Patiëntenautonomie en geïnformeerde toestemming: Europees Hof voor de Rechten van de Mens spreekt zich uit over bloedtransfusie bij Jehova-getuige (LegalNews)

Auteur: Marc Vandecasteele (LegalNews)

Op 17 september 2024 heeft het Europees Hof voor de Rechten van de Mens uitspraak gedaan in een zaak over een bloedtransfusie bij een Jehova-getuige, niettegenstaande de uitdrukkelijke verklaring dat dit in geen geval mocht gebeuren.

‘The applicant claimed 45,000 euros (EUR) in respect of non‑pecuniary damage that she considered she had suffered on account of the hysterectomy performed on her without her consent and the blood transfusions given to her contrary to her wishes and profound religious beliefs. She considered that these acts represented egregious breaches of her Convention rights, contrary to her dignity, self-determination and religious conscience, and that she had experienced intense feelings of humiliation as a result.
The Government objected to the applicant’s reference in this context to the hysterectomy, arguing that she had not in fact challenged this during the domestic proceedings, and that her position in those proceedings had been that the surgical procedures performed on her were of lesser importance than the fact that the doctors had been authorised to save her life. Given the circumstances, the Government considered that in the event the Court found a violation, that would constitute in itself sufficient reparation for any non‑pecuniary damage suffered by the applicant. They further submitted that without the medical interventions that had been performed, the applicant would certainly have died and no application could have been made to the Court. The fact that her life had been saved should be treated as sufficient to compensate for any failure to respect her rights.

The Court reiterates that the awarding of sums of money to applicants by way of just satisfaction is not one of its main duties but is incidental to its task under Article 19 of the Convention of ensuring the observance by States of their obligations under the Convention (see Nagmetov v. Russia [GC], no. 35589/08, § 64, 30 March 2017). The Court enjoys a certain discretion in the exercise of that power, as the adjective “just” and the phrase “if necessary” attest (see Yüksel Yalçınkaya v. Türkiye [GC], no. 15669/20, § 422, 26 September 2023; and Molla Sali v. Greece (just satisfaction) [GC], no. 20452/14, § 32, 18 June 2020, with further references). Depending on the circumstances, the Court may also consider that a finding of a violation constitutes sufficient just satisfaction and thus dismiss related claims (see Nagmetov, cited above, § 70, and the cases cited therein). The Court’s guiding principle as regards just satisfaction on account of non‑pecuniary damage is equity, which involves flexibility and an objective consideration of what is just, fair and reasonable in all the circumstances of the case, including not only the position of the applicant but the overall context in which the breach occurred (see Yüksel Yalçınkaya, cited above, § 423; Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 224, ECHR 2009; Al-Jedda v. the United Kingdom [GC], no. 27021/08, § 114, ECHR 2011; and Nagmetov, cited above, § 73).

The Court would clarify that its finding of a violation in relation to the applicant’s complaint rests on its assessment that the decision-making process followed in her case did not afford sufficient respect for her autonomy. As emerges from her submissions in support of her claim for just satisfaction, what occurred in this case has caused the applicant significant distress. The Court therefore considers it appropriate to make an award of compensation for non-pecuniary damage.

In the light of the above, making its assessment on an equitable basis, the Court awards the applicant EUR 12,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.’

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