Death of new-born baby after being refused admission to public hospitals
JUDGMENT:
Asiye Genç v. Turkey 07.01.2015 (no. 24109/07)
SUMMARY:
The case concerned a prematurely born baby’s death in an ambulance, a few hours after birth, following the baby’s transfer between hospitals without being admitted for treatment.
The Court found, firstly, that the State had not sufficiently ensured the proper organisation and functioning of the public hospital service, or its health protection system. The child died because it had not been offered any treatment. Such a situation constituted a denial of medical care such as to put a person’s life in danger.
Secondly, the Court found that the Turkish judicial system’s response to the tragedy had not been appropriate for the purposes of shedding light on the exact circumstances of the child’s death.
PROVISION:
Article 2
PRINCIPAL FACTS
The applicant, Mrs Asiye Genç, is a Turkish national who was born in 1976 and lives in Burdur (Turkey). On 30 March 2005 the applicant, who was pregnant and in pain, was taken by her husband to the public hospital of Gümüşhane. She gave birth the next day by caesarean section to a boy who was premature. 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, KTÜ Farabi.
On 1 April 2005 at around 1.15 a.m. that hospital refused to admit the child on the ground that there was no space in the neonatal intensive care unit. Around 2 a.m., the child was transferred to the Medicosurgical 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 Mr and Mrs Genç filed a criminal complaint and two investigations were opened.
The criminal investigation against the medical staff was discontinued and the administrative investigation initiated by the Ministry of Health was closed on the ground that there was no case to answer, as no fault had been committed by the staff.
THE DECISION OF THE COURT
Article 2
The Court was called upon to ascertain whether the domestic authorities had done what could have been reasonably expected of them to prevent this tragedy and, in particular, whether they had satisfied their obligation to adopt measures to ensure the protection of the child’s life.
The Court noted that the public hospital could not have been unaware of the risk for the life of the new-born baby in the event of refusal to admit it to another hospital. Before choosing to transfer it, the staff of that public hospital of Gümüşhane had not taken the necessary measures to ensure that the child would definitely be admitted for treatment in the other hospital. The State had not sufficiently ensured the proper organisation and functioning of the public hospital service, or its health protection system. The child had died not because of negligence or any error of judgment in the care dispensed to it, but because it 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 Court further took the view that, on account of the refusal by the administrative authorities, the fact that there had been no proceedings against the staff who had failed to admit the baby for treatment raised a problem under Article 2 of the Convention.
It was legitimate to expect that the 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 the neonatal services had been implemented, or to establish the reasons for the lack of basic facilities in those services, in particular incubators.
The Turkish judicial system’s response to the tragedy had not been appropriate for the purposes of shedding light on the exact circumstances of the child’s death. The investigation had not been complete, because none of the crucial factors specific to the failings in the management of the health service had been the subject of any investigation.
The Court concluded that in the light of the circumstances leading to the lack of indispensable emergency care and the inadequacy and insufficiency of the investigations carried out internally in this connection, it could be considered that the State had failed in its obligations under Article 2 of the Convention in respect of the child, Tolga Genç, who had died a few hours after birth.
Just satisfaction (Article 41)
The Court held that Turkey was to pay the applicant 65,000 euros (EUR) in respect of non-pecuniary damage.
Separate opinion
Judges Lemmens, Spano and Kjølbro expressed a separate opinion which is appended to the judgment(echrcaselaw.com editing).
