Aftanache v Romania

Summary

In Aftanache v Romania, the applicant contended that his life was put at risk by medical personnel from the ambulance service and hospitals, who refused to administer his insulin treatment despite his precarious condition. He also argued that he had been unlawfully deprived of his liberty when he was taken against his will to hospital for testing, in disregard of his actual medical condition.

The facts of the case are on their face sufficiently unlikely that they do not afford of an easy summary.   The story started when Mr Aftanache went to a pharmacy to get some medicine, having been feeling ill for around 10 days and taking cold medication.  On arrival, he had to sit down as he was feeling weak. He explained his situation to the pharmacist and she called an ambulance to help him.  When the ambulance arrived, one of the nurses suspected had taken drugs and confronted him. He denied having taken drugs and informed the paramedics about his medical condition. A blood test performed in the ambulance confirmed an imbalance in his glucose level. As there was no insulin available in the ambulance, the applicant asked the paramedics to help him walk home to take his treatment. They refused and allegedly told him that they would first take him to hospital to check what prohibited drugs he had taken, and only after that would he receive insulin.  He refused to be taken to the hospital; according to him, the paramedics then closed the ambulance door and restrained him on a stretcher.  One of the paramedics called the police for help. In the commotion, Mr Aftanache managed to alert his wife.

When the police arrived, he told them he needed to take his insulin from his home and reiterated that he was not under the influence of drugs. He asked the police officers to accompany him to his home. They refused, but assured him that he would get his insulin at the hospital. They accompanied the ambulance to hospital; when he arrived he told the doctor on duty that he had diabetes and needed to take his insulin. The ambulance paramedics told the doctor that Mr Aftanache was on drugs. The doctor refused to administer the insulin, asking him to take a blood test for prohibited drugs first. He refused to take the test. The doctor then decided that his state did not qualify for emergency treatment and sent him to the local psychiatric hospital. He was taken there by the same ambulance under the same police escort.  There, he was again restrained on a stretcher and the medical personnel tried to inject him with medication to calm him down.  He refused the medication and eventually managed to untie himself, and called his diabetologist.  When he told her about his situation, she tried to talk to the medical personnel, but they refused to take the call. His diabetologist phoned a nurse whom she knew was working in the same medical facility and asked her to explain the applicant's situation to the medical team attending him. Meanwhile, wife arrived at the hospital. She was informed that the applicant would be transferred to another psychiatric hospital outside town, where he would receive appropriate treatment for his drug addiction. Together with the nurse sent by the applicant's diabetologist, she insisted that the applicant's situation had been caused by his chronic disease and that he was not a drug addict.  Eventually, the applicant relented and accepted to be tested for drugs. To that end, he was taken back to the originally hospital by the same ambulance and police escort.  The doctor tested his blood and confirmed that he had not taken any prohibited drugs. The applicant then received insulin, but in a dose that was different from his prescribed treatment. The blood test also revealed that the applicant was severely anaemic. Because of that, and since the applicant still had a fever, he was advised to go to a different hospital, where he ultimately went (with his wife, rather than by ambulance, and via his home to get his insulin), and received adequate treatment.

Mr Aftanache having failed to get any satisfaction from the domestic authorities, who conducted a distinctly half-hearted criminal investigation, he took his case to Strasbourg.

Article 2

The ECtHR helpfully recalled that Article 2 can be in play even if the person whose right to life was allegedly breached did not die, referring back to the Grand Chamber decision in Nicolae Virgiliu Tănase v. Romania [2019] ECHR 491.   Where the complaint is made by a person with a serious illness, and where the person is not killed but survived, and where they do not allege any intent to kill, the criteria for a complaint to be examined are:

49. […] firstly, whether the person was the victim of an activity, whether public or private, which by its very nature put his or her life at real and imminent risk and, secondly, whether he or she has suffered injuries that appear life-threatening as they occur. Other factors, such as whether escaping death was purely fortuitous, may also come into play. The Court's assessment depends on the circumstances. While there is no general rule, it appears that if the activity involved by its very nature is dangerous and puts a person's life at real and imminent risk, the level of injuries sustained may not be decisive and, in the absence of injuries, a complaint in such cases may still fall to be examined under Article 2 (see Nicolae Virgiliu Tănase, cited above, § 140, with further references).
50. The Court has further held that an issue may arise under Article 2 where it is shown that the authorities of a Contracting State have put an individual's life at risk through the denial of the health care which they have undertaken to make available to the population generally (see Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 173, 19 December 2017).

On the facts of the case as presented by the applicant, to which the Government of Romania had not presented "any sustainable alternative version," it was clear that he and his wife had informed all those involved of his condition and his urgent need for medication; his diabetologist had also tried to speak with the hospital doctors, but her intervention had been ignored; and the denial of treatment caused a threat to his life serious enough to engage the State's responsibility under Article 2 ECHR to carry out a proper procedural investigation.  The ECtHR had little hesitation in finding that the Romanian authorities had not discharged their duty to do so, such that the duty was breached.  Interestingly, the court considered that "the gross deficiencies identified in the domestic investigation make it impossible to assess whether the State complied with its positive obligation to protect the applicant's life. For that reason, the Court will not make a separate assessment of the admissibility and merits of this part of the complaint" (paragraph 73).

Article 5

The court reiterated that Article 5(1) can apply to deprivations of liberty of a very short length. It continued:

81. The Court has already established in its case-law that the taking of a person by the police to a psychiatric hospital against his or her will amounts to "deprivation of liberty" (see Ulisei Grosu v. Romania, no. 60113/12, §§ 27-32, 22 March 2016). In the present case, there is nothing to suggest that, as a matter of fact, the applicant could have freely decided not to accompany the paramedics and police officers to the hospitals or that, once there, he could have left at any time without incurring adverse consequences (ibid., § 28).
82. The Court considers that throughout the events there was an element of coercion which, notwithstanding the relatively short duration of the events, that is about six hours (see paragraph 19 above), was indicative of a deprivation of liberty within the meaning of Article 5 § 1.

No legal basis was offered by the authorities for the applicant's deprivation of liberty, but the court of its own motion identified possible reasons, dismissing each in turn.  Of particular note is the court's observation that:

99. The Court accepts that the applicant, faced with a denial of treatment that he considered vital for him, could have been uncooperative. However, it cannot but note that not only was he denied treatment, but he was also falsely accused of drug use and threatened with psychiatric confinement. Throughout that time, he was suffering from an imbalance in his blood sugar level. A certain state of discomfort and agitation is thus understandable in those circumstances. However, there is no evidence that the medical professionals had considered his personal circumstances and the possible explanations for his behaviour before recommending admission to the psychiatric hospital. Consequently, the Court considers that the applicant's alleged agitation was not sufficient to render the measure of confinement necessary.

The court therefore had little hesitation in finding that there was a breach of Article 5(1) as well.

Comment

Whilst the facts of the case appear on their face almost unbelievable, many will be able to recall situations of escalation in other situations leading – sometimes – to fatal outcomes (another, domestic, example, in the MCA context, is the case of ZH, although in that case, fortunately, the individual did not die, even if they suffered serious psychiatric injury in consequence).  The case is of wider interest, perhaps, for three key points:

1. The important reminder of the scope of Article 2 even where the individual in question does not die, but the relevant failures of the state put their life at sufficient risk;
2. The reminder that deprivation of liberty can arise in a short period of time – in this case, around 6 hours;
3. The reiteration of the importance of the presence of coercion when identifying if a situation gives rise to a deprivation of liberty. This is a routine mantra in the Strasbourg case-law, which sits at an interesting tangent to the way in which the case-law has developed in England and Wales in which deprivation of liberty can arise in a situation such as MIG's where it is difficult to identify any element of coercion (for more on this, see Alex's discussion paper).