Last Updated on March 8, 2022 by LawEuro
Information Note on the Court’s case-law 260
March 2022
Reyes Jimenez v. Spain – 57020/18
Judgment 8.3.2022 [Section III]
Article 8
Positive obligations
Article 8-1
Respect for private life
Unjustified dismissal of appeal against failure to comply with statutory requirement to obtain written consent for one of three related surgical operations: violation
Facts – The applicant, who was a minor at the relevant time, is in a state of total dependence and disability following three surgical operations to remove a brain tumour.
His parents provided written consent for the first and third operations, together with verbal consent for the second.
The applicant complained unsuccessfully before the domestic courts that no informed consent had been given in writing for the second operation, whereas the law provided that any surgical operation had to be accepted by the patient in writing.
Law – Article 8 :
Access to domestic courts normally constituted sufficient redress for this type of complaint. The Court had to examine whether the manner in which the applicant’s parents were treated could be regarded as sufficient to fulfil the State’s positive obligation under Article 8.
In the view of the domestic courts, the second operation was closely related to the first and the parents were in contact with doctors between the two operations.
Admittedly, the two operations had served the same purpose of removing the tumour. However, the second one had not been rushed but had taken place a few weeks after the first, when part of the brain tumour had already been removed and the applicant’s state of health was no longer the same. Under those conditions the domestic courts found that the consent which had apparently been given orally for the second operation was sufficient, without taking account of the consequences of the first one and without clarifying why it was not considered a separate operation which would have required the specific written consent provided for by law. The fact of considering that the parents were continually in contact with the doctors, based on a mere note by the regular doctor in the applicant’s medical file (“family informed”) and the warning “Be careful of information!” did not suffice for an unequivocal conclusion that the applicant’s parents had been duly informed and had agreed to the operation, according to the domestic rules. In addition, even though the third operation had proved necessary for reasons of urgency, following complications that had arisen in the second operation, the parents’ consent had then been obtained in writing.
Even though the Convention itself did not establish any particular form of consent, where domestic law laid down certain express requirements they had to be complied with in order for the interference to be considered prescribed by law.
The questions raised by the applicant’s parents had concerned the existence of consent and the potential liability of the health professionals involved. They had not been dealt with appropriately during the domestic proceedings, which had not therefore been sufficiently effective. The domestic judgments had not provided any response to the specific argument concerning the requirement to obtain written consent in such circumstances. Their conclusion that an oral agreement had been valid in the circumstances was insufficient in the light of the specific provisions of the law, which required that informed consent be given in writing. While the Convention did not impose consent in written form, provided it was unequivocal, the domestic law did require it to be in writing and the courts had not sufficiently explained why they had considered that the absence of written consent had not infringed the applicant’s rights. The national system had not provided a suitable answer to the question whether the applicant’s parents had actually given their informed consent to each operation, in accordance with domestic law.
Conclusion: violation (unanimously).
Article 41: EUR 24,000 for non-pecuniary damage. Claims in respect of pecuniary damage rejected.
(See also Trocellier v. France (dec.), 75725/01, 5 October 2006, Legal summary; Codarcea v. Romania, 31675/04, 2 June 2009, Legal summary; M.A.K. and R.K. v. the United Kingdom, 45901/05 and 40146/06, 23 March 2010, Legal summary; Csoma v. Romania, 8759/05, 15 January 2013 ; G.H. v. Hungary (dec.), 54041/14, 9 June 2015; and the Convention on Human Rights and Biomedicine (Oviedo Convention))
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