What was the case about?

Back in 2000, the applicant (Ms Mayboroda) was admitted to hospital with complaints about her health. Doctors found that the cause could be internal bleeding. To stop it, the doctors suggested that the applicant undergo surgery to eliminate the causes and consequences of the bleeding, which, with the applicant's consent, was performed. Later, the applicant was discharged from hospital and given medical documents with no record of the organ removal.

What did the doctors forget? Minor details: first informing the applicant about (obtaining her consent for) the kidney removal surgery, and about the removal itself after the surgery.

What happened afterwards?

  1. The doctors were exposed → in an anonymous call, the applicant was informed that her left kidney had been stolen.
  2. The applicant is ignored → doctors ignored the applicant's calls urging them to explain what had happened and why she had lost a healthy (in her opinion) organ.
  3. Publicity → 8 months after the operation, journalists intervened and demanded explanations from the doctors.
  4. "You've got it all wrong" → the doctors said that the kidney had to be removed and they were going to inform the applicant about it at her next appointment after some time (six months). Six months later, the applicant's medical records were corrected.
  5. The doctors are not guilty, it's all about Soviet legislation → the management of the hospital replied to the request of the prosecutor's office that there was no Ukrainian law that the doctors had violated.

The doctors were guided by the old principles of the Soviet legislation (1970), and it was ethical not to inform about the kidney removal, because such a message could affect the patient's emotional state (!) 

As a matter of fact, the Ukrainian Medical Society in Lviv supported the doctors' decision and the patient's being not informed about the removal of her kidney (a separate issue of alleged "medical" solidarity).

1.The criminal proceedings were closed → there was no full-fledged investigation, and the case was formally closed. The prosecutors did not find a single document that would establish the scope of the doctors' authority to practice and issue official medical documents (!). Thus, since the statement was filled out by doctors who were not officially employed with the hospital, such a statement was not an official document at all.

Regarding the episode with the removal of the kidney (possibly for sale on the black market), the prosecutor found no grounds to institute proceedings (as numerous medical commissions confirmed that the kidney was removed to save the patient's life).

2.Civil case → the consultant physician (physiologist), who was supposed to inform the applicant about the removal of her kidney, was partially guilty.

Therefore, the courts awarded the applicant UAH 50 thousand (to be paid by the consulting physician for failure to notify her of the kidney removal) and denied recovery of damages from the surgeon. 

3.The European Court – more than 23 years after the operation, 16 years after the application was filed, and 7 years after the applicant's death – found that

  • there had been a violation of Article 8 (Right to respect for private and family life) of the Convention in respect of protecting the applicant’s right to informed consent
  • the authorities failed to verify whether it was possible to obtain consent for the removal of the kidney from Ms Mayboroda before the operation, or from her relatives during the operation, and that the State had not established an adequate legal framework to protect Ms Mayboroda's right to informed consent.

That's it. 

Like other human rights activists, we have quite different perceptions of this case. There are too many "ifs" and not enough "yeses".

  1. Did the applicant receive fair satisfaction for the blatant disregard of her rights? She passed away long before the verdict. The court had been considering the case for over 16 years. Before that, the applicant's rights had been ignored by the national authorities for 6 years.

What did the applicant's efforts, insults, feelings of fear and impunity cost her in a coordinate system where they can simply cut out your organ and not be punished?

  1. Will this decision bring relief to the applicant's daughter? We doubt that. 
  2. Is it important to defend your rights and stand up for them? Yes, it is.

It is often the judgements of the European Court of Human Rights that become the impetus for change, as they demonstrate:

  1. what direction we should move in – human rights MAY NOT be ignored
  2. what changes should be adopted - our legislator has had to respond more than once to such requests from the European Court.

 

Link to the ECHR judgment: https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-224077%22]}