CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 19 décembre 2017

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font-weight:bold; font-style:italic } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .sC36A6361 { font-family:Arial; color:#000000 } .s4B8D41EE { font-family:Arial; font-size:10pt } .s2CE7C1B9 { font-family:Arial; font-size:10pt; font-style:italic } .sB0F93B35 { margin-top:0pt; margin-left:7.1pt; margin-bottom:0pt; text-indent:-7.1pt; font-size:10pt } .s67F06EFC { font-family:Arial; font-size:10pt; color:#000000 } .s531AE21 { margin-top:0pt; margin-left:7.1pt; margin-bottom:0pt; text-indent:-7.1pt } .s856DF1B6 { margin-top:0pt; margin-bottom:0pt; font-size:10.5pt }       GRAND CHAMBER             CASE OF LOPES DE SOUSA FERNANDES v. PORTUGAL   (Application no. 56080/13)                     JUDGMENT         STRASBOURG   19 December 2017         This judgment is final but it may be subject to editorial revision. In the case of Lopes de Sousa Fernandes v. Portugal, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Guido Raimondi, President,   Angelika Nußberger,   Linos-Alexandre Sicilianos,   Ganna Yudkivska,   Robert Spano,   Luis López Guerra,   Mirjana Lazarova Trajkovska,   Işıl Karakaş,   Nebojša Vučinić,   Paulo Pinto de Albuquerque,   Helen Keller,   Ksenija Turković,   Yonko Grozev,   Pere Pastor Vilanova,   Alena Poláčková,   Pauliine Koskelo,   Georgios A. Serghides, judges,   and Roderick Liddell, Registrar, Having deliberated in private on 16 November 2016 and on 20   September 2017, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no. 56080/13) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Portuguese national, Ms Maria Isabel Lopes de Sousa Fernandes (“the applicant”), on 23 August 2013. 2.     The applicant complained under Article 2 of the Convention about the death of her husband in hospital as a result of a hospital-acquired infection and of carelessness and medical negligence. She further complained that the authorities to which she had applied had failed to elucidate the precise cause of the sudden deterioration in her husband’s state of health. Relying on Articles 6 § 1 and 13 of the Convention, the applicant also complained about the duration and outcome of the domestic proceedings she had brought in that connection. 3.     The application was allocated to the First Section and then to the Fourth Section of the Court (Rule 52 § 1). A Chamber of that Section composed of András Sajó, President, Vincent A. De Gaetano, Nona Tsotsoria, Paulo Pinto de Albuquerque, Krzysztof Wojtyczek, Iulia Antoanella Motoc and Gabriele Kucsko ‑ Stadlmayer, judges, and Françoise   Elens-Passos, Section Registrar, delivered a judgment on 15   December 2015. The Court unanimously declared the application admissible. It held, by a majority, that there had been a violation of the substantive aspect of Article 2 of the Convention. It concluded, unanimously, that there had been a violation of the procedural aspect of Article 2 of the Convention. The joint dissenting opinion of Judges Sajó and Tsotsoria was annexed to the judgment. 4.     On 10 March 2016 the Government requested the referral of the case to the Grand Chamber under Article 43 of the Convention and Rule 73. On 2   May 2016 the panel of the Grand Chamber granted the request. 5.     The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court. 6.     By letter dated 2 June 2016 the applicant was invited to complete and return to the Registry by 23 June 2016 an authority form authorising an advocate to represent her in the proceedings before the Court, in accordance with Rule 36 §§ 2 and 4 of the Rules of Court. On 22 June 2016 the applicant submitted an authority form authorising Mr Sá Fernandes, a lawyer practising in Lisbon, to represent her in the proceedings before the Court. The applicant was granted legal aid on 8 December 2016. 7.     The applicant and the Government each filed further written observations on the merits (Rule 59 § 1). 8.     In addition, third-party comments were received from the United Kingdom and Irish Governments, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3). 9.     A hearing took place in public in the Human Rights Building, Strasbourg, on 16 November 2016 (Rule 59 § 3).   There appeared before the Court: (a)     for the Government Ms   M.F. da Graça Carvalho , Deputy Attorney-General,   Agent, Ms   A. Garcia Marques , lawyer at the Office of the Agent, Ms   M.E. Sousa Pina , retired doctor from the National     Health Service,   Advisers; (b)     for the applicant Mr   R. Sá Fernandes , lawyer,   Counsel , Ms   I. Rogeiro , lawyer, Ms   A. Martins , lawyer, Mr   D. Machado , doctor,   Advisers .   The Court heard addresses by Mr Sá Fernandes and Ms da Graça Carvalho and their replies to the questions from judges. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 10.     The applicant was born in 1969 and lives in Vila Nova de Gaia. The applicant’s husband, Mr António Rui Calisto Fernandes, was born in 1957. He died on 8 March 1998 following a series of medical problems that occurred after he had undergone minor surgery for the removal of nasal polyps. A.     The sequence of events leading to the death of the applicant’s husband 1.     Treatment in Vila Nova de Gaia Hospital 11.     On 26 November 1997 Mr Fernandes was admitted to the ear, nose and throat (ENT) department of Vila Nova de Gaia Hospital (“the CHVNG”) for a nasal polypectomy. He underwent the operation on 27   November 1997 and was discharged from hospital on 28 November 1997 at 10 a.m. 12.     On 29 November 1997, at 1 a.m., the applicant took her husband to the emergency department of the CHVNG because he was suffering from violent headaches and was in an agitated state. There he was examined by the doctors on duty, in particular by a neurologist. The doctors considered that Mr Fernandes was suffering from psychological problems and prescribed tranquilisers. The applicant claims that they recommended her husband’s discharge but that she objected. 13.     In the morning Mr Fernandes was examined by the new medical team on duty. At 10 a.m. he underwent a lumbar puncture which revealed that he had bacterial meningitis. He was transferred to the hospital’s intensive care unit. 14.     On 30 November 1997 a scan revealed a cerebral oedema. On 2   December 1997 another scan revealed that the cerebral oedema had diminished. 15.     On 5 December 1997, following an improvement in his clinical condition, Mr Fernandes was transferred to the hospital’s general D. ward, where he was under the care of Dr J.V. He was diagnosed with two duodenal ulcers on 10 December 1997. 16.     Mr Fernandes was discharged from hospital on 13 December 1997 as his condition was considered to be stable. A follow-up scan as an outpatient was recommended. 17.     On 18 December 1997 Mr Fernandes, who was suffering from vertigo and headaches, was admitted to the emergency department of the CHVNG. He was examined by Dr J.V., who kept him under observation because he had acute diarrhoea, abdominal pain and severe anaemia. Mr   Fernandes received blood transfusions. 18.     On 19 December 1997 an endoscopy was performed on Mr   Fernandes, confirming that he had a gastroduodenal ulcer. 19.     On 23 December 1997 Mr Fernandes was discharged from hospital. He was prescribed a special diet and medication. A medical appointment was fixed for 9 February 1998. 20.     The applicant’s husband continued to suffer from severe abdominal pain and diarrhoea. On 9 January 1998 he returned to the emergency department of the CHVNG. He was examined by Dr J.V., who did not consider it necessary to admit him. Mr Fernandes therefore returned home the same day. 21.     On 25 January 1998 Mr Fernandes was readmitted to the CHVNG. A colonoscopy revealed infectious ulcerative colitis. Bacteriological tests showed the presence of the Clostridium difficile bacterium. Mr Fernandes was placed on a drip and treated with antibiotics. 22.     At the request of the applicant and her husband, Dr J.V. discharged the latter on 3 February 1998. Dr J.V. prescribed oral treatment and referred Mr   Fernandes for further treatment in the hospital’s outpatient department. 2.     Treatment in Santo António General Hospital in Oporto 23.     On 17 February 1998 Mr Fernandes was admitted to Santo António General Hospital in Oporto after he was found to be suffering from chronic diarrhoea and microcytic anaemia. He underwent various examinations including a colonoscopy, an endoscopy and blood tests. The medical team considered several possible causes, including an infection with the Clostridium difficile bacterium, but all these possibilities were subsequently ruled out. However, a cytomegalovirus was detected and treatment was given. 24.     On 5 March 1998 Mr Fernandes was examined by a doctor who judged the situation to be under control. 25.     On 6 March 1998 Mr Fernandes’s condition deteriorated. He was examined by a doctor who suspected a possible perforated viscus. An X ‑ ray and an abdominal ultrasound were carried out. The latter showed ascites in the abdomen but did not confirm the initial diagnosis. At 5.30   p.m. the applicant’s husband was examined by another doctor who detected some resistance to abdominal palpation. A gas analysis showed metabolic alkalosis, but there were no signs of hypocalcaemia. A   sigmoidoscopy was performed which showed that the applicant’s husband had rectocolitis. 26.     On 7 March 1998 at 1 p.m. the applicant’s husband was placed on oxygen because he had difficulty breathing. At 3 p.m. Mr Fernandes was examined by a general physician and subsequently by a surgeon. The latter decided that urgent surgery was needed as there was widespread peritonitis. Mr Fernandes was taken to the operating theatre at 4 p.m. and was brought out again a few minutes later in order to be prepared for surgery, in particular by being given a blood transfusion. He re-entered the operating theatre at 8 p.m. He died the following day at 2.55 a.m. 27.     According to the death certificate issued by Santo António Hospital, the applicant’s husband died from septicaemia caused by peritonitis and a perforated viscus. B.     Proceedings brought by the applicant 28.     On 13 August 1998 the applicant wrote a joint letter to the Ministry of Health, the regional health authority for the North region and the Medical Association, stating that she had received no response from the hospitals to explain the sudden deterioration in her husband’s health and his death. 1.     Proceedings before the Inspectorate General for Health 29.     On 30 October and 23 December 1998 the regional health authority for the North region sent the applicant copies of the reports drawn up by the CHVNG and Santo António Hospital on the basis of her husband’s medical records. 30.     On 30 May 2000 the applicant requested an update on progress in the proceedings from the regional health authority, stating that she had still received no clear explanations concerning the events preceding her husband’s death. In a letter of 5 July 2000 the authority informed her that the file had been sent to the Inspectorate General for Health ( Inspeção ‑ Geral da Saúde – “the IGS”) with a view to the opening of an investigation. 31.     By an order of 20 September 2000 the Inspector General for Health ordered an investigation ( processo de averiguações ). 32.     On 6 November 2001 an inspector was appointed to head the investigation. 33.     On 7 February 2002 the IGS informed the applicant that evidence would be taken from the members of the medical team which had treated her husband and that an expert medical report would be prepared. 34.     The applicant gave evidence on 3 April 2002. 35.     On 23 September 2002 expert medical reports were requested. Reports prepared by experts in the fields of internal medicine, gastroenterology and general surgery were submitted in November 2002. According to the reports, in view of the deterioration in his state of health after the nasal polypectomy, it would not have been possible to save the applicant’s husband’s life. 36.     The report of the investigation was submitted on 28 November 2002. It found, on the basis of the expert medical reports received, that the treatment administered to the applicant’s husband had been appropriate. 37.     In an order of 12 December 2002 the Inspector General for Health declared the investigation closed, finding that there had been no medical negligence and that there were no grounds for instituting disciplinary proceedings against the doctors who had treated the applicant’s husband. 38.     In a letter of 17 February 2003 the applicant appealed against the order. She argued that the final report had not answered her questions, complaining about areas of uncertainty and about the duration of the investigation and its findings. 39.     On 28 March 2003 the Inspector General for Health informed the applicant that he had set aside the order of 12 December 2002 and ordered the reopening of the investigation. 40.     On 26 September 2005, in view of the questions raised by the applicant, the medical experts were requested to provide additional information. 41.     A new investigation report was submitted on 23 November 2005, clarifying the facts and taking account of the answers provided by the three medical experts. The report stated that there were no grounds for criticising the health-care personnel who had been involved in the care of the applicant’s husband in the CHVNG and Santo António Hospital, as the patient had received proper and appropriate medical assistance in terms of his diagnosis, supervision and treatment. The report further noted that his discharge had been justified on each occasion in view of the improvement in his state of health. The report concluded as follows: “The results of the investigation ... following the reopening of the proceedings and the fresh inquiries and medical reports do not indicate that there was any negligent or careless conduct in breach of good medical practice. There is therefore no need to take legal or disciplinary action against any persons involved in the [patient’s] care ...” 42.     Taking this report into account, the Inspector General for Health made a fresh order discontinuing the proceedings on 27 December 2005. 43.     In a letter of 1 February 2006 the applicant appealed against that order, complaining of unclear points and omissions. She also raised the possibility that the sudden deterioration in her husband’s health and his eventual death might have been caused by bacteria present in the operating theatre on the day of the nasal polypectomy, that the diagnoses may have been made in haste and that there may have been negligence and carelessness in the medical treatment administered to her husband. She further complained that the internal medicine and gastroenterology reports had been prepared each time by the same experts. The applicant therefore requested the reopening of the investigation and the preparation of a fresh expert medical report. 44.     The Inspector General for Health wrote to the applicant on 2   March 2006 informing her that he had set aside his previous order and ordered fresh expert assessments to be carried out by different experts in the fields of internal medicine and gastroenterology. 45.     The applicant gave evidence again on 27 April 2006. 46.     The medical experts submitted their reports on 20 May and 10   July 2006. The expert in gastroenterology stated that it was possible, albeit rare, for a nasal polypectomy to cause meningitis. He further considered that the applicant’s husband had received appropriate treatment but that his discharge on 3 February 1998 may not have been wise in view of his clinical condition. The expert concluded that the applicant’s husband had suffered a series of complications which were uncommon but could occur, and that he had received proper medical care at the CHVNG. As to the care in Santo António Hospital, the expert considered that the condition of the applicant’s husband had been extremely complicated and had given rise to doubts as to the best way to proceed. In his report, the expert in internal medicine rejected the idea of a hospital-acquired infection on the grounds that, had that been the case, the antibiotics administered to the patient would have had no effect. In his view, the meningitis had developed unexpectedly. He further took the view that the applicant’s husband’s discharge on 3   February 1998 had been appropriate but that he should have continued to be monitored as an outpatient. 47.     On 25 July 2006 a report was drawn up on completion of the investigation, which concluded as follows: “... The content of the most recent expert medical reports shows ... that there are no grounds for a finding of disciplinary liability for negligence against any of the health ‑ care professionals involved in A.’s medical treatment... ... the decision by the assistant doctor [J.V.] to refer the patient for outpatient treatment was not appropriate and sufficient from a clinical viewpoint in so far as, in order to prevent a recurrence of the colitis caused by Clostridium difficile ..., the patient should have remained in hospital under close medical supervision ... ... Hence, the doctor in question did not act with the necessary care and diligence, thereby incurring disciplinary liability on account of his negligent conduct in the medical assistance provided ... in D. ward of the CHVNG’s medical department between 25 January and 3 February 1998. The medical opinions make no criticisms of the assistance provided in the gastroenterology department of Santo António General Hospital in Oporto ...” 48.     In the light of this report the Inspector General made an order on 26   July 2006 for the opening of disciplinary proceedings against Dr J.V. 49.     By a letter dated 31 July 2006 the applicant was informed that the disciplinary proceedings initiated against Dr J.V. would be stayed pending the outcome of the criminal proceedings (see paragraphs 59-68 below). 2.     Proceedings before the Medical Association 50.     In the meantime, on 31 August 1998, the Medical Association acknowledged receipt of the applicant’s letter of 13 August 1998, informing her that steps would be taken in response to it. 51.     The case was referred to the Medical Association’s regional disciplinary council for the North region. The latter obtained the patient’s medical records and sought the opinions of four specialist panels: gastroenterology, infectious diseases, general surgery and ear, nose and throat (ENT). 52.     In its report of 14 July 1999, the gastroenterology panel issued the following conclusions: “... A simple X-ray of the abdomen performed the day before the patient’s death did not detect any dilatation or perforation of the colon. The patient’s death was caused by peritonitis as a result of the perforation of the duodenal ulcer. The difficulties in diagnosing the condition were understandable in view of the patient’s serious clinical condition and the fact that his abdominal pains were explained by the inflammatory disease in the colon. The role of the corticosteroids in aggravating or reactivating the peptic ulcer ... is not currently considered a risk factor ... However, given that the patient had already experienced one episode of intestinal bleeding, there would have been grounds for weighing up the use of these drugs. ... The decisions to discharge the patient [from hospital] may have delayed the diagnosis or the commencement of treatment. Nevertheless, after examining the documents submitted to me, I am unable to confirm whether these discharge decisions adversely affected his diagnosis or programme of treatment. ...” 53.     The conclusions of the report of 17 April 2000 by the infectious-diseases panel read as follows: “1.     In our opinion the diagnosis of meningitis, most likely resulting from the nasal polypectomy, was inexplicably delayed. The fact that there was no one on the medical team trained in this type of diagnosis (for example, a specialist in infectious diseases) may be regarded as the only explanation for such an incident. However, this was not the immediate cause of the patient’s death. 2.     In our view, too long a period elapsed between the diagnosis of the perforation in the duodenal ulcer and surgery. 3.     The procedure has been undermined to an incalculable extent by the fact that no autopsy was performed, although an autopsy is mandatory ( mandatória ) in cases of this type in order to shed light on the chain of events.” In its report the panel further held as follows: “The inhuman conditions described in this process, as regards how the patient was treated, are another example of the situation encountered on a daily basis in our hospitals; a reflection of the appalling structural and operational conditions which require urgent analysis and change. This board of the Infectious-Diseases Panel of the Medical Association must have a fundamental role in advocating the rights of patients and doctors in order to create better conditions of care for the former and better working conditions for the latter. We reiterate, once more, the need to consider the creation of infectious-diseases departments/units in hospitals of the same type as Vila Nova de Gaia Hospital, in order to improve the quality of care in this regard.” 54.     In a report of 24 April 2001 the general-surgery panel found that there had been no negligence or medical malpractice in the hospitals concerned. The report read as follows: “1. A perforated duodenal ulcer requires immediate surgery. In the present situation the perforated ulcer ... was difficult, if not impossible, to diagnose given the clinical context in which it occurred. Furthermore, in view of the seriousness of the patient’s clinical condition, the approach to surgery had to be given careful consideration and the patient had to be prepared by means of various measures. ...” 55.     In a report dated 1 August 2001 the ENT panel concluded as follows: “1.     Meningitis following micro-endoscopic surgery for nasal polyps is described as one of the (major) complications of this type of surgery, estimated in the literature to occur in between 0.6% and 1% of cases. These figures will be higher in the event of a repeat operation, as in the present case (surgery was performed in 1993 as stated on page 314 of the file concerning the operation). 2.     The post-operative CT scan of the brain carried out on 29 November 1997 does not show any discontinuity in the bones at the base of the skull ... which suggests that no invasive endocranial surgery was carried out. 3.     The description of the surgery performed on the patient on 26 November 1997 (page 310 of the file) does not give any indication of clinical malpractice or negligence. 4.     No ENT procedures were performed during any of the patient’s subsequent stays in Vila Nova de Gaia Hospital or in Santo António Hospital.” 56.     In an order of 28 December 2001 the regional disciplinary council for the North region decided, after having examined the conclusions of the different specialist panels, to take no further action on the applicant’s complaint, on the ground that there was no evidence of misconduct or medical negligence. 57.     The disciplinary council observed the following: (i)     meningitis was a complication that could arise in between 0.6% and 1% of cases following a nasal polypectomy; the figures were liable to be higher for a repeat operation, as in the case in question; (ii)     the applicant’s husband had received appropriate treatment during his various hospital stays; (iii)     the patient’s bacterial meningitis ( Pseudomonas ) had been treated properly; (iv)     although the infectious-diseases panel had suggested that the presence of a specialist in that discipline might have enabled a diagnosis to be made sooner, this had not been a decisive factor in the development of the clinical situation; (v)     the perforation of the duodenal ulcer had been the cause of the peritonitis. This had been difficult to diagnose in view of the patient’s serious clinical condition, a fact acknowledged by the gastroenterology and general-surgery panels; (vi)     although the infectious-diseases panel had considered that too long a period had elapsed between the diagnosis of the perforated duodenal ulcer and surgery, the time taken to prepare for the operation had been justified since the patient had been suffering from intestinal disease and had severe anaemia, sepsis and a fluid and electrolyte imbalance, as noted by the general-surgery panel. 58.     On 29 April 2002 the applicant lodged an appeal against that order with the Medical Association’s National Disciplinary Council. On 18 March 2003 the appeal was declared inadmissible as being out of time. 3.     Criminal proceedings before the Vila Nova de Gaia District Court 59.     On 29 April 2002 the applicant lodged a complaint for negligent homicide with the Oporto criminal investigation and prosecution department. 60.     She gave evidence on 7 June 2002. 61.     By order of the Criminal Investigation Court of 27 September 2002 the applicant was given leave to intervene in the proceedings as an assistant to the public prosecutor ( assistente ). 62.     On 7 December 2007 the public prosecutor’s office made its submissions, charging Dr J.V. with homicide by gross ( grosseira ) negligence. In support of their decision the prosecuting authorities referred to the report appended to the IGS order of 25 July 2006. They considered that Dr J.V. should not have discharged the applicant’s husband on 3   February 1998 in so far as the patient’s clinical condition had been problematic and he had been infected with the Clostridium difficile bacterium. 63.     The case was referred to the Vila Nova de Gaia District Court. During the trial the court heard evidence from the applicant, the accused, eight doctors who had been involved in treating the applicant’s husband in the CHVNG and in Santo António Hospital, and the five medical experts appointed in the context of the proceedings before the IGS. The court also sought the opinion of the Medical Association’s Disciplinary Council. 64.     On 15 January 2009 the District Court acquitted Dr J.V. of the charges against him. In particular, it took the view that the findings made by the IGS in its order of 26 July 2006 could not be taken into consideration as they had not been confirmed by the five medical experts who had given evidence during the trial. 65.     As to the facts, the District Court considered, inter alia , the following to be established: “The patient’s hospitalisation on 18 December 1997 ... was not the result of a lack of medical supervision of his clinical condition ... since it was unconnected to the complications arising out of the meningitis. In fact, it resulted from acute anaemia caused by intestinal bleeding from a duodenal ulcer; ... The decisions to discharge the patient on 13 and 23 December 1997 were appropriate, given that, in the former case, the problem of bacterial meningitis had been resolved, [the patient] had completed the course of antibiotics, he no longer had any symptoms or fever, had a slightly increased white-blood cell count, a falling neutrophil count and normal sedimentation rate, and was not complaining ... and, in the latter case, that is to say, the patient’s hospitalisation from 18 to 23 December 1997, the patient was not complaining of abdominal pain, diarrhoea or bleeding ... with the result that it was possible to continue treating his ulcer with a dietary regime while monitoring him on an outpatient basis ... When the patient was admitted to Santo António Hospital, laboratory tests were carried out for Clostridium difficile . The results were negative on two occasions.” 66.     On the subject of the surgery preceding the death of the applicant’s husband, the District Court observed as follows: “... the patient was in a very serious clinical state, with septic shock and multiple organ dysfunction. For that reason, he was placed on artificial ventilation and vasoactive drugs and fluids were administered ..., together with hydrocortisone to deal with possible acute adrenal insufficiency ( falência supra-renal aguda ), and broad-spectrum antibiotics; ... in this medical context the patient’s prospects of survival were very uncertain, in view of the septic shock and multiple organ dysfunction; ... a simple abdominal X-ray and an abdominal and pelvic ultrasound scan were therefore requested, which did not reveal a perforation of the intestine.” 67.     In the District Court’s view, it had not been demonstrated that the care provided to the applicant’s husband during his stay in hospital from 25   January to 3 February 1998 had not been in accordance with good medical practice, or that he should have been kept in hospital for longer. The court therefore concluded that there was no causal link between the treatment administered by Dr J.V. to the applicant’s husband in the CHVNG and his death, which had been caused by a perforated viscus that was unconnected to the colonic disease treated by the accused. It held:   “...there was no evidence to show that the treatment administered by the accused for the Clostridium difficile infection was incomplete, that the patient was discharged prematurely on 3 February 1998 or, in sum, that the accused was responsible for the death of the patient on 8 March 1998.” 68.     The applicant did not appeal against that judgment. 4.     Proceedings before the Oporto Administrative and Fiscal Court 69.     On 6 March 2003 the applicant brought an action in the Oporto Administrative and Fiscal Court against the CHVNG, Santo António Hospital and the eight doctors who had been involved in treating her husband while he was in hospital, claiming compensation for the damage she had suffered on account of her husband’s death. She alleged, inter alia , (i)     that her husband’s meningitis had been caused by Pseudomonas cepacia bacteria which, she alleged, had been present in the operating theatre during the nasal polypectomy; (ii)     that the meningitis had been diagnosed too late, allowing the illness to become serious; (iii)     that the administering of excessive doses of medication and the lack of a suitable prophylactic had caused the duodenal ulcer which had led to her husband’s death. 70.     In the context of these proceedings the applicant was granted legal aid in the form of exemption from payment of the court fees and the fees of a lawyer of her own choosing. 71.     Between 4 and 24 April 2003 the eight doctors contested their standing to be sued ( ilegitimidade passiva ), relying on Article 2 of Legislative Decree no. 48051 of 21 November 1967. 72.     On 16 April 2007 the court gave a preparatory decision ( despacho saneador ) specifying which facts were considered to be established and which remained to be established. In accordance with Article 2 of Legislative Decree no. 48051 of 21 November 1967 it further held that the doctors among the defendants did not have standing in so far as they had been sued only for negligent conduct. Accordingly, it declared the claim admissible only in respect of the hospitals. 73.     On 17 January 2011 the applicant gave evidence. 74.     During the three hearings the court heard evidence from the following witnesses: (i)     eleven doctors who had been involved in treating the applicant’s husband during his various stays in the CHVNG and Santo António Hospital; (ii)     the general practitioner of the applicant’s husband; (iii)     two doctors who were friends of the family; (iv)     the inspector who had written the final report on completion of the investigation within the IGS; and (v)     the medical experts in gastroenterology and internal medicine whose reports had formed the basis for the last IGS decision. 75.     On 24 May 2011 the court made an order concerning the facts. Taking into account the medical records of the applicant’s husband and the various statements made by the witnesses who had given evidence, the court considered it established, inter alia , (i)     that a polypectomy was a straightforward surgical operation which posed minimal risk and that the patient had been informed accordingly; (ii)     that the operating theatre had been aseptic and sterilised at the time of the polypectomy; (iii)     that the origin of the bacterium linked to the patient’s meningitis had not been proven. The court dismissed the possibility of a hospital-acquired infection, pointing out that in that case the prescribed treatment would have had no effect; (iv)     that the medication prescribed in the CHVNG and Santo António Hospital could cause intestinal problems and hence could give rise to colitis; (v)     that the applicant’s husband had been treated with drugs to protect his stomach in the CHVNG; (vi)     that the gastroduodenal perforation had not been detected until the operation was being performed; and (vii)     that the applicant’s husband had died from septicaemia caused by peritonitis resulting from a perforated viscus. 76.     On 23 January 2012 the Oporto Administrative and Fiscal Court delivered a judgment in which it dismissed the applicant’s claims. On the facts, the judgment stated, inter alia , as follows: “The Pseudomonas bacterium was resistant to the various antibiotics that were tried ... When the patient attended Vila Nova de Gaia Hospital on 18 December 1997 he had completely recovered from his bacterial meningitis. ... On 25 January 1998 the patient again attended Vila Nova de Gaia Hospital, where he was diagnosed with pseudomembranous colitis caused by Clostridium difficile ... The colitis was successfully treated in that hospital ...; Throughout his stay in Vila Nova de Gaia Hospital he was given treatment to protect his stomach. ... When he was admitted (to Santo António Hospital on 17 February 1998) he had chronic diarrhoea ... and was diagnosed with suspected inflammatory bowel disease. Medication was prescribed in keeping with that diagnosis. ... While in Santo António Hospital he was kept under observation, received daily medication and underwent various tests. ... On 6 March 1998 ... nothing had made it possible to predict the gastroduodenal perforation ... the tests carried out that day ... did not confirm the existence of any duodenal perforation such that the situation had to be kept under review; ... It was not until 7 March 1998 that the patient’s acute abdominal syndrome was diagnosed, calling for urgent surgery ... it was only during the operation that the patient was found to be suffering from a duodenal perforation; ... The perforation had occurred 24 hours before surgery.” 77.     The judgment concluded as follows: “ ... in view of the facts that have been established, it is not possible to determine at what point the defendants, by their actions or omissions, breached the rules of good medical practice ... It is considered established that [Mr Fernandes’s] death was caused by sepsis due to peritonitis resulting from the perforation of his duodenal ulcer... No doubts persisted regarding the diagnosis of meningitis, the procedure adopted, the sequence of treatment and the resolution of the problem, as all the various after ‑ effects were duly explained. Hence there were no differences of opinion regarding the need to prescribe and use antibiotics in the context of [Mr Fernandes’s] meningitis and other conditions, although it was explained that colitis is a bacterial imbalance caused by antibiotics (the very ones which have undesirable effects on intestinal flora). Nevertheless, it was not possible to determine the agent or identify the cause of the bacterium linked to the meningitis and it could therefore not be established with certainty whether the sinus surgery was the source of the problem or was simply one factor causing the infection. The other factors and circumstances preceding the operation ... thus cease to be relevant. It is nonetheless surprising that the death of the claimant’s husband should have occurred ... given that he had been strong and in good health and that the microsurgery on his sinuses was a straightforward operation. However, it has not been demonstrated that the therapy or medication administered to [Mr Fernandes] at any point was unsuited to his clinical condition. There was therefore no breach of the rules of good medical practice (either by action or omission). Accordingly, one of the cumulative conditions for establishing civil liability, namely an unlawful act, is absent.” 78.     The applicant appealed against the judgment to the Supreme Administrative Court. She contested the facts deemed to be established, arguing that only by studying the circumstances before, during and after the operation would it be possible to understand what type of bacterium her husband had contracted. She further reiterated that her husband had contracted a hospital-acquired infection and had not received adequate treatment either in the CHVNG or in Santo António Hospital. 79.     On 26 February 2013 the Supreme Administrative Court dismissed the applicant’s claims, upholding the judgment of the Oporto Administrative and Fiscal Court. It first of all declined to review the facts considered by the lower court to have been established, on the grounds that the hearings had not been recorded and that no new documents had been submitted which could cast doubt on the evidence forming the basis for the court’s decision. The Supreme Administrative Court summed up its judgment as follows: “The lower court considered, in sum, that it had not been possible to identify the nature and origin of the bacterium that caused the meningitis and that it had not been demonstrated that the illnesses subsequent to [the patient’s] treatment and recovery from that illness ... had been the consequence of incorrect diagnosis or treatment. For that reason it found that no breach of the rules of good medical practice had been demonstrated that might have caused the patient’s death. The claimant takes a different view of the matter. However, she bases her arguments mainly on allegations that have not been proven, and in particular the allegation that the meningitis was caused by the Pseudomonas bacterium, allegedly acquired in hospital ... and that the patient did not receive appropriate prophylactic treatment to protect his stomach during his treatment with antibiotics. Accordingly, these claims can be summed up as allegations of medical negligence which are unsupported by the established facts.” II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Criminal law 80.     The relevant provisions of the Criminal Code read as follows: Article 137 “1.     Anyone who kills another person through negligence shall be punishable by imprisonment for a period of up to three years or to a fine. 2.     Gross negligence shall be punishable by imprisonment for up to five years.” Article 150 “... 2.     Where the persons referred to in the previous paragraph, in pursuit of the aims indicated therein, perform surgery or provide treatment in a manner which breaches the rules of good medical practice and thereby endangers a patient’s life or health or creates a risk of serious bodily harm, their conduct shall be punishable by a period of imprisonment up to two years or by up to 24 day-fines, unless a heavier penalty has been imposed under another provision of the law.” 81.     The head of the relevant health-care establishment has a duty to inform the competent judicial authority of any suspicious death of a hospital patient, by forwarding the medical records so as to enable an investigation to be carried out to establish the circumstances of death (Article 51 of Legislative Decree no. 11/98 of 24 January 1998 on forensic medical matters). An autopsy is performed in cases of violent or unexplained deaths, except where the clinical data and other elements are sufficiently convincing to preclude any suspicion of a crime; in that case, no autopsy needs to be carried out (Article 54). B.     Civil and Administrative law 82.     The relevant provision of the Civil Code reads as follows: Article 487 “1.     It is for the injured party to prove liability for damage through negligence ( culpa ), unless there is a legal presumption of it. 2.     In the absence of any other legal criteria, negligence is assessed with reference to the diligence of the bonus pater familias , in view of the circumstances of the case.” 83.     At the material time the State’s non-contractual liability was governed by Legislative Decree no. 48051 of 21 November 1967, Article 2 of which read as follows: “1. The State and other public-law entities shall be liable in civil law vis-à-vis third parties for any acts infringing those parties’ rights or the legal provisions designed to protect their interests, as the result of unlawful acts committed negligently by State or public agencies or officials in the performance of their duties or as a consequence thereof. 2.     Where they have paid compensation under the terms of the preceding paragraph, the State and other public-law entities shall be entitled to claim reimbursement ( direito de regresso ) from those in charge of the agencies or the officials responsible, if these have not performed their duties with the requisite care and diligence.” 84 .     Article 6 of the aforementioned Legislative Decree reads:   “     For the purposes of the present Legislative Decree, legal acts which infringe the relevant legal and regulatory norms or general principles shall be deemed unlawful, as shall material acts which infringe the said norms or principles or the technical rules or principles of due caution which must be taken into account.” C.     Relevant disciplinary provisions 85.     Article 2 of the Disciplinary Regulations for Doctors defines a disciplinary offence as follows: “A doctor who, by action or omission, fails, either intentionally or by negligence, to comply with one or more of the duties arising out of the Medical Association Statute, the Code of Ethics, the present Code, internal regulations, or any other applicable provision, shall be considered to have committed a disciplinary offence.” 86.     The Disciplinary Regulations governing public officials and employees, in force at the ma