Durisotto v. Italy

Durisotto v. Italy (application no. 62804/13)
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The applicant in this case was an Italian national who had lodged a claim before the European Court of Human Rights (ECHR) on his capacity as a guardian of his daughter who had been suffering from degenerative cerebral illness. The applicant requested a domestic court for an order mandating his daughter’s treatment with stem cells using a method named ‘stamina’ at Brescia hospital. The hospital demanded the court to dismiss the applicant’s claim because the legal conditions for providing the treatment hadn’t been met.

The hospital stated that the applicant’s daughter hadn’t begun the treatment before the Legislative Decree, governing patients’ access to the ‘stamina’ method, had entered in to force. The court dismissed the applicant’s request on the ground that the condition of the patient didn’t meet the criteria for accessing the treatment under the Decree. The Decree required the clinical testing of the method for 18 months and access to medicines and therapies would only be guaranteed when their “validity and effectiveness had been tested and approved by scientific medical bodies”. [Para. 8]

In his application before the ECHR, the applicant stated that the denial to access the stamina method had violated his daughter’s right to life, protected under Articles 2 of the European Convention on Human Rights (the Convention), as well as her right to health . He argued that the Decree was discriminatory in the way it allows access to the treatment and so was in violation of Article 14 of the Convention. Under Article 8 of the Convention, the applicant alleged that the court’s refusal to grant the request for the treatment was a violation of his daughter’s right to respect for private life. The applicant also alleged that the legal system failed to mandate the possibility of an appeal against a domestic court’s decision on access to such treatment methods in violation of Articles 6(1) and 14 of the Convention.

The ECHR reiterated that member states enjoyed a wide margin of appreciation in restricting access to treatments for terminally ill patients. The ECHR noted that the applicant’s requested had been dismissed in accordance with the Legislative Decree that had mandated the completion of only those stamina treatments that were begun before its entry in to force. The ECHR further noted that the scientific committee’s (as set up under the Ministry of Health) advice on the stamina method wasn’t positive and its efficacy hadn’t been established.  The ECHR thus found the interference in the patient's right to respect for private life had been necessary for a democratic society and the complaint was manifestly ill-founded.

The ECHR couldn’t conclude that the refusal to provide the treatment for the applicant’s daughter was discriminatory as the refusal was neither arbitrary nor unreasonable. The fact that the stamina treatment method had been authorized by courts for other persons with a similar situation as the applicant’s daughter wasn’t enough to conclude that there had been discrimination or a breach of Article 8 of the Convention. The ECHR found the restriction on access to the method was aimed at protecting health and proportional. The ECHR found the complaint under Articles 8 and 14 manifestly ill-founded. Because the Convention hadn’t guaranteed a right to appeal in civil proceedings, the ECHR rejected the applicant’s complaint under Article 6 of the Convention as incompatible with the Convention.

Note: the summary is from the press release issued by the Registrar of the ECHR.

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