V.P. v. ESTONIA
Inadmissible
Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Robert Spano;Stéphanie Mourou-Vikström
1. The applicant, Ms V.P., is an Estonian national who was born in 1928 and lives in X. The President granted the applicant’s request for her identity not to be disclosed to the public (Rule 47 § 4). She was represented before the Court by Mr A. Junti, a lawyer practising in Tallinn. 2. The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs. 4. The applicant was born in 1928 and lives in X. 5. The case concerns the suicide of the applicant’s son, L., who was born in 1955. He had a history of mental illness (paranoid schizophrenia) and had been placed in a psychiatric hospital fourteen times from 1980. From 1989 he was also classed as a disability pensioner. 6. On 30 April 2012 L. attempted to commit suicide by taking a large number of pills that had been prescribed for him and the applicant. The applicant called an ambulance. L. was diagnosed with intoxication and taken to Hospital Y. An extract from L.’s medical file (haiguslugu) contains a reference that after admission to hospital he had intermittently expressed suicidal thoughts. Owing to a lack of space L. was initially placed in the intensive care unit of the renal department. On 1 May 2012 he was transferred from the renal department to the intensive care unit of the department of internal medicine, located on the twelfth floor of the hospital. L. committed suicide on the same day by jumping out of the window. 7. Hospital staff immediately notified the police and the officer who responded to the call wrote up a report. According to the report, documents were drawn up on site, the deceased was photographed and the body was sent for an autopsy, and the doctor on duty gave a statement. The report stated that the doctor had noted that the windows on the twelfth floor did not have locks, and that two nurses on duty had been dealing with another patient in a neighbouring room at the time of the incident. The report also noted that patients were not restrained and kept in their beds in the intensive care unit, as that was considered too extreme a measure. 8. On 1 June 2012 the applicant requested an explanation from the hospital as to why, in particular, the safety of L., who had been a suicidal patient, had not been ensured and why he had not been sent to a psychiatric clinic. According to the reply of 19 July 2012, victims of poisoning were usually taken to that particular hospital as they needed special supervision and care. That had been the case with L., who had been under regular supervision. However, hospital staff had not been with the patient at all times. The reply referred to the fact that symptoms of poisoning usually took one to three days to go away. Patients then had a psychiatric consultation and were transferred for inpatient treatment at a psychiatric clinic or were referred for outpatient care. 9. An autopsy was performed on L. on 2 May 2012. The death certificate (arstlik surmateatis) stated that he had died from injuries to his internal organs and that he had fractures of the skull and skeletal bones and trauma to the head, torso and limbs. The death was initially noted as “accidental” (the relevant box on the form having been ticked). A new death certificate was issued on 5 February 2014, where the cause of death was updated to “suicide” by jumping out of a window. 10. On 30 October 2012 the applicant turned to the Expert Committee on the Quality of Health-Care Services (Tervishoiuteenuse kvaliteedi ekspertkomisjon; hereinafter the “Expert Committee”). The Expert Committee heard the applicant and examined the medical documentation concerning L. It also had an expert opinion of one of its members at its disposal. The Expert Committee gave its opinion on 13 December 2012. It found that the psychiatric treatment L. had received had been in compliance with standard medical practice, and that there had been no link between his previous psychiatric treatment and the attempted suicide on 30 April 2012. Placing L. in the renal and internal medicine departments had been justified as he had been in need of medical supervision. His suicidal tendencies had been properly assessed upon his admission to hospital on 30 April 2012. However, the supervision he had been under had been insufficient and the technical characteristics of the building – the fact that the windows could not be closed to prevent people jumping out – had also served as factors contributing to his suicide. The Expert Committee recommended that Hospital Y implement a procedure for the supervision of suicidal patients and train its staff accordingly. It recommended the use of technical solutions to minimise the risk of suicide, such as monitoring equipment in the rooms and windows with shatterproof glass that could not be opened. The Expert Committee noted that its assessment created no legal rights or obligations but that it could be used as evidence in civil proceedings. 11. On 14 May 2013 the applicant lodged an offence report with the local prosecutor’s office. The prosecutor analysed three potential offences – manslaughter, manslaughter by negligence and placing a person in danger. However, by a letter of 23 May 2013 he refused to institute criminal proceedings on the grounds that the elements of a criminal offence were lacking. According to the prosecutor, there was no reference to the fact that someone might have assisted L. in jumping out of the window. The prosecutor also noted that hospital personnel were responsible for protecting the life and health of their patients (a so-called duty of care, garandikohustus), but he considered that hospital personnel could not objectively be expected to constantly monitor patients or that patients should be tied to their beds or placed in windowless rooms with the door locked. With regard to the offence of placing a person in danger, the prosecutor considered that the height of the hospital and the existence of a window in the hospital room had not, as such, been dangerous, but they had become a threat in the light of L.’s own self-harming activity. Hence, it had not been the medical personnel who had placed L. in danger, rather he had created the danger himself. 12. On 31 May 2013 the applicant appealed to the Office of the Prosecutor General (Riigiprokuratuur), referring to the liability of the health-care provider and the obligation to effectively investigate incidences of death in hospitals. She also noted that it was not clear whether someone else might have been involved in L.’s jumping out of the window. Her appeal was dismissed on 18 June 2013. The Prosecutor General considered that it had been correct to take L. to the regional hospital, Y, where it had been possible to treat him for poisoning, which would not have been possible in a psychiatric clinic. The Prosecutor General also noted that although there had been deficiencies in the training of medical personnel and that the risk of suicide had not been kept at a minimum by applying all the possible technical means, those shortcomings had not reached the level required for criminal liability. 13. On 10 July 2013 the applicant lodged an appeal with the Tallinn Court of Appeal (Tallinna Ringkonnakohus), requesting that the court oblige the prosecutor to institute criminal proceedings. She acknowledged that such an appeal had to be filed by a lawyer (advokaat) but noted that she had been assisted by a legal adviser (jurist) from the Estonian Patient Advocacy Association (a non-governmental organisation promoting patient rights) and asked the court of appeal to make an exception in the question of legal representation in her case. If an exception could not be made, the applicant requested that she be granted legal aid and given more time to draw up a request to that effect. 14. By a decision of 21 August 2013 the Tallinn Court of Appeal declined to examine the appeal since it had not been lodged by a lawyer and there were no grounds for making an exception to that requirement. The court of appeal also rejected the application for more time for lodging a request for legal aid, noting that no reasons had been advanced for the applicant’s failure to submit supporting documents in time to prove her lack of means. In addition, the court of appeal noted that the applicant’s prospects of success in the appeal were negligible. The refusal to institute criminal proceedings and the decision of the Office of the Prosecutor General had contained detailed reasons as to why there were no grounds to initiate criminal proceedings. The conclusion that the hospital staff had not committed any criminal offence had been well-founded. 15. The applicant then asked the Supreme Court (Riigikohus) to grant her legal aid to lodge an appeal against the court of appeal’s decision. An appeal to the Supreme Court also had to be lodged by a lawyer. By a decision of 30 September 2013 the Supreme Court refused to grant legal aid. It considered that the decisions of the Prosecutor General and the court of appeal had been well reasoned, showing why no criminal proceedings had been commenced and that an appeal against the court of appeal’s decision would have had no prospect of success. 16. The relevant domestic law, namely references to the Obligations Act, the Code of Criminal Procedure and the Penal Code is set out in the case of Rõigas v. Estonia (no. 49045/13, §§ 25–47, 12 September 2017). 17. In addition, further references to domestic law are relevant in the instant case. 18. Under Article 207 of the Code of Criminal Procedure (Kriminaalmenetluse seadustik), a victim can lodge an appeal with the Office of the Prosecutor General against a refusal to institute criminal proceedings. 19. Under Article 208, if the appeal mentioned in Article 207 is dismissed by order of the Office of the Prosecutor General, the victim of an alleged offence may lodge a complaint with the court of appeal. Such a complaint must be lodged through a lawyer (advokaat). 20. The Health-Care Services Organisation Act (Tervishoiuteenuste korraldamise seadus) sets out how the provision of health services should be organised and the requirements for such services. It regulates, inter alia, the registration of health-care professionals and the recognition of their professional qualifications as well as the licensing of activities in certain fields of health-care services. All such activities are carried out by the Health Board (Terviseamet) (Chapter 3 of the Act). 21. In addition, the Health-Care Services Organisation Act regulates the role and competences of the Expert Committee: “(1) The Expert Committee on the Quality of Health-Care Services ... is an advisory committee whose purpose is to assess the quality of health-care services provided to patients and to make proposals arising from that assessment to the Health Board, the Estonian Health Insurance Fund and health-care providers. (2) The Committee’s competencies are to: 1. assess the quality of health-care services provided to patients; 2. make proposals to the Health Board for the initiation of supervisory proceedings over the activity of health-care providers; 3. make proposals to health-care providers for assessing the competence of healthcare professionals and sending them to in-service training; 4. make proposals to health-care providers for changing the way they organise their work; ...” 22. Under section 60 of the Health-Care Services Organisation Act and section 1 of the Statute of the Health Board (Terviseameti põhimäärus), the Health Board is a governmental authority operating within the purview of the Ministry of Social Affairs. It has supervisory powers over compliance with the requirements established for health-care providers. Individuals have the right to submit complaints to the Health Board regarding such compliance. 23. Section 3 of the Regulation on the requirements for ensuring the quality of health-care services (Tervishoiuteenuste kvaliteedi tagamise nõuded), as in force at the material time, stated that a patient’s health-care provider was responsible for the health-care service provided to that person. In order to ensure and develop the quality of health-care services and reduce the risks entailed in the provision of such services, health-care providers had to develop and implement quality management systems in line with good medical and service practice. That quality management system had to, inter alia, address the question of ensuring a professional quality and quality in the organisation’s management of its work (section 5). 24. Section 8 of the regulation concerned the annual training of health-care professionals in order to ensure their professional development and raise their competence. The provision obliged each health-care provider to draw up a training plan for health-care professionals for each calendar year. In line with such training plans, health-care providers had to ensure at least sixty hours of specialised training for health-care professionals. 25. The Regulation on requirements for types of hospital (Haigla liikide nõuded) establishes a list of mandatory and permissible inpatient and outpatient services to be provided by general hospitals, central hospitals, regional hospitals, specialist hospitals, rehabilitation hospitals and local hospitals, as well as minimum requirements for staff, equipment and furnishings for the provision of inpatient and outpatient health-care services and for the main facilities used for treatment and diagnostics. 26. As relevant in the instant case, the regulation provides that regional hospitals must provide inpatient and outpatient services in all fields, including emergency and psychiatric care (section 31(1)). It requires certain medical professionals to be present at the hospital at all times, including doctors for emergency treatment, internal medicine and a psychiatrist (section 31(3)). Section 44 provides that in order to offer psychiatric health-care services, certain types of equipment (including stomach pumps in case of poisoning) and rooms that meet certain specifications as to size need to be available. Among other things, the regulation requires that it be possible to securely isolate and constantly monitor patients. It states that a security alarm should also be provided. 27. The relevant case-law regarding criminal and civil remedies is set out in the case of Rõigas (mentioned above, §§ 51–64).