JOINT DISSENTING OPINION OF JUDGES SAJÓ AND TSOTSORIA

This sad case is about alleged medical negligence. In paragraph 114 of the judgment the majority came to the conclusion that the State had failed to comply with its substantive duty to protect the applicant’s husband’s “physical integrity” (not necessarily life ! which is protected under Article 2) because of the lack of (delay in) a surgical intervention that was required in accordance with the applicable rules of medical practice, stating that “[w] ithout wishing to speculate on the applicant’s husband’s prospects of survival if his meningitis had been diagnosed earlier, the Court considers that the lack of coordination between the ENT department of the CHVNG and the hospital’s emergency department attests to failings in the public hospital service.”

We have to disagree on factual and jurisprudential grounds.

Among the many expert opinions submitted in the four sets of domestic proceedings, which all concluded that there had been no medical negligence, the Court relies on the conclusions of the report of 13 December 1999 of the specialist infectious diseases panel, according to which

“1. In our opinion the diagnosis of meningitis, most likely resulting from the nasal polypectomy, was inexplicably delayed. The fact that there was no one on the medical team trained in this type of diagnosis (for example, a specialist in infectious diseases) may be regarded as the only explanation for such an incident. However, this was not the immediate cause of the patient’s death.”

Firstly, this conclusion was expressed in the context of disciplinary proceedings. For the purposes of the rules of admissibility applied by this Court, those proceedings ended with a decision of the Portuguese National Disciplinary Council of 18 March 2003 (see paragraph 56 of the judgment). In so far as the applicant’s complaint concerns that decision, it is therefore inadmissible, as are all the other complaints concerning the other proceedings, except those before the Oporto Administrative and Tax Court. It is of importance that in the final set of proceedings, which are the only admissible ones, the 1999 report was not part of the file.

Secondly, we do not consider ourselves qualified to deal with medical diagnosis. In particular, in the absence of expert medical opinion to the contrary, we do not perceive a link between an alleged delay in the diagnosis of meningitis that occurred on 29 November 1997 (see paragraph 114 of the judgment) and a death that occurred on 8 March 1998 which was not caused by the meningitis. It is clear that not even the 13 December 1999 forensic opinion implied such a causal link. We cannot understand how an alleged organisational negligence that did not result in death can be construed as the basis of State responsibility for failing to protect life (which is replaced with the term “physical integrity”).

Lastly, and most importantly, the attribution of State responsibility exclusively on the basis of an alleged lack of coordination among the various units of the same hospital radically departs from the principles referred to in the actual judgment itself. The Court correctly refers to the applicable principle as being the following:

“… where a Contracting State has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients , it cannot accept that matters such as an error of judgment on the part of a health professional or negligent coordination among health professionals in the treatment of a particular patient are sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life (see Byrzykowski v. Poland , no. 11562/05, § 104, 27 June 2006; Erikson v. Italy ( dec. ), no. 37900/97, 26 October 1999; and Powell ( dec. ), cited above).”

We should add that in the case-law the French “ mauvaise ” coordination means negligent (see the English version of Powell v. the United Kingdom ( dec. ), no. 45305/99, ECHR 2000 ‑ V, and its precedential progeny including Byrzykowski ). Whichever type of coordination (“ mauvaise ” or negligent) we are confronted with here, the position of the Court has so far been that this cannot, in itself, result in the violation of a positive obligation of the State. There is no “additional” element here. On the contrary, as mentioned above, the allegedly negligent coordination in the present case did not result in the death of the applicant’s spouse. Even assuming that there had been a causal relationship, this is not enough to find a violation in the light of the cases cited above (see Byrzykowski ; Erikson; and Powell , all cited above, and Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 48, ECHR 2002 ‑ I).

The Court relies, mutatis mutandis , on Mehmet Şentürk and Bekir Şentürk v. Turkey (no. 13423/09, § 97, ECHR 2013) and Asiye Genç v. Turkey (no. 24109/07, § 82, 27 January 2015). In the former case there was a violation of the law in that any urgent medical treatment was denied on account of the inability to advance the costs. This was a case of denial of medical service. The latter case concerned a systemic failure of the neonatal service in a given geographical area. On the basis of expert medical opinion on the causes of the death, the Court found in Genç (§ 77) that “in the present case neither the seriousness of the condition of the applicant’s son, who was born prematurely and suffered from respiratory distress, nor the need for urgent medical intervention, was in dispute” and, in § 82, that “[a] ccordingly , the applicant’s son should be regarded as having been the victim of failings in the hospital services, in that he was deprived of any access to appropriate emergency care. In other words, the child died not because of any negligence or error of judgment in the care provided …, but simply because he was offered no treatment at all – such a situation being understood to constitute a denial of medical treatment such as to endanger a person’s life (see Mehmet Şentürk and Bekir Şentürk , cited above, §§ 97 and 105)” . The malfunctioning of the hospital authorities in Genç , in that there was no access to adequate emergency care at all, is entirely different from the present case in which access was not denied.

It follows that the Court’s present position represents a radical departure from the above-cited established principles without giving specific reasons. Of course, a new position, even if radically new, cannot be deemed wrong on that ground. We disagree with the new, barely articulated principle that seems to underlie the position of the Court because this position seems to impose Convention obligations concerning the level of medical services to be provided. It discreetly imposes a duty to provide a specific level of health-care service for the purposes of Article 2 § 1.

It would be wrong for this Court to micromanage medical care. For the Court to undertake such a task is not only impossible but simply does not follow from the concept of human rights under Article 2. Our Convention is neither a social rights convention nor a public health service charter. We are not sure that the present case would raise an issue even under the International Covenant on Economic, Social and Cultural Rights.

Our Convention calls for the protection of life by law. Moreover, Article 2 § 1 clearly singles out intentional deprivation of life. It is for this reason that the Court is extremely cautious when it comes to negligent action of State authorities (which is absent in the present case); furthermore, there is a difference between the acts of the medical staff in the public health system and State agents exercising coercive power. The obligations of the State, in the absence of State action aimed at depriving life, are related to the proper operation of the existing legal system, with special emphasis on adequate legal recourse in matters of negligence. The logic of the present case would turn alleged medical negligence cases into substantive violations of Article 2 and would turn this Court into a first- and last-instance medical malpractice court.

There is no Convention obligation imposed on the member States to play Providence and we are not called upon to remedy instances of alleged maladministration of health services. If citizens are of the view that waiting times in urgent situations are unacceptable, they have the means to allocate more resources for health-care necessities through the democratic process. An international court cannot, on the basis of the current wording of the Convention, dictate health policies. All it can do is supervise the responsiveness of the legal system where domestically established standards of life protection have been disregarded (as established by experts). It is a different matter when human rights dictate a health-care policy where the individual is under the control of the coercive monopoly of the State, as is the case of health care of prisoners.

Moreover, courts, and international courts in particular, are not entitled to overrule expert medical opinion; they have to rely on expert medical opinion, while providing all the guarantees stemming from the principle of equality of arms and all measures against arbitrariness. We are not in a better position to know what caused the sad death of the applicant’s husband than the incredible number of experts whose views are unanimous as to the absence of medical negligence.

To sum up, we cannot follow the majority’s finding of a substantive violation because, in our view, the application was lodged too late; it does not address the violation that was found; there is no evidence that the negligence caused the death; and, in the absence of a causal link, the delays in medical intervention due to lack of proper coordination do not raise an Article 2 § 1 issue.

We voted with the majority regarding the procedural violation of Article 2, but only in regard to the last set of proceedings, on account of the lack of celerity, although a considerable part of the delay in that last set of proceedings can be attributed to the completely pointless requests made by the applicant.

It is for this reason that we cannot agree with the amount awarded under the head of just satisfaction (non-pecuniary damage), this being a case of a procedural violation of the duty to protect life. It cannot be compared with the suffering caused by deliberate killings by State agents, though, in our view, this seems to be the ultimate consequence of the logic applied.