MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1419/H46-40

2 December 2021

1419th meeting, 30 November – 2 December 2021 (DH) Human rights   H46-40 Arskaya group v. Ukraine (Application No. 45076/05) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2021)976, DH-DD(2021)944

 

Application	Case	Judgment of	Final on	Indicator for the classification
45076/05	ARSKAYA	05/12/2013	05/03/2014	Complex and structural problem
6318/03	VALERIY FUKLEV	16/01/2014	16/04/2014
71050/11	GORODOVYCH	19/01/2017	19/01/2017

Case description

The present group of cases concerns principally the failure of the domestic authorities to carry out effective investigations into allegations of medical negligence (by healthcare institutions and within criminal proceedings). Such negligence led to the serious deterioration of health of the applicant or to death of their close relatives (violations of the procedural limb of Article 2 and Article 3). The alleged medical negligence took place in 1995-2003 at public hospitals and led to the loss of the applicant’s thyroid in the Gorodovych case, and to death of the applicants’ wife and son in the Valeriy Fuklev and the Arskaya case respectively.

The Arskaya case also concerns the failure of the authorities to comply with their positive obligations to protect the life of the applicant’s son due to numerous deficiencies in the organisation of the treatment in public hospitals (violation of the substantive limb of Article 2).

Status of execution

The authorities submitted a number of communications, most recently an action plan on 21 September 2021 followed by an addendum on 1 October 2021 (see DH-DD(2021)944 and DH-DD(2021)976 for full details). They are summarised below.

Individual measures:

a) Just satisfaction:

In the Arskaya case, the sum was returned to the State Budget in 2019 due to the applicant’s failure to submit her full bank details. According to the authorities, the sum remains available to the applicant for one year as it is open to her to apply to the domestic courts and challenge the termination of the enforcement proceedings. After that time, they will be transferred back to the state budget. The applicant complained in a letter in Ukrainian to the Committee that she has not yet received the sums due.

The just satisfaction for non-pecuniary damage was paid within the time-limit in the cases of Valeriy Fuklev and Gorodovych.

b) Other measures

In the Gorodovych case, in the course of a reopened criminal investigation into improper performance of professional duties by medical personnel, witnesses were questioned and the applicant was examined by a working group of the Main Directorate for the Organisation of Medical Care in Lviv, which found, after an additional forensic medical examination, that it was not possible to determine the exact cause of the loss of the thyroid and therefore to say if the atrophy of the thyroid was a bodily injury. The investigation was closed in July 2020 due to lack evidence constituting an offence. The applicant has not challenged this decision.

The authorities indicated that no further proceedings can be initiated at domestic level on account of the expiry of the prescription periods for both the Arskaya and the Gorodovych cases.

In the Valeriy Fuklev case, a reopened criminal investigation into improper performance of professional duties by medical personnel which led to the death of the applicant’s relative was conducted: witnesses were questioned, and a comprehensive forensic examination was ordered. No direct causal link was found between the shortcomings in medical care and Mrs Fukleva’s death so, in August 2021, the prosecutor sent a request to the court to terminate the criminal proceedings which are pending. According to the authorities, the applicant may still claim compensation for non-pecuniary damage in civil proceedings.

General measures:

I.             Measures to comply with procedural obligations under Article 2 and Article 3

i)              Criminal investigations:

The authorities provided details of the legal and regulatory framework and in particular, a lengthy list of criminal and administrative offences that exist relating to violation of health care regulations by medical or health-related specialists.

The authorities confirmed that in cases with allegations of medical negligence, the general framework on criminal investigations is applied:[1] After a report, or information on a criminal offence comes to their attention, an investigator and prosecutor, must start an investigation within 24 hours. The investigation must be conducted by the National Police of Ukraine within 12 months; with an additional 2 months’ extension if a crime led to death or to other serious consequences to a patient. In total, an investigation may be extended by a maximum of six months. In the course of pre-trial investigations, the requests and inquiries from victims, their representatives (who may also familiarise themselves with the casefiles) must be considered.

The authorities provided statistical information on recent criminal proceedings under Articles 139 and 140 of the Criminal Code (for malpractice and medical negligence respectively). According to the authorities, the substantial difference between the number of registered criminal offences, of proceedings sent to court, and of convictions is explained by effective pre-trial investigations. Most of proceedings of this type are terminated as there are no elements of a criminal offence.

ii)             Compensation in civil or criminal proceedings

The authorities further pointed out simply referring to the Civil Code, that a victim may obtain compensation in the civil courts, either alone or in conjunction with a remedy in the criminal court. They further provided examples of case law regarding compensation for medical negligence in criminal proceedings.

iii)            Medical investigations:

In order to ensure effective investigations of violations of health-care law, the Law “On the Fundamentals of Health Protection Legislation” (“the Law”) prescribes that specially authorised executive bodies should be established.

An Order of the Ministry of Health, approved in 2016, established Clinical Expert Commissions (the “CEC”), to conduct state control and supervision of health care and provide clinical and expert assessments of the quality of medical care. These assessments must be made in any cases of death of a patient, non-compliance with standards of medical help or discrepancies in diagnoses. Expert opinions are submitted to the Ministry of Health.

II.            Measures to comply with positive obligations under Article 2

i)              Health-care regulations on cooperation between hospitals on the transfer of patients from one hospital to another

The Ukrainian authorities provided information on the general procedures and an Order of the Ministry of Health, adopted in 2020, on the interaction of referring doctors, patients and medical professionals for the transfer of patients to health care institutions in non-emergency situations.

They indicated that newly established obligatory “patient routes” (approved by Resolution of the Cabinet of Ministers in 2016) and “electronic referrals” (commenced in April 2020 and rolled out to all health institutions in January 2021) facilitate the process of interaction between different health-care institutions and the transfer of patients. When referring a patient to another hospital, a treating doctor should make sure beforehand that the hospital has the capacity to provide the necessary medical care. Otherwise, a recommendation or transfer to a different hospital should be made. Rules on transportation of patients are currently being developed by the Health Service of Ukraine within the Medical guarantee programme-2022, “Emergency Medical Care” unit.

ii)             Obligations of medical staff to provide necessary medical care to patients

The Ukrainian authorities indicated that the obligation to provide adequate medical care and the detailed responsibilities of the medical profession is prescribed, inter alia, by the Law and by the Code of Ethics of Doctors adopted by the Ukrainian Medical Council in 2006. According to a Methodology adopted by the Ministry of Health, and amended in 2016, when providing medical services to patients, doctors should use clinical protocols and guidelines, whether Ukrainian or international.

If unforeseen complications arise as a result of a doctor’s actions, there is a detailed order of actions for the steps to be taken which is prescribed by the Code of Ethics of Doctors – to inform a patient, colleagues, superiors, and immediately act to correct negative consequences.

The authorities indicated that all medical specialists are under an obligation to continue professional training while providing medical services, without providing more details on the same.

iii)            Patient’s informed consent and refusal of medical treatment in life-threatening situations

The Law mentioned above also regulates conditions for patient’s consent. The general rule is that the patient’s consent is always necessary for both diagnosis and medical treatment. For minors and individuals without capacity, the consent of a legal representative or guardian is required.

Consent is only not required if there is a direct threat to patient’s life and it is impossible to obtain consent. Otherwise, in case of a conscious patient’s refusal to medical treatment, their written confirmation must be obtained after explanations on the impact of refusal have been provided to them by the doctor. If it is not possible to obtain the patient’s written confirmation, the refusal should be certified in written form in presence of witnesses. In this case, information about the patient’s diagnosis, purpose, duration, consequences, prognosis, and risks of such medical intervention should be included in the form. If a guardian refuses treatment and it may have serious consequences on the patient, the doctor must notify the guardianship authorities. If all the procedural requirements have been fulfilled and recorded, a doctor cannot be held liable for the consequences of a patient’s refusal to undergo medical treatment.

Rule 9 submission:

A communication from a NGO (Ukrainian Helsinki Human Rights Union) was received on 17 March 2015 (see DH-DD(2015)355). The NGO criticised the lack of progress in adoption of general measures regarding the regulatory framework for cooperation between hospitals in case of patient’s transfer, and on establishing a patient’s decision-making capacity where there are doubts about it.

Analysis by the Secretariat

Individual measures:

As regards the payment of just satisfaction in the Arskaya case, there appear to be some communication difficulties between the authorities and the applicant concerning bank details which the authorities should take steps to resolve. Moreover, in order to comply with the unconditional obligation under Article 46 § 1 of the Convention to pay the just satisfaction awarded and ensure the funds are at the applicant’s disposal, the authorities should make the sums available for a period longer than one year.

As to the Valeriy Fuklev case, the Committee might wish to note that a number of investigatory steps have been taken in the course of the reopened proceedings, and that it seems likely these proceeding will shortly be terminated. The authorities should therefore be invited to confirm once this has happened.

The Committee might wish to adopt a final resolution in the Gorodovych case, without prejudice to its evaluation of the general measures, noting that no further individual measures appear to be possible given the efforts taken by the authorities to rectify the omissions of the initial investigation following the Court’s judgment. It appears that the authorities conducted an additional investigation, taking a range of investigative measures, which led to the conclusion of the lack of elements of a criminal offence. In addition, the applicant received compensation for non-pecuniary damages by the Court.

General measures:

I.          Measures to comply with procedural obligations under Article 2 and Article 3

In medical negligence cases the Court has considered that the procedural obligation imposed by Article 2 and 3, which concerns the requirement to set up an effective judicial system, will be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any responsibility of the doctors concerned to be established and any appropriate civil redress to be obtained. It has also accepted that disciplinary measures may also be envisaged[2]. The legal remedies should be capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victim[3].

The information provided by the authorities regarding the remedies available to victims is focused mainly on criminal avenues. Given that the data provided by Ukrainian authorities demonstrate a substantial difference between the number of registered criminal proceedings for medical negligence and malpractice, and the number of criminal proceedings referred to the courts, and the Court’s criticism of the criminal investigations in all the cases of the current group,[4] it is important to understand that law enforcement authorities and the justice system are giving proper response to the allegations of medical negligence to the victims. With this regard the authorities should provide information on investigative practices in cases related to medical negligence through, in particular, the aspect of their adequacy and expeditiousness.

It is not clear from the information provided how the mechanisms of civil redress function at the national level. The authorities should be invited to explain if the decision to terminate the criminal proceedings has effect on perspectives in civil proceedings.

Further clarifications are also needed on the question of establishing responsibility of the healthcare provider, unit or healthcare professional for death or serious bodily injury sustained during medical treatment

II.         Measures to comply with positive obligations under Article 2

The source of the substantive violation under Article 2 in the Arskaya case was, firstly, the inadequacy at the time of the events of the local health-care regulations governing cooperation between hospitals. The introduction therefore of the new legislative and regulatory framework on the interaction between health care institutions and on transfer of patients from one hospital to another is a positive development. The recent establishment of the “patient routes” and an “electronic referral” are also good achievements to prevent similar violations in the future.

The authorities should be encouraged to pursue their efforts to further develop the Rules on transportation of patients within the Medical guarantee programme-2022.

As to the second element relating to consent, the Court raised particular concerns about the insufficient regulatory framework on establishing a patient’s decision-making capacity when refusing to accept vitally important treatment.[5] Despite clear rules and procedures on patients’ consent in ordinary situations, in order to respond clearly to the Court’s criticism, further clarifications are required from the authorities about the establishment of a person’s decision-making capacity in life-threatening situations if there are doubts about such capacity.

Financing assured: YES