CASE OF H. v. FRANCE
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
J.A. Carrillo Salcedo;N. Valticos
7. Mr H., a French citizen born in 1937, lives at Vandoeuvre (Meurthe-et-Moselle). In 1957 he entered the teaching profession as a primary-school supply teacher and worked continuously until 1961. 8. In May 1961 Mr H. went to Strasbourg Hospital, taking with him a letter of introduction from his general practitioner to Professor Thiébaut, the head of the neurological clinic. As Professor Thiébaut did not hold a surgery on the day in question, Mr H. was examined in the neurological clinic by Dr Ebtinger, the doctor in charge of "Department 58" of the psychiatric clinic. Dr Ebtinger allegedly assured him that his problems were "not very serious" but apparently advised him to enter hospital for "a fortnight at most" in order for the doctor to get to know him better. The general practitioner’s letter and the report of this first examination are said to have disappeared from Mr H.’s hospital file. 9. On 25 May 1961, on Dr Ebtinger’s recommendation but without having been ordered by him to stop work, Mr H., who was unaccompanied, reported to the neurological clinic at Strasbourg Hospital for observation, thinking that he would be in hospital for a fortnight and of his own free will. He allegedly waited for a house physician for two or three hours and was then placed in "Department 58". The admission notes read as follows: "Presented himself alone at 8 p.m. Being treated by Dr Zarenski ofSarralbe and seen by Dr Ebtinger. ‘I don’t feel right, I don’t know what’s wrong with me. I’m depressed.’ has been for five years. asthenia, difficulties with work. no interest in anything. (Limited answers, difficulties expressing himself.) Has worked withouta break until today. unmarried. lives with his parents at Holving. Referred to 58B." The applicant claims that the comments on an interview of 27 May have been antedated and that the pages of his file covering the period from 11 August to 15 September 1961 have vanished. 10. On 12 June 1961 Professor Kammerer, the head of the psychiatric clinic, diagnosed the applicant as suffering from schizophrenia with developing symptoms of catatonia (a state of motor and mental inertia) and prescribed narcoanalysis, i.e. an investigation of the subject’s unconscious after he has been put into a sleeplike state. This was allegedly the only occasion on which he examined Mr H. - for ten minutes before a large group of students, at a time when Mr H. was already being treated with neuroleptic drugs. 11. On 13 June 1961 a house physician, Dr Schneider, instead of carrying out the narcoanalysis prescribed the previous day, gave Mr H. an intravenous injection of an unspecified dose of "Maxiton" dexamphetamine, which caused "amphetamine shock". In so doing, he acted, so the applicant alleges, without either a prior examination or Mr H.’s consent, on a purely experimental basis, in public and without the knowledge even of the two persons primarily responsible for "Department 58", Drs Kammerer and Ebtinger. The injection allegedly brought about something akin to a myocardial infarction together with violent muscular contractions and hysterical fits, of which the applicant immediately complained, as appears from the medical file. 12. Mr H. further claims that Dr Ebtinger, who was on leave at the time, had promised him that no treatment would be given him without his (Mr H.’s) consent; the doctor is said not to have learned what had happened until he returned. In an article entitled "Methods of inducing shock (other than ECT and Sakel’s method)", published in May 1965 in the Encyclopédie médico-chirurgicale, Drs Ebtinger and Fétique wrote, under the heading "Amphetamine shock": "... This treatment should not be given to patients with weak cardiovascular systems or to those suffering from hypertension, coronary disease or atheroma. ... Catatonic symptoms are generally worsened in certain schizophrenics, and may even make their first appearance after amphetamine shock. ... There is lasting therapeutic benefit in comparatively few cases. ..." 13. After spending more than three and a half months in "Department 58", Mr H. left hospital on 15 September 1961. He claims to have resumed work as a primary-school teacher the very next day - although it was only with the greatest difficulty that he managed to remain up - in order that the holidays should not be counted as sick leave and for fear of being transferred to "another institution". 14. On 16 November 1961 he received a letter from a school doctor requesting him to undergo a medical examination on the 23rd. The doctor decided that Mr H.’s condition made it necessary for him to go on sick leave, and this began the next day. On 28 January 1963 a Ministry of Education medical board studied his file and took a "decision to remove", which was upheld on appeal on 23 March 1963. Mr H.’s name was subsequently taken off the list of supply teachers in the département, with effect from 28 January 1963. 15. On 8 August 1964 the Regional Social Security Office of the départements of Haut-Rhin, Bas-Rhin and Moselle informed the applicant that he had been registered with effect from 25 May 1964 as a Category 1 disabled person ("capable of performing paid work" - 66% disablement). After a further medical examination on 15 September 1965, he was registered as a Category 2 disabled person ("wholly unable to perform any work" - 100% disablement), and remained in that category until 1969, his registration being renewed in 1967. From 1 June 1969 until 1971 he did not receive his pension, as a medical examination on 5 March 1969 had shown that the extent of his disablement had dropped to below 50%. Since 1972 he has again been receiving a Category 2 pension. 16. Mr H. allegedly learned from a letter of 4 November 1970 written by Professor Kammerer that the drug injected by the house physician in 1961 was not a "powerful tonic", as he had been told at the time, but an amphetamine. He claims that in 1970 he asked Strasbourg Hospital to disclose his medical file and that his request was refused. 17. On 29 May 1973 he applied to the appropriate office of the Strasbourg Administrative Court for legal aid. He was granted this on 16 October 1973, on the grounds that legal representation was compulsory in the Administrative Court and that that court would probably order investigative measures. The sum ordered to be paid out of public funds for the expenses and fees of the lawyer appointed was 600 FF. 18. On 9 May 1974, at the request of his lawyer, Mr F., Mr H. obtained a medical certificate from Dr Rayel, the general practitioner who had been treating him since 1970. It read as follows: "I, the undersigned, certify that Mr H..., aged 36, a graduate in Natural Sciences (Radio Geology), has been treated by me for several years for the following complaints: Extreme liability to physical and mental fatigue with major dystonic consequences, feelings of loss of concentration and of speech disturbances associated with feelings of paralysis on the left side of the body. These complaints are reflected objectively in electroencephalographic disturbances, which were clearly shown up in 1971: ‘Irregular electrical activity combining a moderate number of unstable alpha waves with numerous irregular theta-delta potentials and with anterior and posterior bilateral spikes, aspects increased by hyperpn÷a with strong photic stimulation.’ Dr Hay, Nancy. At times, complete physical prostration with depressive ideas, weariness of life, painful sensations of mental blankness with pressing need to be alone and even to take to his bed. These various complaints currently make any gainful activity impossible. Mr H...’s extreme tendency to physical and mental fatigue makes it impossible for him to work to any regular pattern or to be at all productive, he very quickly feels rejected by any working teams he tries to be part of, and he feels such rejection very keenly. The problems reportedly go back to about 1955, but Mr H... claims that they grew markedly worse in 1961 while he was in Strasbourg University psychiatric clinic and Mr H. attributes this worsening to the pernicious effect of an intravenous amphetamine injection he received during his stay in that clinic. This certificate has been given to [Mr H.] in person and at his request, for the appropriate legal purposes. This certificate may not be used in court proceedings." Although intended solely for the lawyer, this document was nonetheless given by the latter to the Administrative Court. 19. On 14 June 1974 Mr F. took out a writ against the hospital, returnable at the Strasbourg Administrative Court, with a view to having the hospital declared liable for the harmful consequences of the intravenous amphetamine injection. He asked the court: "Before giving judgment: [to] appoint a specialist doctor [as] an expert with instructions to examine the plaintiff, obtain all documents, interview all persons able to give information, give an opinion on the physical damage sustained by the plaintiff and generally carry out the instructions given him by the court." On 19 June the court served the writ and statement of claim on the hospital. 20. The hospital instructed a lawyer on 17 July and filed two pages of defence pleadings on 8 August. It conceded that Mr H. had indeed been given an amphetamine injection in 1961 but resisted the claim on the ground that it was time-barred under the special statutory limitation period of four years for actions against public bodies and further argued that "the complaints regarding the treatment received [were] quite absurd and manifestly due to an insufficiently stable mental state". The court served the pleadings on Mr F. on 9 August 1974. 21. After two reminders from the court - dated 29 January and 14 March 1975 -, Mr F. produced his pleadings in reply on 8 April 1975. He sought a determination of "the hospital’s negligence", "the disablement suffered by the plaintiff" and "the causal link between the hospital’s negligence and this disablement", and to that end he earnestly requested that the court should appoint an expert. 22. Mr H. moved house in December 1974 and again in April 1975, after obtaining a council flat. On each occasion he informed his lawyer. 23. On 17 May 1975 the court asked Mr F. to advise it of Mr H.’s social-security number and of the office with which he was registered. Mr F. replied two months later, on 23 July, after a reminder dated 16 July. He had notified Mr H. of the request on 10 July and again on the 17th, and Mr H. had given him the requisite information. On 8 September 1976 the court asked Mr F. for this information again. According to the Government, this was a mistake on the part of the registry, which had probably lost or misfiled the letter of 23 July 1975; moreover, when telephoned by the court, Mr F. had allegedly said that he did not have the information in question and was not able to provide it straightaway because his client was refusing to give it to him. It is not clear from the evidence at what juncture the court registry realised that it was pointless to persist in asking for information it already had. 24. On 5 August 1975 the Nancy Health Insurance Office informed the Administrative Court that it did not intend to intervene in the case. 25. On 13 April 1978 the court summoned the parties to a hearing on 25 April. 26. Five days before the hearing, on 20 April, the hospital submitted their final pleadings. They were not served either on Mr F. or on Mr H. As Mr F. considered that his presence was unnecessary since the proceedings were in written form, he did not appear and was therefore unable to reply to these pleadings, whereas Mr L. appeared for the defendant. 27. On the actual day of the hearing, the Nancy Health Insurance Office asked the court for Mr H.’s address, notwithstanding that according to Mr H. - it had been paying him his disablement pension since 1973 and that he had not changed address since 1975. 28. The Administrative Court dismissed the action on 9 May 1978, for the following reasons: "Even supposing that a worsening of Mr H...’s condition was observed in 1969, the evidence - and in particular the medical certificate produced - does not establish that this was attributable to the intravenous injection received in 1961; consequently, in the absence of any causal link between the injection complained of and the alleged damage, and seeing that such a link cannot in this instance be presumed, Mr H... has no grounds for seeking to establish the hospital’s liability; ... it follows that his application for an expert to be appointed to assess the extent of the damage suffered must be dismissed." 29. On 23 May 1978 the court served the judgment on the applicant by registered letter with recorded delivery, but the Post Office returned the letter marked "not known at this address". On 31 May the court asked Mr F. to give it Mr H.’s new address. The lawyer replied on 8 June that he did not know it. On 13 June, the court attempted to serve the judgment on the applicant through a court bailiff. 30. Concerned at the length of the proceedings, Mr H. telephoned the Administrative Court registry on 18 August 1978. He learned that the court had given judgment on 9 May and he immediately gave his address; he received a copy of the judgment on 18 September 1978. 31. On 22 September 1978 Mr H. wrote to the leader of the Strasbourg Bar, to complain of the shortcomings on the part of the lawyer who had been assigned to him by the Legal Aid Office. In particular, he blamed Mr F. for always losing his address, for not having informed him of the date of the hearing and for not having appeared in court on 25 April 1978. After interviewing Mr F., the leader of the Bar disposed of the complaint in a letter dated 9 October, in which he endorsed Mr F.’s explanation, namely that he had seen no point in appearing at the hearing because the proceedings were essentially in written form and were designed, in the first instance, to secure the appointment of an expert on the basis of "medical certificates which [had] been submitted to the court". 32. Mr H. appealed to the Conseil d’État on 10 November 1978 by lodging pleadings and a file. He asked whether he could argue his own case and, if not, what he should do to secure the assistance of a lawyer and the appointment of a medical expert, which he maintained was essential. 33. On 20 November 1978 the Secretary of the Judicial Division of the Conseil d’État acknowledged receipt of the appeal, which had been registered in the registry on 10 November. On 12 December he again wrote to Mr H., to tell him that an application such as his was not exempt from the requirement that he should be represented by a lawyer, and that he had a month in which to apply for legal aid. On 26 December Mr H. made an application for legal aid, requesting the assignment of a lawyer who was genuinely willing to represent him; this was so that he could be sure that his interests would be defended conscientiously. 34. By a decision of 21 February 1979, notified on 13 March, the Legal Aid Office at the Conseil d’État granted Mr H. legal aid, setting the amount to be paid to the lawyer at 1,080 FF. The lawyer, Mr G., was appointed by the leader of the Bar on 16 March and contacted Mr H. on the 20th. 35. The applicant forwarded to the Conseil d’État a certificate issued by Dr Rayel on 7 November 1978, which read as follows: "I, the undersigned Dr Louis Rayel, hereby certify that I have been treating Mr H... for many years and that on 9.5.74 I gave him a medical certificate for his lawyer, purely for information purposes and in confidence. This certificate bore the words: ‘THIS CERTIFICATE MAY NOT BE USED IN COURT PROCEEDINGS’, followed by my signature Despite being formally so marked, the certificate was made use of by the Strasbourg Administrative Court, and moreover as evidence against Mr H... The use made of the certificate is clearly indicated in the report of the judgment, which states: ‘The evidence - and in particular the medical certificate produced - does not establish that this was attributable to the intravenous injection received in 1961’ ... ... ‘it follows that his application for an expert to be appointed to assess the extent of the damage suffered must be dismissed’ ... Accordingly, it seems to me that Mr H... is fully entitled to appeal against a judgment based largely on a medical certificate which was not officially admissible. I, the undersigned, hereby certify that on 9.5.74, a medical opinion was indeed essential, as it still is today, in order to study the course of Mr H...’s illness before and after the treatment given him by Strasbourg Hospital. In support of my certificate, I would cite a letter sent to Mr H... on 4.XI.70 by Professor Kammerer, the doctor in charge of the department in which Mr H... was treated. In that letter Professor Kammerer wrote: ‘The hospital’s regulations do not allow me to send you your medical file. But if a doctor or an expert wishes to inspect it, we will make it available to him in its entirety.’ Mr H... has shown me this letter and is willing to make it available to the Conseil d’État. Lastly, I, the undersigned, hereby certify that the reason why in 1974 I did not give Mr H... a certificate which could be used in legal proceedings was that I thought that under the legal-aid scheme and without a judgment of the court it was possible for Mr H...’s lawyer to request an expert medical opinion on his own initiative which would be paid for direct by the legal-aid fund, in view of his client’s financial difficulties at the time. It appears that this was not possible, but I, the undersigned, hereby certify that I was not informed of this before the Strasbourg court’s judgment. Otherwise I would obviously have advised Mr H... to try to finance for himself an authoritative expert medical opinion which he could have submitted to the Strasbourg court with his file. Steps must therefore be taken to ensure that a similar situation does not arise again and I have therefore advised Mr H. to ask the Conseil d’État for the list of medical experts from which he could choose an expert who might agree to draw up an opinion in defence of Mr H...’s medical interests before the Conseil d’État, provided that the fees of these experts remain within limits compatible with Mr H...’s current resources if he is required to pay these fees himself. I shall be able to give this expert all the medical information known to me in connection with this case, medical information which it is impossible for me to set out and discuss here, even in summary form, as part of this certificate. Lastly, I certify that Mr H...’s current position is much the same as in 1974 as regards both his state of health and his financial resources, and that consequently it will be only with the greatest difficulty that he will be able to take the measures necessary for the preparation of the file for his appeal to the Conseil d’État. Nancy, 7.XI.78 This certificate has been given to [Mr H.] for the appropriate legal purposes. THIS CERTIFICATE MAY BE USED IN COURT PROCEEDINGS." 36. After unsuccessfully asking several doctors to go through his medical file at Strasbourg Hospital, Mr H. approached Dr Roujansky, a radiologist in Schiltigheim, who agreed and was appointed for the purpose on 11 May 1979. Professor Kammerer consented to the inspection, stating that the file would be made available between 11 a.m. and noon and from 3 p.m. to 6 p.m. The applicant claims that on 25 May 1979 Dr Roujansky was given access only to a "falsified and truncated" file (see paragraphs 8 and 9 in fine above) and was allowed to photocopy only 21 pages of it. On 16 October 1979 Dr Roujansky drew up a ten-page report with several appendices. In it he concluded inter alia: "It can be stated that had Mr H... been treated less drastically, without the use of this highly dangerous drug, which destroys the physiology of the brain, he would have stood a good chance of leading a normal life, of being able to work and to earn his living instead of leading the life of an invalid. Strasbourg Hospital should therefore be required to compensate him." Mr H. produced this report to the Conseil d’État. He states that it did not have the status of a medical opinion by a court expert as Dr Roujansky had not personally examined him and had only been able to study the file made available by the hospital. 37. On 26 July 1979 Mr G. filed supplementary pleadings seeking the appointment of an expert who would assess the extent of the damage suffered and, if necessary, would establish the causal link between the injection complained of and the state of Mr H.’s health. On 25 September 1979 the presiding judge of the Fifth Section of the Judicial Division ordered that these pleadings should be served on the hospital and the Strasbourg Regional Health Insurance Office. On 4 April 1980 the hospital produced its defence pleadings, in which it relied in particular on the special four-year limitation period for actions against public bodies. The Directorate-General of Administration of Staff and Budget of the Ministry of Health filed pleadings on 5 September in which it expressed the following opinion: "As is pointed out in Strasbourg Hospital’s defence pleadings of 4 April 1980, the decisions on the presumption of imputability associated with a presumption of negligence constitute an exception and they all relate to cases in which the consequences of a given treatment are so incommensurate with what would normally be foreseeable that they suggest professional negligence. This is not so in the instant case. The treatment given in 1961 was carried out in accordance with proper practice and it is difficult to suppose that an injection administered in 1961 could have had consequences that did not become apparent until 1969, seeing that the patient had had problems as far back as 1955, even though in 1963 he did have to be struck off the list of supply teachers in the département after an opinion had been given by a medical board. As the Strasbourg Administrative Court rightly recognised, the causal link between the injection and the damage relied on is wholly unsubstantiated. ..." Mr G. replied in writing on 5 December 1980, asking the Conseil d’État to "order an expert to be appointed to assess the extent of the damage suffered and possibly establish the causal link between the intravenous injection administered in 1961 and the state of Mr H...’s health". 38. The applicant asserts that in 1980 he again (see paragraph 16 above) asked the hospital for access to his medical file, and that this was refused. 39. At the Conseil d’État hearing on 2 November 1981, Mr Dutheillet de Lamothe, a Government Commissioner (commissaire du Gouvernement), made the following submissions: "Mr H..., who was born in 1937 and at the material time was a primary-school teacher, was admitted on 25 May 1961 to the psychiatric clinic of Strasbourg Hospital suffering from depression. On 13 June 1961 ‘amphetamine shock’ treatment was administered. This consists in an injection of amphetamine - in this instance ‘Maxiton’ [dexamphetamine] - designed to overcome the patient’s emotional and affective inhibitions, thereby facilitating analysis of his psychological problems. In Mr H...’s case this procedure caused what the doctors described as an ‘aggressive and anxious’ reaction, and Mr H... complained of various problems. He left hospital on 13 September 1961, however, and apparently went back to work. He was again placed on sick leave from the end of 1961 onwards and then on 28 January 1963 his name was removed from the list of primary-school teachers for the département. In 1974 - 13 years after his stay in hospital - Mr H... asked Strasbourg Hospital to compensate him for the harmful consequences of the amphetamine injection he had been given in 1961, consequences which he alleged had not become apparent until 1969. When the hospital refused, [Mr H.] brought an action in the Strasbourg Administrative Court to have the hospital declared liable and an expert appointed in order to assess the extent of the damage caused. In a judgment of [9] May 1978 the court dismissed the action, [pointing out] that there was no causal link between the amphetamine injection complained of and the alleged deterioration in Mr H...’s health in 1969. Mr H... is appealing against that judgment. 1. I consider that the Administrative Court was right in finding that a causal link had not been established. Admittedly, the very scanty evidence on which its decision was based has been supplemented, on appeal, by the medical file opened by the hospital in 1961 and by a very well researched report. But it does not enable a real causal link to be established. The evidence shows that: (a) the appellant’s psychological problems date back to before his admission to hospital in 1961; (b) while he complained of real problems after the injection administered on 13 June 1961, the hospital carried out the necessary tests (electrocardiogram, biological tests); (c) when he left hospital on 13 September 1961, his state of health had improved, since he wished to return to work; (d) his state of health seems to have worsened more particularly in 1963, as he was removed from the list of primary-school teachers and again admitted to hospital; (e) in 1969, however, the Strasbourg Regional Health Insurance Office found him less than 50% incapacitated for work and discontinued payment of his disablement pension, which was restored in 1972. Dr Olievenstein, who was consulted by the applicant’s medical adviser, wrote: ‘A single dose of amphetamine, however large, can only decompensate but not cause psychological disturbance. No one can say whether in any case your patient’s psychosis [would] not [have] been decompensated at a later date.’ In these circumstances, I do not consider that a causal link has been established or that the presumptions relied on are sufficient to justify ordering the expert opinion applied for. 2. Contrary to the appellant’s submission, a causal link cannot be presumed. Admittedly, in our case-law negligence in the organisation or functioning of a hospital is presumed where a common, mild form of treatment - in particular an injection - has caused particularly serious health problems (23 February 1962, Maïer, page 122, and a great many decisions: 19 March 1969, Assistance Publique de Paris v. Bey, page 165; 19 May 1976, CHR de Poitiers, page 266; 22 December 1976, Assistance Publique de Paris v. Dame Derridj, page 576; 13 May 1977, Rémy-Waris, T., page 961; 9 January 1980, Mortins, page 4). But in all these decisions it was noted at the outset that there was a direct relation of cause and effect between the treatment complained of and the damage relied on: it is the negligence which is presumed and not the imputability of the damage. 3. I believe that accordingly you cannot but dismiss Mr H...’s appeal and affirm the Administrative Court’s judgment, without needing, it seems to me, to express a view either on the negligence alleged against the hospital or on the four-year limitation period on which the hospital relies. (1) As regards the first of those points, I do not think it possible to say that the use of the ‘amphetamine shock’ technique amounted, in 1961, to gross negligence, even though that technique has apparently now been superseded. Nor would it seem that special tests should have been carried out before it was used. On the other hand, I think that such a technique could not be used, even in the case of psychiatric treatment, without the patient’s consent (J., 7 February 1979, M. Barek, page 87; 9 January 1970, Carteron, page 17). The appellant, however, states - and it was not denied - that he was not told about the treatment. (2) As to the four-year limitation period, the hospital could in any event only rely on it in respect of part of Mr H...’s claim, since the alleged damage is continuing damage and the date on which it stabilised has not been determined (J., 10 November 1967, Auguste, page 422). For these reasons I submit that Mr H...’s appeal must be dismissed." 40. On 18 November 1981 the Conseil d’État gave the following judgment: "The Conseil d’État, sitting in its judicial capacity, (Judicial Division, 3rd and 5th sections combined), ... It is unnecessary to express a view on the hospital’s objection that the action is time-barred under the four-year limitation period. Mr H... was admitted to the psychiatric clinic of Strasbourg Hospital in 1961; he claims that treatment received on that occasion - and, in particular, an intravenous amphetamine injection administered on 13 June 1961 - caused a deterioration in the state of his health and led to a permanent disruption of his life. It appears from the preliminary examination of the case and the evidence before us that there is no direct relation of cause and effect between the alleged deterioration in the appellant’s health and the treatment he underwent at Strasbourg Hospital in 1961. The court below was accordingly right in dismissing the appellant’s action against the hospital and his application for an expert to be appointed both to establish the links between the treatment and the alleged damage and to assess the latter’s extent. DECIDES AS FOLLOWS: 1. Mr H...’s appeal is dismissed. 2. This decision shall be served on Mr H..., Strasbourg Hospital and the Ministry of Health." The judgment was served on 19 January 1982. 41. On 29 November 1981 Mr H. wrote to the leader of the Bar of avocats practising at the Conseil d’État and the Court of Cassation to complain that he had been badly represented. In particular, he criticised Mr G. for having never allowed him to speak to him directly before the hearing, for having avoided any dialogue "because he [was] legally aided and it would be detrimental to [his] case", and for having refused to tell him of the date of the hearing and to send him the file, thereby preventing him from adding to it. In a letter of 2 December the leader of the Bar replied that he did not intend taking up each of his complaints, as they mostly showed his "ignorance of administrative procedure and its characteristic features".