Dr. Brigit Toebes, University of Groningen

On 19 March the Department of International Law of the University of Groningen held its second case law discussion, organised by colleagues Monika Ambrus and Panos Merkouris. This time we discussed the judgment of the European Court of Human Rights in Asiye Genç v Turkey of 27 January 2015 (in French, see also previous Global Health Law Groningen blog posting). The case concerned the tragic story of a newborn baby with respiratory problems who dies in an ambulance after the baby’s transfer between hospitals without being admitted for treatment.

The judgment of the Court is based on the right to life in Article 2 European Convention on Human Rights (ECHR). With reference to earlier case law, the Court Stated that Article 2 ECHR has two dimensions:  a positive obligation to regulate the health sector, and secondly an obligation to establish an effective and impartially functioning procedural system in response to the accident.

When it comes to the first obligation, the Court held that the State had not sufficiently ensured the proper organization and functioning of the public hospital service. The child had not died because of negligence or error of judgment in the care dispensed to it, but because it was not offered treatment at all. This then constituted a denial of medical care so as to put a person’s life in danger.

A denial of medical care – with this, the Court comes remarkably close to the right to (protection of) health as recognised in Article 11 of the European Social Charter (ESC) and Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). It is also interesting that the Court refers in this respect to the ‘quantity’ and ‘state’ of the medical services. In General Comment 14 on the right to health in Article 12 ICESCR, the ESCR Committee formulates the so-called ‘AAAQ’, containing the obligations on the part of the State to ensure the availability, accessibility, acceptability and quality of health services. The ‘quantity’ and ‘state’ of medical services, as mentioned in this judgment, can be traced back to ‘availability’ and ‘quality’ in the AAAQ.  In this case, the ECtHR formulates a bottom line or possibly a ‘minimum core’ for the right to health or medical care: there is a violation of the right to life when emergency medical care is structurally absent and the patient will die as a result of this.
Not all judges of the Court concurred with this position. Whilst agreeing that there was a violation of Article 2 ECHR, in their concurring opinion Judges Lemmens, Spano and KjØlbro did not see a reason to criticize the lack of incubators. They argued that Article 2 should not be interpreted as requiring a certain level or quality of medical equipment.

Time will tell how the Court will respond to future cases where the lack of availability and quality of healthcare services are at stake. Will it be more restrictive, in line with the concurring opinion, or will it go beyond this case and recognize a failure also when the event does not result in the death of the patient? Will it, ultimately, be willing to go beyond a minimum right to emergency medical care?