CASE OF HANZELKOVI v. THE CZECH REPUBLIC [Extracts]
Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - finding of violation sufficient
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano
5. The applicants were born in 1977 and 2007 respectively and live in Svinaře. 6. The first applicant is the mother of the second applicant. During her pregnancy she had regular check-ups with a doctor and attended ante-natal classes at Hořovice Hospital. Prior to giving birth she had expressed, among other things, her wish to leave the maternity ward as soon as possible provided that there were no complications. 7. On 24 October 2007 the first applicant contacted a pediatrician, S., who agreed to take charge of her future child and to come and see them both at their home as soon as they were discharged from the maternity ward. She informed the first applicant that she would, however, be away the following weekend. The applicant then told her that she intended to leave the hospital “earlier”, without enlarging on that statement. S. subsequently stated that it had not been her understanding that the applicant wanted to leave the hospital a few hours after the birth. 8. The second applicant was born on Friday 26 October 2007 at Hořovice Hospital. It was a natural and spontaneous delivery with no complications. The applicants were found to have no health problems, the Apgar score for newborns (recording the pulse rate, respiration, complexion, muscular activity and reflex irritability) was the highest possible, according to the medical team’s assessment. In these circumstances, the first applicant decided to leave the hospital the same day, which she did at about noon despite meeting opposition from the medical team. 9. According to a statement issued by the hospital on 29 October 2007 following extensive media coverage of the case, the hospital staff had suggested that the applicants remain at the hospital for at least 48 hours and had warned the first applicant of the possible risks to the child’s health, but the first applicant had indicated that a pediatrician would be taking charge of the child. After the applicants had left, the hospital staff informed the police, which was standard practice in situations where a patient left hospital prematurely without the doctor’s consent and this could have repercussions on his or her health. The social welfare authority was not informed until after the pediatrician S. had contacted the hospital (see below). The hospital found it regrettable that the first applicant had not expressed her wish to leave the hospital only hours after the birth during the ante-natal classes. Had she done so, the staff would have recommended that she obtain a personal care plan for the newborn baby and secure written agreement from the pediatrician (who would thus have had proper advance notice), whereupon her decision would have been accepted. The first applicant had accepted, moreover, that the events in question might have arisen as a result of a misunderstanding regarding the care arrangements for her newborn baby. 10. According to the explanations given by the pediatrician S., on 26 October 2007 at about 2 p.m. she had been informed by the nurse from her surgery, who had received a call from the first applicant, that the latter had given birth that very morning and returned home. As it was an unusual situation, the pediatrician, who had been preparing to leave for the weekend and could not visit the applicants until Monday afternoon, informed the staff at Hořovice Hospital accordingly. D., the hospital doctor, decided to contact the social welfare authority, namely, the Černošice municipal office. In the meantime S. had informed the first applicant by telephone that she would be able to see her and her child until Monday afternoon, which the applicant had accepted. Shortly afterwards the pediatrician was contacted by a social worker. She told her about the situation and gave her the first applicant’s telephone number. 11. According to the note sent by the Černošice Municipal Office to the Beroun Municipal Office (hereafter “the social welfare authority”), on 26 October 2007 the first applicant had left the hospital at noon on that day without informing the doctors; she had not been living at the address she had given the hospital for three years and the village where she was staying and her telephone number had been provided by the pediatrician contacted by the Černošice authority. The social worker had succeeded in contacting the child’s father on that number. Although he had been informed that an interim measure under Article 76a of the Code of Civil Procedure might be applied, he had stated that the applicants would not return to the hospital and had refused to provide the family’s exact address. 12. At the request of the social welfare authority, Dr D. drew up a note observing that “given the short period of time since the birth, the health and potentially the actual life of the child [would] be at risk if he [were] deprived of hospital care”. 13. Also on 26 October 2007 the social welfare authority requested the Beroun District Court to apply an interim measure pursuant to Article 76a of the Code of Civil Procedure, with a view to entrusting the second applicant to the care of the gynaecology-obstetrics department of Hořovice Hospital. The above-mentioned notes drawn up by the Černošice Municipal Office and Dr D. were annexed to the request. 14. On the same day the court granted the request, reiterating the terms of the note drawn up by Dr D. The decision stated that any interim measure was served on the parties at the time of execution, which had to be immediate. 15. At 4.30 p.m. on 26 October 2007 a court bailiff and a social worker, accompanied by police officers, went to the applicants’ house. Although they explained to the child’s father that the first applicant could go to the hospital with the second applicant, he refused to take them to there of his own free will. An emergency medical team was therefore summoned. After examining the newborn baby, the doctor present observed that he had no health problems but agreed with the others that for the purposes of implementing the interim measure the mother and child would be taken back to the hospital in the ambulance. The father, police officers, social worker and court bailiff followed the ambulance. Once at the hospital, the second applicant was examined again and found not to have any health problems. 16. The applicants were made to remain at the hospital for two days and allege that no medical act was carried out during that time. According to the hospital report, the first applicant had refused neonatal screening and vaccination of the second applicant. At the express request of the first applicant, who accordingly signed the form refusing further medical treatment (negativní revers), the applicants were discharged from the hospital on 28 October 2007, approximately 50 hours after the birth. ...