Region:
Year: 2012
Court: The European Court of Human Rights
Health Topics: Health care and health services, Health information
Human Rights: Freedom of expression, Right to due process/fair trial
The applicant was a lung specialist in Poland. She couldn’t agree with the chief physician of the ward she had been working in regarding the decisions he had been making in relation to the diagnosis and treatment of patients. The applicant then communicated the matter to the regional consultant for lung diseases, specifying how the chief physician’s conduct had affected the way patients had been treated. She also mentioned to the regional consultant that the chief physician had threatened her with dismissal should she refuse to comply with her orders.
A month later the applicant was dismissed from the hospital on the ground that she had failed to comply with her duties as per the Labor code. The applicant claimed that her dismissal was unlawful and to be awarded compensation from the district court. The court heard witnesses and consulted the medical records of various patients treated in the ward.
The court found that the applicant was a very good specialist from the list of the duties she had performed well and superior decisions she had questioned. It also found that medical records had normally been kept with the treating physician and that the applicant hadn’t made any irregular changes to the contents of the medical records of patients kept with other physicians. As a result, the court concluded that the hospital had dismissed the applicant due to his belief that to do so could easily solve the conflict that had arisen with the ward. The court held that the allegations regarding the applicant’s failure to regularly administer patient records wasn’t supported by evidence as the applicant’s act of questioning medical decisions for certain patients and bringing the same to the regional consultant weren’t irregular conducts against her profession’s ethics. The court noted that such an act was recommended by the Law on the Profession of Physicians. It noted that the superior’s act of conflicting with a staff was unethical and sthe procedure of her dismissal wasn’t in accordance with the Labor code. “The court concluded that the applicant’s dismissal was unjustified and unlawful as her conduct could not reasonably have been said to amount to a serious breach of her professional obligations and awarded her compensation”. [Para. 17] The hospital appealed from the decision but the Regional court dismissed the appeal.
By the time they got in to a conflict, the applicant had requested the Regional Medical Chamber to intervene in the conflict stating that her supervisor had perceived her as a professional threat and falsely blamed her for not complying with orders. The applicant had listed the errors her supervisor had committed for which she had to confront her supervisor in various occasions. Because the Regional Attorney for professional liability refused to institute an investigation for the applicant’s claim, she appealed to the Principal Attorney who remitted the case for an investigation. The Regional Attorney refused and instituted an investigation against the applicant for unethically behaving toward her superior. This case was brought against the applicant before the Regional Medical Court for violating the code of medical ethics by “openly criticizing her superior’s diagnostic and therapeutic decisions, in the presence of other colleagues and members of medical and non-medical staff”. [Para. 24]
The Medical Court found the applicant guilty of unethical conduct in violation of the code of medical ethics and decided her reprimand, due to failure to comply with superior orders, making disparaging statements against her supervisor, taking medical records out of the hospital and amending the same without her supervisor’s knowledge, being unable to work as a team, and informing colleagues of her supervisor’s wrong decisions.
The applicant appealed to the Supreme Medical Court alleging that the Regional Court had failed to admit in to evidence the findings of the Labor Court and unlawfully penalized the applicant for expressing her views. The Supreme Court dismissed the appeal stating that the regional court had correctly assessed evidences.
The applicant claimed to the European Court of Human Right (the ECHR) that her freedom of expression guaranteed under Article 10 of the European Convention of Human Right (the Convention) had been violated. The government argued that the interference had been prescribed by the code of medical ethics to protect the reputation and rights of others. The government also stated that their act had been taken in response to a pressing social need and had been proportionate to its aim that was justified. They also argued that “medical practitioners enjoyed a special relationship with patients based on trust, confidentiality and confidence that the former would use all available knowledge and means to ensure the well-being of the latter. That could imply a need to preserve solidarity among members of the profession.” [Para. 60] They also contended that the applicant expressed negative opinions about her supervisor due to the personal conflict between the two and not due to a reasonable professional assessment. “In sum, the interference was necessary to achieve a balance between the protection of patients’ health, the interests of other medical practitioners and the applicant’s right to freedom of expression”. [Para. 64]
The applicant on the other hand argued that she had been penalized for expressing her views that were critical to patients and to her profession. She alleged that the medical court had put its total focus on her allegations against her supervisor than the issues relating to the diagnosis and treatment of patients. She also contended that the findings of the medical court were inconsistent with that of the Labor court as to the facts and the law, and thus could be incorrect and unlawful.
The ECHR held that Article 10 of the Convention (freedom of expression) applied to ideas that could offend or shock or disturb which were necessitated in pluralism, tolerance and broad-mindedness which again were necessary elements in a democratic society. The ECHR held that the provision applied all kinds of information or ideas or the means of expression or the aim of the expression. The ECHR thus held that the reprimand against the applicant amounted to interference against the applicant’s freedom of expression and that it was necessary to protect the reputation and rights of others under Article 10 (2) of the Convention. The ECHR was “satisfied that the applicant took steps with a view to drawing the attention of the competent authorities to what she perceived as a serious dysfunction in the work of her then superior”. [Para. 78] It also found that “the applicant was penalized essentially for the fact that she had expressed concerns, to persons working in the ward, to the hospital’s authorities and to the regional consultant, about the quality of medical care given to patients on her superior’s orders”. [Para. 79]
The ECHR held that the special nature of the profession the applicant practices had to be considered in determining whether the restriction on the freedom of expression responded to a pressing need. The ECHR noted that domestic authorities failed to assess the applicant’s statements and hadn’t found the applicant to have made a deficient clinical judgment or to lack the professional skills to make the judgment. The medical courts also failed to assess whether the applicant had made the statements in good faith while the Labor court found that she was a very good specialist. The medical courts strictly interpreted the code of medical ethics that prohibited the act of criticizing colleagues. The ECHR thus noted that domestic authorities failed to look whether the applicant was defending a socially justified interest while it deserved their attention as such.
The ECHR also found that the findings of the medical courts were incompatible with that of the Labor court which had decided that the Law on the Profession of Physicians had supported the applicant’s act of taking medical records out of the hospital to show them to the Regional consultant. It held that the grounds for the medical court's judgments were insufficient and irrelevant and that the interference against the applicant’s freedom of expression wasn’t necessary in a democratic society and thus violated her right under Article 10 of the Convention.
The ECHR awarded non-pecuniary damage for the applicant.
“Medical practitioners also enjoy a special relationship with patients based on trust, confidentiality and confidence that the former will use all available knowledge and means to ensure the well-being of the latter. That can imply a need to preserve solidarity among members of the profession “. [Para. 80]
“The Court has already found, in another case against Poland (Frankowicz v. Poland, cited above) in which the application of Article 52 (2) of the Code of Medical Ethics was concerned, that this approach to the matter of expressing a critical opinion of a colleague, even in the context of the medical profession, risks discouraging medical practitioners from providing their patients with an objective view of their state of health and treatment received, which in turn could jeopardize the ultimate goal of the medical profession - that is to protect the health and life of patients”. [Para. 82]