AS TO THE ADMISSIBILITY OF
Application No. 30408/96
by Kari Ilkka Heikki JÄRVINEN
against Finland
The European Commission of Human Rights (First Chamber) sitting
in private on 15 January 1998, the following members being present:
MM N. BRATZA, Acting President
M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 4 June 1994 by
Kari Ilkka Heikki JÄRVINEN against Finland and registered on
8 March 1996 under file No. 30408/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Finnish citizen, born in 1931. He resides in
Helsinki.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant had a heart by-pass operation in April 1992. On
29 September 1992 he was found in a confused state in the courtyard of
his home and his neighbours called an ambulance. He told the rescue
service to take him to the University Central Hospital, as he felt he
was suffering from a stroke, but they took him to the local hospital.
The applicant was brought to the emergency ward of the hospital
at about 16.30 hours. The hospital had no previous patient records of
the applicant as his heart by-pass operation had been carried out at
the University Central Hospital and they had no other information of
his medical history.
The doctor on duty at the hospital at the time examined the
applicant when he arrived to the hospital and concluded provisionally
that the applicant was suffering from either a psychosis or from
aphasia (inability to generate speech due to brain damage). She told
the nurses that the applicant had to wait until she had taken care of
some other patients. The applicant apparently tried to get up from the
hospital bed. As the nursing staff found him to be aggressive and in
a confused state and as the doctor had diagnosed him to be psychotic,
he was given medication related to this diagnosis according to the
doctor's orders to calm him down. Straps were also used to tie him to
his hospital bed. Soon after the medication he lost his consciousness.
The hospital staff contacted the applicant's wife who arrived at
the hospital later in the evening. She requested that the applicant be
transferred to the University Central Hospital as soon as possible and
informed the doctor about the applicant's recent heart by-pass
operation.
The applicant was then examined once more by the doctor on duty.
She now concluded that the applicant's symptoms indicated that he had
suffered a stroke and he was transferred to the Central University
hospital at 23.35 hours still unconscious.
At the University Central Hospital the applicant was diagnosed
as having suffered a massive stroke in the left side of his brain. He
was hospitalised until 23 October 1992. The applicant has since
suffered from chronic aphasia.
On 30 October 1992 the applicant complained about the alleged
incorrect treatment to the County Administrative Board (lääninhallitus,
länsstyrelsen) claiming that he had been diagnosed and treated wrongly.
The County Administrative Board obtained a copy of the applicant's
patient records. It also obtained written submissions from, inter alia,
the hospital staff from which the following appeared:
The applicant had arrived at the emergency ward with the
ambulance. According to the rescue service he had been found
in a confused state and his neighbours had called the ambulance. The
applicant had only been at the local hospital once, in 1989, for which
reason they did not have medical records of him. The neighbour, who had
called the ambulance, had not seen him in such a state before. Dr TH,
on duty at the emergency ward on 29 September 1992, met the applicant
for the first time as the applicant was lying on the hospital
stretcher. The applicant was trying to get up from the stretcher and,
moving all his limbs, shouted something about being "God's own". He did
not reply to any questions. He did not appear to be under the influence
of alcohol. The doctor considered him to be psychotic or suffering from
aphasia. The doctor decided that the applicant should be given a
tranquillizer injection. In order to give the injection the nurses
strapped the applicant to the stretcher. The applicant calmed down
after the medication. The nurses tried to contact the applicant's wife
all evening to get information about his medical history. There were
several other patients at the emergency ward, so the applicant was left
to wait his turn to be examined further.
A few hours after the applicant's arrival to the ward, the nurses
told the doctor that the applicant's right side seemed to be weakening.
Dr TH did not have time to examine the applicant prior to the arrival
of the applicant's wife. At about 22.30 hours Dr TH noticed that the
applicant suffered from a mild motor paralysis on his right side. The
applicant's wife demanded that he be transferred immediately to the
University Central Hospital to get thrombolytic treatment. As Dr TH had
never heard that such treatment could be used for a stroke, she thought
that the applicant's wife was mixing thrombolytic treatment with
another treatment usually given to persons suffering from a heart
attack. Dr TH told the applicant's wife that such treatment could be
given to heart attack patients also at the local hospital, but it could
not be used in this case. Dr TH consulted the neurophysician at the
University Central Hospital. As the neurophycisian recommended that the
applicant be transferred to the University Central Hospital, the
applicant was transferred there at about 23.35 hours.
Dr TH later talked about the requested treatment with the
neurophysician at the University Central Hospital and was told that
such treatment was not commonly used at the University Central Hospital
either, but that there was a medical study carried out about such
treatment (thrombolytic treatment trial). This had, however, not yet
commenced on 29 September, so the applicant could not have received the
treatment there.
Dr TH submitted that she had acted according to the relevant
recommendations and that it was necessary to control the symptoms at
the ward for several hours. In her opinion, the waiting time at the
emergency ward did not affect the outcome of the treatment.
The superiors of Dr TH submitted to the County Administrative
Board that diagnosing a stroke patient is demanding, especially when
the patient is in a confused state. It was not easy to diagnose the
symptoms and the treatment given to the applicant was correct according
to the common medical practice in such cases. The ambulance service
employees had also acted according to their instructions. The kind of
treatment requested by the applicant and his wife was not available at
the University Central Hospital either at the time in question. On
the basis of the investigations made the County Administrative Board
decided 5 May 1993 as follows:
(Translation)
"On the basis of the documents, the County Administrative
Board finds, that the ambulance service employees acted
according to the given rules and instructions when taking
[the applicant] to the local hospital. The Board has not
found negligence in the treatment given to [the applicant]
at the local hospital either. The County Administrative
Board finds that diagnosing a stroke is a difficult task,
especially if the patient is in a confused state. This
would presuppose that the situation be observed at the
ward. The County Administrative Board also notes that it is
not a common practice to give thrombolytic treatment to
patients suffering from a stroke but only to those
suffering from a heart attack. In the situation in
question, the County Administrative Board finds that there
was nothing else which could have improved [the
applicant's] situation. There is no reason to criticise the
subsequent treatment either. The County Administrative
Board also notes that thrombolytic treatment could have
been given also at the local hospital if needed for a heart
attack - which was not the case.
Thus, the County Administrative Board sees no reasons for
further measures in this matter."
According to the Act on Judicial Review of Certain Administrative
Decisions (laki muutoksenhausta hallintoasioissa, lag om
ändringssökande i förvaltningsärenden) it was not possible to appeal
against the decision of the County Administrative Board.
In the meantime, on 31 March 1993 the applicant had reported the
alleged incorrect treatment to the Patient Insurance Association
(potilasvakuutusyhdistys, patientförsäkringsföreningen) which also
obtained a copy of the applicant's patient records.
On 30 August 1993 the Patient Insurance Association rejected the
applicant's complaints stating that the treatment had been given in a
correct manner and there was no evidence that the applicant suffered
damage which should be compensated. The applicant appealed against the
decision to the Patient Damage Board (potilasvahinkolautakunta,
patientskadenämden) which decided on 13 December 1995 not to recommend
that compensation be paid. Accordingly, the Patient Insurance
Association rejected the compensation claims on 11 January 1996.
The applicant also complained to the Parliamentary Ombudsman
(eduskunnan oikeusasiamies, riksdagens justitieombudsman) about his
treatment. On 27 January 1994 the Deputy Parliamentary Ombudsman
(eduskunnan apulaisoikeusasiamies, riksdagens biträdande
justitieombudsman) rejected his claims referring, inter alia, to the
fact that the matter had already been investigated in due form by the
County Administrative Board.
On 13 October 1994 the applicant complained to the National Board
of Medicolegal Affairs (terveydenhuollon oikeusturvakeskus,
rättskyddscentralen för hälsovården) maintaining that the ambulance
service employees had taken him to a wrong hospital even though he had
requested to be taken to another hospital, that Dr TH had misdiagnosed
his condition and the examination had been delayed causing further
delays in his treatment and that he had therefore fallen into a severe
chronic state of aphasia. The National Board of Medicolegal Affairs
obtained a copy of the applicant's patient records from both hospitals.
It also obtained written submissions from the hospital staff and two
expert opinions.
In its decision of 3 March 1995 the National Board of Medicolegal
Affairs rejected all the complaints stating the following:
(Translation)
"On the basis of an evaluation of all the documents the
National Board of Medicolegal Affairs finds no reason for
any further action concerning medical care received by [the
applicant] at the local hospital. The actions taken by the
rescue service have all been according to the normal
practice in such matters.
The National Board of Medicolegal Affairs is not authorised
to consider the question of compensation.
There is no reason for any further action in this case."
According to the Act on Patient Damage (potilasvahinkolaki,
patientskadelag) the patient may also institute civil proceedings
against the hospital and the doctor in the District Court
(käräjäoikeus, tingsrätt) within three years of the alleged damage. The
applicant has not pursued this remedy.
COMPLAINTS
1. The applicant complains that he was subjected to degrading
treatment as he was diagnosed as being mentally ill and given
medication accordingly and as he was not taken to the hospital he had
requested. He invokes Article 3 of the Convention.
2. The applicant also complains that he was deprived of his liberty
as he was not allowed to leave the hospital and as he was tied to the
stretcher with straps. He invokes Article 5 para. 1 of the Convention.
THE LAW
1. The applicant complains that he was subjected to degrading
treatment as he was diagnosed as being mentally ill and given
medication accordingly. He invokes Article 3 (Art. 3) of the Convention
which reads as follows:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
The Commission need not decide whether the applicant has complied
with the requirements of Article 26 (Art. 26) of the Convention as the
application is in any event inadmissible for the following reasons.To
fall within the scope of Article 3 (Art. 3) of the Convention
ill-treatment must attain a minimum level of severity. The assessment
of this minimum is, in the nature of things, relative; it depends on
all the circumstances of the case, such as the nature and context of
the treatment, the manner and method of its execution, its duration,
its physical or mental effects and, in some instances, the sex, age and
state of health of the person in question (cf. No. 27249/95,
Dec. 14.9.95, D.R. 83-A, p. 91 and No. 27776/95, Dec. 26.10.95,
D.R. 83-A, p. 101)
In the present case the applicant had been brought to the
emergency ward of a hospital in a very confused state. The doctor had
no information of the applicant's medical history; yet in the emergency
situation in question she had to act. There is no indication that the
treatment to which the applicant was subjected could not be regarded
as justified by medical necessity as assessed in the light of these
circumstances (cf. Eur. Court HR, Herczegfalvy v. Austria judgment of
24 September 1992, Series A no. 244, p. 26, para. 83.). Moreover, the
applicant was taken to another hospital as soon as his transfer was
ready to be made. In these circumstances, the Commission finds that the
treatment the applicant received does not disclose any appearance of
a violation of Article 3 (Art. 3) of the Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant complains that he was deprived of his liberty as
he was not allowed to leave the hospital and as he was tied to the
stretcher with straps. He invokes Article 5 para. 1 (Art. 5-1) of the
Convention which secures the right to liberty and security of
person.
In support of his complaint the applicant maintains that he was
not allowed to leave the hospital so that he could go to the other
hospital himself. He instead received a tranquillizer and was strapped
to his stretcher against his will. He notes that he was not suffering
from a mental disorder and his present chronic state of aphasia could
allegedly have been avoided if he had received the correct treatment
within six hours of his stroke. Thus, the aphasia is a consequence of
the deprivation of his liberty.
The Commission recalls the case-law of the Convention
institutions to the effect that in order to determine whether a person
is deprived of his liberty within the meaning of Article 5 (Art. 5) of
the Convention, it is necessary to examine his or her actual situation
and take into account the type, duration, effects and manner of
implementation of the measure in question (cf. No. 24722/94,
Dec. 10.4.95, D.R. 81-B, p. 130). The Commission recalls further that
Article 5 para. 1 (Art. 5-1) of the Convention may apply to deprivation
of liberty of a very short duration (cf. No. 8819/79, Dec. 19.3.81,
D.R. 24, p. 158).
In this case the Commission notes that the medical personnel
acted out of concern for the applicant's health. The Commission also
notes that the applicant never objected to being brought to a hospital,
although he had expressed the wish to be taken to another hospital than
the one where he was first taken. The Commission, having also regard
to its above findings concerning Article 3 (Art. 3), considers that the
measurescomplained of cannot be characterized as a deprivation of
liberty within the meaning of Article 5 para. 1 (Art. 5-1) of the
Convention. The Commission concludes that the examination of this
complaint does not, therefore, disclose any appearance of a violation
of that provision.
It follows that this part of the application must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO N. BRATZA
Secretary Acting President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy