Gross v. Switzerland: Referral to the GC

On the 7th of October 2013, a panel of 5 judges decided to accept the refferral of the judgment in the case of Gross v. Switzerland to the Grand Chamber of the ECtHR.

This case concerns the complaint of an elderly woman, who wishes to end her life but does not suffer from a clinical illness, that she was unable to obtain the Swiss authorities’ permission to be provided with a lethal dose of a drug in order to commit suicide. In its Chamber judgment of 14 May 2013 the Court found that there had been a violation of Article 8 of the ECHR. The ECtHR found that

"Swiss law, while providing the possibility of obtaining a lethal dose of a drug on medical prescription, did not provide sufficient guidelines ensuring clarity as to the extent of this right. This uncertain situation was likely to have caused Ms Gross a considerable degree of anguish. At the same time, the Court did not take a stance on the question of whether she should have been granted the possibility to acquire a lethal dose of medication allowing her to end her life."

The press release can be found here.

Two Articles on Reproductive Rights

In the August issue of International Journal of Gynecology & Obstetrics Johanna Westeson from the Center for Reproductive Rights published the article "Reproductive Health Information and Abortion Services: Standards Developed by the European Court of Human Rights".The article analyses 3 important judgments of the ECtHR, RR. v. Poland, P. and S. v. Poland and A. B. & C. v. Ireland, and related standards of care that was considered by the Court.

Here is the abstract:

In 3 recent judgments, the European Court of Human Rights addressed the issue of access to abortion and related reproductive health services. In 2 of the judgments, the Court declared that the state violated women’s rights by obstructing access to legal health services, including abortion. In so doing, it referred to the state’s failure to implement domestic norms on prenatal testing and conscientious objection, and recognized the relevance of international medical guidelines. This illustrates that domestic and international medical standards can serve as critical guidance to human rights courts. In the third case, the Court showed its unwillingness to declare access to abortion a human right per se, which is troubling from the perspective of women’s right to health and dignity. The present article outlines the relevance of these cases for the reproductive health profession and argues that medical professional societies can influence human rights courts by developing and enforcing medical standards, not only for the benefit of abortion rights domestically but also for the advancement of women’s human rights worldwide.

The October issue of the International Journal of Gynecology and Obstetrics contains the Article "Human Rights to In Vitro Fertilisation" written by Fernando Zegers-Hochschild, Bernard Dickens and Sandra Dughman-Manzur. This work explores the judgment of the ACtHR in relation with the ban on in vitro ferltilisation by Costa Rica.

Here is the abstract:

The Inter-American Court of Human Rights (the Court) has ruled that the Supreme Court of Costa Rica’s judgment in 2000 prohibiting in vitro fertilization (IVF) violated the human right to private and family life, the human right to found and raise a family, and the human right to non-discrimination on grounds of disability, financial means, or gender. The Court’s conclusions of violations contrary to the American Convention on Human Rights followed from its ruling that, under the Convention, in vitro embryos are not “persons” and do not possess a right to life. Accordingly, the prohibition of IVF to protect embryos constituted a disproportionate and unjustifiable denial of infertile individuals’ human rights. The Court distinguished fertilization from conception, since conception—unlike fertilization—depends on an embryo’s implantation in a woman’s body. Under human rights law, legal protection of an embryo “from conception” is inapplicable between its creation by fertilization and completion of its implantation in utero.

Avilkina and Others v. Russia

In the case of Avilkina and Others v. Russia (Application no. 1585/09) the Court found a violation of Article 8 of the ECHR in relation with the disclosure of confidential medical data of members of a religious community regarding their refusal of blood transplantation.

The applicants were the Administrative Center of Jehova's Witnesses in Russia, seated in St. Petersburg, and three private persons, Ms Avilkina, MsDubinina and Zhukova. Following a series of complaints submitted to it, the Office of the City Prosecutor of St. Petersburg launched an investigation which found no illegal activity in connection with the practices of the Center. However, in 2007, the Deputy City Prosecutor asked the "St Petersburg Public Health Committee to instruct all the city’s medical institutions to report every refusal of transfusion of blood or its components by Jehovah’s Witnesses".The second, the third and the fourth applicants received medical non-blood management medical treatment in different public hospitals. In the case of the case of the second and the fourth applicants, the medical institution disclosed the data related to their treatment to the Prosecutor's Office.

Relying on Article 8 of the Convention, the second, third and fourth applicants complained that the prosecutor’s office had asked the doctors to disclose the information contained in their medical files without their consent and in the absence of any criminal investigation warranting such disclosure. As a result, confidential medical information had been disclosed in respect of the second and fourth applicants.

Violation of Article 8

Since no disclosure of the third applicant’s medical files took place, the Court found that the complaint brought by the third applicant under Article 8 is incompatible ratione personae with the provisions of the Convention, and must, therefore, be rejected.

As to the alleged violation of the right to respect of private life of the second and the fourth applicant, the Court reiterated its case-law according to which personal information relating to a patient belongs to his or her private life. The disclosure by public hospitals of the applicants’ medical files to the prosecutor’s office therefore constituted an interference with their right to respect for their private life. In order this interference be justified, it must be in accordance with the conditions set out in paragraph 2 of Article 8 which states as follows:

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. (emphasis added)

The ECtHR, firstly, accepted the Government’s argument that the disclosure of the applicants’ medical files to the prosecutor’s office had a basis in domestic law, in the Basic Principles of Public Health Law. This law was undisputedly "accessible" as well. However it also considered that "the legislative provisions in force at the material time [...] were worded in rather general terms and might have been open to extensive interpretation". Secondly, as to the legitimate aim, it found that the disclosure of confidential medical information served the State interest of law enforcement. It therefore considered it unneccessary to rule separately on this issue as far as it did not concerne the proportionality of the impugned interference.

Finally, in determining whether the impugned measures were “necessary in a democratic society”, the Court considered whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient and the measures were proportionate to the legitimate aims pursued. It recalled its firm practice that the protection of medical information is of fundamental importance to a person’s enjoyment of the right to respect for his or her private and family life:

Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. The disclosure of such data may seriously affect a person’s private and family life, as well as their social and employment situation, by exposing them to opprobrium and the risk of ostracism [...]. Respecting the confidentiality of health data is crucial not only for the protection of a patient’s privacy but also for the maintenance of that person’s confidence in the medical profession and in the health services in general. Without such protection, those in need of medical assistance may be deterred from seeking appropriate treatment, thereby endangering their own health [...]. Nevertheless, the interests of a patient and the community as a whole in protecting the confidentiality of medical data may be outweighed by the interest of investigating and prosecuting crime and in the publicity of court proceedings, where such interests are shown to be of even greater importance [...].

Furthermore, in cases concerning the disclosure of personal data, the ECtHR had recognised that a margin of appreciation should be left to the competent national authorities in striking a fair balance between the relevant conflicting public and private interests. However, this margin goes hand in hand with European supervision.

As to the circumstances of the present case, the Court did not discern any pressing social need for requesting the disclosure of the confidential medical information concerning the applicants. They were not suspects or accused in any criminal investigation. The prosecutor merely conducted an inquiry into the activities of the Center. It was open to the medical professionals providing treatment to the second applicant, who was two years old at the time, to apply - or to ask the prosecutor to apply - for judicial authorisation for a blood transfusion if they believed her to be in a life-threatening situation. Likewise, the doctors who reported the fourth applicant’s case did not consider that her refusal of a blood transfusion was due to pressure exerted on her by other adherents of her religious beliefs and not an expression of her true will. In such circumstances, the Court  considered that the means employed by the prosecutor need not have been so oppressive for the applicants. It also took into account that there were options, other than ordering the disclosure of confidential medical information, available to the prosecutor to follow up on the complaints lodged with his office.

The Court also took into account "the interpretation of the applicable legislation by the domestic courts that at the relevant time the prosecutor’s power to request the disclosure of confidential medical information without the patient’s consent was not limited to criminal proceedings against the individual concerned [...], but could be exercised in connection with any “investigation” carried out by the prosecutor’s office". The law conatined any indication as to who might be affected by such disclosure, or the procedures to be observed. It was open to the applicants to challenge the lawfulness of the prosecutor’s order after the disclosure had taken place. The applicants made use of that opportunity. Their grievances were reviewed by national courts at two levels of jurisdiction. The Russian court, however, found the disclosure to be in compliance with the law and dismissed the claims. In this respect, the ECtHR discerned

no mention in the text of the judgments of any efforts by the national authorities’ to strike a fair balance between the applicants’ right to respect for their private life and the prosecutor’s activities aimed at protecting public health and individuals’ rights in that field. Nor did the authorities adduce relevant or sufficient reasons which would have justified the disclosure of the confidential information.

Accordingly, the opportunity to object to the disclosure of the confidential medical information once it was already in the prosecutor’s possession did not afford the applicants sufficient protection against unauthorised disclosure. The Court concluded that the collection by the prosecutor’s office of confidential medical information concerning the applicants was not accompanied by sufficient safeguards to prevent disclosure inconsistent with the respect for the applicants’ private life guaranteed under Article 8 of the Convention. Therefore, there has been a violation of Article 8 of the Convention.

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See the updated Factsheet on Data Protection and on Health here and here.

Gross v. Switzerland

In the case of Gross v. Switzerland (Application no. 67810/10) the Court found violation of Article 8 of the Convention in relation with absence of "clear and comprihensive" legal guidelines concerning the extent of the right to assisted suicide in Switzerland.

The applicant of the case was a Swiss woman who, for many years, had expressed her wish to end her life since she feared of becoming more and more frail and of suffering the decline of her physical and mental faculties. She even attempted suicide after which she was treated in a hospital. In 2008 she was examined by a psychiatrist who found that the applicant's quality of life had been constantly decreasing, and she had also suffered from the fact that she could not talk openly about her wish to die with her friends.On this basis the  psychiatrist observed that "there was no doubt that the applicant was able to form her own judgment" and that "her wish to die was reasoned and well-considered, had persisted for several years and was not based on any psychiatric illness". The psychiatrist therefore - from a psychiatric/medical point of view - did not have any objection to the applicant being prescribed a lethal dose of sodium pentobarbital. The applicant however could not find a medical prectitioner willing to prescribe her the lethal dose - as it was required by the Swiss practice - since all doctors, from whom Gross subsequently requested a prescription, declined. The reason was that they "felt prevented by the code of professional medical conduct" or "did not wish to be drawn into lengthy judicial proceedings".The applicant subsequent requests for the authorization of access to the lethal dose of the medical substance were rejected by to the Health Board and the Administrative Court of the Canton of Zurich. Finally, the Federal Supreme Court rejected the applicant's appeal and found that

the applicant undisputedly did not fulfil the prerequisites laid down in the medical ethics guidelines on the care of patients at the end of life adopted by the Swiss Academy of Medical Sciences [...], as she was not suffering from a terminal illness, but had expressed her wish to die because of her advanced age and increasing frailty. [...] the issuing of the requested substance required a thorough medical examination and, with respect to the persistence of the wish to die, long-term medical supervision by a specialist practitioner who was ready to issue the necessary prescription. This requirement could not be circumvented by the applicant’s request for an exemption from the necessity of obtaining a medical prescription.

In her application submitted to the ECtHR, the applicant complained that the Swiss authorities, by depriving her of the possibility of obtaining a lethal dose of sodium pentobarbital, had violated her right to decide by what means and at what point her life would end. She relied on Articles 2, 3, 6 § 1, 8 and 13.

Violation of Article 8

The Court reiterated, at the outset, that the notion of “private life” is a broad concept, which encompasses, inter alia, the right to personal autonomy and personal development. In its earlier judgment in the case of Pretty v. the United Kingdom, the ECtHR noted that it could not yet exclude that preventing a person by law from "exercising his or her choice to avoid what she considered would be an undignified and distressing end to her life constituted an interference with her right to respect for her private life as guaranteed under Article 8 § 1 of the Convention". The Court further acknowledged in the case of Haas v. Switzerland by 

that an individual’s right to decide the way in which and at which point his or her life should end, provided that he or she was in a position to freely form his or her own judgment and to act accordingly, was one of the aspects of the right to respect for private life within the meaning of Article 8 of the Convention.

Therefore the Court examined the circumstances of the applicant’s case from the perspective of the right to respect for her private life under Article 8. In this regard, the Court considered that the case primarily raised the question whether "the State had failed to provide sufficient guidelines defining if and, in the case of the affirmative, under which circumstances medical practitioners were authorised to issue a medical prescription to a person in the applicant’s condition".

The Court observed that, in its case-law on the subject, the Swiss Federal Supreme Court had referred to the medical ethics guidelines on the care of patients at the end of their life, which were issued by a non-governmental organisation and do not have the formal quality of law. These guidelines only apply to cases where doctors has arrived at the conclusion that - within a matter of days or a few weeks - their patients will die. The applican, however, does not fall within the scope of application of these guidelines, as she did not suffer from a terminal illness. Furthermore, in the case of the applicant, this lack of clear legal guidelines had a negative effect considering the attitude of the doctors, as they declined to prescribe the medication requested by the applicant due to fear of professional or legal consequences. The Court therefore concluded that

the applicant must have found herself in a state of anguish and uncertainty regarding the extent of her right to end her life which would not have occurred if there had been clear, State-approved guidelines defining the circumstances under which medical practitioners are authorised to issue the requested prescription in cases where an individual has come to a serious decision, in the exercise of his or her free will, to end his or her life, but where death is not imminent as a result of a specific medical condition.

As a result, the Court found - with a very narrow majority (4 votes against 3) - that Swiss law does not provide sufficient guidelines ensuring clarity as to the extent of this right, which violated Article 8 of the Convention.

Regarding the substantive matter the applicant’s request, the Court, however, refrained from finding a violation of the right to respect of private life and limited itself to the above conclusion without in any way taking up a stance on the substantive content of such guidelines. Relying on the principle of subsidiarity, the ECtHR considered that it is the primary role of the Swiss authorities "to issue comprehensive and clear guidelines on whether and under which circumstances an individual in the applicant’s situation – that is, someone not suffering from a terminal illness – should be granted the ability to acquire a lethal dose of medication allowing them to end their life".

The ECtHR declared tha remainder of the application manifestly ill-founded and dismissed those claims.

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The Court - after its judgment in the Pretty- and the Haas-cases and lately in the case of Koch v. Germany - took the opportunity to further develop it case-law considering assisted suicide, as it ruled that the norm clarity, an essential element of the principle of rule of law, obligates the states to issue measures, namely a comprihensive and clear legal framework, that define the limits and extent of the right to access to lethal drugs in order to allow the individual to end his or her life. The ECtHR, on the other hand, rendered this task solely to the state as it refrained from defining - at least some - guidelines regarding the future law. This, however, does not mean that the Court, when the adequacy of this law is questionned, would refrain from examining the compliance of the measure issued by the state with Articel 8 of the Convention.

See the short report about the judgment on Jurist here.

Read the first comment on the judgment on UK Human Rights Blog here.

See comment on the case on Strasbourg Observers here.

See also updated factsheets on the Right to Life and Health.

Leaflet on Genetic Tests for Health Purposes translated into 17 languages

Source: cosozo.com

The Council has published its leaflet on Genetic Tests for Health Purposes (see more) translated into 17 languages: Albanian; Armenian; Croatian; Czech; Dutch; Estonian; Finnish; German; Greek; Hungarian; Icelandic; Polish; Portuguese; Romanian; Slovak; Slovanian; Spanish.

You can find the translated leaflets here.

Mehmet Şentürk and Bekir Şentürk v. Turkey

In the case of Mehmet Şentürk and Bekir Şentürk v. Turkey (Application no. 13423/09) the Court found the violation of Article 2 of the ECHR in realtaion with the death of the first applicant's wife, the second applicant's mother, following a series of misjudgments by medical staff at different hospitals and the subsequent failure to provide her with emergency medical treatment when her condition was known to be critical. (Note: the language of the judgment is French, therefore I used the press release for the following summary)

On  11  March  2000  the  first  applicant’s  wife,  who  was  in the 34th week of her pregnancy, experienced pain. She then went to several hospitals where sha was not properly examined. As her pain did not lessen they went to Ege University  Hospital where the doctors found that her foetus was dead. Then Mrs Şentürk was told that she would have to be operated on to remove the child and, according to the applicants, was then asked to pay a deposit to cover the costs of her hospital admission and the surgery. As they did not have the sum required, the couple were sent to another hospital. Mrs Şentürk died without receiving any medical assistance while being transferred in the ambulance.

After the tragic event the Ministry of Health carried out an investigation that found several members of the hopsitals concerned liabile for the death of the woman. Furthermore, in 2001, several criminal proceeding were initiated against the medical personnel. The criminal court reached a conviction on 18 March 2008, but the applicants were dissatisfied with the judgment and appealed. In 2010 the Court of Cassation terminated the proceedings by virtue of the statute of limitations.

The applicants alleged that the right to life of the mother and the foetus had been infringed as a result of the negligence of the medical staff involved. They further complained about the length of the subsequent criminal proceedings.

Violation of Article 2

The Court set examined first whether the national authorities had done all that could reasonably have been expected of them to protect the patient’s physical well-being, in particular by providing her with appropriate medical care. It noted that some of the medical staff concerned had been found criminally liable by the first-instance court. It accepted the findings of the investigation carried out by the Turkish authorities, which had highlighted several errors of judgment by the doctors and serious deficiencies in relation to the patient’s transfer.

The ECtHR considered that the mother had not reached an informed decision to refuse treatment and that the national  authorities  had  therefore  been  under  an  obligation  to  treat  her,  not  least because the seriousness of her condition had not been in doubt. Accordingly, the Court held that the deceased had been denied access to appropriate emergency treatment, which in itself amounted to a violation of the substantive aspect of Article 2.

The Court then examined whether the investigations by the Turkish authorities had been able to shed light on the events. In the medical sphere, a prompt response by the authorities was vital in maintaining public confidence and support for the rule of law. In this case, however, the proceedings had lasted more than nine years in total, of which some three years had been taken up simply by the administrative procedure of leave to bring a prosecution; this did not satisfy the requirement of a prompt examination.

As regards the criminal procedure, the Court noted that it was possible in Turkey to institute both civil and criminal proceedings in the event of a death in hospital. However, where persons responsible for endangering life were not charged with a criminal offence or prosecuted, this could amount to a violation of Article 2. The Court noted that the same applied in  the case of a hospital’s failure to provide a patient with medical assistance. In the present case, Turkish criminal procedure had not afforded the opportunity to establish the full responsibility of the medical staff concerned, and this amounted to a second violation of Article 2.

In relation with the right to life http://www.blogger.com/blogger.g?blogID=4524223062577257773#editor/target=post;postID=3662789365374205306;onPublishedMenu=overviewstats;onClosedMenu=overviewstats;postNum=3;src=postnameof the foetus, the ECtHR considered  that  it  was  not  necessary  to  examine  whether  the applicants’ complaint concerning the unborn child fell within the scope of Article 2 of the Convention. In the absence of a European consensus on the scientific and legal definition of the beginning of life, States enjoyed a wide margin of appreciation in this sphere, as the Court had held in a previous case. The life of the foetus was intimately connected with that of the mother and was dependent on the treatment she received. Accordingly, the Court considered that the applicants’ complaint in relation to this issue did not require a separate examination.

Remainder of the Application

With regard to its previous findings, the Court considered that there was no need for a separate examination of the remainder of the application.

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See a comment on the case by Saïla Ouald Chaib on Strasbourg Observers.

See also updated the factsheet on the Right to Life here.

Report on Donor Conception

source: http://www.nuffieldbioethics.org

A special Working Party of the Nuffield Councilk on Bioethics has published its report "Donor conception: ethical aspects of information sharing" which considers the interests of people affected by donor conception and makes recommendations about what can be done to support, encourage and empower those making decisions about the sharing of information.

Here is an extract from the introduction:

The task for this Working Party has been to consider questions of information sharing in practices of donor conception in the UK. Its primary focus has thus been on issues of privacy, openness, and access to information, and the implications of each of these for the individuals, families and groups affected by donor conception. While its remit was not to investigate the ethics of donor conception  per se, the Working Party nevertheless received evidence of a wide range of views and attitudes towards the use of donated gametes as a means of creating families. At one end of the spectrum, some people, including some donor-conceived adults, believe that donor conception should not be allowed at all. Both this view, and the opposing one that donor conception is a legitimate means of creating a family and of having children of  'one's own', hinge on the relative significance placed on biological or 'blood' connection between parents and  their children. This issue of the significance of biological connection in family relationships, and in the identity of the individual, has also proved to be central to questions about whether donor-conceived people should always be informed about the means of their conception, how much information about their donor they should be able to obtain, and whether they should be able to find out the identity of their donors, with the possibility of such identifying information leading to contact.

References to 'disclosure' in the context of donor conception tend to conflate two separate issues: 'openness' by parents about the use of donor gametes in conception (donor-conceived people knowing about the circumstances in which they were conceived), and access to information (identifying or non-identifying) about the particular donor. It is, however, very important that these two issues should be distinguished. It is possible for a parent to be open with their child in the context of anonymous donation. It is not, however, possible for a donor-conceived person to exercise any entitlement to information about their donor in the  absence of information about the circumstances of their conception. It should also be noted that, in contemporary social life in the UK,  'openness' has acquired positive connotations and is axiomatically thought to be desirable. The Working Party has been compelled to think carefully about the language it uses in order to convey not only the complexity of the issues raised in sharing information in the context of donor conception, but also the diversity of views and opinions on its implications.

These issues have been contentious for many years, as the Working Party's factfinding meetings and responses to its call for evidence have illustrated. The Working Party is acutely aware of how many, potentially competing, interests are at stake ± and of how much these issues matter to those whose lives are affected by donor conception. Because of the variety and complexity of these views, the Council, in establishing this enquiry, sought to provide a forum where  all voices could be heard; and it was felt that this would best be enabled through consultation rather than seeking to represent this vast spectrum of opinion on the Working Party itself.  Input from as wide a range of interested and concerned individuals and organisations as possible was thus sought through an open call for evidence, an online survey, a series of face-to-face meetings, and external review of the draft report by diverse stakeholders. [...]

As noted above, the Working Party has been primarily concerned with the UK. It should be noted however that there are other, and different, regulatory and ethical regimes across the world which inevitably impact upon the UK. Not only might ethnic ally diverse populations within the UK be informed by cultural and ethical imperatives in their countries of origin, but people regularly opt to travel overseas for fertility treatment, and it is also possible to import gametes to treatment in a UK clinic. In addition, UK regulatory frameworks do not cover the  'informal' arrangements people make outside the clinic to donate and acquire sperm both in the UK and abroad. The Working Party is aware that there are distinctive national IVF and donor conception cultures that are emerging and changing, [reference ommitted]  and that this needs to be kept in mind in any discussion of donor conception and information sharing whose primary focus is the present situation in the UK.

 Additionally, you can find the quick guide to the report here.

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See a blog entry by Dr Rhona Knight on Nuff' said who, via an extract from the foreword of the report, reflects on the creation of the report and outlines some of its main findings.