Analytical description of the cases in the “Bringing Human Rights to Patients and Health Care Providers” Project
The experts (6 practicing lawyers) from the team of the “Bringing Human Rights to Patients and Health Care Providers” Project could provide a total number of 100 hours of legal aid, including through the carrying out of legal assistance/representation in a strategic litigation case.
Thus, the legal aid had been provided in 23 cases. In several cases, there are 2 de facto beneficiaries (women and their spouses). In some cases, the beneficiaries act in the interests of their deceased relatives/spouses. Between December 2014 and June 2016, the experts of the team provided a total number of 145 hours of legal aid and in addition there were provided other 42 hours within the framework of the strategic litigation case. As to the hours spent on the cases, except the strategic litigation case, the average of is cca 7 hours per case, the minimum time dedicated to a case is 2 hours, and the maximum is 12 hours. Also, it is to be noted, that in some cases, the lawyer provided much more hours of consultations, but only a reduced number of these hours were paid from the Project’s funds. Experts’ consultations were delivered in both Romanian and Russian languages, depending on the beneficiaries’ needs. In the same time, the confidentiality and data protection standards were respected while providing the legal aid to the beneficiaries. The description of the cases that is made public and placed on the webpage to share the best practices in bringing human rights to patients and health care providers, is also done with due consideration to the confidentiality principle and data protection standards, all information having been as much possible depersonalized.
The profile of the beneficiaries can be regarded through the following criteria/indicators:
- females – 15
- males – 8
- the eldest – 68
- the youngest – 11
- average – 36,6
- specific status:
- the patients were the absolute majority - 21
- the medical staff – only 1 beneficiary
- in 1 specific case the consulted person was a pension beneficiary due to his first disability degree
- the persons deprived of their liberty:
- the deprivation of the beneficiary’s liberty was an issue occurred in 8 cases,
- one of these beneficiaries was detained without her consent in a psychiatric hospital and
- another one of these beneficiaries was an ex-prisoner.
- the status of the medical institution (here we mean not only “classical” medical institution, but also prisons that have medical staff and provide a range of services in the area of medical care to prisoners) on which the beneficiaries complained of:
- public - 15
- private – 3
- the beneficiaries also may be regarded through the criteria whether they addressed for the first time to the lawyer or repeatedly:
- initial - 14
- repeated – 9
The criteria for decision to provide the legal aid/consultation within the Project framework (target group) are related to the specific status, situation of the beneficiary, as part of vulnerable groups, as well as the issue related to health care system, in the majority of cases human rights being at stake:
- unemployed – 4 persons
- disability, including first disability degree – 9 (2) cases
- in 3 of cases, mentioned at the previous position, the beneficiaries had an intellectual or mental disability
- prisoners (see above for the statistics), including one beneficiary on hunger strike
- lonely mothers – 3 cases
- one drugs consumer
Some of the beneficiaries meet 2 or more of the above-mentioned criteria.
The diagnosis or problem of the patients varies from case to case:
- contraindication as regarding natural birth, causing the decease of the new-born child
- drugs consumer
- hepatitis C (3 cases)
- wrong dental care
- decease of the husband after surgery
- sterilisation without consent during caesarean
- lost the left thumb and index finger
- the «brittle bone» disease
- disclosure of personal data
- unsuccessful surgery (2 cases)
- laryngeal cancer
- epilepsy and other intellectual or mental disability
- tumour (2 cases)
In terms of the rights concerned, the cases were related to:
- right to life (including effective investigation of decease cause by alleged poor quality of medical care);
- prohibition of torture and inhuman or degrading treatment (particularly in detention facilities);
- right to individual’s bodily integrity and protection of his/her health (including effective investigation of offences breaching the right, that means in terms of positive obligation of the state to react and offer a remedy);
- protection of personal data in health care system;
- the right to compensation in cases related to violation of one the above-mentioned rights;
- the right to compensation in case the state prosecutes abusively the medical staff;
- the right to liberty and security (conditions to place in detention of persons of unsound mind and the prohibition to hold in pre-trial and pending trial arrest for more than 12 months according to the recent Constitutional Court judgment no 3 of 23.02.2016);
- the right to receive medical care abroad (accessibility of the services and bureaucracy issues in case there may be received funding from the Moldovan authorities);
- the right to appeal for international human rights protection mechanisms such as the European Court of Human Rights (ECtHR), the UN Human Rights Committee (HRC) and Committee against Torture (CAT);
- the amount of the state guaranteed free health care services (positive obligations of the state in terms of accessibility of the services);
- the social protection of persons with disabilities (the right to a pension);
- the right to decent conditions at the workplace and security of the working process, to rehabilitation/compensation in case of an occupational disease;
- protection of reproductive rights;
- the right to exempted from imprisonment on basis of a severe disease;
- the right to an effective remedy at the national level in case of a human rights violation.
While delivering the legal aid, the experts’ work varied from case to case and consisted of:
- interview with the beneficiary;
- analysis of the documents;
- official inquiries and requests;
- research and analysis of the legal framework (domestic law, international law, including the relevant “soft law”);
- research and analysis of the relevant case-law;
- providing the answer on the beneficiaries’ questions;
- description of the legal solutions;
- elaboration/filing of the lawsuit;
- elaboration/filing of the criminal complaints;
- representing and pleading in court;
- full legal aid within the strategic litigation case;
- providing legal aid during beneficiaries’ negotiations with other parties (for example, employers) etc.
Several conclusions that may be made would be:
- the Project revealed or at least reconfirmed some systemic problems.
Violation of reproductive rights caused by abusive sterilisation, without the consent of the patient. Apparently, there are hints that this case selected for the strategic litigation reflect a systemic problem, possibly at administrative unit level, in the medical system. This conclusion may be drawn because a case with similar facts took place previously in the same Stefan Voda District Hospital - namely the case that reached the European Court of Human Rights, G.B. and R. B. v. Moldova, application no. 16761/09, judgment of 18 December 2012. This case reflects a similar problem: in 2000, when the first applicant (G.B.) gave birth to a child, the head of the gynaecology ward of the Stefan Voda District Hospital performed her a caesarean. During the surgical intervention, he removed her ovaries and fallopian tubes without her consent. Following this intervention, the first applicant, who was 32 at the time, suffered an early menopause. At the end of the criminal trial, on 2 August 2005, the Supreme Court of Justice quashed the lower courts' judgments and adopted a new sentence, by which B. was found guilty but he was exempted from criminal liability because the statute of limitation for being held criminally liable intervened. However, at the end of a civil trial, the national courts offered the victims 1119 MDL for pecuniary damage, 10,000 MDL for non-pecuniary damage to the first applicant and 1237 MDL for the incurred costs. The hospital was also obliged to grant the applicant free medical treatment until 2020. But the European Court has accepted the applicant's complaint and criticized the national courts because they only listed the general criteria according to legislation in force, but did not specify how these criteria were applied to the first applicant’s case and did not reason properly the awarding of that derisory amount of 607 EUR in respect of non-pecuniary damage. The only exception was the decision of the first court, according to which the award of a higher amount would affect the hospital's capacity to work further as a public health care institution. In the Court's view, such an argument is unacceptable, given that the hospital was owned by the state and it was responsible for any charges arising in this regard. Thus, the amount of 607 EUR could not be a sufficiently fair satisfaction able to compensate the devastating effect of losing the reproductive capacity and the long-term health problems. In conclusion, the European Court has found that Article 8 of the Convention has been violated.
Considering all these circumstances, the project team has decided to take over this case as a strategic litigation - whereby, after following the national and international procedures, to obtain a decision under which to establish a model jurisprudential practice able to make the national authorities to pay attention to the identified systemic problem and resolve it. The strategic litigation may involve the need to file an application to the European Court of Human Rights.
Poor quality of the conditions in detention and of the medical care to prisoners. The European Court of Human Rights already found in its judgment on the case of Shishanov v. the Republic of Moldova, no. 11353/06, 15 September 2015, that there is a systemic problem in this regard, at least in the Chisinau Penitentiary no 13, where most of the imprisoned beneficiaries of the Project were held. In the above-mentioned judgement, the European Court stated that Moldova has to establish effective domestic remedies (both preventive and compensatory one for such kind of violations).
- the data may suggest that the women are much more subjected to the risk of being a victim of breach of their rights in the field of medical care. (65% of the beneficiaries were women) Of course, these data should be considered very carefully, but they are suggestive in the same time.
- The absolute majority of the Project’s beneficiaries were the patients and only one person was representing the medical staff.
- Patients’ rights are violated both in public (state) and private medical institutions. But the majority of the complaints regard the public (state) medical institutions actions or omission.
- Investigation of the alleged offences, such as causing decease, harm to bodily integrity or health by negligence and/or poor quality medical care, often lack effectiveness and cases of impunity occur.
The answers and legal assistance given within the consultations by the experts of the Project team had always been done on human rights based approach. The legal aid considered both national legislation and the international standards in the matters (according to international treaties, human rights mechanisms, as well as the relevant “soft law”).