Communicated on 2 December 2014

FIRST SECTION

Application no. 49045/13 Anneli ROIGAS against Estonia lodged on 24 July 2013

STATEMENT OF FACTS

The applicant, Ms Anneli Rõigas , is an Estonian national, who was born in 1963 and lives in Tallinn. She is represented before the Court by Mr R. Kuulme , a lawyer practising in Tallinn.

The circumstances of the case

The facts of the case, as submitted by the applicant and as they appear from the documents on file, may be summarised as follows.

In 2006 the applicant ’ s son O., who had been born in 1983, was diagnosed with malignant melanoma. He was operated, received radiation therapy and underwent regular check-ups. In April 2009 a metastasis was operated from his brain and he again received radiation therapy.

In September 2009 O. ’ s health condition deteriorated. He vomited, felt weak and dizzy.

On 19 September 2009 the applicant called an ambulance and O. was taken to North Estonia Medical Centre (NEMC) ( Põhja-Eesti Regionaalhaigla ) for examination. According to the applicant a computed tomography ( CT ) scan was performed on O. and he was told that the scan had not revealed any problems with his health. O. was prescribed an anti-vomiting drug and released from the hospital on the same evening.

On 24 September 2009 the applicant again called an ambulance for O. who complained of general feeling of illness, numbness of one side of his face, rush around his nose and balance problems. O. was hospitalised in NEMC. CT scan and magnetic resonance tomography (MRT) , performed o n the same and the next day, indicated leptomeningeal pathological process involving cranial nerves, probable meningeal metastatic process and probable multiple metastases in the liver and other organs of the abdominal cavity. He was given hormonal and infusion treatment but his situation deteriorated rapidly. He developed breathing and walking problems, speech impairment and his vision worsened. On 28 September 2009 a medical council of the hospital decided to proceed with supporting cure and found that considering the spread of the tumour oncological treatment would not be effective.

For one week starting from 5 October 2009, O. was physically restrained to the bed with magnetically locking restraints on both arms, apparently in order to prevent him causing himself damage, regard being had to his disturbed state of consciousness.

On 6 October 2009 O. was transferred to an intensive care unit because of his progressive respiratory failure and disturbance of consciousness. He was also diagnosed with pneumonia and was given antibacterial treatment. On the same day the medical council found that surgical cure was not possible and decided to continue with palliative treatment supporting the vital functions.

On 12 October 2009 O. stopped breathing and mechanical ventilation was applied. On 13 October 2009 his clinical brain death was diagnosed and his treatment and feeding was discontinued. According to the applicant she insisted that an EEG brain scan be carried out and this indicated that O. was not brain dead. O. ’ s feeding and administration of medicines was not resumed despite the applicant ’ s requests. On 14 October 2009 O. was left naked without a blanket and only partially covered with a sheet near an open window to catch cold. On 15 October 2009 O. ’ s death was established and the mechanical ventilation was terminated.

On 15 October 2009 the applicant called the police, complained about O. ’ s treatment and asked that an expert examination be commissioned. She was advised to address the Expert Panel of Quality of Medical Aid ( Tervishoiuteenuse kvaliteedi ekspertkomisjon ).

On 16 October 2009 an autopsy was performed in NEMC. According to a medical death certificate O. died of malignant melanoma with multiple metastases in the brain which also caused cerebral haemorrhage and oedema as complications.

On 2 November 2009 the applicant made a complaint about O. ’ s inhuman treatment and the circumstances of his death to the Health Board ( Terviseamet ).

On 8 March 2010 the applicant was informed by the Health Board that the case had been transmitted to the Expert Panel of Quality of Medical Aid. The Expert Panel examined O. ’ s medical records, obtained written explanations from several medical staff who had treated O. and commissioned two expert opinions, one prepared by one of its members and another by another doctor, both professors emeriti. The Expert Panel also heard the applicant. In its decision given on 25 March 2010 it found no medical malpractice in O. ’ s treatment. In addition, the Expert Panel gave written answers to a number of the applicant ’ s questions.

In the meantime, on 22 March 2010 the applicant made an offence report to the prosecutor ’ s office. Criminal proceedings under Article 123 of the Penal Code (placing or leaving another person in a situation which is life-threatening or likely to cause serious damage to the health of the person) were initiated on 1 April 2010.

In the course of the criminal investigation several persons (doctors, nurses, the applicant, O . ’ s friends who had visited him in the hospital) were interviewed, medical documentation examined and the deceased ’ s forensic expert examination ordered. According to the forensic examination report dated 30 August 2012 O. had received treatment appropriate for his condition.

On 25 October 2012 the criminal proceedings were discontinued as no offence had been committed. The applicant ’ s appeal to the State Prosecutor ’ s Office was dismissed on 10 December 2012. On 28 January 2013 the Tallinn Court of Appeal dismissed her appeal.

COMPLAINTS

The applicant complains, invoking Articles 2, 3 and 8 of the Convention, about the lack of effective investigation into her son ’ s involuntary medical treatment, inhuman treatment and torture in the hospital, and the circumstances of his death.

In particular, the applicant complains under Article 2 that the police refused to initiate criminal proceedings upon her initial complaint of 15 October 2009 and that the length of the criminal proceedings was unreasonable. Not all steps were taken to secure all possible evidence in the case. No independent autopsy was performed and the results of the tests performed in the hospital were not independently verified. The applicant puts into question the official explanation for the cause of her son ’ s death and considers that the medical staff failed to carry out his sufficiently profound medical examination and give due consideration to other possible causes of the deterioration of his health besides the cancer. They had also failed to diagnose pneumonia in due time. The applicant further argues that the experts and authorities failed to duly consider whether the administration of certain medicines, including sedatives, penicillin and medicines lowering the blood pressure had been justified and in accordance with the clinical safety guidelines and whether such treatment had in fact had negative effects on O. ’ s condition. Not all medical staff concerned was questioned in the course of the investigation. In the criminal proceedings the authorities failed to ascertain whether depriving a person, in spite of objections from his immediate family, of food and treatment could be considered to be homicide. The procedure for the determination of brain death was not followed and O. was deprived of any and all treatment and food on 13 October 2009 without the brain death procedure even having been commenced as required, let alone having been completed.

In respect of Article 3, the applicant complains that O. ’ s hands were fastened with physical restraints to his bed for a week; between 13 and 15 October 2009 he was deprived of all food, drink and medication; he was left naked without a blanket, only partially covered by a sheet, under an open window to catch cold; neither O. nor the applicant gave consent for the administration of highly potent narcotic substances and sedatives. The authorities failed to objectively investigate whether or not O. ’ s death had been caused by mistakes in medical care. The applicant also disputes the necessity of intubation and tracheotomy performed on O.

In respect of Article 8 the applicant argues that certain medicines were administered to O. against his will and others without his or his family members ’ informed consent. The authorities failed to address this issue or the fact that O. and the applicant had wished that O. be transferred to another hospital or be allowed to go home.

QUESTIONS TO THE PARTIES

1. Having regard to the extent to which the applicant used civil remedies, has she exhausted effective domestic remedies, as required by Article 35 § 1 of the Convention, for complaining about her son ’ s medical treatment and death in the hospital?

2. Having regard to the procedural obligation under Article 2 of the Convention , was there an effective independent judicial system set up in Estonia so that the cause of death of the applicant ’ s son could be determined and those responsible made accountable ( see, for example, Calvelli and Ciglio v. Italy [GC], no. 32967/96, ECHR 2002 ‑ I; Å ilih v. Slovenia [GC], no. 71463/01, 9 April 2009; and Eugenia Lazăr v. Romania , no. 32146/05 , 16 February 2010 )? Was the investigation in the present case by the domestic authorities in breach of Article 2?

3. Has there been a violation of the applicant ’ s and her son ’ s right to respect for their private life, contrary to Article 8 of the Convention, on account of the medical treatment of the applicant ’ s son? In particular, was there a procedure in place for establishing whether the applicant ’ s son and/or the applicant gave their informed consent to the applicant ’ s son ’ s treatment as well as for establishing whether the administration of medicines to the applicant ’ s son and the performing of procedures such as intubation and tracheotomy as well as his fastening to the bed, disputed by the applicant, were well-founded? Did the applicant make use of appropriate remedies in this respect?