Background

In Pindo Mulla v Spain [2024] ECHR 753, Ms Pindo Mulla was a Jehovah’s Witness who in 2017 had undergone extensive abdominal surgery at Soria Hospital. Before the operation, she had told the hospital that, as a Witness, she could not accept “transfusions of whole blood, red cells, white cells, platelets or plasma be given to me under any circumstances”. In 2018, however, she required further – emergency – surgery at La Paz Hospital, and three doctors there sought permission from a duty judge to transfuse her if necessary, knowing that she had “verbally expressed her rejection of all types of treatment” [25]. After consulting the local prosecutor, the duty judge gave permission “to treat the patient arriving from Soria, whose identity is unknown for the moment, with the medical or surgical measures necessary to safeguard her life and physical integrity” [28] – and she was transfused during the operation [32]. She sued unsuccessfully in the domestic courts.

The arguments

Before the Grand Chamber, she argued that her principled objection to blood products had been overridden in contravention of Articles 8 and 9 ECHR. The Government contended that the case was inadmissible on the grounds that she had failed to provide the domestic court (Audiencia Provincial) with a copy of her informed consent document from Soria Hospital showing her signature, an omission that had been pointed out to her at the time [88]. Further, in the domestic proceedings, she had not challenged the medical decision-making that had taken place in her case and had not sought the civil, administrative and criminal available to her – in short, failure to exhaust domestic remedies:

“Having failed to make use of such remedies, she could not now seek to impugn in the present proceedings the doctors’ professional judgment. It would be contrary to the Court’s subsidiary role to entertain arguments of this nature that had not been raised before the domestic courts” [89].

In response, she denied any responsibility for the missing signature [90] and explained that her legal advisers had told her that there was no chance of success in bringing civil, administrative or criminal proceedings [91].

The judgment

The Court observed that the emergency exception provided for in Spanish law corresponded very closely in substance to the Oviedo Convention on consent to medical treatment, read in light of the explanatory report (see also to similar effect paragraph 7.4 of Resolution 1859(2012) of the Parliamentary Assembly, and the World Medical Association’s Declaration of Lisbon, all of which shared “the concern of permitting vital medical treatment to be given in emergency situations, in order to save the lives of patients when their will cannot be sufficiently established” [135].

Furthermore, the State’s duty under Articles 2 and 8 to ensure the protection of hospital patients had also to be borne in mind, and it could be said that the interference had as its aim “the protection of health” [136]. In a situation involving real and imminent danger for an individual’s existence, the right to life would also be in play, in tandem with the individual’s right to decide autonomously on medical treatment [147] and

“where in an emergency there are reasonable grounds to doubt the individual’s decision in any of these essential respects, it cannot be considered a failure to respect his or her personal autonomy to proceed with urgent, life-saving treatment [149].

In brief, the actions of the hospital staff on the day in question had been motivated by their overriding concern to treat Ms Pindo Mulla effectively “in keeping with the most fundamental norm of the medical profession”, and the Court did not question their assessments regarding the severity of her condition, the urgency of the need to treat her or the medical options available in the circumstances – “or that the applicant’s life was saved that day” [181].

However:

“the authorisation by the duty judge to proceed with whatever treatment was considered necessary resulted from a decision-making process that was affected by the omission of essential information about the documenting of the applicant’s wishes, which had been recorded in various forms and at various times in writing. Since neither the applicant nor anyone connected with her was aware of the decision taken by the duty judge, it was not possible, even in theory, to make good that omission. Neither this issue, nor the issue of her capacity to take a decision, were addressed in an adequate manner in the subsequent proceedings. In light of this, it cannot be said that the domestic system adequately responded to the applicant’s complaint that her wishes had been wrongly overruled” [182].

Ms Pindo Mulla’s right to respect for her private life under Article 8 of the Convention, read in the light of Article 9, had been violated [184].

(There was also a partly concurring and partly dissenting opinion by Judge Seibert-Fohr, who was joined by Judges Kucsko-Stadlmayer, Pastor Vilanova, Ravarani, Kūris, Lubarda, Koskelo and Bormann).

[With thanks to David Lamming.]