Published on 30 May 2022

THIRD SECTION

Application no. 5742/22 S.O. against Spain lodged on 21 January 2022 communicated on 9 May 2022

SUBJECT MATTER OF THE CASE

The application concerns alleged deficiency of the informed consent given by the applicant to undergo surgery for the removal of a tumour from her right breast. The informed consent document mentioned the possible risks and complications of the surgery in a general manner, including the possibility of modifying the scheduled surgical technique in case of an unforeseen event. It didn’t expressly mention the possibility of removing the nipple and areola even though the tumour was located 15 mm from the nipple, while medical protocols recommended removing it when tumours were located less than 20 mm from the nipple. Domestic courts dismissed the applicant’s complaint considering that according to the expert reports and other evidence removing the nipple and areola was necessary and in accordance with the lex artis ad hoc as there had not been any other medical alternative and that the informed consent document foresaw the possibility of modifying the scheduled surgical technique during the surgery .

Relying on Article 8 of the Convention the applicant complains that her right to respect for her private life was breached because the doctors did not properly inform her beforehand that they would remove the nipple and areola during the surgery even though this possibility must have been clear before starting the surgery.

QUESTION TO THE PARTIES

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?

If yes, has there been a breach of the applicant’s right to respect for private life under Article 8 of the Convention (compare with G.H. v. Hungary (dec.) , no. 54041/14, § 22, 9 June 2015; Csoma v. Romania , no. 8759/05, §§ 42 and 47-50, 15 January 2013; and Codarcea v. Romania , no. 31675/04, § 104, 2 June 2009)?

The parties are asked to comment, in particular, whether the applicant was properly informed about the possibility of removing her nipple and areola when signing the consent document agreeing to undergo the surgery, and how the issue had been addressed by the judicial decisions taken in this case.

The parties are further asked to provide the instructions and documents on informed consent related to mastectomy (including the nipple and areola) and lumpectomy used by the Spanish Association of Gynaecology and Obstetrics and any other document that could be relevant in this respect.