Information Note on the Court’s case-law No. 181
January 2015
Asiye Genç v. Turkey - 24109/07
Judgment 27.1.2015 [Section II]
Article 2
Positive obligations
Article 2-1
Effective investigation
Death of new-born baby after being refused admission to public hospitals: violation
Facts – On 31 March 2005 the applicant gave birth to a premature baby by caesarean section in a public hospital. The baby shortly afterwards developed breathing difficulties. As there was no suitable neonatal unit in that hospital, the doctors decided to transfer the baby to another public hospital 110 km away.
On 1 April 2005 at around 1.15 a.m. that hospital refused to admit the child on the grounds that there was no space in the neonatal intensive care unit. Around 2 a.m. the child was transferred to a medico-surgical and obstetrics centre, where the duty doctor explained that there were no incubators available and suggested that the parents take him back to the public hospital. On their arrival there, the doctors again refused to admit the baby owing to a lack of space in the neonatal unit. The child subsequently died in the ambulance.
On 6 April 2005 the child’s parents filed a criminal complaint and two investigations were opened. A criminal investigation against the medical staff was discontinued and an administrative investigation initiated by the Ministry of Health was closed on the grounds that there was no case to answer, as no fault had been committed by the staff.
Law – Article 2: The first public hospital could not have been unaware of the risk for the life of the applicant’s new-born baby boy in the event of refusal to admit him to another hospital. Neither the seriousness of his state of health nor the need for urgent medical treatment was in dispute. In spite of that risk, before choosing to transfer him, the staff in question had not taken the necessary measures to ensure that he would definitely be admitted for treatment in the other hospital. That lack of coordination between hospitals was to continue, with different units refusing to admit the baby on grounds of insufficient resources.
The failure to ensure coordination between hospitals and the fact that none of the doctors solicited took charge of the new-born baby could not be justified by a mere lack of space. The quantity and condition of the facilities in the region’s hospitals could not be considered satisfactory. This showed that the State had not sufficiently ensured the proper organisation and functioning of the public hospital service, or more generally its health protection system, and the lack of space could not be explained merely by an unforeseeable influx of patients.
As a result of those shortcomings, the premature baby, whose life was in danger, had been pointlessly taken backwards and forwards in an ambulance in the expectation that he would receive some appropriate treatment or be examined. It was in those conditions that he ultimately died in the ambulance.
Accordingly, the applicant’s son had to be regarded as the victim of failings in the hospital service, as he had been deprived of access to appropriate emergency treatment. The child had died simply because he was offered no treatment at all. Such a situation constituted a denial of medical care such as to put a person’s life in danger.
The fact that there had been no charges or proceedings against the staff who had failed to admit the applicant’s son for treatment raised a problem under Article 2 of the Convention. Going beyond that question, it was important to assess the judicial reaction by the respondent State to the allegations about the implementation of its health services.
It was legitimate to expect that the national authorities to which the case had been referred would verify whether and to what extent the failings established in the present case remained compatible with the imperatives of the public health service and the hospital regulations, and that they would if necessary determine liability on that basis. However, there had been no attempt to ascertain how the protocols applicable to the admission of new-born babies to the emergency unit or to coordination between neonatal services had been implemented, or to establish the reasons for the lack of basic facilities in those services, and in particular for the number of incubators that were out of order.
The judicial system’s response to the tragedy had thus not been appropriate for the purposes of shedding light on the exact circumstances of the baby’s death. In particular, the investigation had not been complete, because none of the above-mentioned crucial factors related to the failings in the management of the health service had been the subject of any investigation.
In conclusion, having regard to the circumstances which had deprived the baby of indispensable emergency care and to the inadequacy and insufficiency of the internal investigations in that connection, it could be considered that the State had failed in its obligations under Article 2 of the Convention in respect of the applicant’s son.
Conclusion: violation (unanimously).
Article 41: EUR 65,000 in respect of non-pecuniary damage.
(See Mehmet Şentürk and Bekir Şentürk v. Turkey, 13423/09, 9 April 2013, Information Note 162)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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