Judge: European Court of Human Rights (Fourth Section)
Citation:  ECHR 339
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.
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  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:
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).
The court reiterated that Article 5(1) can apply to deprivations of liberty of a very short length. It continued:
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:
The court therefore had little hesitation in finding that there was a breach of Article 5(1) as well.
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: