CASE OF Y.Y. v. RUSSIA
Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Alena Poláčková;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
5. The applicant was born in 1966 and lives in St Petersburg. 6. In April 2003 the applicant gave birth prematurely to twins at a maternity hospital in St Petersburg (“the maternity hospital”). The first twin died nine hours after her birth. The second twin, who was transferred to a resuscitation and intensive therapy unit at one of the St Petersburg children’s hospitals (“the children’s hospital”) twenty hours after his birth, survived. The applicant was of the opinion that her daughter would also have survived had she been promptly transferred to a resuscitation and intensive therapy unit at a children’s hospital. 7. On 25 May 2003 the applicant’s mother, Mrs D., sent the following telegram to the President of the Russian Federation: “... newborns are dying because of delays in emergency medical treatment. Resuscitation units lack capacity. [Hospitals] have waiting lists – a brutal practice. Thus in ... April at ... a.m. in Maternity Hospital no. ... [my] grandchildren, twins, ... were born. They were tenth on the waiting list. [My] granddaughter ... never got to the top of the list and died ten hours later. [My] grandson ... was hospitalised twenty hours after his birth and placed in the resuscitation unit of Children’s Hospital no. ... in a very serious condition ... The death [of my granddaughter] has shocked our family. We could not imagine that it was possible not to provide emergency medical treatment to the newborn child ... Does the waiting list constitute negligence or irresponsibility on a criminal scale? I ask [you] to take action. Children’s Hospital no. ... needs urgent help ...” 8. On 15 June and 1 August 2003 D. sent two more telegrams to the President of the Russian Federation, stating: “I am informing you for the second time that emergency neonatal resuscitation for premature babies in St Petersburg is being provided on the basis of a waiting list. Who is responsible for the deaths of these children? I request that this problem be examined at the meetings of the Government and the State Duma ...” “I am wiring you for the third time about the deaths of premature newborns in St Petersburg ... [I] consider the existence of a waiting list for resuscitation treatment a crime ... Waiting for [your] response about the action taken ...” 9. The Administration of the President of the Russian Federation forwarded the telegrams to the Ministry of Healthcare of the Russian Federation (“the Ministry”) for examination. The Ministry asked the Committee for Healthcare at the St Petersburg City Administration (“the Committee”) to examine the allegations and take the necessary action. 10. The Committee ordered an examination, which was carried out by a panel consisting of the chief neonatologist of the Committee and the head of the paediatrics department at the advanced medical studies faculty of the St Petersburg State Paediatrics Medical Academy. The examination was carried out on the basis of the applicant’s and the twins’ medical records, which were obtained from the maternity hospital and the children’s hospital. The results of the examination were set out in a report (рецензия), which mainly concerned the development and treatment of the twin who had died. In particular, the report stated that the infant had been born prematurely in the thirty-first week of gestation of an eighth pregnancy and by a first delivery. Her blood test had indicated the possibility of a prenatal viral infection, and she had been clinically diagnosed as premature (at thirtyone weeks), with respiratory distress syndrome and atelectasis. A postmortem examination had revealed moderate interstitial emphysema of the lungs, which had explained the immediate cause of death. It was concluded that she had been born with severe respiratory distress syndrome complicated by an air leak syndrome, and that she had been provided with treatment which had been entirely appropriate, given the seriousness of the condition and the nature of the disease. Such cases carried a risk of death of not less than 80%, in addition to the risk of serious disabilities, and an early transfer to a children’s hospital did not guarantee survival or a favourable outcome. The report also noted that the second twin had suffered from respiratory distress syndrome as well, but to a much lesser extent. The experts did not make any significant observations about the treatment he had received at the maternity hospital or the children’s hospital. 11. On 5 September 2003 the acting head of the Committee sent the report to the Ministry with an accompanying letter. 12. On 12 September 2003, in reply to her telegrams, the Committee informed D. of the results of the experts’ examination of the twins’ medical records by briefly restating the conclusions in the report. The Committee noted that the results of the examination of her allegations had been communicated to the Ministry. 13. On the same day, the Committee forwarded to the Ministry a copy of its reply to D. and informed the Ministry that, according to the conclusion of a commission formed by the maternity hospital where the twins had been born, the reasons for the applicant’s premature delivery had been her compromised obstetricgynaecological history – in particular, seven artificial abortions – and her urogenital mycoplasmosis infection. The letter of 12 September 2003 was the subject of proceedings brought by the applicant against the Committee, about which no further information is available. 14. On 3 December 2003 the applicant received a letter from the Committee with similar contents to the letter of 12 September 2003 that it had sent to D., stating, in particular, that her children’s medical records had been examined by the panel of experts. It appears that a request by the applicant for a copy of the report was refused, and that that refusal was the subject of separate proceedings brought by the applicant against the Committee. In the course of those proceedings, on 30 November 2004, the applicant received a copy of the report and the Committee’s letter to the Ministry of 5 September 2003. 15. On 25 February 2005 she brought new proceedings against the Committee, seeking a declaration that its actions had been unlawful in that it had collected and examined her medical records and those of her children, and had communicated the report containing her personal information to the Ministry without obtaining her consent. She requested that the report and the letter of 5 September 2003 be declared invalid. She stated that she had not asked the Committee to examine the quality of the medical treatment she and her children had received or to establish the cause of her daughter’s death. She claimed that the Committee had interfered with her private life by disclosing – without her consent – confidential information to a considerable number of individuals, including staff at the Committee and the Ministry who dealt with correspondence and other employees. She relied on Article 61 of the Basic Principles of Public Health Law, which prohibited the disclosure of confidential medical information without a patient’s consent. She argued that the provisions of Article 61 contained an exhaustive list of exceptions to that general rule, and that the Committee’s impugned acts had not fallen under any of them. 16. On 14 December 2005 the Kuybyshevskiy District Court of St Petersburg dismissed her application. The chief neonatologist, who was examined as a witness, stated that: he had acted within his powers; he had not been able to verify D.’s allegations without obtaining the medical records in question; he had involved medical specialists in the examination of those records; and no disclosure of the information contained in those medical records had taken place. A representative of the Committee denied the applicant’s allegations. 17. The District Court found that the Ministry had asked the Committee to examine the allegations set out in D.’s telegrams. The Ministry had had the power to request material from the Committee, which in turn had had a corresponding duty to submit detailed information. The applicant’s medical records had been examined by doctors bound by confidentiality. It was the report prepared as a result of that examination, and not the applicant’s medical records per se, which had been transferred to the Ministry. 18. On the basis of the above considerations, the District Court held that the applicant’s rights, as guaranteed by Article 61 of the Basic Principles of Public Health Law, had not been violated. 19. The District Court also noted that the applicant had lodged her application on 25 February 2005, although she had learned that her children’s medical records had been obtained without her consent on 3 December 2003 from the Committee’s letter of that date. The District Court saw no reasonable excuse for her failure to lodge her application within the statutory timelimit. Lastly, it rejected her request for a separate ruling to denounce the Committee’s allegedly common practice of obtaining medical records without patients’ consent. 20. An application by the applicant for clarification of the judgment – in particular, for details as to whether her application had been dismissed on the merits or because it had been time-barred – was dismissed on 20 January 2006 by the District Court, which considered that the judgment had been clearly formulated and did not allow for different interpretations. The applicant did not appeal against that decision. 21. The applicant appealed against the judgment, relying on Article 61 and, in particular, the exhaustive list of exceptions to the general rule of non-disclosure of confidential medical information without a patient’s consent provided therein. She stated that her own medical records and those of her children had been collected and examined without her consent by Committee officials acting ultra vires, and not by her own doctors, who were bound by confidentiality. The report contained confidential medical information and its communication to the Ministry without her consent had been unlawful. The fact that her own personal medical records had been examined in addition to those of her children had become known to her at a later date than 3 December 2003. The threemonth timelimit for lodging her application had started running on 30 November 2004, when she had received a copy of the report. She had therefore complied with that time-limit. 22. On 14 March 2006 the St Petersburg City Court dismissed the applicant’s appeal against the judgment and fully endorsed the District Court’s findings.