibility and excess amniotic fluid (polyhydramnios).

On 10 August 2008, after examining the applicant, doctors at the hospital decided to perform an emergency Caesarean section as the foetus ’ s condition had deteriorated and there were signs of hypoxia.

The applicant signed a consent form for a Caesarean section without sterilisation. The consent form read as follows:

“... in view of her diagnosis, pregnancy at 32-33 weeks, rhesus – negative, suspected rhesus incompatibility, polyhydramnios, ..., hypoxia of the foetus, [the applicant] needs to undergo a Caesarean section without sterilisation. [The applicant] has been informed that examinations and the operation will be conducted in accordance with the standards set at maternity hospital no. 2, aiming to protect her from all possible complications. Nevertheless, complications such as bleeding during or after the operation, obstruction of the bowel, healing of the suture by secondary adhesion, injury to the bladder, ureters, or bowel, as well as expanding the scope of the operation cannot be completely excluded. On the basis of the foregoing, [the applicant] gives her consent to the Caesarean section and undertakes to follow all the doctor ’ s recommendations.”

On 11 August 2008 doctors at the hospital performed a Caesarean section on the applicant. They extracted the baby, which was suffering from acute respiratory failure and a number of other serious complications.

During surgery the doctors also identified a rupture of the uterus, without bleeding. A medical panel was convened, including the hospital ’ s chief medical officer. For 26 minutes during the operation they discussed whether or not to perform a hysterectomy or to suture the rupture and keep the uterus. Given the applicant ’ s age, 28, the doctors decided to suture the rupture and keep the uterus. However, given the two surgical interventions on the uterus, the Caesarean section and the hysterorrhaphy (repair of the uterus), the doctors decided that there was a real risk that the uterus would rupture in a future pregnancy, which could endanger the applicant ’ s life, and that therefore she should be sterilised. They then sealed the applicant ’ s left fallopian tube. The applicant was under local anaesthetic during the surgery and remained conscious. The doctors informed her of the rupture, but it does not appear that they attempted to seek her consent for the sterilisation procedure.

According to the applicant, she was told the day after the surgery that she had been sterilised, but she did not understand the term at the time and nobody at the hospital gave her any further details as to what the procedure meant. Two years later the applicant and her husband decided to have another child and as she could not get pregnant she saw a gynaecologist. That doctor explained that she could only get pregnant via in vitro fertilisation as she had been sterilised during the Caesarean section in 2008.

3. Civil proceedings

(a) The applicant ’ s claim

On 22 August 2011 the applicant brought a civil claim against maternity hospital no. 2 in the Sovetskiy District Court of Krasnoyarsk (“the District Court”). She alleged that the doctors at the defendant hospital had acted in breach of existing legislation and regulations when sterilising her without her consent. She argued, in particular, that sterilisation had not been justified by the need to save her life as there had been no immediate risk to her life at the time of the surgery on 11 August 2008. She complained that her right to choose to become a mother had been violated. She further submitted that she had consulted various gynaecologists, who had confirmed that the state of her health, and in particular the condition of her uterus, did not show that she should avoid pregnancy, and that if she had not been sterilised she could have conceived naturally, without recourse to in vitro fertilisation. The applicant claimed non-pecuniary damages in connection with the incident.

(b) Defendant ’ s submissions

The defendant hospital ’ s representatives argued that she had been sterilised as a part of preventive surgery aimed at saving her uterus. They submitted that the panel of doctors had considered two options during surgery: a hysterectomy, as recommended in cases of a ruptured uterus, or to keep the uterus and sterilise the applicant to prevent her getting pregnant, which could possibly cause a new rupture of the uterus and put her life at risk. In either case, the applicant would have become infertile, but the second scenario had avoided a number of complications for the applicant ’ s well-being. The doctors had thoroughly considered the consequences of each measure for the applicant ’ s health and had decided against a hysterectomy. They had therefore done what, in their view, had been in the applicant ’ s best interests. The representatives argued that the decision about which path to take had had to be taken quickly during surgery, when it had been impossible to ask for the applicant ’ s consent for sterilisation as she had been under the effects of strong medication.

The defendant hospital also argued that in the applicant ’ s case sterilisation had not been the same as the in tervention described in section 37 of the Health Care Act and to which the provisions of that Act applied. According to the defendant, the aim of the intervention in the applicant ’ s case had been different as it had aimed to keep the uterus and eliminate any danger to her life. They insisted that the applicant ’ s consent to the expansion of the scope of the operation could be understood as her consenting to sterilisation.

(c) Expert report of 21 May 2012

The District Court ordered a forensic medical expert examination. A panel of eight experts was called to establish how and when the rupture of the uterus had occurred; whether there had been any medical grounds for sterilisation of the applicant at the maternity hospital; whether it had been possible to keep the uterus without sterilisation; whether the applicant had been able to give her consent to or refuse sterilisation during the Caesarean section; whether any damage to the applicant ’ s health had been caused by sterilisation, and, if so, how severe that damage had been; whether the medical services given to the applicant had been of a high quality, and, if there had been any defects in those services, by whom and when they had been caused; and whether the doctors had complied with the existing methods and standards for such surgery.

In their report of 21 May 2012 the experts stated that the doctors ’ decision to keep the uterus but take away her ability to reproduce had been reasonable because any future pregnancy would threaten the applicant ’ s life. The experts also pointed out that according to ministerial decree no. 303 sterilisation could be performed only with the woman ’ s consent, and such consent had not been obtained in the present case.

The experts stated that the sterilisation procedure had been performed in accordance with existing standards, except for the lack of informed consent by the patient. At the same time, the experts emphasised that there had been “medical grounds” for sterilisation and that even if informed consent had not been given the intervention had been absolutely justified.

The experts concluded that sterilisation had not caused any damage to the applicant ’ s health as she had kept her sexual function and could still conceive by in vitro fertilisation. The experts noted that in cases like the applicant ’ s, when a woman had tubal infertility, she and her partner were entitled to in vitro fertilisation free of charge.

(d) The judgment of 21 September 2012

On 21 September 2012 the District Court dismissed the applicant ’ s claim.

It relied on the conclusions of the expert report of 21 May 2012 and held that the lack of informed voluntary consent in the applicant ’ s case had not breached domestic law, in particular ministerial decree no. 303, as there had been “medical grounds” for sterilisation. Those grounds had been established during the operation by a panel of doctors who, having discovered a ruptured uterus had had to decide as a matter of urgency on the scope of the surgery, given that the rupture could have provoked heavy bleeding and endangered the applicant ’ s life. The court noted that in those circumstances even a hysterectomy (total removal of the uterus) would have been justified, however, the doctors had decided to keep the uterus, suture the rupture and sterilise her as part of an operation to save her organs.

The District Court also noted, with reference to the conclusions of the expert report of 21 May 2012, that the applicant ’ s condition during surgery had prevented any conscious action on her part. It also considered that the suturing of the ruptured uterus and sterilisation had been the best solution in the applicant ’ s case and had been performed as an expansion of the scope of the Caesarean section, to which the applicant had consented. The court agreed with the experts that sterilisation had been performed in order to protect the applicant ’ s life.

The District Court rejected the applicant ’ s arguments about conflicting conclusions in the expert report, which, on the one hand, had stated that sterilisation had been necessary as a future pregnancy would put the applicant ’ s life at risk, and, on the other hand, had stated that she could conceive by in vitro fertilisation. The court saw no conflict in those conclusions and quoted the experts ’ statements on the danger to the applicant of any future pregnancy. It noted that as she had been made fully aware of that danger, she was free to decide whether or not to try in vitro fertilisation.

(e) The appeal decision of 12 December 2012

On 12 December 2012 the Krasnoyarsk Regional Court (“the Regional Court”) upheld the decision of the District Court on appeal. The Regional Court agreed with the District Court ’ s conclusion that sterilisation had been performed as an extension of the Caesarean section, and that there had been medical grounds for sterilisation in the applicant ’ s case.

B. Relevant domestic law

1. Health Care Act

The Basic Principles of Public Health Law (federal law no. 5487-1 dated 22 July 1993 – (“the Health Care Act”), as in force at the relevant time, in its relevant parts provided as follows:

Section 30: a patient ’ s rights

“When seeking medical advice and receiving medical treatment a patient has the right to ... informed voluntary consent to medical intervention ... [as well as the right to] refuse medical intervention.”

Section 32: consent to medical intervention

“Informed voluntary consent by [the person concerned] is a prerequisite for medical intervention ...”

Section 37: medical sterilisation

“Medical sterilisation is a special procedure to deprive [the person concerned] of the ability to reproduce or as a birth control method. It can be carried out only upon written application by a person who is at least 35 years old and has at least two children. If there are medical grounds for sterilisation and consent by the patient, it can be conducted irrespective of age and the number of children.”

2. Ministerial decree no. 303

Decree no. 303 of 28 December 1993 of the Russian Ministry of Health, in force at the material time, reiterated the principles set out in section 37 of the Health Care Act. It further provided a list of medical grounds for sterilisation.

COMPLAINT

The applicant complains about being sterilised without her consent and of the lack of an adequate response at the domestic level to her complaints in that regard.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to inhuman and degrading treatment, contrary to Article 3 of the Convention, owing to her being sterilised without her consent in a public hospital (see V.C. v. Slovakia , no. 18968/07, ECHR 2011 (extracts); N.B. v. Slovakia , no. 29518/10 , 12 June 2012; and I.G. and Others v. Slovakia , no. 15966/04 , 13 November 2012) ? In particular, did the applicant suffer any medical or psychological after-effects from the sterilisation procedure ? The applicant is invited to provide relevant medical or other documentary evidence.

2. Has there been an interference with the applicant ’ s right to respect for her private life, within the meaning of Article 8 of the Convention, on account of her sterilisation without her informed consent in a public hospital? If so,

(a) was that interference “in accordance with the law”?

(b) did it pursue a legitimate aim?

(c) was it proportionate to the aim pursued? In particular, why did not the doctors limit themselves to suturing of the ruptured uterus during the surgery on 11 August 2008? Was sterilisation indispensable for saving the applicant ’ s life at the time of the Caesarean section? Was it possible to seek and obtain the applicant ’ s consent to sterilisation during the Caesarean section? Did the staff at maternity hospital no. 2 provide the applicant with a full and clear account of the Caesarean surgery performed on her, including full and clear information about her sterilisation and its consequences for her?

Alternatively, has the State complied with its positive obligation to ensure respect for the applicant ’ s “private life”, within the meaning of Article 8 of the Convention?

3. Did the State comply with its positive obligation to provide the applicant with an adequate judicial response in respect of her complaint regarding her sterilisation without her consent? In particular, regard being had to the fact that the consent signed by the applicant prior to the Caesarean section surgery clearly excluded sterilisation, were the findings of the domestic courts in the civil proceedings in 2011-12 reasonable and non-arbitrary? Did the domestic courts provide “relevant and sufficient” reasons to justify the interference alleged by the applicant?