HFHR on state duties in health care

HFHR has filed an amicus curiae brief with the European Court of Human Rights in the case Zwierz v. Poland (application no. 69950/14). The applicant alleged a violation of the right to life (Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms) resulting from errors in the organisational structure of public hospitals and negligence on the part of doctors that led to her husband’s death.

According to the applicant, the demise of her spouse, a patient suffering from an advanced stage of leukaemia, was caused by a delayed delivery of blood for transfusion. In the course of the proceedings, the Court asked the parties whether state authorities had fulfilled the duty to protect life and health of the patient and whether the investigation into a possible case of medical malpractice had been conducted in a way compliant with the Convention’s requirements.

The first part of the amicus was devoted to the positive duties of the state that are a consequence of the right to life. The HFHR noted that nowadays the right to life is understood in far broader terms than merely the prohibition against the taking of lives of individuals by state officials. “For instance, the UN Human Rights Committee emphasises that the right to life is a source of many positive duties of the state, also those concerning protecting the health of individuals. A similar position is expressed by the Inter-American Commission on Human Rights or the African Commission on Human and Peoples’ Rights, which reiterate that the right to life means that individuals have the right to a dignified life, which is correlated with the state’s obligations also in organising and supervising the operation of the health care system”, HFHR’s lawyer Marcin Szwed points out.

Another section of the amicus discussed Polish practices and the most frequent issues of criminal cases that involve medical malpractice causing a patient’s death or grievous bodily harm. The HFHR commented on recent changes to the structure of the prosecution service, which enabled the prosecutor’s offices at the district and regional level to establish specialised task forces to prosecute medical malpractice cases.

“The Convention imposes on states, including Poland, certain procedural obligations in respect of proceedings launched to investigate possible violations of an individual’s right to life. All changes that seek to improve and facilitate the quality of medical malpractice inquiries should be rational and prevent stigmatisation of any medical profession. We think that in Poland a real problem is, for example, inability to timely obtain a reliable expert witness’ opinion”, argues Michał Kopczyński, a member of the HFHR’s legal team.

Apart from a description of the practice of criminal proceedings, the HFHR has submitted to the Strasbourg Court comments on the functioning of regional medical event committees.

The amicus curiae brief may be read here.