Asiye Genç v. Turkey

ECHR 027 (2015)
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The applicant gave birth by Caesarean section to a premature boy in a public hospital. The baby had breathing difficulties. There were no suitable neonatal wards in the hospital and therefore the doctors decided to move the baby to another public hospital, which was more than 100 kilometers away. The latter public hospital stated that there was no availability in the neonatal ICU and the baby was admitted to the Medico-surgical and Obstetrics Centre (MSO). The duty doctor stated that there were no incubators available. The parents took the baby back to the public hospital on the suggestion of the duty doctor at the MSO Centre but the doctors refused stating the same reason of lack of space. The baby died in the ambulance.

The applicants ensued criminal investigations. The investigation and the administrative actions were closed stating that there was no fault committed by the staff. The applicants alleged that there had been a violation of Article 2 (Right to Life), Article 3 (prohibition of inhuman and degrading treatment) and Article 13 (Right to an effective remedy).

The Court held that there had been a violation of Article 2 of the Convention. The Court stated that the applicant’s child had died not because of any negligence in care but because he was not given any treatment at all. A denial of medical services leading to the death of a person casts serious doubts on the functioning of public hospitals. The applicants in this case went to three hospitals and each had some systemic problem. The State, the court held had failed his obligations under Article 2 by not ensuring adequate medical facilities and proper functioning of hospitals. The Court further stated that the refusal by administrative authorities to examine a case against the staff for not admitting the child also raised severe concerns under Article 2. Further, the mismanagement of the health services was not investigated. Article 3 and 13 were not examined separately.

In this connection the Government submitted that such a situation could not engage the responsibility of the medical staff, as the lack of places in the hospitals amounted, in their view, to an objective obstacle that could not be imputed to the doctors. In the light of the case file, the Court considers that in the present case the shortcoming in coordination between the hospitals and the failure of any of the doctors called upon to provide treatment to the new-born baby could not be justified by the mere absence of places. It is sufficient for the Court to observe that on the evening of the incident, the only incubator in Gümüşhane public hospital, where the child Tolga was born, was out of order. Nor could the quantity and condition of the equipment in the other hospitals in the region be considered satisfactory (see paragraphs 17-22 above). This shows that the State had not taken sufficient care to ensure the smooth organisation and correct functioning of the public hospital service, and more generally of its system for health protection, and that the lack of places was not linked solely to an unforeseeable shortage of places arising from the rapid arrival of patients.(Para 80)

It follows that the applicant’s son must be considered as having been the victim of a malfunctioning of the hospital departments, in that he was deprived of any access to appropriate emergency care. In other words, the child died not as a result of negligence or an error of judgment in the treatment administered to him (see paragraph 66 above), but because he was simply not offered any form of treatment at all – it being understood that such a situation was analogous to a denial of medical care such as to put a person’s life in danger (see Mehmet Şentürk and Bekir Şentürk, cited above, §§ 97 and 105).(Para 82)

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