Tuesday 30 March 2010

Blood Transfusion HIV Judgment

The European Court has ordered Turkey to pay lifetime medical coverage to a teenager infected with HIV. The case, Oyal v. Turkey, was decided last week. It concerned a boy born in 1996, who was given blood transfusions for medical reasons right after birth. A few months later the parents were told that due to the transfusion, the baby had become infected with HIV which could develop into aids. Although criminal proceedings were started at the request of the parents, these were discontinued for the reason that no fault could be attributed directly to the doctors or the director general of the Turkish Red Cross (where the infected blood came from). The parents also brought civil and administrative proceedings. The outcome of those was that the Red Cross was responsible for the the supplying of contaminated blood and the Ministry of Health for negligence, amongst others because the medical staff had not performed a blood test since that was considered too costly. As a result the courts awarded the boy and his parents damages (one year of medical coverage) and the authorities promised to pay for medical expenses. The latter did not materialise, however. Even more astonishingly, the Ministry of Health withdrew a special green card for free health care from the applicants following the judgments. The family claimed they lived in debt and poverty because of all the medical expenses for their son.

The European Court ruled, in line with earlier case law on medical situations, that the life-threatening nature of the disease brought the case within the scope of the right to life (Article 2 ECHR). It held that although the national courts had taken a "sensitive and positive approach" in determining liability, the remedy offered had been insufficient. Being very specific, the Court held that the most appropriate remedy, in the circumstances of the case, would have been to award not only non-pecuniary damages, but also lifetime payment of healthcare and medical expenses for the boy. In addition, the Court noted that the administrative proceedings had been excessive, also considering the public health and safety reasons to prevent further similar errors. Unanimously, the Court found a violation of the right to life.

Apart from the order of lifetime medical expenses to be given to the boy, the Court also ordered Turkey to pay 300,000 euros for pecuniary damages and 78,000 for non-pecuniary damages. One judge, Sajó, dissented on the issue of just satisfaction. While clearly agreeing that the situation was heartbreaking and that this Turkish case can be compared to a Greek (sic!) tragedy, he argues that the parents should have exhausted domestic remedies on this issue more fully and should have presented more substantiation on the financial point. In the balance the Court has to strike between three issues ("it has to be human, it has to serve rights, and it has to operate as a court.") the Court gave a bit too much precedence to the first consideration, according to Sajó. One can, on technical grounds, agree with him. But to use another metaphor, the Court in this case issued a Salomonic judgment: maybe not perfect from a purely technical point of view, but infused (apologies for using that word here) with a deep humanity. A good case for discussions on ethics and the law and the balance between both.