right to health and health care of the roma from the...
TRANSCRIPT
Law in practice:
Analysis of the challenges in the legal
protection of the right to health and health
care of the Roma from the practice of
ROMA S.O.S.
Prilep, 2014
Right to health and health care of the Roma from the practice of ROMA S.O.S.
2
Authors: Nesime Salioska - ROMA S.O.S.
Tanje Trenkoska - ROMA S.O.S. Publisher: Roma Organization for Multiclultural Affirmation - ROMA S.O.S. About the publisher: Nesime Salioska, executive director Reviewers:
MA Biljana Kotevska
Lawyer Blagoj Dimovski Proofreading in Macedonian language: Gordana Aceska
Translated into English by: Keti Efremoska
Printed by: Acetoni, Prilep
Circulation: 300 copies Supported by the Foundations Open Society
CIP - Каталогизација во публикација
Национална и универзитетска библиотека "Св. Климент Охридски", Скопје 364-787(=214.58:497.7)
342.72/.73:364-787(=214.58:497..7) САЛИОСКА, Несиме
Анализа на предизвиците за правната заштита на правото на здравје и
здравствената заштита на Ромите од практиката на РОМА С.О.С. : правото во
практиката / [автори Несиме Салиоска, Тање Тренкоска ;
превод на англиски јазик Кети Ефремоска]. - Прилеп : Ромска
организација за мултикултурна афирмација - РОМА С.О.С., 2014. - 62, 60 стр. :
илустр. ; 21 см Насл. стр. на припечатениот текст: Analysis of the challenges in the legal protection of
the right to health and health care of the Roma from the practice of ROMA S.O.S. : law
to practice / Nesime Salioska, Tanje Tren koska. - Обата текста меѓусебно печатени во
спротивни насоки. - Текст на мак. и англ. јазик. - Фусноти кон текстот ISBN 978-608-65425-1-1
1. Тренкоска, Тање [автор]. - I. Salioska, Nesime види
Салиоска, Несиме. - II. Trenkoska, Tanje види Тренкоска, Тање
а) Роми во Македонија - Здравствена заштита б) Роми во Македонија -
Правна заштита
COBISS.MK-ID 96669194
Right to health and health care of the Roma from the practice of ROMA S.O.S.
3
PREFACE
There is still not enough information about how human
rights are applied in the health care, especially for protection against
discrimination in the realization of the right to health of the
marginalized groups in the Republic of Macedonia.
Although there are a number of international and national
standards for protection of the right to health, however, so far in the
administrative, civil and criminal proceedings in the national
legislation, the number of initiated proceedings for violation of the
rights of health care is very small, while in the case of Roma
community there is no such case.
Systematic monitoring and recording of the legal practice
can be a significant source of knowledge, and in this context ROMA
S.O.S., starting from 2010 initiated civil protection of the right to
health and the rights associated with it, through implementation of
the project "Roma Health - Basic Human Right". The project is
based on the application of the legislation to overcome the obstacles
that Roma face and thus require fair implementation and
confirmation and of the "right to health for all without
discrimination".
The project is financially supported by the Foundation Open
Society Macedonia, through the Law and Health Initiative (LAHI) -
New York and the Roma Health Project - Budapest.
This analysis, which covers the period from the beginning of
the implementation of the project until its finalization in February
2014, was done in hope that it will give new arguments for
protection, promotion and enhancement of the right to health and the
principle of equality. We hope that received observations will serve
as base for the legal changes to applied policies, and changes in the
practice of the courts and national institutions for human rights as
well.
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CONTENT
PREFACE........................................................................................... 3
1. INTRODUCTION .......................................................................... 7
1.1. Context ...................................................................................... 7
1.2. Civil protection of the right to health ........................................ 9
1.3. Legal aid and participation in decision-making ...................... 10
1.4. Purpose of the analysis ............................................................ 14
1.5. Methodology ........................................................................... 15
2. LEGAL FRAMEWORK .............................................................. 16
2.1. International law ..................................................................... 16
2.2. National law ............................................................................ 22
3. LEGAL PRACTICE ..................................................................... 26
3.1. CASE A.S. FROM PRILEP: .................................................. 27
3.1.1. Facts about the case ....................................................... 29
3.1.2. Procedures for protection of the rights .......................... 29
3.1.3. Explanation of the criminal procedure ........................... 30
3.1.4. Explanation of the civil proceeding for compensation ... 36
3.2. CASE S.B. FROM BITOLA: ................................................. 40
3.2.1. Facts about the case ....................................................... 43
3.2.2. Procedures for protection of the rights .......................... 43
3.2.3. Explanation of the criminal procedure ........................... 44
3.2.4. Explanation of the grounds for initiation of a civil action
for compensation ...................................................................... 47
3.3. CASE S.F. FROM DELCEVO: .............................................. 49
3.3.1. Facts about the case ....................................................... 51
3.3.2. Procedures for protection of the rights .......................... 51
3.3.3. Explanation of the civil proceeding for compensation ... 51
3.4. CASE A.J. FROM BITOLA: .................................................. 53
3.4.1. Facts about the case ....................................................... 55
3.4.2. Procedures for protection of the rights .......................... 55
3.4.3. Explanation of quasi-judicial protection ........................ 56
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3.4.4. Explanation of the grounds for initiating a civil action for
compensation ............................................................................ 59
3.5. Promotion of the cases in the media ....................................... 60
4. ANALYSIS OF THE APPLICATION OF THE LAW IN
PRACTICE ....................................................................................... 61
4.1. Availability in the context of the right to compensation ......... 62
4.2. Accessibility and acceptability in the context of the right to
information and the right to equal treatment ................................ 63
4.3. Quality in the context of the right to conscientious
treatment ....................................................................................... 66
5. ACCESS TO JUSTICE ................................................................ 68
6. CONSLUSIONS AND OBSERVATIONS IN ORDER TO
ENHANCE THE PROTECTION OF THE RIGHT TO HEALTH 70
6.1. Conclusions ............................................................................. 70
6.2. Observations ........................................................................... 72
Right to health and health care of the Roma from the practice of ROMA S.O.S.
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Abbreviations
CPHRFF Convention for the Protection of Human
Rights and Fundamental Freedoms
ECHR European Court of Human Rights
HCL Health Care Law
LPPR Law on the Protection of Patients' Rights
LPPD Law on Prevention and Protection from
Discrimination
CEDAW Committee on the Elimination of
Discrimination against Women
CESCR Committee on Economic, Social and
Cultural Rights (UN)
CC Criminal Code
CPAD Commission for Protection against
Discrimination
ICESCR International Covenant on Economic, Social
and Cultural Rights
Ombudsman Ombudsman of the Republic of Macedonia
UN Organization of the United Nations
Special rapporteur Special Rapporteur on the right to health
(UN)
Constitution
SSHI
WHO
Constitution of the Republic of Macedonia
(1991 and its amendments)
State sanitary and health inspectorate
World Health Organization
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1. INTRODUCTION
1.1. Context
Health is a constitutionally guaranteed right of every citizen
of the Republic of Macedonia, who has right and obligation to take
care of and improve their own as well as the health of others. Health,
among other things, is basic need of every individual and one of the
key conditions for successful functioning of the family and the
society.
However, findings from the existing literature and conducted
researches indicate that the health situation of the Roma1 in
comparison to the major ethnic groups is significantly worse and this
situation is closely related to the fact that they are most prevalent in
the group of citizens who live in poverty as well as widespread
stereotypes and prejudices.
Health statistics in Macedonia are not analyzed by ethnicity
and competent medical facilities do not have adequate data on the
health status of the Roma. Currently researches and work of civil
organizations are the only source of data on the current situation in
Roma communities in terms of their health.
1 According to the last Census of population, households and dwellings in
the Republic. Macedonia since 2002 in the country (State Statistical Office
of the Republic of Macedonia, Census of population, households and
dwellings in the Republic of Macedonia, 2002, Book XIII) live 53.879
members of the Roma community, which represents 2.66% of the total
population. However, according to other studies, which are based on
researches by NGOs, the real number of Roma population is greater i.e. in
Macedonia live approximately 80.000- 135.000 Roma. Basic features of the
situation of the Roma are: high rate of poverty, unemployment,
marginalization and poor neighborhoods, substandard infrastructure, low
health status, low level of education, lack of personal documentation,
inadequate living conditions.
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Many Roma are unable to choose a personal doctor
independently, and percentage of those who suffer from chronic
diseases is very high and they are not able to provide necessary
medicines. They state that they face poor explanations about their
health, are not able to cover the cost of health services and in certain
cases they are not satisfied with the attitude of health personnel.
Great number of Roma women do not have registered gynecologist,
they face charging of free gynecological services, they visit a
gynecologist only in situations when their reproductive health is
aggravated and do not use contraception which results with a
frequent occurrence of abortions.2 Serious obstacles to realization of
rights is the lack of identification documents, existence of persons
without nationality and unregistered civil status, while immunization
of Roma children is below the national average. There were also
cases of keeping personal documents in health care facilities when
Roma were unable to pay for the service.
In order to improve the situation of the Roma since 2005
series of initiatives have been launched and more strategic
documents and policies have been adopted both at international and
national level. In the Republic of Macedonia particularly important
are the National Action Plans for implementation of the Decade of
Roma Inclusion3 and Strategy for the Roma, through which health is
treated as a priority area for action.
Nevertheless, the competent authorities have ignored the
health of Roma for a long time i.e. they do not pay enough attention,
given the complexity of the centralized system of health authorities
2 Results of the conducted research by the association ROMA S.O.S. Prilep
"Meet your gynecologist", September 2012 3 Decade of Roma Inclusion started in 1995 as a pan-European initiative of
the countries of Southeast Europe and aims to improve the socio-economic
status and social inclusion of the Roma. This program is committed to
improving the welfare of Roma in four priority areas: housing, employment,
education and health, and in terms of three cross- sectoral issues: poverty,
gender equality and non-discrimination. The Decade is implemented in 9
countries with significant number of Roma population: Bulgaria, Croatia,
Czech Republic, Hungary, Macedonia, Montenegro, Romania, Serbia and
Slovakia.
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in the Republic of Macedonia and the characteristics of living of the
Roma community due to which they face unequal and inappropriate
access to health rights and health services, while their health shows
continuous worsening rather than improving.
Among the identified reasons that contribute to this situation,
the most evident are: frequent amendments to the legislation, their
incomplete or poor implementation, uneven practice in implementing
legislation, inadequate and untimely informing of the Roma about
the procedures for exercising their rights, lack of health insurance,
introducing complex administrative procedures which impose
additional obligations for realization of the rights and discriminatory
treatment by health workers in the access to health services.
On the other hand, the lack of law practice and poor judicial
precedents in the protection of the right to health and rights of health
care, causes distrust among Roma in the legal protection and the
judicial system itself, because of which in a situation of violation of
the rights they give up using this kind of protection. Another aspect
to not seeking liability or institutional care are also personal
circumstances and characteristics of the Roma population: lack of
support, financial insecurity and lack of knowledge of legal
protection mechanisms.
1.2. Civil protection of the right to health
In order to provide equal enjoyment of rights to health care
for the Roma population, in 2010 a Legal department was established
and for its function were engaged attorneys, experts from various
fields, legal practitioners and Roma activists. Moreover, based on the
needs, different actions have been undertaken in order to promote the
health and legal education in the Roma communities, free legal
assistance is being offered during the procedures, violations of the
rights are documented and publicly actualized, litigations are
initiated and application of legal mechanisms is being followed or in
other words - the health condition of the Roma community is being
treated from the legal point of view.
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Specifically, in this manner Roma are being strengthened
and encouraged to understand the procedures, to recognize violations
and to use protective mechanisms, while advocating in front of
competent institutions and health facilities, despite filing requests,
appeals, interventions and complaints, it is also aimed at identifying
the basis for initiating litigations that require accountability from the
perpetrators of violations for compensation for suffered physical or
moral, psychological harm or suffering caused by treatment or other
service in the health system.
At the same time a positive practice is being created for
other organizations (which have same or similar purposes) in
advocacy, and court practice is being created regarding the judgment
of the national courts for determination of medical errors as basis for
criminalization. Simultaneously, systemic barriers in the procedures
for exercising the rights are being monitored and identified and
consequently civil reactions are being initiated in front of the
decision makers.
1.3. Legal aid and participation in decision-making
Planning of the process of advocacy and legal aid, covers
views and evaluations associated with documenting the violation of
the rights, establishing the basis for protection of significant
circumstances and facts relevant to the cases that are structured in a
separate document that is used as a tool during the advocacy.
Methodology for collecting, processing and analyzing data
and documenting cases of violation of the rights of health care and
unequal treatment in the access to health institutions is prepared as a
framework for human rights at the Legal department, according to
which, the staff undertakes steps in the work and strategic advocacy.
Thus, the following steps have the most important role:
detected problems/obstacles are reported to the Legal
department by the Roma community, health institutions or
by the field assistants that simultaneously educate Roma
community about their rights to health care,
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the case is being analyzed and the required documentation is
being collected by the lawyer in collaboration with the client
in order to document the case,
regular consultation with the client is being conducted and
the client is being informed about barriers and violations of
his/her rights, and in particular about the actions that need to
be taken in order to resolve the problem,
the client is being offered logistical support in the cases in
which barriers have been identified in the access to health
services or administrative procedures,
legal actions have been undertaken in front of the competent
authorities according to their competence to resolve the case
(Ombudsman, State Sanitary and Health Inspectorate
(SSHI), Commission for Protection against Discrimination,
inspection authorities) and/or a lawyer is hired and court
proceeding is initiated,
individual monitoring is being implemented in each case and
separately for the undertaken legal actions, in constant
consultation with the client and interested parties.
What is particularly important in the process of advocacy is received
support in the form of expert opinions in the field of human rights
and legal practitioners relating to the particular case.
This expertise is made possible through cooperation with the
Office of the Ombudsman and hired lawyers who lead the advocacy
of identified cases. Thus, the collaboration represents a unique aspect
of advocacy and contributes to establishment of foundations for
protection and undertaking legal actions, in accordance with the
protective mechanisms and responsibilities of the parties involved.
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In the process of advocacy, work with media has a crucial
role as well as getting media space and public support. This method
enables promotion and actualization of injuries and obstacles in the
access to effective and efficient justice, "public pressure" is being
achieved on the competent authorities to solve the cases, and on the
other hand, on the health workers themselves, in order to improve
their treatment of Roma patients.
This kind of advocacy includes lobbying among policy makers,
ministries and all interested parties, in order to provide support and
sensitizing of the challenges that Roma face in access to exercise
their rights of health care.
The main emphasis through this methodology, is on strategic
advocacy (litigation) of identified cases of violations of the rights of
health care.
Through strategic advocacy, legal system of the country is used
(particularly judicial) to create a legal case (precedent), whose
solution will cause positive changes in the health system.
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Why litigation?
Litigation is a powerful tool for human rights. It can be used
as a means of raising public awareness and education, increased
critical public monitoring of the Government operations and decision
makers, but also of transnational entities, and enabling marginalized
communities4 to realize their rights, base them on legal arguments
and arguments of applied policies, etc. However, selection of the
litigation as means has its own challenges and certain risks as well.
Some of them are as follows: independence of the judiciary;
courts can only judge whether something is in accordance with the
law or not, without going into a lot of other (potentially hidden and
not very obvious) aspects; duration and costs related to litigation;
etc.5 This suggests that litigation can be best used as a tool if it is
used in combination with other tools, for example, if it is part of a
larger strategy of advocacy, effort for building cases for the objective
law, strengthening of the ruling of the law, testing of the existing
law, strengthening of the marginalized groups, etc.6
This particularly refers to a system where there is weak legal
protection of the right to health care, lack of court practice for this
kind of violations, and fines in the small number of initiated
litigations do not correspond with the violations, which makes the
impact of medical profession over the judiciary even more evident.
4 Litigation is particularly important for marginalized groups because they
are usually out of major decision-making processes, and because of that
courts become the only place where they can express their demands.
Source: Yamin, Alicia Ely and Siri Gloppen (eds), 'Litigating Health Rights
- Can Courts Brings More Justice to Health?', Harvard University Press
(2011) 5 Yamin, Alicia Ely and Siri Gloppen (eds), ‘Litigating Health Rights – Can
Courts Brings More Justice to Health?’, Harvard University Press (2011) 6 Ibid.
Right to health and health care of the Roma from the practice of ROMA S.O.S.
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1.4. Purpose of the analysis
The purpose of this analysis is to outline the current
situation, identified obstacles and challenges that Roma are facing in
the realization and protection of the right to health and the rights
associated with it, through the experiences gained in the processes of
litigation for the four cases in which legal basis for initiating
litigation was identified.
This analysis is intended to help in identifying and dealing
with violations of the rights of health care and unequal treatment of
Roma in their access to health services i.e. practice that was created
in advocating health rights of the Roma to be a positive example for
interested parties in initiating legal actions on identified violations of
the rights.
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1.5. Methodology
Methodology for this analysis is qualitative. Methods for
collecting data were review of existing literature7 and litigation.
8
Main methods of data analysis were qualitative text analysis and
comparative method. Approach for writing the results were driven by
the purpose of the analysis, limiting the number of pages and the
time of its preparation. The limitations of the methodology for
preparation of the analysis are as follows: part of the cases that were
selected for analysis are still in litigation; conclusions can be derived
from the cases on the legal practice in the first two levels of legal
protection (Basic and Appeal court); sample of cases from which the
cases were selected consists only of the practice of ROMA S.O.S.,
from which general conclusions about the experiences of other
organizations that provide legal assistance in the same area cannot be
drawn.
Main sources used to prepare this analysis were: legal and
sublegal acts of national law, legally-binding international law
relevant to Macedonia and authoritative interpretations and court
practices as part of this law as well as the legal documentation for the
four selected cases.
7 The selection of the available literature was made by sources that process:
right to health and rights associated with it; principle of equality and
protection from discrimination (with focus on the literature that deals with:
the area of health and health care and the principle of equality and non-
discrimination); international law relevant to Macedonia and the
international legal practice that deals with cases where the nature of the
violation of the right matches the one of the four selected cases; law of the
European regional system). 8 Starting from December 2010 to December 2013, ROMA S.O.S. in the
framework of the project "Roma Health - Basic Human Right" has
documented 1.653 cases of given free legal aid and logistical support of the
Roma population in exercising the right to health care. In 4 of these cases
violation of the right to health and health care has been identified and
actions of litigation have been undertaken. These four cases are part of this
analysis in the part of litigation.
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2. LEGAL FRAMEWORK
This section gives an overview of the relevant standards on
the right to health and health care in the international and national
law. In addition, standards related to the principle of equality and
protection from discrimination are being reviewed as the ultimate
principle in the international human rights. This review provides the
framework through which we then analyze the legal practice and
deduct conclusions i.e. realizing the need for harmonization of the
national with international law.
2.1. International law
The right to health is part of the rights established by the
international human rights law.9 It was subject of authoritative
interpretations of these documents10
and the practice of institutions
for human rights.11
Fundamental rights that arise and are directly
9 ICESCR Article 12, CERD Article 5 (1-a), CEDAW Article 10-12 and 14,
CRC Article 24. Regional instruments: European Social Charter Art. 3, 7,
11 and 13, Additional protocol to the American Convention on Human
Rights in the area of Economic, Social and Cultural Rights (Protocol of San
Salvador) Article 7 and 10, the African Charter on Human and Peoples'
Rights Article 16 and 18, Constitution of the WHO 10
General comment no. 14 on CESCR (2000) which should be read in
conjunction with the General comment no. 3, General recommendation no.
24 of CEDAW (1999). Another important document is the Resolution of the
Commission on Human Rights 2002/31 which provides legal basis for the
mandate of the UN Special Rapporteur on the Right to Health. 11
Some of the most important cases on the right to health are: Alyne da
Silva v Brasil (CEDAW, Communication No.17/20008); Minister for
Health at al v. Treatment Action Campaign et al (Constitutional Court of
South Africa, Case CCT 8/02, 2002); Soobramoney v. Minister of Health
(KwaZulu Natal) (Constitutional Court of South Africa, Case CCT 32/97,
1997); Cortez et al v. El Salvador, Admissibility decision, Inter-American
Commission on Human Rights, Case 12.249, 2001; as well as D v. UK
(ECtHR App.30240/96, 1997) that is related to the health status as a source
of violation of the law defined in Article 3, and the cases id ECHR related
to the health status as basis for discrimination Kiyutin v Russia, I.B. v
Greece, GN v ITaly, S.H. and Others v Austria.
Right to health and health care of the Roma from the practice of ROMA S.O.S.
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related to the right to health are: the right to health and health care
and the right of exercising social determinants that affect health.12
Basic principle and obligation of the state regarding these rights, as
well as in general for human rights, is the principle of equality and
protection from discrimination.
The most important document for an authoritative
interpretation of the right to health is General Comment no. 14. In it,
the Committee on Economic, Social and Cultural Rights has
interpreted the content of Article 12 of the ICESCR, and according to
its first attitude, "states - parties of this covenant, recognize the right
of every person as highest attainable standard of physical and mental
health." In the second attitude of this Article are listed13
illustratively
part of the measures that can be undertaken by the state towards
complete realization of this right.14
According to the General Comment no. 14, the content of the
right to health consists of four interrelated core elements:
availability, accessibility (non-discrimination, physical accessibility,
economic accessibility, access to information), acceptability and
quality.15
Therefore, fulfilling the state's obligations regarding this
right, should be implemented through these elements.
To be considered available, functional public health and
health care facilities, goods and services as well as programs should
be available in sufficient number. It refers to the social determinants
of health (such as safe and healthy drinking water and adequate
12
General comment no. 14 of CESCR. 13
General comment no. 14 of para.2 14
The second paragraph of Article 12 states: “The measures that will be
undertaken by the states - parties of the present Covenant in order to
provide full realization of this right, should include measures necessary for:
a) reduction in the rate of stillbirths and mortality of the newborns, as well
as healthy development of the children; b) improvement of all aspects of
environmental and industrial hygiene; c) prevention, treatment and control
of epidemic, endemic, occupational and other diseases; d) creating
conditions for providing medical assistance in case of illness." Source:
Article 12, ICESCR 15
General comment no. 14 of para.12
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sanitation, ambulant, hospital and other health facilities, trained
medical and professional personnel that receives competitive income
in the national frameworks and essential drugs).16
Accessibility has four components: non-discrimination
(availability and accessibility of health facilities, goods and services
to all without discrimination, especially for vulnerable or
marginalized groups); physical availability and accessibility (health
facilities, goods and services are in safe physical reach, including
rural areas, for the whole population, especially vulnerable or
marginalized groups and persons with disabilities); economic
affordability (these facilities, goods and services must be available
for everyone); and access to information (the right to seek, receive
and announce information and ideas concerning health issues).17
Acceptability means that all health facilities, goods and
services will be in accordance with medical ethics and will be
culturally sensitive. They also need to be designed in a way that will
enable respect for the confidentiality and improvement of the health
of those who are affected.18
Quality involves scientific and medical appropriateness of
health facilities, goods and services, which, among other things,
include skilled medical personnel, scientifically approved drugs
without expired date and hospital equipment, safe and healthy water
and adequate sanitation.19
State obligations regarding the right to health, as with all
economic, social and cultural rights, are subject to progressive
realization within the maximum available resources of the state and
with prohibition for violation of the principle of retrograde
tendencies. The only exception is the progressive realization and
protection from discrimination, which takes effect immediately and
is considered as the primary obligation (eng. Core obligation).
16
Ibid. 17
Ibid. 18
Ibid. 19
Ibid.
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The principle of equality and non-discrimination is a
fundamental principle in the international human rights law. It is
part of all key documents on human rights,20
and subject to
authoritative interpretations of human rights.21
There is considerable
relevant legal practice,22
which refers to discrimination based on
health status, ethnicity, race,23
sex and gender, age - as grounds for
discrimination relevant for this analysis, as well as discrimination in
the area of health care, social protection and access to justice - also
relevant for this analysis.24
In addition, very important for this analysis is to highlight
that disabling or disrupting exercising of health and women's
reproductive rights is also considered as discrimination. The state has
20
UDHR (Article 2(1)), ICCPR (Article 2, 3, 26), ICESCR (Article 2(2),
3(3)), CRC (Art. 2(1)), CRMW (Art. 1(1)), ECHR (Article 14, para.7,
Article 5, para. 12, art. 1(1)), ESC (rev.) (Article.E), CFREU (Article 21
and all chapter III - Equality). Besides these, ICERD, CEDAW and CRPD
are documents that are considered instruments against discrimination, which
means that all their provisions are important. 21
General comment no.18 CHP, General comment no.20 CESCR, all
recommendations of CEDAW and CERD. 22
An excellent overview of the international legal practice of non-
discrimination is shown in “Non-Discrimination in International Law: A
Handbook for Practitioners“. Fleetwood, Rachel (Ed). Interights Website.
<http://www.interights.org/files/174/Non-
Discrimination%20in%20International%20Law%20A%20Handbook%20fo
r%20Practitioners%202011%20Edition.pdf>. 17.01.2014. and European in
the ‘Handbook on European Non-discrimination Law’. Fundamental Rights
Agency and Council of Europe (2010). 23
About distancing of the theories for existence of races, see: Schiek, D,
and others (Eds.) Non-discrimination Law – Cases Materials and Text on
National, Supranational, and International (Hart Publishing 2007). More on
this, as well as on racism and other related concepts, see: Bulmer, Martin
and John Solomos (Eds.). Racism – Oxford Reader.Oxford: Oxford
University Press, 1999. 24
Some of the cases in front of the ECHR are: S.H. and Others v Austria,
Kiyutin v Russia, I.B. v Greece, GN v Italy. For more detailed treatment of
these cases, see: Kotevska Biljana, Guide for grounds of discrimination
(OSCE and CPAD, 2013), 18
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a positive obligation to implement structural changes, as well as legal
and institutional measures in order to combat such discrimination.25
This issue has been reviewed by the CEDAW in Alyne da
Silva Pimentel against Brazil. This is the first case of death of a
woman giving birth submitted to CEDAW; it was filed by the mother
of the woman who was giving birth with legal assistance from
NGOs. CEDAW has reviewed this case, though it still was not
completed in front of national courts (up to that point it lasted for
eight years), and because of unreasonable delay of the domestic
proceedings (Article 4, par.1 of the Optional Protocol). This was also
contributed by the delay in appointing medical experts that would
consider the case and delays in trials and sentencing judgments. Lack
of explanations for some of the rejected submissions in domestic
legal proceeding was an additional argument taken into consideration
by CEDAW. According to the Committee, this delay cannot be
attributed neither to complexity of the case nor the number of
defendants.26
CEDAW found that the mother 's death could have been
prevented if the correct diagnosis was established upon the condition
of the mother and if she was given proper treatment. Namely,
according to the committee, not responding to the symptoms reported
by the woman who was giving birth to health facilities, which
indicated possible death of the fetus, delayed and inadequate
transport to the hospital, and delayed and inadequate health
interventions, suggest that treatment was contrary to the obligation of
the state to provide adequate health services during pregnancy. This
is also discrimination because decisive element here is the status of
the woman who was giving birth, which is related to the sex of the
victim, and must be considered in this case.27
25
Kotevska Biljana, Guide for grounds of discrimination, OSCE and
CPAD, 2013, p. 18 26
Alyne da Silva Pimentel Teixeira v Brazil, CEDAW Communication No.
17/2008 (2011), para. 6.2 27
Ibid. 7.3, 7.4
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Starting from this, CEDAW found a violation of Article 12,
paragraph 2 of the Convention by Brazil, which states: "Despite the
provisions of paragraph 1 of this Article,28
states - members provide
adequate health services during pregnancy, birth and the period after
the birth of the child, by providing free services where necessary, as
well as adequate nutrition during pregnancy and lactation.29
According to this authority, states have an obligation, no matter
whether it is public or private health facility, to guarantee access to
non-discriminatory, adequate and timely health services to all
women during pregnancy and childbirth.30
Macedonia has ratified all major international agreements
which provide observance, protection and promotion of the right to
health and non-discrimination (with exception of the International
Convention on the rights of migrant workers and their families).
According to the Vienna Convention on the Law of Treaties (1969),
in the international law applies the principle pacta sunt servanda,
which means that international agreements are binding for the state
parties of the agreement and they must act in good faith in fulfilling
their contractual obligations.31
Thereby, the state can not invoke
national law as an argument for not meeting international
obligations.32
According to the Constitution of the Republic of
Macedonia, ratified international agreements are considered part of
the domestic legal system. Thus, Macedonia is obliged to respect,
protect and fulfill the rights stipulated in ratified contracts that are
part of international human rights law. The next section examines the
national law which is relevant to this analysis.
28
12, para. 1 states: “States-members undertake appropriate measures to
eliminate discrimination against women in the area of health care in order to
provide, on the basis of equality of men and women, access to health care
services, including those related to family planning” 29
Aricle 12, para.2, CEDAW. 30
Alyne da Silva Pimentel Teixeira v Brazil, CEDAW Communication No.
17/2008 (2011) 31
Vienna Convention on the Law of Treaties, UN (1969), Art.26 32
Ibid. Art.27
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2.2. National law
In the national law, the right to health is determined in the
highest legal act of the state - the Constitution, in Article 39, under
which: "every citizen is guaranteed the right to health care. Citizens
have the right and duty to protect and improve their own health and
the health of others." Article 8 is important as well, and according to
it, part of the fundamental values of the constitutional order of the
state are the basic rights and freedom of the man and citizen, that are
recognized in the international law and in the Constitution,
humanism, social justice and solidarity, and respecting generally
accepted norms of the international law (Article 8, paragraph 1,
subparagraph 1, 8, 11). Also important are Article 98, according to
which "courts judge on the basis of the Constitution and international
treaties ratified in accordance with the Constitution," and Article
118, according to which "international agreements ratified in
accordance with the Constitution of internal legal order and can not
be changed by the law."
The Constitution establishes the principle of equality in
Article 9, which states: "Citizens of the Republic of Macedonia are
equal in rights and freedom regardless of the sex, race, color,
national or social origin, political or religious beliefs; wealth and
social position. All citizens are equal before the Constitution and
law." Furthermore, important is Article 54, according to which " The
restriction of freedoms and rights cannot discriminate on grounds of
sex, race, colour of skin, language, religion, national or social origin,
property or social status."
Right to health and health care is provided by the law. Main
legal texts of direct relevance to this analysis are the Law in Health
Care (LHC), Law on Protection of Patients' Rights (LPPR) and the
Criminal Code (CC).
The Law in Health Care governs, among the other things, the
right to health care (Article 3, LHC). Therefore, everyone is entitled
to health care and duty to take care, protect and improve their health
and nobody can endanger the health of others. Health care is based
on the unity of preventive, diagnostic and therapeutic rehabilitation
measures, and principles of affordability, efficiency, continuity,
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fairness, inclusiveness and providing quality and reliable medical
treatment (Article 5, LHC). In addition, importance for the analysis
and articles relating to the autopsy, which since 2012 in LHC is
elaborated in Chapter XII - Review of death and autopsy.33
According to the Law on Protection of Patients' Rights
(LPPR), protection of the patients' rights34
is based on the principles
of humanity and availability (Art. 3, par.1 LPPR). Patients have their
rights in this or any other law or by ratified international agreement
(Art. 5, par. 1 LPPR), and patients are entitled to exercise their rights
without discrimination (Art. 5, par. 2., LPPR).
LPPR provides for the following rights: the right to care,
treatment and rehabilitation (which are in accordance to the
individual needs and abilities and which enhance health status, in
order to achieve the highest possible level of personal health,
according to the available methods and possibilities of the medicine,
and in accordance with the provisions of health care and health
insurance) (Article 5, paragraph 3., LPPR), right to respect and
dignity of the person (Art. 5, par. 4, LPPR), right to personal security
during his/her stay in health facility (Art. 5, par. 5 LPPR), right to
participate in decision-making (includes the right to information and
the right of acceptance or rejection of a particular medical
intervention) (Art. 6-16, LPPR), access to medical records (Art. 22-
24, LPPR).35
33
Same material in the old health care law was elaborated in Chapter XV. 34
to this law ‘Patient’ is a person, sick or healthy, who will request or will
undergo a particular medical intervention in order to protect and promote
his/her health, prevent diseases and other health conditions, treatment or
medical care and rehabilitation" (Article .4/1-1, LPPR). 35
Other rights of patients that are not directly relevant to this analysis, but
are provided with LPPR are: mandatory consent for performing scientific
research (Article 17, LPPR), protection of the rights when involving in
medical education (Article 18-20 , LPPR), rules and rights associated with
the actions of the human genome (Article 21, LPPR), right to confidentiality
(Article 25, LPPR), right to maintain contact (Article 26, LPPR), right to
leave the health facility voluntarily (Article 27, LPPR) and right to privacy
(Article 28, LPPR).
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The Criminal Code also includes acts against health of
people, which are determined in a separate chapter.36
More serious
qualifications of these acts are established in Article 217,37
which
regulates serious acts against health of people, as acts where serious
body injury or health disorders or death of one or more persons
occurred because of criminal act. Here, beside Article 217, we could
also distinguish crimes such as unconscientious treatment of sick
people (Art. 207) and not giving medical aid (Art. 208), as the most
relevant for this analysis.
Equality and non-discrimination, in addition to the
provisions of the Constitution mentioned above, are provided in a
number of laws. Main legislation is the Law on prevention and
protection from discrimination, according to which direct, indirect,
multiple, repeated, prolonged discrimination, discrimination in the
provision of goods and services, discrimination against persons with
a disability, victimization and harassment is prohibited (Art.6 -12,
LPPD). This applies, among others, in "social security, including the
area of social security, pension and disability insurance, health
insurance and health care" (Art. 4, para.1, subparagraph.3, LPPD). In
terms of protected grounds i.e. grounds for discrimination, this law
36
This chapter provides the following parts: transmitting infectious disease
(Article 205), not acting according health regulations during epidemic
(Article 206), unconscientious treatment of sick people (Article 207), not
giving medical aid (Article 208), nostrums (Article 209), illegal
transplantation of parts of human body (Article 210), unconscientious
performance of pharmaceutical activities (Article 211), production and sale
of harmful medicines (Article 212), production and sale of harmful food and
other products (Article 213), unconscientious examination of meat for
eating (Article 214), unauthorized production and distribution of narcotic
drugs, psychotropic substances and precursors (Article 215) and enabling
the use of narcotic drugs (Article 216). 37
This article is related to the works of: transmitting an infectious disease,
unconscientious treatment of sick people, nostrums, unconscientious
performing pharmaceutical activity and production and sale of food and
other harmful products, unconscientious examination of meat for eating,
illegal manufacture and distribution of narcotic drugs, psychotropic
substances and precursors and enabling the use of narcotic drugs.
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provides an open list, and explicitly lists "sex, race, color, gender,
belonging to a marginalized group, ethnicity, language, nationality,
social origin, religion or religious beliefs, other types of beliefs,
education, political affiliation, personal or social status, mental and
bodily disability, age, family or marital status, property status, health
status or any other basis provided by law or by ratified international
agreement" (Art.3, LPPD).
Despite LPPD, discrimination is also prohibited by specific
provisions in other legislations for the right to health. Thus, Article 9
of the Law on health care, although titled as "Principle of justice"
actually is about the principle of non-discrimination. According to it,
"the principle of justice of health care is being exercised by
prohibiting discrimination in providing health care in terms of race,
gender, age, nationality, social background, religion, political or
other belief, property status, culture, language, kind of illness, mental
or physical disability" (Art.9, HCL). According LPPR, patients are
entitled to exercise their rights "without discrimination based on sex,
race, color, language, religion, political or other belief, national or
social origin, belonging to national minority, property status, birth
origin, sexual orientation or any other status" (Art. 5, paragraph 2.,
LPPR). The Criminal Code stipulates offense violation of equality of
citizens, which punishes the one who "on basis on the difference of
sex, race, color, national or social origin, political and religious
beliefs, property and social status, language or other personal
characteristics or circumstances, revokes or limits persons and
citizen’s rights that are established by the Constitution, law or
ratified international agreement or on the basis of these differences
gives citizens benefits that are contraversial to the Constitution, law
or ratified international agreement " (Art. 137, CC). According to the
above findings, the people who believe that the right to health and
the rights associated with it have been violated or people who seek
protection from discrimination, can use more legal mechanisms,
such as regular courts, inspections and two national human rights
institutions - Ombudsman and the Commission for protection against
discrimination (CPAD).
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3. LEGAL PRACTICE
The number of violations of the rights of Roma is much
higher than the one that is documented in reality, both in institutions
and in the NGO sector. This is due to the fear of injured parties from
exposure to victimization, mistrust in institutions, but also because of
lack of acknowledgment of violations by themselves and acceptance
of the injury as "normal".
In practice, injured parties who have encountered violation
of their rights most often deny taking an action due to the fear that
they will face again incorrect terms and unequal treatmen by the
health facility after finding out that he/she took measures to protect
of rights. Additionally, injured parties do not believe in the protective
mechanisms and providing adequate treatment and access to health
services if actions are taken by their side.
In individual cases that are documented, as the most evident
violations of the rights of health care are: violation of the right to
conscientious treatment, right of access to information and medical
record, right to appropriate medical services, right to protection of
personal data, right to use medicines and further health care, right to
use services of compulsory health insurance, right to compensation
due to disability, violation of personal rights to physical and mental
health, right to equal treatment in the provision of health services,
violation of the principle of humanity, availability and health care, as
well as violation of right to privacy and dignity.
* * *
In order to consider the application of the law in practice, the
next section provides a factual review of four cases of Roma patients
for whom ROMA S.O.S. has provided legal aid in protecting their
right to health.
Identied violated rights: right to conscientious treatment, right to compensation for suffered disabilities, equal access to health care, access to justice.
Initiated proceedings: criminal procedure, civil procedure, quasi-judicial procedure.
Institutions: Basic Court Prilep, Appeal Court Bitola, Ombudsman.
Outcome: criminal proceeding was effectively completed, civil proceeding was partially completed with the nal judgment, and for a part of the requirements the proceeding is still ongoing.
3.1. CASE A.S. FROM PRILEP:
...from a broken arm to
permanent physical
disabilities
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3.1.1. Facts about the case
On 10th September 2008, seven-year old A.S. from Prilep
suffered a broken left forearm while playing near the family house.
The child was taken to P.H.I. General Hospital "Borka Taleski" -
Department of Orthopedics and Traumatology, where he underwent
immobilization of the broken arm. Doctor on duty found that there is
no need of surgery, but decided to keep A.S. at the hospital to
monitor his condition. A.S. began to complain of pain in the hand,
after what (next) the doctor on duty concluded that surgery was
needed, so he left A.S. without food and water, preparing him for
surgery if the collective decides, in accordance with the protocols of
the department. That day a decision for surgery was not made, and
the plaster was just cut. After this, changes of the color and swelling
on the arm were noticed, and the plaster was removed, but signs of
gangrene were noticed on the arm. On 14th September, A.S. was
transferred to the P.H.I. Pediatric Surgery Clinic - Skopje, where due
to life-threatening condition, his arm was amputated. Consequently,
A.S. now has a permanent disability.
3.1.2. Procedures for protection of the rights
Because of suspected violation of the right to conscientious
treatment and exercising of the right to compensation for disabilities,
two proceedings were initiated, criminal and civil, in front of the
Basic Court in Prilep. From these two procedures only the criminal
procedure was completed with judgment, while the civil one, for
compensation of faced disability, was completed only partially with a
final court judgment while it is still ongoing for some requirements
for which a compensation should be determined.38
Parallel to these actions and based on regular monitoring of
the whole case, discrimination was noted in the access to health care,
38
The case of A.S. was reported in the office of ROMA S.O.S. by the
parents of A.S. after the occurrence of the injury, when in fact, they asked
for legal help for protection of the rights due to inadequate treatment of A.S.
by the health workers. In order to protect the rights of the injured party and
undertake legal actions in both proceedings, ROMA S.O.S. hired the lawyer
Blagoj Dimovski from the law office"Petlickovski" - Bitola.
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as well as obstacles in the access to justice (delay of the proceedings
in front of the Basic Court Prilep). Under these suspicions, some
complaints were filed to the Office of the Deputy Ombudsman in
Bitola.
3.1.3. Explanation of the criminal procedure
In October 2008 the criminal proceedings was initiated ex
officio by the public prosecutor against an orthopedic doctor from
the Department of Orthopedics and Traumatology within P.H.I.
General hospital "Borka Taleski" Prilep, and during the procedure
the indictment was expanded against all six doctors from the
department. After three years from the initiation of the proceeding,
indictment was filed against the six doctors, all orthopedic specialists
employed at P.H.I. General Hospital "Borka Taleski" Prilep, because
there was suspicion of a criminal offense "Heavy offenses against
public health" and "Unconscientious treatment of sick people" of the
Criminal Code of the Republic of Macedonia.39
The reason for this
was the duration of the investigation of the three years in which
period evidences and data for justification of the charges were
gathered.
Suspicions that the proceeding tended to be prolonged and
lead to "forgetting" were based on the fact that after the initiation of
the prosecution proposal by the public prosecutor on 18.10.2011 and
the initiation of the criminal proceeding, by the beginning of 2014
39
Unconscientious treatment of sick people Article 207
(1) A doctor who will use inadequate means or manner of treating when
providing medical care or will not to use proper hygiene measures or will
act unconscientiously in general, and by doing so will cause worsening of
the health condition of any person, shall be punished by a fine or
imprisonment up to three years.
(3) If the crime of the items 1 and 2 is committed out of negligence, the
perpetrator shall be punished by fine or imprisonment up to one year.
Article 217
(3) If because of the crime from Article 205 item 3, 207 item 3, 211 item 2,
212 item 2, 213 item 2 and 214 paragraph 2 any person is severely
physically harmed or his/her health is severely damaged, the perpetrator
shall be punished with imprisonment of three months up to three years.
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there was no final judgment. Fears that the case will be forgotten
were due to the fact that in September 2014 the legal limit for
prosecution of 6 years from the date of the injury will have been
expired.40
Actions undertaken by ROMA S.O.S. in front of the institutions
for protection of the rights
Through regular contact with the local public prosecutor, the
investigating judge and the President of the Basic Court Prilep, the
lawyer and the injured party, investigation and the court proceeding
were being followed and according to the determined irregularities,
actions were submitted to accelerate the proceedings, aiming fair and
timely completion of the case.
A) Ministry of Health
Determined irregularities
For this case, the Ministry of Health formed a special
Commission to establish the facts and circumstances i.e. whether all
measures have been taken by health workers in the treatment of the
patient and whether there were irregularities in the medical care.
However, even after four months of the event, the Commission had
not yet adopted Opinion on the circumstances that influenced the
course of the investigation.
40
The statute of limitations in the case of A.S. expires in September 2014.
After this deadline, no legal action can be undertaken against the
perpetrators of the crime and they will not be criminally prosecuted. In
accordance with the provisions of the Criminal code, the prosecution for the
crime that defendants have been accused for, shall expire after six years
from the date when the crime was committed (see Article 107, paragraph 1,
item 5, and Article 108, paragraph 6 of the Criminal code).
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Intervention undertaken by ROMA S.O.S.
Due to delays in the preparation of the Commission's
opinion, ROMA S.O.S. appealed and filed a request to the Ministry
of Health to take responsibility and measures for accelerating the
work of the Commission and the adoption of the necessary opinion.
Action undertaken by the institution
Although ROMA S.O.S. did not receive a written response
from the Ministry, the Minister of Health in a media statement cited
part of the findings of the Commission. Namely, he said that the
Commission has found, "[...] there was inadequate treatment by the
doctors [...] untimely surgical treatment of the wound, late notice of
the change of the hand, and late removal of the plaster, [...] [and]
revocation of medical licenses is possible."
B) Office of the deputy Ombudsman – Bitola
Determined irregularities
After the given order by the investigating judge for
conducting a forensic medical expertise, the case was submitted to
the Forensic Institute in Skopje, in order to identify irregularities in
the treatment. After 13 months from the amputation of the hand,
finding and forensic expert opinion, were not submitted to the Basic
Court in Prilep.
Intervention undertaken by ROMA S.O.S.
Under suspicion for delaying the investigation and the
forensic medical expertise, which disables access and provision of
legal protection, a complaint has been submitted three times to the
Office of the deputy Ombudsman in Bitola against the Basic Court in
Prilep.
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Action undertaken by the institution
In terms of the procedure with forensic medical expertise, it
was concluded that the case was sent to the institution that is not
authorized to act i.e. Forensic Institute, so it was transferred to the
Board for a forensic medical experts at the Medical Faculty in
Skopje. Forwarding case demonstrates the unseriousness and
unprofessionalism of the institutions. Also, by submitting the case to
the competent authority for expertise, the finding was not submitted
to the Basic Court Prilep, because the costs for the forensic medical
expertise by the court were not reimbursed.
In relation to the proceeding in front of the Basic Public
Prosecutor and his non pleading about the case, after the act of the
deputy Ombudsman, information about the procedure in front of the
Public Prosecutor was received, who had requested expansion of the
investigation against all doctors from the department, which led to
the delay of all actions.
Achieved changes
After four months of the act of ROMA S.O.S., the cost of the
expertise were paid, and the finding and opinion were delivered to
the Basic Court Prilep.
C) Public Prosecution, Ministry of Justice and president
of the Basic Court Prilep
Determined irregularities
Indictment by the public prosecutor was submitted to the
Basic Court Prilep on 18.10.2011. As a result of inability to secure
the presence of the experts who were involved in conducting forensic
medical expertise and their hearing, not attending of the defendants
and requested additional expertise to establish new facts and
circumstances, although fifteen hearings have been held, the
judgment has not been made yet.
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Intervention undertaken by ROMA S.O.S.
An appeal was submitted to the Public Prosecution Office of
the Republic of Macedonia, the Basic Court Prilep and the Ministry
of Justice under suspicion of violation of the basic principle of the
judicial proceeding for a trial within a reasonable time and possible
obsolescence of the case, as well as possible further delay of the
additional expertise which was requested.
Actions undertaken by the institution
Public Prosecution Office of the Republic of Macedonia - a response
was received which reported that the Public prosecutor in Prilep has
undertaken timely and proper legal actions.
Ministry of Justice - with the response, a statement of the trial judge
was submitted, who gave an explanation that the complexity of the
case, the number of defendants and experts involved were reason for
multiple delays of the hearings, yet actions in accordance with legal
regulations had been undertaken.
Basic Court Prilep - a meeting with the President of the Basic Court
Prilep was scheduled and held, who personally pledged to call the
experts to meet the requirements of the court and to appoint
representatives who will attend the hearing on 29.03.2013.This
meeting was attended by the parents of the injured party who had
previously sent a complaint to the president of the court expressing
their concerns about the conduction of the judicial proceeding.
Achieved changes
The hearing held on March 29th, 2013 was attended by invited
experts and judgment was made. In it, the court pleaded two out of
the six doctors guilty of committing serious crimes against people’s
health, and were given an alternative measure - probation as a
sanction, a fine of 500 euros, which will not be executed if within
one year they do not commit another crime. The other four doctors
were freed of charge.
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Undertaken actions by the parents of the injured party A.S. in front
of the institutions for protection of the rights
Following the judgment of the Basic Court Prilep on
29.03.2013 an appeal by the Basic public prosecutor to the Appeal
Court in Bitola was submitted.
Intervention undertaken by the parents
On 8th July 2013 parents of A.S. filed complaints to the
Appeal Court in Bitola and Higher Public Prosecutor's Office in
Bitola, demanding the case to be taken as a priority, given that five
months had passed since the adoption of the first instance judgment.
Actions undertaken by the institution
Both institutions have responded positively to the complaints
of the parents.
Higher Public Prosecutor's Office submitted a proposal for
priority in resolving the case to the Appeal Court, and upon the
review of the documents, irregularities and remarks in the work of
the Public Prosecutor’s Office were determined in relation to the
matter for which the Public Prosecutor’s Office of the Republic of
Macedonia and the Council of Prosecutors were informed.
Achieved changes
Appeal Court decided upon the appeal to return the case for retrial
and provide directions for determining disputed facts. During the
retrial, in December 2013, the Basic Court pleaded guilty the doctor
on duty who admitted A.S. and immobilized his arm (who is also
head of the Department of Orthopedics) and he was given an
alternative measure – probation sentence - imprisonment of three
months. The court freed the other five doctors of charge. The court
directed A.S. and his parents to court dispute about compensation.
As with the first instance judgment the other five orthopedic
doctors were freed of charge, the lawyer disputed the decision that
the responsibility for the treatment of the juvenile A.S. was duty only
to the doctor on duty who admitted him since the treatment was
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performed as a team and the commitment to the health condition of
the patient was of all charged doctors, submitted an appealed to the
Appeal Court in Bitola. Acting upon the appeal, the Appeal Court in
Bitola just confirmed the first instance judgment of the Basic Court
in Prilep, according to which only the doctor on duty who has
admitted A.S. and immobilized his arm is guilty, as well as
confirmed the sentence alternative measure - probation -
imprisonment of three months. Regarding the other five defendant
doctors, the first instance judgment was confirmed and they were
freed of charge since there was no causal connection between their
actions and the occurrence of the harmful consequence - the
occurrence of gas gangrene.
3.1.4. Explanation of the civil proceeding for compensation
Due to the disability suffered by the juvenile A.S. as a result
of inadequate treatment of the orthopedic doctors in P.H.I. General
Hospital "Borka Taleski" - Prilep, in accordance with the Law of
Civil Procedure and the Law on Obligations, two appeals have been
filed on front of the Basic Court in Prilep for compensation of
immaterial damage.
A) Undertaken actions by the injured party
On 05.09.2011 an appeal was filed for compensation due to
suffered disability and violation of personal rights of physical and
mental health, against P.H.I. General Hospital "Borka Taleski"
Prilep, as well as a request for monthly lifetime payment until there
are conditions for it, due to reduced general activity i.e. disruption of
normal functioning and performance of everyday tasks, therefore,
requires constant assistance from his closest family.
Determined irregularities
Basic Court in Prilep thought that it should not act on the
appeal on the grounds that the appeal did not contain the required
data for further treatment (data for identification of the complainant).
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On the other hand, requested relief from the procedure costs
(cost for court fees, advanced paying for witnesses and experts, for
insight and court listings) was not approved with an explanation that
the grounds of the appeal is financial claim, that a lawyer who will
advocate their rights has been engaged in the process and there was
no evidence that the complainants are not capable of work.
Intervention undertaken by the lawyer
An appeal to the Appeal Court in Bitola was submitted.
Actions undertaken by the institution
Appeal Court in Bitola found that the Basic Court in Prilep
made a mistake in dismissing the appeal and did not free the
complainants from procedural costs. Namely, the legal basis for the
claim, financial claim for compensation is not a criterium that
determines whether there are circumstances to release the party from
paying court fees i.e. costs of the procedure, but what is important is
the income realized by the party and members of the household
whom he lives with and that based on data that are in the appeal can
be acted on.
Achieved changes
The case is returned again to the Basic Court Prilep for
further processing, and after six hearings, in September 2013 a
judgment which determines the compensation for immaterial damage
in the amount of 5.000.000,00 denars was made, due to violation of
the rights of physically and mental health. The Court has found that
doctors are responsible for the compensation caused by the deviation
of the standards of medical science and ethical principles, that was
result of insufficient attention of the doctors in treatment and treating
the juvenile A.S. The request for payment of lifetime financial
support every month until there are conditions for it, was rejected
with the verdict as unfounded, and the request for reimbursement of
litigation expenses was partly adopted.
The complainants, dissatisfied with the given amount for
immaterial damage and rejection of the request for payment of
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lifetime financial support, filed an appeal against the first instance
judgment in front of the Appeal Court in Bitola.
Acting on the complaint, the Appeal Court made a judgment
that overturned the first instance judgment regarding the amount
given for immaterial damage and determined an amount of
2.700,000,00 denars in total, and the case was returned to the court of
first instance regarding rejected request for lifetime payment of
financial support and litigation costs.
B) Actions undertaken by the parents of the injured party
On 05.09.2011 an appeal was filed against P.H.I. General
Hospital "Borka Taleski" Prilep for compensation of immaterial
damages for violation of personal rights i.e. suffered mental pain and
due to permanent disability of their child as a result of
unconscientious treatment and amputation of the arm.
Determined irregularities
The Basic Court considered that the procedure should be
stopped and it should not be acted until the criminal procedure, that
is held in front of the court in Prilep, is complete, thus explaining
that this procedure will determine whether the defendant doctors
were guilty of the crime they are accused for and determine whether
there are grounds to sentence compensation.
Intervention undertaken by the lawyer
An appeal was filed to the Appeal Court Bitola.
Actions undertaken by the institution
Just confirmed the decision of the Basic Court for
termination of the proceeding until final completion of the criminal
proceedings in front of the Basic Court Prilep and determining guilt.
By the adopted decision, the Court explained that
termination can be determined if there is a proceeding initiated in
front of the court to decide the issue of guilt, which precedes the
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question of compensation. In the present case, criminal proceedings
in front of the Basic Court Prilep has already been started, and in the
civil proceeding, in relation to the existence of the crime and the
criminal responsibility of the perpetrator, is bound to the final
judgment of the court by which the defendant is found guilty.
According to the Appeal Court, the proceeding is being terminated
properly because the outcome of the criminal case will affect the
proceeding initiated on the basis of compensation.
Achieved results
Given that the criminal proceeding ended in December 2013
and it was confirmed that the damage in juvenile A.S. is a result of
medical error, conditions have been created for continuation of the
procedure for determining compensation of immaterial damage to
parents for suffering mental pain by the state in which they have their
child.
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Identied violated rights: right to conscientious treatment, right to
equal treatment in access to health care, right to information, access to
justice.
Initiated proceedings: criminal procedure, quasi-judicial protection.
Institutions: Basic Court - Bitola, Ofce of the deputy Ombudsman – Bitola.
Outcome: ongoing
3.2. CASE S.B. FROM BITOLA:
...Death of a woman who
was giving birth from
unknown reasons
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3.2.1. Facts about the case
On 19.03.2012 at the Department of Gynecology and
Obstetrics at P.H.I. Clinical Hospital "Dr. Trifun Panovski" in Bitola,
S.V., a 24-year-old Roma woman from Bitola passed away from
unknown reasons, during the delivery by caesarean section, and the
infant survived.41
The mother had previously given birth to three
children without any complications, and during the last pregnancy
she went to regular gynecological examinations to her gynecologist,
and no signs of deteriorating health were determined.
Husband of the deceased and her relatives were not given
detailed information about what exactly had happened during
delivery and what were the reasons for the death. They have been
sent to the Regional office of the Ministry of internal affairs and to
the investigating judge at the Basic Court - Bitola which took over
the case.
In order to determine the causes of death, by order of the
investigating judge in the Basic Court Bitola, an autopsy has been
performed on the deceased by the Institute of Forensic Medicine,
Medical Faculty Skopje, and the Ministry of Health formed by
decree a Commission for supervising the professional activities of
the Department of gynecology and obstetrics at P.H.I. Clinical
Hospital "Dr. Trifun Panovski" - Bitola.
3.2.2. Procedures for protection of the rights
Under suspicion of violation of the right to conscientious
treatment, criminal proceeding42
has been initiated in front of the
Basic Court in Bitola. The procedure still has no final conclusion.
41
The case was identified in the field and reported to ROMA S.O.S. by
C.D.R.C. "Bairska Svetlina" Bitola, as an associate to the project. C.D.R.C.
"Bairska Svetlina" during the advocacy of the case provided logistical
support in both, communication with the injured parties and the relevant
institutions, in the interest of protecting the rights of the injured parties. 42
ROMA S.O.S. hired the lawyer Blagoj Dimovski from the law office
"Petlickovski" - Bitola to protect the rights of the injured husband of the
deceased woman who was giving birth during the criminal procedure, and
he will also advocate the interests of the injured parties in the civil
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At the same time, proceedings have been initiated in front of
the Office of the deputy Ombudsman in Bitola under suspicion of
discrimination in access to health care, violation of the right to access
to information and delay of the investigation in front of the Basic
Court in Bitola.
3.2.3. Explanation of the criminal procedure
The case ex officio was taken over by the basic public
prosecutor in the Basic Court in Bitola, and after applying the request
to the investigative judge, an investigation had been initiated.
In May 2013 indictment was filed against a physician
specialist anesthetist for the crime of "Heavy offenses against public
health" and "Unconscientious treatment of sick people" of the
Criminal Code of the Republic of Macedonia. The doctor is
employed at P.H.I. General Hospital "Borka Taleski" Prilep, and on
basis of agreement between health institutions he is also engaged in
P.H.I. Clinical Hospital "Dr. Trifun Panovski" Bitola.
Actions undertaken by the injured party (the husband of S.V.) in
front of the institutions for protection of the rights
From the date of the death of S.V. until the initiation of the
indictment more than a year has passed, which alluded to doubts
about delaying of the investigation, and it emerged the need to
undertake parallel legal actions for protection of the rights.
А) Office of the deputy Ombudsman - Bitola
Determined irregularities
In this case, late filing of the indictment by the Basic Public
Prosecutor to the Basic Court in Bitola was noted, late submission of
the obduction finding to determine the cause of the death of the
woman giving birth by the Institute of Forensic Medicine, Medical
procedure in order to exercise the right to compensation for suffered mental
pain as a result of the death of S.V. from unknown reasons.
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Faculty of Skopje and the time needed for Basic Public Prosecutor to
decide on further action based on the evidence gathered.
Intervention undertaken by the injured party
Two complaints were filed, one against the Basic Court in
Bitola under suspicion of delaying the course of the investigation and
not taking measures to accelerate the hearing and after two months
after the death, and one against P.H.I. Clinical Hospital "Dr. Trifun
Panovski" - Bitola under suspicion that not all measures have been
undertaken to protect the life of the woman giving birth that resulted
in death.
Actions undertaken by the institution
In his response, the deputy Ombudsman informed the injured
party that acting upon the complaint against the medical facility, the
facility does not have the requested information since an
investigation about the case is being conducted.
For these reasons, the Ombudsman has no basis to pursue the
procedure upon the complaint, but he instructed the injured party to
file a complaint again in order to accelerate the investigation if there
is suspicion of undue delay.
Actions undertaken by ROMA S.O.S. in front of the institutions
for protection of the rights
Facts and circumstances related to the death of S.V., but also those
that followed her death, indicated potential unequal treatment in
several areas of the several grounds of discrimination. Namely, the
husband of the deceased and her relatives faced limited access to
information about the condition of S.V., the course of the treatment,
as well as actions and measures undertaken to protect her life.
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A) Office of the deputy Ombudsman - Bitola
Determined irregularities
There was suspicion of violation of the right to equal access
to health services, as well as violation of the right to be informed by
health workers.
Intervention undertaken by ROMA S.O.S.
A complaint about multiple discrimination was filed to the
Office of the deputy Ombudsman in Bitola against employees at the
Clinical hospital, which states that the illegitimate partner of the late
S.V. faced discrimination based on belonging to a marginalized
group and education.
Actions undertaken by the institution
From the response that was received, the procedure was
elaborated and irregularities in the work of the team of the hospital
were identified in accordance with the report of the Commission for
supervision of the professional work in P.H.I. Clinical Hospital "Dr.
Trifun Panovski" - Bitola, established by order of the Minister of
Health in relation to the examination of the medical treatment of
S.V., the woman who was giving birth.43
43
(1) Irregularity/lack in the running of the hospital documentation
concerning obstetric history and there is no written document by the
anesthesiologist, that was obligation.
Proposed measures to eliminate this irregularity: to run complete and
accurate medical records in chronological order with a description of all
therapeutic and diagnostic procedures, and in cases that are of high risk and
endanger the health and lives of patients, to engage a person who will
record the applied diagnostic and therapeutic procedures in a chronological
order.
(2) Irregularity/lack in the methodology of communication between teams
i.e. health workers, because of what the patient was left to wait for surgery
for a long period of time.
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Based on the statement and report of the Commission for
supervision of the professional work of the Department of
Gynecology and Obstetrics, Minister of Health immediately sent an
order to the institution to eliminate identified deficiencies and to
implement the proposed measures in as short term as possible.
However, it was not determined whether the actions of the
health workers were discriminatory and with unequal treatment, that
as an issue was not addressed at all by the deputy Ombudsman,
although it was required his action on this question.
3.2.4. Explanation of the grounds for initiation of a civil
action for compensation
There is an ongoing review of the possibility and basis for
initiating a civil procedure for compensation from P.H.I. Clinical
Hospital "Dr. Trifun Panovski" - Bitola for violation of personal
rights and mental pain suffered by the S.V.’s husband and their
children, caused by the death of the mother, according to the Law on
Obligations.
The grounds for this kind of action arises as a result of the
overall existing materials of a criminal trial that confirms that there
are irregularities and flaws in both, the treatment of the mother and
the equipment in the health facility, which show causation of the
death of the mother and a violation of the rights of the family
members.
Proposed measure: to define the manner of communication and
organization between the teams in order to achieve fast organization to
implement appropriate therapeutic and diagnostic procedures.
(3) Irregularities/lack of equipment in operating rooms and hospital wards,
required and mandatory in the rooms where complicated surgical
procedures are performed.
Proposed measures: kapnograf should be provided in the rooms where
more complicated surgical procedures are performed or at urgent pathology.
Proper defibrillator to be provided in the operating rooms.
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Identied violated rights: right of conscientious treatment
(indicating the need for attention while performing medical duties).
Initiated proceedings: civil procedure.
Institutions: Basic Court Kocani, Appeal Court Stip.
Outcome: civil procedure was effentivelly completed with positive
judgment or given compensation for decreased physical function as a
result of medical error.
3.3. CASE S.F. FROM DELCEVO:
...Decreased physical function
and unconscientious treatment
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3.3.1. Facts about the case
On 16th May 2011, S.F., 63-year-old Roma woman from
Delcevo, in a fall from stairs injures the right shoulder and suffered a
fracture. After the examination by a doctor-orthopedist at P.H.I.
General Hospital Kocani, a gypsum langeta was put on her forearm
but not on the proper place (from the elbow to the wrist) and the
condition of S.F. worsens. Because of the persistent pain and
swelling in the shoulder, S.F. requested an expert opinion from
another orthopedic surgeon in the same hospital, who placed second
gypsum (from the neck to the wrist) and issued a referral for
treatment in P.H.I. Clinical Hospital Stip. There, a need for surgical
intervention was determined and placing an artificial joint due to
reduced function of the arm.44
3.3.2. Procedures for protection of the rights
Under suspicion of violation of the right to conscientious
treatment and not paying attention while performing medical duties,
a civil proceeding for compensation was initiated.
3.3.3. Explanation of the civil proceeding for compensation
In March 2012, a complaint was filed in front of the Basic
Court Kocani against P.H.I. General Hospital Kocani and against the
doctor who initially treated S.F., demanding compensation for the
reduced life activity of her arm, suffered fear, physical and mental
pain, according to the Law of Obligations, and as a result of
conscientious treatment and treatment the fracture.45
44
After the injury, the case was documented by the association KHAM
Delcevo within the project "Para-legal aid" and then transferred to ROMA
S.O.S. and further advocacy of the rights of the injured party in the
litigation has been requested. The association KHAM provided logistical
support in communication with the injured party, the lawyer and organizing
meetings for mutual coordination in terms of advocacy during the whole
course of the judicial proceeding. 45
Lawyer Aksel Ahmedovski from Delcevo was hired to protect the rights
of the injured party during litigation.
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After two trials, in October 2012 a judgment was made that
did not approve compensation, since no medical error was
determined during the treatment.
Actions undertaken by the injured party in front of the institutions
for protection of the rights
The judgment was contrary to the report46
of the forensic
medical expertise, that showed that there are irregularities in the
treatment because of which S.F. obtained permanent disability and
20% reduction in the functionality of the arm.
Intervention undertaken by the injured party
In November 2012 an appeal was filed to the Appeal Court
Stip against the judgment that was made by the Basic Court Kocani
and incorrectly determined facts and circumstances that affected
S.F. to acquire a permanent disability.
Actions undertaken by the institution
Within two months of the filing of the appeal, the Appeal
Court Stip made a decision to return the case for retrial in front of the
Basic Court Kocani and provided instructions for determining the
decisive facts.
Achieved changes
In April 2013 a judgment was made in which was
established that there is medical error in the method of treating the
patient and not acting in accordance with the medical science by the
doctor in performing his/her profession, and as a result of that S.F.
suffered unnecessary pain and has reduced functionality of her arm
and 20% disability.
An amount of 200.000,00 denars was given as a compensation for
the damage, which in September 2013 was paid by the P.H.I.
General Hospital Kocani on the account of the injured party S.F.
46
Expert report and opinion were prepared by the expert, Prim. Dr. Filip
Todorovski, specialist in general surgery and subspecialist in traumatology.
Identied violated rights: right to information, right to access to medical records, right to equal treatment in health care.
Initiated proceedings: quasi-judicial protection.
Institutions: Ofce of the deputy Ombudsman – Bitola.
Outcome: quasi-judicial procedure - stopped.
3.4. CASE A.J. FROM BITOLA:
...The death of a newborn
from unknown reasons
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3.4.1. Facts about the case
On 08.02.2012 at the Department of Gynecology and
Obstetrics at P.H.I. Clinical Hospital "Dr. Trifun Panovski" 20-year-
old Roma woman from Bitola gave birth to a baby boy. Two days
after giving birth, the child was taken from his mother by the health
workers and was put in a separate room in an incubator, since they
noticed change in the color of the body of the baby. The mother and
the closest family members were not given information about the
health condition of the child, and their request to see the newborn
was rejected. The next morning the family was informed that the
newborn passed away of unknown reasons, and they were not given
detailed information what exactly led to this outcome.47
According to medical protocols, the body was immediately
sent to the Department of Pathology at P.H.I. Clinical Hospital "Dr.
Trifun Panovski" Bitola to perform an autopsy and determine the
cause of death. The body of the deceased newborn was never
returned to the family, and was treated as medical waste, without
parental consent.
3.4.2. Procedures for protection of the rights
There are doubts that the parents of the newborn during the
whole period faced violation of the right of access to information,
right to equal treatment in the provision of health services and the
right of access to medical records.48
47
The case was reported by C.D.R.C. "Bairska Svetlina" Bitola as an
associate of the project and then it was documented with facts by ROMA
S.O.S. During advocacy of the case by C.D.R.C. "Bairska Svetlina" Bitola,
logistical support has been provided in the communication with both, the
injured parties and relevant institutions, in the interest of the protection of
the rights of the injured parties. 48
Lawyer Blagoj Dimovski from the law office" Petlickovski" – Bitola, was
hired to protect the rights of parents and to initiate proceedings based on
identified irregularities.
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3.4.3. Explanation of quasi-judicial protection
Limited and insufficient access to information about the
health condition of the newborn before his death, and the cause of
death and the procedure of autopsy, according to the Law for
Protection of Patients' Rights and the Law on Health Insurance, were
identified as irregularities that parents have faced in their access to
health services and care.
The Apgar score in which health workers describe the health
condition of the infant at the time of birth is still missing from the
documentation, and in the quasi-judical protection showed that
parents in the absence of a legal representative did not have access to
medical documentation and that there was great possibility the
autopsy not to be conducted.
Actions undertaken by the injured parties and the lawyer in front
of the institutions for protection of the rights
The facts and circumstances under which the death of the
newborn occurred, as well as the procedure of the health institution,
indicated the need for filing requirements and interventions for
access to information and insight into the medical documentation,
first to determine the causes of death, and second to determine
responsibility of the institution in handling the case.
Intervention undertaken by the injured parties
P.H.I. Clinical Hospital "Dr. Trifun Panovski" Bitola - on 23rd
March
2012 a request for information was filed regarding the autopsy and
determined causes of death.
Deputy Ombudsman Bitola - in May 2012 a complaint was filed in
order to accelerate the proceeding of the autopsy by the Department
of Pathology and to respect the given period of 6 months, because
after that period the body will be treated as medical waste and
actions can not be taken.
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Actions undertaken by the institution
P.H.I Clinical Hospital "Dr.Trifun Panovski" Bitola - on 29th March
2012 a response to the request was received, which informed that an
autopsy has not been conducted yet, but it will be conducted
additionally and the parents of the newborn will be notified.
Deputy Ombudsman Bitola - on 18th June 2012 acting upon the
complaint, notifies injured parties that written information was
requested and received with evidence and statements from doctors
who were taking care about the infant, according to whom the baby
was born with a neat vital parameters. On the critical day, after the
morning visit, clinical findings were normal and after 3 p.m. it was
alerted that the child was blue with secretions in the mouth and it
was immediately taken to the Department of Special Care without
cardiac arrhythmia and breathing. The Ombudsman reported that the
documents supplied by the institution also contain finding of the
autopsy in order to determine the cause of death.
Intervention undertaken by the lawyer
State sanitary and health inspectorate - Regional department for
inspection Bitola - on 12th
October 2012 a complaint was filed for
disabling access to entire medical record of the mother and infant
throughout the duration of treatment by the hospital staff, which was
necessary in order to be undertaken further actions (request for
second expert opinion, reviewing the basis for initiation of the civil
proceeding for compensation).
Intervention undertaken by the institution
State sanitary and health inspectorate - Regional department for
inspection Bitola - on 26th October 2012 the procedure was stopped
because after filing the complaint, access to the medical records and
complete documentation by the P.H.I. Clinical Hospital "Dr. Trifun
Panovski" – Bitola was provided.
Achieved changes
Medical documentation and access to medical records were
provided as well as Findings and opinion by the Department of
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Pathology about the causes of the death of the newborn. The autopsy
determined that the cause of the death of the newborn was Atelectasa
- lack of air in certain parts of the lungs, and the lungs did not
function normaly as well as underdevelopment of the lungs. The
mother of the newborn and her family suspecting this finding,
especially because the newborn was not treated as a newborn with
pulmonary disease (on the contrary – the baby spent the first two
days with the mother), asked for a second expert opinion from the
University Clinic for Gynecology and Obstetrics in Skopje.
In the report that was submitted by the experts, it was stated
that there is deviation from the normal procedure and assessment of
the vitality of the newborn that was not conducted in the first and
fifth minute after the birth by the five parameters of the Apgar score:
color of the skin, tone, reflexes, heart rate and crying/breathing. The
first check was 25 minutes after the birth, and the physical finding
was normal, which, however, does not correspond to the
patohistological findings of the autopsy that was conducted at the
P.H.I. Clinical Hospital "Dr. Trifun Panovski" - Bitola, which shows
that the cause of death was underdeveloped lungs. Regarding this
cause of death in the pathohistological autopsy, there is no enough
data that would determine the cause of the underdevelopment of the
lungs but Atelectasis dominates as a direct consequence of aspiration
and set as a clinical diagnosis of death.
Actions undertaken by ROMA S.O.S. in front of the institutions for
protection of the rights
In this case, the circumstances indicated to suspicion of
violations of the right to equal access to health care and health
services. Also, there were doubts and discrepancies about the
treatment and attitude of the staff, particularly when the parents were
refused to be returned the body after the autopsy was performed for
traditional ceremonies, with an excuse that they do not need the body
since there is nothing to bury, and that it will be destroyed as a
medical waste.
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Intervention undertaken by ROMA S.O.S.
On 17th October 2012 complaint was filed to the Office of
the deputy Ombudsman - Bitola against the health facility for
suspected discrimination caused on many grounds (belonging to a
marginalized community, education). Namely, the limited access to
information about the health status of the newborn, the reluctance of
health workers to peform autopsy findings to determine the cause of
death and the treatment of the body as medical waste without the
consent of the parents were cited as an explanation for unequal
treatment and discrimination committed by failing to take actions by
the institution.
Intervention undertaken by the institution
On 5th March 2013 the institution submits a notification that
proceeding is being stopped since litigation about the case is in
process, although up to this point litigation was not initiated.
However, it was not determined whether there was discrimination
and unequal treatment in the actions of the health workers as
requested in the complaint itself.
3.4.4. Explanation of the grounds for initiating a civil
action for compensation
The possibility and the grounds for initiating a civil action
for compensation from P.H.I. Clinical Hospital "Dr. Trifun
Panovski" – Bitola is in process of rewiev based on the violation of
personal rights and suffered mental pain by A.J. and her husband
because of the death of their child, according to the Law on
Obligations.
Grounds for this kind of action arisies as a result of all
material and information from the procedure so far together with the
protocol of the autopsy and additional forensic medical expertise
which determined set of certain irregularities and gaps that do not
correspond with the obduction for determining the cause of the death
of the infant. On the other hand, the grounds can be also found in the
identified violated rights of the injured parties in terms of untimely
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information about worsening the health condition of the infant and
the treatment they received from the health workers. These grounds
cause suspision that they cause violation of the rights of the family
members, for which they will require compensation.
3.5. Promotion of the cases in the media
There is always resistance to media promotion of a particular
case by judicial authorities. This is especially because in that way
there is possibility of violation of the credibility of the judicial
authorities, function of the judges and the attention paid during
action of the authorized court on the matter.
However, the media and public promotion of the case had
the key role in the realization of the rights and initiation of the
proceedings for juvenile A.S. In particular, since this case was
publicized for the first time on 15.10.2008 on a national television
media, the basic public prosecutor took over the prosecution ex
officio and the case got its judicial epilogue. Without media
promotion and public speaking about the case, it is a question mark
whether the proceeding for protection of the rights of A.S. would
have ever been initiated, given the fact that parents have never filed
criminal charges against doctors for the damage done.
That is why the media promotion and informing the public
about these and similar situations in the health and legal systems
should be seen as an effective way through which we can contribute
to the realization of the right to health of the citizens, as well as to
cause proactive action by the authorities for protection.
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4. ANALYSIS OF THE APPLICATION OF THE LAW
IN PRACTICE
The legal framework and position of the international law in
the national legal system (part 2) provide a good basis for protection
of the right to health and the rights associated with it. This further
strengthens by the recent ratification of the Optional Protocol to the
International Covenant on Economic Social and Cultural Rights
(ICESCR).49
As four cases presented in section 3 of this analysis show
and the numerous existing literature, in Macedonia most often the
problem is not in the legal framework, but in its implementation.
Well known is the problem with the application of the international
law in the national legal system. This application is not only
possible, but also a legal requirement50
for all institutions from any
governmental branch and any degree of internal organization of the
government and the administration,51
since it is high on the
hierarchical ladder of the legal acts - the Constitution (the highest
legal act of the state).52
However, in practice international law is
mostly ignored or neglected.53
Courts very rarely refer to
49
National government report on the second review of UPR, 08.11.2013,
para.5 50
Constitution of the Republic of Macedonia (1991 and its XXXII
amendments), Art.98, 118 51
General comment no. 3, ICESCR 52
Constitution of the Republic of Macedonia (1991 and its XXXII
amendments), Art.118 53
Extensive research on the issue - the reasons for this attitude toward this
part of the law has not been done, but some possible explanations are lack
of knowledge of this law, unavailability of sources of international law in
Macedonian (with exception of the articles on legal and binding
documents), lack of awareness of the importance of this law for the national
legal system, the manner in which the established mechanisms in practice
monitor the implementation of this law and compliance with the
international law standards, and also taking into consideration these
standards when making judicial decisions in front of regular courts. Even
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international acts and international practice and the implementation
of decisions that affect Macedonia and are made internationally is
difficult.54
Because of this attitude towards international law,
compliance between national laws with international standards is
extremely important. By passing the laws such as the Law on the
protection of patients' rights, Law on prevention and protection from
discrimination, the new Health care law etc., national legal
framework for protection of the right to health and the rights
associated with it is being slowly upgraded, as well as protection
from discrimination. Although this framework offers a lot to be
improved,55
it seems that the main challenge is outside the frame - in
its implementation.
In context of the four cases, the application of the right to
health is illustrated taking into account the four elements according
to General comment no. 14 on CESCR and national legal framework
under which the proceedings were held i.e. violations of law were
identified.
4.1. Availability in the context of the right to
compensation
The case of S.V. from Bitola raised doubts about the
fulfillment of the obligations of the state in relation to this element.
From the report of the Commission for supervision on professional
work at P.H.I. Clinical Hospital "Dr. Trifun Panovski" - Bitola
established by the Ministry of Health, it is clear that there are
shortages of equipment in operating rooms and hospital wards,
necessary and required in the halls where they perform complicated
surgical procedures, and that great part of the necessary equipment
was not available.
when referring to international instruments and standards, it rarely goes
beyond the main affected members by the legally binding documents. 54
Najcevska, Mirjana, Judgments should be implemented (FOSM, 2013) 55
See, for example, CRPRC Studiorum, Brief information - applied
policies: How can Macedonia keep pace with European standards for
prevention and protection against discrimination (2010)
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Lack of equipment brings the functionality of the healthcare
facility and the entire health care system in question, and on the other
hand, it can be further considered as a causal connection with the
death of the mother. It was also overviewed through the prism of the
national law and determined violations of the rights, fulfillment of
this obligation of the state has caused damage to the family of the
mother with violation of their personal rights because of the loss of a
close family member, where this violation will be basis of the appeal
seeking compensation.
4.2. Accessibility and acceptability in the context of the
right to information and the right to equal treatment
Exercising the right of access and its first four components
primarily associates with the right to non-discrimination and
equality. In fact, in all four cases there are elements of prima facie
discrimination i.e. circumstances of the cases and personal
characteristics or the status of the persons are such that make the
existence of unequal treatment possible. Although it takes a detailed
review of the cases to determine the exact identity characteristics or
status on which unequal treatment was done, in these four cases it
seems that people would have the greatest opportunity to prove
unequal treatment on the basis of ethnic background and education.
In addition, cases concerning unequal treatment of Roma are often
treated as cases of racial discrimination,56
so in a particular case it
may be shown that race (which includes color of the skin57
) was the
personal characteristic that such treatment was due to.
In the case of S.V., illegitimate partner of the deceased faced
additional obstacles in confirming paternity because of the marital
status (cohabitation) with S.V. Beside this, viewed from the
56
Examples of such cases in front of ECHR are: DH and Others v The
Czech Republic (2008) 47 EHRR 3; Horváth and Kiss v Hungary. ECtHR
(CJ), App. No. 11146/11, 29.01.2013. 57
International Convention on the Elimination of All Forms of Racial
Discrimination (21.12.1965)
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circumstances of the case, and through the prism of the infant who
survived the birth, the status – giving birth is relevant (well-
established in the practice of ECHR) and the family status as well.
According to the practice of the ECHR, for all grounds of
discrimination listed here, with the exception of education, numerous
serious reasons should be found to justify the different treatment, and
the potential discriminator will hardly be able to show that the
unequal treatment was reasonable, served a legitimate purpose and
was proportional.58
What is observed in both cases for which ROMA S.O.S. has
filed complaints about multiple discrimination to national
mechanisms for protection against discrimination the case of A.J.
from Bitola (death of a newborn) and S.V. from Bitola (death of a
woman giving birth), in neither of them was determined whether in
the actions of the health workers there was discrimination or unequal
treatment.
Besides the access to equality and non-discrimination, the
fulfillment of obligations related to the economic affordability of the
right to health is also under question mark. This conclusion cannot
be derived from the four cases. However, it imposes through other
cases documented by ROMA S.O.S. and which were not included in
this analysis. In fact, health insurance, which in Macedonia is
universal (i.e. based on citizenship59
) for most of the Roma is the
only means which enables them access to health facilities, goods and
services. By coming into force the amendments to the legislation that
provide re-registration of insurers by filing a Statement of income in
the previous year (for which many of the holders of the rights arising
from the status insured - were not notified), many people lost their
status of insured.
This can be best illustrated by the example of S.I., a Roma
woman giving birth. At the moment when she asked for health
58
White R and Clare Ovey, The European Convention on Human Rights
(5thedn, Oxford University Press 2010), Ch.14 59
Milevska-Kostova, Neda et al, Providing a nation-based health insurance
to increase access to health care and reduce poverty (COPORE, 2010)
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service in a health facility (delivery), she had a status of insured at
the Health Insurance Fund of Macedonia.
Due to complications, she was kept for several days at the
facility. At her dismissal, she was issued a bill for health care
services with prices that apply to persons who do not have health
insurance, since she did not submit a Statement of income in the
deadline specified by of the Health Insurance Fund of Macedonia
and thus lost the status of the insured. S.I. had not been previously
informed of the changes in her status.
Finally, the fourth component of accessibility is access to
information, which in the context of the four cases, in terms of access
to information about health condition or by the institutions
responsible for the processing of their cases, is the most endangered,
and therefore indications of ROMA S.O.S. in the complaints filed in
large part are related to the violation of this right. However, this
element is the most evident in the cases of A.J. form Bitola (death of
a newborn) and S.V. from Bitola (death of a woman giving birth).
Despite not providing information about the health status during the
treatment, persons and their families were neither given any
information about the extent of worsening of the condition, nor later
for the causes of the death. Also, in these, as in the case of A.S., and
notice from the competent authorities on the progress of judicial
proceedings (pre investigative, investigative, etc.) was missing.
Therefore, ROMA S.O.S. as a provider of legal aid, used the
main functional mean available – the Ombudsman. The association
and the concerned parties in the case received a great deal of
information through responses of the complaints submitted to this
institution.
Acceptability related to the national legislation and identified
violations of the law can mostly be seen in the context of a violation
of the right to equal treatment. The violation of this element is
mostly noticeable in the case of A.J. and the death of the newborn.
Namely, the parents, given their legal right to receive the dead body
of the newborn baby after the autopsy was completed, they requested
the body from the health workers, but they were given a response
that they will not need the body, because there is nothing to bury,
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and that it is destroyed as medical waste. For this type of action and
treatment of the body, consent and approval from the parents were
not previously requested. This, among other things, suggests
insensitivity to traditional practices that are often intertwined and
form the basis for cultural practices, which results in unequal
treatment.
Interethnic respect for differences, respect for cultural sensitivity
and their acceptance by the health workers was missing in the other
three cases as well. However, only in the case of S.V. and A.J.,
suspicion of unequal treatment in access to health services and health
care, as well as not transferring information for the entire course of
treatment in a clear, appropriate and easily understandable language
due to the low degree of education of the injured parties, were
elaborated as basis for multiple discrimination in access to health
services in the proceeding in front of the Ombudsman.
4.3. Quality in the context of the right to conscientious
treatment
Although in the four cases it is difficult to derive irrefutable
argument against fulfillment of the obligation for quality of the
health facilities, goods and services, the violation of this right in the
cases is associated and considered in terms of violation of the right to
conscientious treatment and giving needed attention in compliance
with the medical profession. Such example is the case of S.V. from
Bitola. According to the report of the Committee constituted by the
Ministry of Health, a long period of time has been noted from
establishing the indication to the birth of the baby and this period is
inadmissible in case of need for rapid intervention, especially when
suffering of the fetus is noted.60
In addition, untimely given health
services, which in a great deal is due to non established procedures
and bad coordination for cooperation among health workers, can be
interpreted as a lack of quality in services.
60
Source: Report of the deputy Ombudsman after ROMA S.O.S. filed a
complaint
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The same applies to the case of juvenile A.S., in which
apparently due to irregularities in providing relevant, timely and
quality health services, the result was amputation of his arm.
These irregularities are identified in the report of the
Commission for establishing the facts and circumstances determined
by order of the Ministry of Health, that there is inadequate treatment
by doctors, untimely surgical treatment of the injury, late registration
of the change of the arm, but also late removal of the plaster. On the
other hand, deviation from the standards of the medical science and
ethical principles, and as a result of insufficient attention and
conscientious treatment by the doctors in the treatment and treating
of juvenile A.S., it was confirmed by the final judgment by the Basic
Court Prilep, in the criminal but also in the civil proceeding.
Violation of the right to quality in the case of S.F. from
Delcevo resulted in a 20% disability and decreased function of the
arm due to not complying with the medical science by the doctors in
practicing their profession. In the case of A.J., deviations from the
normal procedure were determined immediately after the birth of the
newborn, whereas assessment of the vitality of the newborn in the
first and fifth minute after the birth in the five parameters of the
Apgar score was not conducted which is an obstacle to get quality
information about the health condition of the newborn immediately
after the birth and from which a need for further observation by the
health workers could arise.
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5. ACCESS TO JUSTICE
The cases presented in this analysis suggest that many of the
problems that people whose rights were violated face when asking
for legal protection are related to capacity, performance and
independence of the judicial system. Mostly, exceeding of the legal
limits is noted, long duration of the procedures with often delays of
the trials (as in the example of Cf. Alyne da Silva Pimentel against
Brazil - appointment of medical experts who would examine the
case, as well as delays in trials and sentencing judgments, are not
arguments that can justify the delay61
). In addition, in all four cases
there was a report or opinion given by Commission of the Ministry
of Health, or findings of experts that have determined medical
error/irregularity, and yet, the proceedings are not completed within
the legal limits.
What is also concerning is the frequent need of additional
interventions during the procedure not only for its acceleration, but
also just to move the proceedings from the "dead spot" (lack of any
development in longer period of time) or to prevent the obsolescence
of the case. In all cases that were referred to, it seems that without
interventions of ROMA S.O.S. great deal of the information would
not come to people whose rights have been violated and to their
families, but also that people alone would not be able to put pressure
and take advantage of all available resources. Also, access to justice
is limited because of past practice and according to previous opinions
of our courts, that in proceedings for compensation by the
responsible person, it is necessary first to be determined the possible
fault in criminal proceedings and such proceedings to be concluded
by a final judgment. This is particularly noticed in the case of
juvenile A.S. where two civil proceedings for compensation were
terminated until final completion of the criminal proceedings.
However, the actions undertaken by the lawyer against such
decisions that resulted in returning the proceedings in front of the
61
Alyne da Silva Pimentel Teixeira v Brazil, CEDAW Communication No.
17/2008 (2011), para. 6.2
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Basic Court Prilep to be solved independently of the criminal
procedure is important because it deviates from the practice. Namely,
in this case, the court accepted that there is civil liability of the
employer that is independent of the criminal responsibility.
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6. CONSLUSIONS AND OBSERVATIONS IN ORDER
TO ENHANCE THE PROTECTION OF THE
RIGHT TO HEALTH
This analysis provides conclusions and observations that are
emerging as a result of the identified actions in the cases of violation
of the rights of health care for Roma patients, and that should serve
as general guidelines for improvement of the existing legal
framework, legal practice and other practices, in order to improve the
conditions for realization of the right to health and the rights
associated with it, as well as to promote the principle of equality and
protection from discrimination.
6.1. Conclusions
1. Existence of prejudices and stereotypes among health
workers towards Roma community, based on the level of
their education, social and economic background and
ethnicity, affects the quality of health services provided.
2. Not meeting the obligation of the state, to provide quality
health facilities, goods and services and enabling their
functionality and availability, results in irregularities in the
provision of timely medical services, non - established
procedures and coordination among health care workers.
3. Roma patients have limited opportunities to access
information and to exercise their rights in the absence of
legal representative, and injured parties due to fear of
victimization, disclaim protection of this right.
4. Authorities for protection of the rights evade in providing
timely and fair care to injured parties or disadvantaged
persons that obstructs the access to justice.
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5. Responsibility of the doctors often is not reviewed by a legal
point of view, but more from the perspective of respect for
their Hippocratic Oath and duty to humanity, which
questions the objectivity of fair judgment.
6. Unequal treatment is not being considered as a violation of
the rights i.e. in absence of practice for such violations,
competent authorities fail to identify the grounds for action,
and the small number of complaints to the competent
institutions is due to the complexity of identifying and
proving discrimination.
7. Application of protective mechanisms may affect processing
of certain litigations, but because of lack of their mandatory
application, they affect only partially.
8. In cases where there is violation of the right to health on
several grounds and opportunity for initiating appropriate
procedures, the injured parties often require protection of the
right only on ground, and therefore neglecting the other
grounds for protection.
9. Application of the international law in the national legal
system and practice in great part is ignored or neglected.
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6.2. Observations
1. By positive judgments made in favor of the injured parties,
the courts give signal to the patients that no matter how
much time it takes to justice, it is not unreachable for them,
and on the other hand, the doctors and other health workers
have been under influence as well, that there is no need to
fear while performing their duties if they do that
professionally, conscientiously and responsibly, in
accordance with the rules of the medical profession, medical
standards and ethical principles. This is seen in the context of
the need for the courts to pay more attention to the protection
of the right to health, which will improve functioning of the
health system in R.M., and in accordance with international
standards. In that context, the procedures conducted in front
of courts are extremely important because they break down
the adamantine opinion that health workers are "protected"
and can not be held accountable.
2. The government/state should make efforts to harmonize
national legislation with the international, which will enable
their respect, and therefore practical application in front of
national courts and institutions.
3. Legal practitioners should commit to initiating court
proceedings and quasi – judicial cases of unequal treatment
in access to health care services that will enable/contribute to
increase the scope of protection of citizens' rights and
strengthen their capacity in advocacy of discriminatory
cases.
4. Authorities for protection should approach violations of the
right to health and equal treatment to patients more
intensively and progressivly in order to emphasize their role
and influence in the protection of the right, where except for
complaints, they will take action on their own initiative.
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5. Health facilities should be fully and professionally staffed,
both in terms of materials, equipment, and in terms of human
resources, which will provide quality healthcare to patients.
Therefore free exercising of the right to access to
information for all and equally understandable language by
the level of education, social and economic backgrounds of
patients should be allowed and thus improve the access of
vulnerable groups to health services and protection from
discrimination.