Daskalovi v Bulgaria

HEADNOTE

Doctors administered a Blakemore tube, an invasive medical treatment, to a non-consenting patient while attempting to save her life. The deceased patient’s family sought damages for the non-consensual administration of treatment to the patient. The Bulgarian Supreme Court of Cassation held the hospital liable for damages. The European Court of Human Rights rejected the applicants’ claims of violations under the Convention for the Protection of Human Rights and Fundamental Freedoms having found the applicants had an adequate remedy in the domestic legal system.

FACTUAL AND PROCEDURAL BACKGROUND

In 2001, Koina Daskalova was diagnosed with hepatitis C which resulted in repeated esophageal hemorrhages. Every hemorrhage was treated at St. Anne’s Hospital in Varna, and each time, Daskalova refused treatment with a Blakemore tube, a balloon-like device inserted through the nose or mouth and which could be inflated to apply pressure to stop hemorrhagic bleeding. On January 19, 2005, Daskalova vomited blood and was taken to St. Anne’s Hospital. On arrival and despite doctors’ continued insistence for its use, she repeatedly refused treatment with a Blakemore tube, eventually signing a written acknowledgement which stated, “In full awareness I refuse the use of a Blakemore tube, having received explanations on the subject.” After suffering another haemorrhage, the doctor on duty, informed Daskalova and her husband, Dobromir Daskalov, that it was necessary to administer a Blakemore tube, and rushed Daskalov out of her room while medical staff inserted a Blakemore tube. Daskalov heard his wife’s screams while waiting outside. At 8:40 p.m., Koina Daskalova died despite receiving treatment with a Blakemore tube.

The applicants, Dobromir Daskalov and Koina Daskalova’s two sons, sought damages from the hospital for medical negligence as a result of the hospital demanding he supply the necessary medicine for his wife’s treatment, the hospital’s failure to administer the complete dosage, and the forced treatment his wife endured without her consent. The Varna District Court rejected these claims, finding no causal link between the hospital’s actions and Daskalova’s death and no evidence of negligence. This decision was upheld by the Varna Regional Court; however, on appeal to the Supreme Court of Cassation, the Court found the hospital liable despite the absence of medical malpractice because staff had ignored Daskalova’s expressed will regarding her treatment, they had forcibly administered the Blakemore tube despite its lack of effectiveness, and that this decision was not made by the head of the hospital as prescribed in section 90(4) of the Health Act. The applicants filed a complaint with the European Court of Human Rights alleging that Daskalova had been unlawfully forced to undergo painful treatment against her will in violation of Article 3 (Prohibition of Torture) and Article 8 (Right to Respect for Private and Family Life) of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). Furthermore, they alleged that there was no effective domestic remedy for their claims in contravention of Article 13 (Right to an Effective Remedy) of the Convention. The applicants claimed that the Bulgarian authorities had failed to recognize Daskalova’s legal right to be free from forced treatment without her consent and that domestic law and the courts did not impose liability on medical personnel who performed medical treatment without a patient’s consent.
RELEVANT LEGAL PROVISIONS
Section 90 of Health Act 2005
“(1) The patient or his or her parent, general or special guardian, or the person [appointed by a court] under section 162(3), may refuse at any time the medical assistance offered or the continuation of medical treatment which is already under way.
(2) A refusal under the preceding paragraph shall be recorded in the medical file with the person’s signature...
(4) Where treatment has been refused by a parent or a general or special guardian under paragraph 1 and the patient’s life is in danger, the head of the medical institution may decide to carry out life-saving treatment.”
Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms – Prohibition of Torture

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms – Right to Respect for Private and Family Life

“(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by an public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms – Right to an Effective Remedy

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms – Individual Applications

“The Court may receive applications from any person, non-governmental organization or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

The Court rejected the applicants’ claims under Articles 3, 8, and 13 on the ground that neither Daskalov nor his sons could be considered a “victim” for the purpose of Article 34 of the Convention. In particular, the Court observed that Bulgaria’s Supreme Court of Cassation found the hospital’s forced treatment of Daskalova with a Blakemore tube despite her explicit refusal was “unjustified” and had awarded reasonable damages to Daskalov. The Court noted that the findings and decisions of the domestic court undermined the applicants’ grounds for alleging violations of Articles 3 and 8 of the Convention, especially since the Supreme Court’s judgment clearly recognized that the conditions provided for in section 90 of the Health Act in order to treat Daskalova without her consent had not been met. As such, the Court noted that the applicants had an adequate remedy within the Bulgarian legal system, rendering the complaint under Article 13 “ill-founded.” Furthermore, the Court accepted that the domestic civil proceedings had appropriately acknowledged and addressed the applicants’ claims of violations under Articles 3 and 8 of the Convention, rendering the applicants’ application inadmissible.

“The Supreme Court of Cassation found that the hospital staff had acted appropriately from a medical point of view and had done everything possible in the circumstances to save Mrs Daskalova’s life. Nevertheless, it found that the medical professionals were also obliged to show understanding and empathy to patients and their relatives and that they could be held liable in tort even in the absence of medical malpractice. The court found that in the first applicant’s case damages were due, first, because the medical staff had sent him twice within eight hours, at a critical moment when he had feared for his spouse’s life, to look for a life-saving medicine, considering that the hospital did have a quantity of it available. Secondly, they had failed to respect Mrs. Daskalova’s clearly expressed will and had administered treatment forcibly by means of a Blakemore tube, although this treatment had only a 50-60% rate of success according to the expert heard in the proceedings and was not therefore life-saving within the meaning of section 90 (4) of the Health Act, and despite the fact that the decision to proceed with this treatment had not been taken by the person in whom such power was vested, namely the head of the hospital.” (Para 29)
“The court further stated that the lower court had erred in that it had failed to look at the facts from the point of view of ethics and human rights.” (Para 30)
“In the present case the Supreme Court of Cassation acknowledged expressly that the hospital’s failure to comply with Mrs. Daskalova’s refusal to undergo treatment with a Blakemore tube had been unjustified. This was precisely the ground on which the applicants had alleged, in their application to the Court, that there had been violatiosn of Articles 3 and 8 of the Convention. The domestic court furthermore awarded damages in an amount that does not appear unreasonable, considering that the first applicant was not the direct victim of the impugned medical intervention…” (Para 43)
“The Court does not find convincing the applicants’ arguments that the acknowledgement contained in the final domestic judgment was insufficient or indirect. The Supreme Court recognized expressly that the conditions set out in the Health Act for the application of urgent treatment without Mrs. Daskalova’s consent had not been fulfilled. For the purposes of the victim issue, the precise legal construction applied by the domestic court is of relatively minor importance, provided that it resulted – as it did in the present case – in findings which contain in substance an acknowledgement and an award of damages.” (Para 44)