A.K. v. Latvia

Application no. 33011/08
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After giving birth to a child with Down syndrome, the Petitioner (a forty years old woman) alleged that she was denied adequate and timely medical care in the form of antenatal screening tests. She claimed that her doctor failed to refer her for proper prenatal testing in accordance with the medical protocols in place. According to the doctor, the Petitioner was provided with the proper referral for the testing, but that she failed to take the test. Based on a note posted in her medical record, she had been referred to undergo an alpha-fetoprotein (“AFP”) test but failed to attend because she was hospitalized. The Petitioner alleged that she was never notified of the screening tests, that the note in her medical record was falsified, and that even if she had been referred for the test, the referral was too late and in direct violation of the Cabinet of Ministries Regulations because she was a high-risk patient on account of her age. The petitioner provided a different copy of her medical records covering the date the referral was allegedly made, wherein the alleged referral was not recorded.

The petitioner filed a complaint to Latvia’s Inspectorate for Quality Control of Medical Treatment (MADEKKI) as a result of her claim that the doctor failed to refer her for the testing. The MADEKKI determined that the petitioner received medical care in compliance with domestic laws, but gave the doctor an administrative fine for failing to ensure that the petitioner actually underwent the prenatal testing.

The applicant requested that the District Prosecutor’s Office investigate the discrepancies in the two copies of her medical records to determine whether her medical records were falsified. Although the doctor admitted that the petitioner’s medical records had disappeared for a period of time, the police refused to institute criminal proceedings in relation to the alleged falsification of documents or negligence. Although the petitioner appealed this decision and the District Prosecutor’s Office ordered further investigation of the matter, the police again refused to institute criminal proceedings. The petitioner appealed to the Regional Prosecutor’s Office and criminal proceedings were instituted, resulting in forensic testing that determined that the petitioner’s medical records were supplemented with new information over an extended period of time. Several months later, the petitioner was informed that, due to the expiration of the statute of limitations, the criminal proceedings were terminated.

The petitioner lodged a complaint for damages in Riga Regional Court against the hospital, contending that the doctor had acted negligently by not ensuring she received the testing and that her medical records had been altered. She alleged that if she had known that the child had a congenital disease, she would have had an abortion, and sought compensation for pecuniary and non-pecuniary damages, including for her lost wages and maintenance of her daughter. The court allowed the doctor to testify and provide oral evidence, but denied the petitioner this right. Even though the doctor had been given an administrative fine for her failure to ensure the petitioner received the proper testing, the court dismissed the petitioner’s claim, finding that there was insufficient evidence the doctor had been at fault and that there was not a causal link between the doctor’s actions and the birth of the petitioner’s daughter. The petitioner’s appeals to the Civil Chamber of the Supreme Court and to the Senate of the Supreme Court were both denied.

The Petitioner brought a claim before the European Court of Human Rights under violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

The European Court of Human Rights found that Latvia had committed a violation of the procedural aspects of Article 8 (right to respect for private and family life). Article 8  aims to protect individuals from arbitrary interference by public authorities. The Court noted that the doctor had been negligent in failing to comply with Latvian laws and regulations and that the civil courts did not properly readdressed her claims. The Court recognized that there were a number of factual discrepancies, including whether the petitioner was referred for the prenatal testing during the time period specified by the corresponding ordinance, and the lack of investigation as to why the petitioner’s medical record seems to have disappeared for several months, among other things. The court determined that the domestic courts did not properly examine Petitioner’s claim in violation of Article 8.

“The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. Any interference must be justified in terms of Article 8 § 2, namely as being “in accordance with the law” and “necessary in a democratic society” for one or more of the legitimate aims listed therein. In addition, the Contracting States are under a positive obligation to secure to persons within their jurisdiction effective respect for their rights under Article 8. This positive obligation requires States to put in place domestic legislation that provides a measure of legal protection against arbitrary interferences by public authorities”  (para 84)

"[T]he Court reiterates that the object and purpose underlying the Convention, as set out in Article 1, is that the rights and freedoms should be secured by the Contracting State within its jurisdiction. It is fundamental to the machinery of protection established by the Convention that the national systems themselves provide redress for breaches of its provisions, with the Court exercising a supervisory role subject to the principle of subsidiarity. This is particularly important when the complaint concerns an area where the State enjoys a significant margin of appreciation" (para 86)

 

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