Frankowicz v. Poland

Frankowicz worked as a gynecologist preparing medical reports at clients’ request. He wrote a report on the long-term treatment of one of his patients in which it was noted that the client was suffering from chronic hepatitis and cirrhosis. Furthermore, Frankowicz wrote that the client’s previous doctor “had failed to take the actions [necessary] for the health care of [the patient] and his diagnosis. So, despite indications, adequate diligence while diagnosing, informing and providing health care to [the patient] was not displayed”.

Shortly after, the Tarnów Regional Attorney for Professional Liability launched disciplinary proceedings against Mr. Frankowicz. The proceedings were on the grounds of unethical conduct because Frankowicz’s opinion had discredited the doctors who previously treated the patient. A hearing was held at the Regional Medical Court that found Frankowicz guilty of unethical conduct. The court did not examine the truthfulness of the opinion at issue.

Frankowicz then challenged the decision, claiming that the court had not been impartial. This claim was dismissed as being manifestly ill-founded by different judges of the same court. A further appeal to the Supreme Medical Court upheld the decision. Frankowicz then appealed to the European Court of Human Rights claiming his rights under Article 6 (right to a fair trial) and Article 10 (freedom of expression) of the European Convention on Human Rights (“Convention”) had been violated.

The Court found that the medical court breached Article 10 of the Convention. The Court reasoned that Article 10’s guarantee to freedom of expression covers matters relating to professional or commercial practice. As such, the disciplinary sanction for expressing a critical opinion on a patient’s medical treatment amounted to an interference with Mr. Frankowicz’s right to freedom of expression. By not looking into the truthfulness of the opinion, the disciplinary courts worked to ban any critical expression in the medical profession. This was not consistent with the right to freedom of expression. Moreover, the interference was not proportionate to the legitimate aim pursued by having a medical code of ethics and, accordingly, was not justified as necessary in a democratic society.

The Court held that Frankowicz’s Article 6 rights had not been violated because Frankowicz could not provide any evidence of personal biases or of structural impartiality in the hearing he had received in the medical court.

“The Court has previously agreed, in the context of lawyers, members of the Bar, that the special nature of the profession practised by an applicant must be considered in assessing whether the restriction on the applicant’s right answered any pressing need (see Steur v. the Netherlands, no. 39657/98, § 38, ECHR 2003-XI). 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 for ensuring the well-being of the latter. That can imply a need to preserve solidarity among members of the profession. On the other hand, the Court considers that a patient has a right to consult another doctor in order to obtain a second opinion about the treatment he has received and to expect a fair and objective evaluation of his doctor’s actions.” Para. 49.

”Such a strict interpretation by the disciplinary courts of the domestic law as to ban any critical expression in the medical profession is not consonant with the right to freedom of expression (see Stambuk, cited above, § 50). 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 jeopardise the ultimate goal of the doctor’s profession - that is to protect the health and life of patients.” Para. 51.