MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1468/H46-19

7 June 2023

1468th meeting, 5-7 June 2023 (DH) Human rights   H46-19 Tysiąc and R.R. (Applications Nos. 5410/03, 27617/04), P. and S. (Application No. 57375/08) v. Poland Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2023)326, CM/Del/Dec(2022)1443/H46-19

 

Application	Case	Judgment of	Final on	Indicator for the classification
5410/03	TYSIĄC	20/03/2007	24/09/2007	Complex problem
27617/04	R.R.	26/05/2011	28/11/2011
57375/08	P. AND S.	30/10/2012	30/01/2013

Case description

These three cases concern the lack of effective access to lawful abortion in Poland.

The Tysiąc and R.R. cases concern the lack of effective procedural mechanisms to enable the applicants (in 2000 and 2002 respectively) to receive abortions provided for under national law at the time on grounds of maternal or foetal health, where the doctor disagreed either that such grounds existed (Tysiąc) or that prenatal tests were justified to assess this within the time limit for lawful abortion (R.R.) (violation of Article 3 in the R.R. case and Article 8 in both cases). By the time of the European Court’s judgments, both applicants had given birth. The child in the R.R. case was affected by a genetic disorder and the eyesight of the applicant in the Tysiąc case significantly deteriorated and she was registered severely disabled.

The case of P. and S. concerns the authorities’ failure in 2008 to provide reliable information on the conditions and procedures for accessing lawful abortion to the applicants, a minor (P.) and her mother (S.), when the former became pregnant as a result of rape (violation of Article 8). It also concerns the unlawful disclosure to the press of information about the applicants’ case by the public hospital to which P. was admitted for a lawful abortion (violation of Article 8). In addition, prior to her admission to hospital, by order of a Family Court, P. was placed in a juvenile shelter for 10 days and separated from her parents with the aim of preventing her from obtaining a lawful abortion (violation of Article 5 § 1). Lastly, the Court found that P. was treated by the authorities in a deplorable manner, notably due to the institution of criminal proceedings against her on charges of unlawful intercourse and the lack of proper and objective counselling and information (violation of Article 3). The abortion was finally performed in a public hospital at 500 kilometres from her home, after the intervention of the Ministry of Health.

Status of execution

Individual measures: the Committee has found that no further individual measures appear necessary.

General measures:

1)     Previous examination by the Committee of Ministers

At its 1443^rd meeting in September 2022 (DH), the Committee noted with regret that no new information had been presented by the authorities demonstrating substantial progress in the adoption of general measures related to: (i) unified guidance to hospitals on the conditions for access to lawful abortion and information to women thereon; (ii) effective access to lawful abortion when the doctor invokes the conscience clause; (iii) reform of the objection procedure to resolve disagreements as to the existence of medical grounds for lawful abortion or provision of prenatal tests. It strongly urged the authorities to respond to its previous decisions in these areas.

Moreover, the Committee called on the authorities to provide it with detailed statistics and analysis of the objections submitted to the Ombudsman for the Rights of the Patient and with detailed statistics on the number of lawful abortions performed in 2021 and in 2022, together with their more profound analysis, including of eventual regional disparities.

The Committee invited the authorities to consider a further extension of monitoring activities, including those exercised by the National Health Fund (NHF), to ensure ex officio monitoring of all the cases in which an objection was filed concerning access to lawful abortion and prenatal testing and of all the refusals of lawful abortion on the grounds of conscience. Recalling the paramount importance of ensuring the efficiency of the contractual liability mechanism, the Committee invited the authorities to explain any instances of failure to impose sanctions in such cases.

In addition, the Committeenoted with interest the information demonstrating the continuation of positive trends as to the increased availability of prenatal testing and positive assessment of the prenatal testing program by the Supreme Audit Office in 2021. It alsowelcomed the authorities’ engagement in a dialogue with the Secretariat and encouraged them to continue that process in order to explore possible solutions for the outstanding questions. It also called on them to give serious consideration at the highest decision-making levels to suggestions and recommendations provided during that dialogue.

2)     Latest submission by the authorities

On 14 March 2023 the authorities submitted information in response to the Committee’s decision
(DH-DD(2023)326).

Effective procedures to access lawful abortion and information thereon: the authorities reiterated their position that the procedure governing the access to lawful abortion is clear, again referring to the provisions of the 1993 Law on the Family Planning, recommendations of national consultants of May 2019 and the communiqué published by the Ministry of Health in November 2021. They recalled that the decision as to whether a pregnancy threatens the life or health of a pregnant woman can only be made on a case-by-case basis.

Effective access to lawful abortion when the doctor invokes the conscience clause: the authorities maintained their position that when a doctor refuses to provide an abortion referring to the conscience clause, the hospital is obliged to inform the patient of an alternative service provider. The hospital’s failure to refer the patient constitutes an improper implementation of the contract with the NHF.

Objections against doctors’ decisions or opinions to the Medical Commission: the authorities presented a detailed analysis of the objections submitted by patients between 2019 and 2021 to the Medical Commission established by the Ombudsman for the Rights of the Patient, indicating a high level of objections still being rejected on formal grounds[1] (in 2019, 52 out of 70 objections were rejected on formal grounds; in 2020, 17 out of 29; and in 2021, 18 out of 26). The average time for the appointment of the Medical Commission was 17.5 days in 2019, 14 days in 2020 and 15.5 days in 2021. The average time for subsequent adoption of its decision was 28 days in 2019, 21 days in 2020 and 25 days in 2021.

As regards one objection concerning an abortion submitted in 2019 these periods were seven and 18 days respectively and in the case of two such objections in 2020 the average time for the appointment of the Medical Commission was 1.5 days and for the adoption of decision – seven days.

Three objections concerning abortion, submitted in 2020, were rejected on formal grounds: in two of them an abortion was performed in the meantime in other facilities and in one it was withdrawn.

Finally, in 2021 in one case concerning abortion the Commission was not appointed, as it was performed in meantime in another hospital. The authorities concluded therefore that formal requirements do not prevent patients from accessing termination of pregnancy.

Effective monitoring of contractual obligations to perform lawful abortion: the authorities again referred to the letter of the Minister of Health to the President of the NHF of 23 August 2021 and subsequent letters to Directors of Regional Branches of the NHF, requesting active monitoring of the contractual obligations of hospitals as regards lawful abortion. In 2022, one complaint was submitted to the NHF concerning a refusal of lawful abortion, which led to the request of clarifications from the hospital concerned. In addition, the authorities presented in more detail actions undertaken by the Ombudsman for the Rights of the Patient in a case of an alleged refusal to provide an abortion to an intellectually disabled victim of rape in 2022, which had not led to findings of any irregularities. They also referred to the death of a 30-year-old woman, allegedly in consequence of a delay in providing an abortion, in which the Minister of Health ordered an inspection of the hospital; the Ombudsman for the Rights of the Patient initiated an investigation; and the prosecutor started criminal proceedings. The inspection undertaken by the NHF revealed several irregularities leading to imposition of a contractual penalty on the hospital and the issuing of recommendations. The Ombudsman also found that the patient’s rights were violated and applied corrective actions such as the development of procedures and training.

Availability of abortion across the country (regional disparities): according to the statistics provided, since the entry into force of the Constitutional Court’s judgment on 27 January 2021, which declared the ground for lawful abortion related to the foetus’ health unconstitutional, the number of abortions has dropped significantly (from 1076 in 2020 to 107 in 2021, including 75 performed before 27 January 2021). According to the authorities the fact that no abortions were performed in three regions was unrelated to the availability of medical services but instead resulted from the choices of women determined by various factors, including ethical or religious norms.

3)     Joint submission from the Center for Reproductive Rights and the Foundation for Women and Family Planning (FEDERA) submitted on 18 April 2023 (DH-DD(2023)525)

According to the NGOs, since the Committee’s last examination the authorities have failed to take any steps towards adopting general measures and reforms, notably as regards national guidance for access to abortion and provision of information to patients on the relevant procedure; to guarantee abortion in a timely manner when a doctor invokes the conscience clause or to reform the objection procedure.

They also expressed the opinion that the NHF does not proactively monitor access to abortion in cases when doctors invoke the conscience clause and does not systematically and proactively respond to publicly reported instances of refusals to provide abortions. In particular, it is unclear if any action was taken following the explanatory procedure initiated by the NHF concerning the unique complaint it received in 2022.

They consider that the statistics concerning the objection procedure confirm that it is too lengthy and that formal requirements constitute a serious barrier for most patients. It remains ineffective and women try to obtain access to abortion in other facilities without waiting for the outcome of the procedure.

As evidenced by the statistics, the access to lawful abortion is extremely restricted, as only 32 abortions were performed in 2021 due to a risk to the woman’s health or life and none for women who were pregnant in consequence of sexual assault. There continue to be entire regions of Poland where no lawful abortions are performed, and the authorities have failed to undertake in-depth analysis of the underlying reasons.

The NGOs pointed out that criminalisation of abortion performed outside the legal framework and the de facto ban on abortion in Poland following the entry into force of the Constitutional Court’s judgment on 27 January 2021, eliminating the most frequently used ground for lawful abortion, resulted in fear among medical service providers of criminal sanctions and negative professional consequences when providing abortion care. They underlined that no meaningful action had been taken to address the chilling effect of the Constitutional Court’s judgment. The Ministry of Health’s communiqué of 7 November 2021, which clarified that a risk to a woman’s health constitutes a sufficient ground for lawful abortion, is not sufficient as the chilling effect results from highly restrictive legal framework and medical providers routinely deny and delay abortion with grave consequences for women’s lives and health.

Between October 2021 and October 2023 FEDERA provided legal assistance to approximately 1,200 women who were denied lawful abortion and intervened in 28 hospitals where abortion on the ground of risks to mental health had been refused. During the first three months of 2023 it has received three complaints from pregnant women who were refused abortion despite being in possession of the relevant medical certificates.

Analysis by the Secretariat

The Committee could note with deep regret that the authorities continue to refer to the same information as presented for the past examinations on effective procedures to access lawful abortion and information thereon, and effective access to lawful abortion when the doctor invokes the conscience clause. Nor did they present any information on attempts to reform the objection procedure.

It appears moreover that no serious consideration has been given at the highest decision-making levels to the Committee’s decisions and to consequent suggestions and recommendations provided by the Secretariat in the above areas.

Effective procedures to access lawful abortion and information thereon

In view of the persistent lack of progress in this area and the urgency of the situation already underlined by the Committee and confirmed by the data on the significant number of interventions by NGOs in cases concerning access to lawful abortion, the authorities should be strongly urged again to guarantee effective procedures (which are also clear and unified) for access to lawful abortion and to provide women with adequate information on them.

In particular, the authorities should seriously consider elaboration of unified guidelines for hospitals, recalling the existing conditions and setting out clearly, accurately and comprehensively the steps to be taken by pregnant women seeking lawful abortion in line with the regulations in force. The guidelines should also present the steps to be taken if abortion is refused on conscience grounds, including the obligation of the hospital to refer the woman to an alternative service provider, especially since this obligation is not included in any explicit legal provision.

They could also include guidelines for doctors for situations where the condition of the foetus is likely to impact the life or health of the woman as this could help to address uncertainties relating to the current grounds for lawful abortion following the judgment of the Constitutional Court, arising when pregnant women seek lawful abortion on account of a serious risk to their health due to a severe foetal impairment. As underlined previously by the Committee, such situations require particular attention by the authorities who must ensure that a doctors’ assessment of risks to the woman’s health as a ground for lawful abortion, is guided solely by the genuine need to protect the life or health of the woman and is not compromised by pressure from other possible factors, such as the risk of criminal liability for performing an abortion.

These guidelines should be accompanied by relevant and easily accessible information for pregnant women on the conditions and the procedure to access lawful abortion.

Effective access to lawful abortion when the doctor invokes the conscience clause

The information provided by the authorities shows that the relevant regulations still do not explicitly refer to an obligation for hospitals to refer patients to alternative services when a medical procedure cannot be performed due to the conscience clause. The Committee may wish to strongly urge again the authorities to include in the legislation such an obligation and to effectively monitor its observance in practice.

As regards monitoring, the authorities indicated in their submissions that if a hospital is not able to provide an abortion because all the relevant doctors used the conscience clause it is obliged to notify the provincial branch of the NHF about the case and the action taken. The authorities may be invited to clarify the legal provisions providing for such an obligation and whether it could be extended to cover each instance of the resort to the conscience clause by a doctor to refuse abortion. This information would be useful for the Committee’s assessment of the effectiveness of the monitoring of the obligation for referral and for the follow up at national level of the number of doctors invoking conscience clause in the regions and nationwide.

In addition, to allow the Committee to assess the effective monitoring of the obligation for referral, the authorities should be invited to provide data on the number of refusals to perform abortion on this ground since 2014, when it was collected for the last time, and the notifications of the cases by hospitals to the provincial branches of the NHF.  

Objections against doctors’ decisions or opinions to the Medical Commission

The authorities’ analysis concerning objections could be noted with interest. The information provided by the authorities shows that objections from women seeking lawful abortion were rejected on formal grounds only in situations where the abortion had been already performed or the objection had been withdrawn. However, given the very limited number of objections filed in relation to access to lawful abortion, no conclusive assessment can be made in this respect, especially when the overall number of rejections on formal grounds of patients’ objections remains high.

In addition, while it is encouraging that on average objections concerning abortion were dealt with by the Medical Commission more rapidly, the information provided by civil society shows that women’s rights in the event of disagreement regarding the existence of medical grounds for lawful abortion would be better protected if the legal framework were improved. For example, by fixing very short time limits for the examination of objections and easing the formal requirements, which still appear to constitute a barrier. Such legislative reform could also encourage patients, in particular pregnant women, to make more frequent use of this remedy, as the number of objections filed in the recent years is constantly falling, which may indicate that the concerns expressed by the NGOs as to its effectiveness are well founded.

The authorities could therefore be strongly urged to continue their reflexion on the possible areas for amelioration and take rapidly further action in this respect. To allow the Committee to assess all aspects of the functioning of the objection procedure, the authorities could be also invited to provide information on the outcome of the three objections concerning lawful abortion which were examined by the Medical Commission in 2019 and 2020.

Ex officio monitoring of contractual obligations of hospitals

The information on the steps taken ex officio by the Ombudsman for the Rights of the Patient and the NHF in two cases concerning alleged refusal of access to lawful abortion is indeed interesting. However, no information was provided in response to the Committee’s invitation to the authorities to consider extending the existing monitoring to ensure ex officio monitoring by the NHF of all the cases in which objections concerning lawful abortion or pre-natal testing were filed or such procedures were refused due to the use of the conscience clause. Examples of cases in which alleged refusals of lawful abortion were not accompanied by subsequent action from the NHF, mentioned by the NGOs, provide additional argument in favour of such extension.

For the assessment of the efficiency of the contractual liability mechanism the authorities should continue to provide information on the activities of the NHF and any action taken by the Ombudsman for the Rights of the Patient relating to instances of alleged refusal of access to lawful abortion. It would be also useful to receive detailed information on the action undertaken by the NHF in respect of the only complaint concerning refusal of lawful abortion filed in 2022 mentioned in their submission, as well as regards the objection in which the Ombudsman for the Rights of the Patient initiated explanatory proceedings in 2021.

Statistical data on the number of abortions and availability of abortion across the country

According to the statistical data provided, in 2021, only 32 lawful abortions were performed in Polish hospitals, based on a risk to the woman’s health or life. No abortions were performed on the ground that the pregnancy resulted from rape.[2] This can be compared with the figures provided by the authorities for previous examinations by the Committee, which showed for example that in 2020, 21 abortions were performed on grounds of a risk to the woman’s health or life, 1,053 on grounds related to the health of foetus and two, when pregnancies resulted from rape. The fact that the figures as regards the abortions based on a risk to the woman’s health or life or when pregnancies resulted from rape are very low raise serious questions as to whether women can effectively access lawful abortion in Poland, even on these current narrow grounds. 

As regards the regional disparities, clear patterns will be even less apparent in the overall context of barely any abortions being performed nationally. Therefore, in order to assess the authorities’ conclusion that there is no problem with access to medical services in the areas concerned, the authorities should provide information which supports this conclusion, including on the number of hospitals effectively performing abortions in the relevant regions in relation to the number of women in reproductive age living there.

Proposal for preparation of a draft interim resolution for the next examination

Since no substantial progress has been achieved in the areas crucial for the execution of the cases, the authorities should again be exhorted to adopt without further delay the reforms and procedures requested to date by the Committee. In the absence of information on tangible progress in the execution by 15 December 2023, the Committee might wish to instruct the Secretariat to prepare a draft interim resolution for adoption at its DH meeting in March 2024.

Financing assured: YES