Published on 28 August 2023

FIFTH SECTION

Application no. 54633/22 María Isabel GARRIDO HERRERO against Spain lodged on 16 November 2022 communicated on 11 July 2023

SUBJECT MATTER OF THE CASE

The application concerns the allegedly inadequate investigation into the circumstances surrounding the discontinuation of life-supporting treatment rendered to the applicant’s minor daughter, and the alleged lack of effective domestic remedies available to the applicant.

The background facts are set out in the Court’s judgment of Garrido Herrero v. Spain , no. 61019/19, 11 October 2022, where the Court concluded that there had been a violation of the procedural limb of Article 2 of the Convention.

In addition, the following facts are relevant to the present case.

In March 2010 the applicant’s daughter, born in 2005, was seriously injured in a road traffic accident, following which she was left in need of assisted ventilation (she was permanently connected to a ventilator to sustain life).

On 4 March 2012 the child fell into a coma. The treating physicians requested from a competent court an urgent authorisation to wean the child off the ventilator, describing the patient’s health situation as “equivalent to brain death”. The request was dismissed on the same date on the grounds that there was no emergency and that the minor’s legal guardian’ consent should have been sought.

Upon request by the applicant, who opposed to the weaning off the ventilator, the authorities authorised her to take the child home.

According to the medical reports of December 2012, although there had been no brain death, the child was an irreversible vegetative state. The Torrevieja hospital, following the medical record from the Santa Fe hospital, decided to “limit the therapeutic efforts”: not to resuscitate the child should the situation arise, not to provide any further treatment other than palliative care to sustain her in dignified conditions and to ensure that she did not suffer.

On 11 February 2013, the applicant’s daughter died at home following a serious respiratory crisis. The emergency services were present but did not attempt to resuscitate her, despite the applicant’s disagreement.

In 2013 the applicant lodged a criminal complaint against twenty-five doctors, some of whom had been involved in treating her daughter and some had worked at the different hospitals concerned, which she later withdrew.

On 6 April 2017 the applicant lodged a new criminal complaint against the same physicians alleging attempted murder, refusal to provide medical assistance, omission of the duty of care, and delivery by a civil servant of an arbitrary decision ( delito de prevaricación ). The applicant argued that the decision not to resuscitate her child had amounted to a “homicide decision” or a “form of euthanasia” and complained about the misdiagnosis of brain death. The applicant requested that the twenty-five doctors against whom the complaint be questioned as persons under investigation.

On 3 May 2017, the investigating court of Murcia instituted criminal proceedings into the alleged attempted murder, refusal to provide medical assistance, omission of the duty of care, and delivery by a civil servant of an arbitrary decision against the twenty-five doctors but held that they would be questioned at a later stage.

A forensic medical expert drew up a report and made a statement in the context of the criminal proceedings.

On 17 June 2019 the investigating court terminated the criminal proceedings on the grounds that the evidence before it had been insufficient to bring charges against the doctors, that it had not been necessary to question the physicians, and that the applicant’s child had received an adequate medical treatment and assistance.

The applicant lodged an appeal against the decision of 17 June 2019.

On 2 June 2020 the Murcia Audiencia Provincial dismissed the appeal owing to the expiry of the statute of limitations for the investigation of the alleged offences.

The applicant lodged an appeal on points of law alleging that the twenty ‑ five physicians concerned had not been informed of the existence of the criminal proceedings against them and that no adequate investigation had taken place.

On 1 June 2021 the Supreme Court declared the appeal on points of law inadmissible because the physicians had not been formally questioned in the course of the criminal proceedings, so the dismissal of those proceedings could not be appealed on points of law.

The applicant subsequently lodged an amparo appeal, which was declared inadmissible on 20 July 2022 by the Constitutional Court.

QUESTIONS TO THE PARTIES

1. Did the domestic authorities discharge their procedural obligation to carry out an effective investigation into the applicant’s allegations as required under Articles 2 and/or 3 of the Convention?

2. Did the applicant have at her disposal an effective domestic remedy for her Convention complaints, as required by Article 13 of the Convention?

The parties are requested to submit, together with their observations on the admissibility and merits of the application, the entire case file concerning the criminal proceedings against the twenty-five physicians which is the subject of her present application, including, if any, a court order to wean the applicant’s daughter off the ventilator, and the reports of the Committees of Ethics of La Fe Hospital of Valencia.