BARAŃSKA v. POLAND
Inadmissible
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva
1. The applicant, Ms Mieczysława Barańska, is a Polish national, who was born in 1949 and lives in Busko Zdrój. She is represented before the Court by Ms M. Pecyna, a lawyer practising in Cracow. 2. The Polish Government (“the Government”) are represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant’s daughter, E., had been suffering from schizophrenia since approximately 1998. She had been hospitalised on numerous occasions. 5. On 4 March 2008 E. was admitted to a psychiatric hospital in Morawica (Świętokrzyskie Centrum Psychiatrii). She had already been admitted to that hospital on six previous occasions. 6. E. was placed in room no. 8 in the observation area of ward no. 5. The ward was divided into two areas – an “observation” area and a “peaceful” area for male patients. The areas were separated by a lockable door. The patients were free to circulate in their own areas and to use the bathroom. According to her medical records, at the time of her admission E. had been behaving strangely. She showed symptoms of restlessness and agitation, and her behaviour was aggressive and loud. Contact with her was difficult and communication was limited. On 16 March 2008 she made an unsuccessful attempt to flee the ward, but was prevented from doing so by the staff. 7. A copy of the medical record kept by the hospital staff from 4 to 17 March 2008 was submitted to the Court. No reference to suicidal tendencies or thoughts on E.’s part was made throughout that time. 8. At 4.15 a.m. on 16 March 2008 three nurses on duty in the ward were dealing with an aggressive patient in room no. 8. A nurse from ward no. 6, M.P., was called to help them. 9. While the nurses were busy trying to overpower the patient, E. tried to commit suicide by hanging herself in the bathroom, using torn sheets from her bed. Another patient found her there and alerted the nurses. Nurse L.G. removed the “rope” made from the torn sheets from E.’s neck. Three nurses on duty, W.K., T.N. and L.G., attempted to resuscitate E. The doctor who was on duty that night was alerted, and participated in the resuscitation attempt. An ambulance equipped with intensive-care equipment was called. 10. The ambulance left the Kielce Regional Specialist Hospital (Wojewódzki Szpital Specjalistyczny w Kielcach) at 5.12 a.m. and arrived at the psychiatric hospital at 5.24 a.m. The ambulance doctors took over the resuscitation attempts and took E. to the Kielce hospital. They arrived there at 5.52 a.m. and the resuscitation attempt continued. E. did not regain consciousness and remains in a coma. 11. The police arrived at the psychiatric hospital at 6.30 a.m. on 16 March 2008. On the same date they started an investigation into the circumstances of the accident with a view to establishing whether the offence of exposing someone to the risk of loss of life or detriment to health, within the meaning of Article 160 of the Criminal Code, had been committed. A note drawn up by the police on the same day stated that E. had not been suffering from depressive tendencies. The applicant was questioned on 18 March 2008. She stated that E. had been diagnosed with paranoid schizophrenia ten years earlier and had been admitted on numerous occasions to Morawica hospital. 12. The applicant was informed that an official note had been prepared to the effect that E. had hanged herself from the bars of the bathroom window by a rope made of torn sheets which she had taken from her bed. The applicant commented that it was difficult to understand how E. could have hanged herself as the bars on the window were covered by wire mesh. She was also of the view that the staff had failed to exercise their duty to supervise the patients properly. The applicant made no comments at that stage about possible thirdparty involvement in the incident. 13. Nurse W.K. was questioned on 19 March 2008. She stated that she had been on duty on the critical night with nurses L.G. and T.N. At around 4 a.m. one of the patients had started to behave aggressively towards her and other patients. The witness had requested the assistance of other nurses in overpowering that patient and taking her to the isolation room. She had earlier checked on E., who had not been asleep but had been lying on her bed. Shortly afterwards, W.K. had been checking on the patient in the isolation room when she had heard nurse L.G. cry out. W.K. had run to the bathroom, where she had seen E. hanging from the window bars. L.G. had been trying to hold her aloft. Together they had taken E. down, carried her to the corridor and started resuscitation. They had called T.N., who in turn had alerted the doctor on duty. Resuscitation attempts had continued until the arrival of the ambulance from the Kielce hospital. E.’s heartbeat had been restored after the arrival of the ambulance. E. had been a patient of the hospital on many occasions; she had never had suicidal tendencies and there had been no indication that she might try to take her life. 14. Nurses L.G. and T.N. were also questioned on 19 March 2008. Their testimonies were essentially concordant with the account of the facts given by W.K. L.G. stated that she had been alerted by one of the patients crying out that someone had hanged herself in the bathroom. She ran to the bathroom and saw E. hanging by a rope from the window bars. She had tried to hold her aloft and called for the help of other nurses. After W.K. had arrived, L.G. untied the sheet from E.’s neck. They carried E. to the corridor and started to resuscitate her. T.N. stated that at around 4 a.m. the cries of the aggressive patient in room no. 8 had woken up other patients in that room, including E., who had covered herself with a blanket. W.K. uncovered her head to check on her, to which E. objected. T.N. heard L.G. cry out five to ten minutes after the nurses had finished dealing with the aggressive patient. In T.N.’s view, there had been no indication that E. would try to commit suicide. 15. When questioned subsequently on 24 May 2008, T.N. stated that the window frames in the bathroom were old and had no handles. The windows could be easily opened, as the frames were dilapidated. It had already happened before that the patients had been able to open them. For that reason, bars had been fixed on the outside to prevent the patients from jumping out of the window. It was allowed to open the windows in order to air the bathroom. 16. On 23 April 2008 the police visited the bathroom and found that the window had no handles inside, and had bars on the outside. The window ledge was 95 cm from the floor. 17. On the same day the applicant submitted written comments, having been given access to the case file. She expressed the view that the investigation had been insufficient. She still failed to understand how it had been possible for her daughter to hang herself from the outside bars of the window. She asked the prosecution to check what had been happening between 4.15 a.m. and 6 a.m. on the critical date; whether the medical records properly recorded E.’s suicide attempt; whether there were records available concerning the handling of the aggressive patient; and whether blood samples had been taken to establish which medication E. had been on. She further stated that during her visits to the ward she had often seen patients left without reasonable supervision. 18. On 8 May 2008 M.O., the chief physician of the intensivecare ward of the Kielce hospital, was questioned. He stated that E. remained in a coma and that her condition had not improved since she had been brought to the hospital on 17 March 2008. On the day in question there had been a bruise on the patient’s neck caused by hanging; no blood samples had been taken on that day as there had been no grounds for doing so. 19. On 16 May 2008 A.K., the chief physician of the psychiatric ward, was questioned. He stated that he had spoken with E. on 16 March 2008 and that she had been calm and reasonable. She had not demonstrated any symptoms of depression or suicidal tendencies. 20. On 24 May 2008 W.K. was questioned again. She confirmed her previous statement (see paragraph 13 above). She further stated that the bars were on the outside of the window and that they had been installed to prevent the patients from fleeing. There was no obligation to keep the windows closed and in any event it was easy to open them, despite the fact that they had no handles, as the window frames were old. T.K., who was questioned again on the same date, confirmed W.K.’s statement. 21. On 30 May 2008 the Kielce district prosecutor discontinued the investigation. The written grounds for that decision read as follows: “The investigation into the circumstances in which E.B. had been exposed to a risk to her life was conducted under the supervision of the Kielce-Zachód District Prosecutor. All the witnesses in the case were questioned. An on-the-spot inspection of the scene of the suicide attempt was carried out. As the findings of fact did not lead to the conclusion that the incident had been caused by any acts of third persons, the investigation was discontinued, as a criminal offence punishable under Article 160 § 2 of the Criminal Code had not been committed.” 22. The applicant appealed. She argued that the decision had been excessively succinct and had failed to give a reasonably detailed account of the relevant facts. In particular, no findings had been made as to whether the hospital staff had complied with their duty of care. It had not been explained how it could have been possible for E. to leave her room unobserved, take her bed sheets with her, go to the bathroom, tear the sheets, open the window and hang herself from the window bars on a kind of rope she had made from the torn sheets. The only people to have been questioned were nurses who had a vested interest in giving their own version of events. No forensic examination of E. had been carried out to check whether she had any injuries or bruises. In particular, it had not been established whether she had any injuries on her neck typical of hanging. The orderly of the ward had not been questioned. The report on the handling of the aggressive patient by the nurses on duty during the night at issue had not been included in the file. No steps had been taken to establish whether and how it had been possible to open the window in the bathroom and how that window was secured, if at all. The applicant added that E. had not been suffering from depression at that time. On the whole, the contested decision was obviously flawed and the investigation should be conducted again in a thorough manner. 23. Following an appeal lodged by the applicant, on 23 June 2008 the Kielce Zachód district prosecutor set the contested decision aside, finding that the applicant’s objections should be addressed by way of further investigative measures. The investigation was resumed. 24. On 15 August 2008 Dr M.O. was questioned again as to the circumstances of E.’s admission to the hospital. 25. A further four witnesses were heard. Neither their professions nor their connection to the facts of the case were specified. 26. On 18 August 2008 the Kielce district prosecutor discontinued the investigation. The relevant decision read: “The investigation into the circumstances in which E.B. had been exposed to a risk to her life was conducted under the supervision of the Kielce-Zachód District Prosecutor. All the witnesses in the case were questioned. An on-the-spot inspection of the scene of the suicide attempt was carried out. As the findings of fact did not lead to the conclusion that the incident had been caused by any acts of third persons, the investigation was discontinued as a criminal offence punishable under Article 160 § 2 of the Criminal Code had not been committed.” 27. The applicant appealed, essentially reiterating the arguments which she had raised in her earlier appeal. She argued in particular that the decision had been excessively succinct and had failed to give a reasonably detailed account of the relevant facts. 28. On 19 February 2009 the Kielce District Court, Municipal Division (Sąd Grodzki), upheld the contested decision. It was of the view that no one had a case to answer and that it could not be said that the staff had failed in their duty to take appropriate care of E. It further stated that the prosecuting authorities had taken all the necessary evidence and examined it carefully. 29. Article 160 of the Criminal Code reads as follows: “1. Anyone who exposes a human being to an immediate risk of loss of life, serious bodily injury, or a serious impairment of health shall be subject to the penalty of deprivation of liberty for up to 3 years. 2. If the perpetrator has a duty to take care of the person exposed to danger, he shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.”