AS TO THE ADMISSIBILITY OF
Application No. 27594/95
by Mauri SANTANIEMI
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 10 September 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms. M.-T. SCHOEPFER, 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 21 October 1994
by Mauri SANTANIEMI against Sweden and registered on 13 June 1995 under
file No. 27594/95;
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 1946 and resident in
Lödöse, Sweden. He brings the application both in his own name and on
behalf of his late daughter, born in 1970 and deceased in 1988.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant's daughter was seriously disabled from birth,
suffering from skeletal deformities and other illnesses. Inter alia,
during 1971-1988 she was treated about 20 times at the children's
hospital in Vänersborg, Sweden, for various illnesses.
On 18 January 1988 the applicant's daughter was brought to the
children's clinic of Norra Älvsborg hospital in Trollhättan, Sweden,
where she was diagnosed as having pneumonia. She died in the hospital
on 22 January 1988.
The applicant reported his daughter's death to the Disciplinary
Board of Health and Medical Care (Hälso- och sjukvårdens ansvarsnämnd).
He argued that Dr BR who had tended to his daughter had failed to X-ray
her lungs, to put her on a respirator, to call the physician in charge
to see her, to transfer her to an intensive care unit and to make sure
that she was constantly looked after. The applicant maintained that the
physician had made mistakes and been negligent in her duties and that
this had caused his daughter's death.
The Disciplinary Board obtained a copy of the patient records as
well as written submissions from the hospital staff and an expert. It
also invited the applicant to comment on the submissions.
It appeared from the patient records, inter alia, that the
applicant's daughter's lung problems had been caused by the
deformities. She had been practically confined to a wheelchair since
1982 and was cared for by her parents in their home. In January 1988
she contracted a lung infection and came to the hospital on 18 January
after consulting a doctor. The doctor on duty, W, decided against an
X-ray examination of the lungs. During the night between
18 and 19 January 1988 her condition deteriorated.
Dr BR who treated the applicant's daughter submitted, inter alia,
that she saw the applicant's daughter on 19 January 1988 together with
the chief physician, MT, and another colleague. The diagnosis of
pneumonia was clinically clear and therefore a lung X-ray was not
needed. Since the patient's condition deteriorated on 19 January, the
treatment, including the possibility of a respirator being used, was
discussed with MT. The doctors decided to change the patient's
medication. No request for respirator treatment was made by the
parents. The mother of the patient accepted the treatment given to her
daughter.
Dr MT submitted, inter alia, that the patient had had breathing
problems which had been investigated since 1982. Also heart problems
had been discovered. In 1983 she had been diagnosed as having a lung
infection. She was treated but nevertheless continued to contract lung
infections which during 1984-1987 demanded hospital care. Lung X-rays
were taken but they were difficult to interpret because of the
patient's severe scoliosis. On 18 January 1988 X-rays were not ordered
since they had not proved helpful earlier. Respirator treatment was
dismissed on the ground that the patient had a chronic breathing
deficiency due to her scoliosis. On 21 January her condition was
clearly better. On 22 January, however, a sudden deterioration set in
and the patient died.
In his observations the applicant submitted that during his
daughter's terminal illness he demanded that she be given respirator
treatment but to no avail.
In his expert statement professor AL, a member of the Scientific
Council of the National Board of Health and Social Welfare
(Socialstyrelsens vetenskapliga råd), deemed it obvious that respirator
treatment was not discussed with the parents although it should have
been. The benefit of respirator treatment was the facilitation of
breathing and the disadvantages were that the patient could become
dependent on the treatment, lose her speech ability and need sedatives.
It was impossible to judge whether the decision not to order respirator
treatment was right or wrong. X-rays had not been necessary on
18 January but could have been resorted to when the patient's condition
deteriorated. Judging from the patient records intensive care was not
necessary.
In its decision of 20 February 1992 the Disciplinary Board
considered that as to allegations concerning X-ray examination,
respirator treatment, failure to call the chief physician, intensive
care and constant observation, no cause for criticism was apparent. The
Disciplinary Board noted that the patient records concerning the
applicant's daughter were terse. The Disciplinary Board further noted
that in this case it was excusable not to have informed the parents
about the possibility of respirator treatment, since it was not planned
to be given to their daughter. The Disciplinary Board decided to take
no action.
In his appeal to the Stockholm Administrative Court of Appeal
(kammarrätten) the applicant referred to the above-mentioned arguments.
He also maintained that his daughter had not received medication for
poor circulation nor had certain operations been performed which he
considered should have been.
On 17 December 1993 the Administrative Court of Appeal dismissed
the appeal as regards complaints concerning medication and operations
since they were new allegations which had not been examined previously
by the Disciplinary Board and otherwise upheld the Board's decision.
On 8 September 1994 the Supreme Administrative Court (Regerings-
rätten) refused the applicant leave to appeal.
COMPLAINTS
1. Without invoking any Articles of the Convention the applicant
complains both in his own name and on behalf of his deceased daughter
that his daughter was not afforded the medical treatment she needed.
He maintains that proper treatment would have relieved her heart
problems, poor circulation and lung problems. Furthermore he claims
that a necessary operation was not performed. He also contends that she
was not put on a respirator even though such treatment was necessary
and that intensive care was not given to her. The applicant submits
that the right to life includes the right to proper treatment.
2. Moreover, the applicant complains that a thorough investigation
was not performed by the Disciplinary Board, whose decision was upheld.
THE LAW
1. The applicant complains both in his own name and on behalf of his
deceased daughter of an alleged failure to give his daughter correct
medical treatment. The applicant does not invoke any Articles of the
Convention.
The Commission notes that the applicant did not raise before the
Disciplinary Board some of the allegations of lack of treatment which
he now brings before the Commission. However, the Commission does not
find it necessary to consider whether this would raise any issues under
Article 26 (Art. 26) of the Convention as to the exhaustion of domestic
remedies since the application is in any event manifestly ill-founded
for the following reasons.
The Commission has examined the applicant's complaints under
Article 2 (Art. 2) of the Convention which protects the right to life.
The applicant submits that the right to life includes the right to
proper treatment.
The Commission recalls that the first sentence of Article 2
para. 1 (Art. 2-1) of the Convention imposes an obligation on the
Contracting State not only to refrain from taking life "intentionally"
but also to take appropriate steps to safeguard life. The State's
positive obligation to protect life implies regulatory measures for
hospitals and an effective judicial system permitting the cause of
death in a hospital and the possible liability of the doctors or the
hospital to be established. If there is no indication that the
authorities arbitrarily assessed the evidence before them, the
Commission must rely on the facts established by those authorities (see
No. 21236/93, Dec. 25.10.96, unpublished, No. 20948/92, Dec. 22.5.95,
D.R. 81-B, pp. 35, 39-40 and the further reference therein; cf. also
No. 23412/94, Dec. 30.8.94, D.R. 79-A, pp. 127, 135-137).
The Commission notes that the applicant's daughter's death was
investigated by the Disciplinary Board of Health and Medical Care. The
Disciplinary Board had regard to an expert opinion. It also heard the
hospital staff either directly involved in, or ultimately responsible
for, the applicant's daughter's treatment on 18-22 January 1988.
The Commission considers that there is no indication that the
authorities assessed the evidence before them arbitrarily. Given that
no fresh evidence has been brought before the Commission, it must rely
on the facts established on the domestic level. In the circumstances
of the present case it cannot find any appearance of negligence on the
part of hospital staff. Accordingly, there is no appearance of a
violation of Article 2 para. 1 (Art. 2-1) of the Convention.
On the basis of the application the Commission does not find any
indication that the medical treatment at issue violated any other
provision of the Convention or of its Protocols.
It follows that this part of the applicant's complaints must be
rejected as being manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant complains, without invoking any Articles of the
Convention, that the matter was not thoroughly investigated.
The Commission notes that the matter was examined by the
Disciplinary Board, the Administrative Court of Appeal and, as regards
leave to appeal, by the Supreme Administrative Court. The applicant has
not presented any evidence to support his allegation. Therefore the
Commission considers that the complaint is unsubstantiated.
This part of the application must therefore 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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy