A closer look: Supreme Court decision in teenager cancer treatment case ({{commentsTotal}})

Hospital room at Tallinn Children's Hospital.
Hospital room at Tallinn Children's Hospital. Source: Tallinn Children's Hospital

Late last month, the Civil Chamber of the Supreme Court of Estonia established Estonian precedent with its rejection of an appeal in which the plaintiffs, a 15-year-old girl diagnosed with cancer and her mother, sought for courts to be able, upon the request of a patient or their next of kin, to compel healthcare providers to opt for certain, specific methods of treatment. ERR News took a closer look at the details and context of the ruling.

Citing the Law of Obligations Act as well as prior practice, the Supreme Court explained in its Sept. 26 decision (link in Estonian) that while in certain cases, a method of treatment that is not generally recognized may be used, a patient cannot dictate to their doctor what treatment methods to use, spokespeople for the country's top court said at the time.

Law of Obligations Act and healthcare

Supreme Court spokesperson Susann Kivi told ERR News that when it comes to the legislation of the provision of healthcare in the Law of Obligations Act (VÕS), the Estonian government, tasked with drawing up the legislation, involved organizations representing healthcare workers.

"The bill is also always sent to the ministries for a round of approval, and they have to protect the interests of both patients and doctors," Kivi noted. "In other words, the VÕS should reflect societal will."

In fact, the entirety of Chapter 41 of the law is dedicated to contracts for the provision of healthcare services.

Of this chapter, § 763, in turn, addresses the use of generally unrecognized methods in the provision of healthcare services.

According to § 763, a method of prevention, diagnosis or treatment which is not generally recognized may only be used if conventional methods are not likely to be as effective, if the patient is informed of the nature and possible consequences of the method, and if the patient has granted their consent to the use thereof.

Subsection (2) goes on to specify that the legal representative of a patient with restricted active legal capacity shall grant the consent specified in subsection (1) in the patient's stead insofar as the patient is unable to consider the pros and cons responsibly.

This would apply in the case of underage patients, for example.

Suit filed by teenage cancer patient, mother

In the case ultimately taken all the way to the Supreme Court, a civil suit was filed by a 15-year-old girl with cancer undergoing treatment at Tallinn Children's Hospital and her mother, who found that the daughter could have been treated using other treatment methods.

In the suit filed against the Tallinn Children's Hospital Foundation, the plaintiffs sought for the hospital to be compelled by the court to employ a treatment method on the patient in question based on high doses of vitamin C, court spokespeople said.

According to the patient's doctor, the patient was administered increased doses of vitamin C for a short period of time, but the doctor opted to abandon this treatment method after the patient's condition worsened. The hospital also noted that the vitamin C-based treatment was not a generally recognized method of treatment.

"The plaintiffs believe that the defendant as a contractor must fulfill their orders based on their professional expertise, but must nonetheless obey the instructions and wishes of the plaintiffs, as treatment thus far has not been effective, and the high-dose vitamin C treatment is used in several foreign countries," the plaintiffs said in their original suit against the hospital according to the text of the court decision.

Court: Treatment to be decided by doctors, not courts

In a Feb. 5, 2019 ruling, the first-tier Harju County Court rejected the suit, noting that the court lacked the necessary competence to make treatment decisions requiring specialized knowledge.

More specifically, it cited § 758, subsection (1) of the VÕS in defining the contract for provision of healthcare services as a healthcare provider providing healthcare services to a patient, "particularly by examining the patient in the interests of his or her health and observing the rules of medicine, by consulting and treating the patient, and by informing the patient of his or her state of health and the progress and results of his or her treatment. The provision of healthcare services also includes patient care within the framework of the provision of healthcare services and other activities directly related to the provision of healthcare services."

In light of § 762 of the same law, which states that healthcare services will at the very least conform to the general level of medical science at the time services are provided, and that these services will be provided with the care which can typically be expected of healthcare service providers, Harju County Court found that the determining of treatment falls within the competences of doctors as healthcare providers, not the courts.

Furthermore, the court cited § 766, subsection (4), which notes in the case of patients with restricted active legal capacity — in which case the patient's legal representative can provide consent — if the decision of the legal representative appears to damage the interests of the patient, the healthcare provider will not comply with the decision.

Tallinn Circuit Court dismissed the plaintiffs' appeal of the lower court's ruling on March 22, agreeing with the county court's reasoning and adding that a patient cannot demand the use of a generally unaccepted method of treatment.

Plaintiff cites 'recognized experts'

In their appeal to the Supreme Court, the plaintiffs sought for the top court to overturn the lower two courts' rulings. Among other things, the plaintiffs found that the lower courts' grounds for rejecting their suit and appeal were unfounded and stuck to their original stances.

They also asserted that it is incorrect that the right to decide treatment lies exclusively with the healthcare provider per the VÕS, § 762, noting that this was a special situation in which expert opinions are divided.

The plaintiffs said in their appeal that the defendant refused to provide treatment, despite the fact that the lack thereof could lead to the patient's death, and noted that recognized experts have recommended treatment with high doses of vitamin C.

According to the plaintiffs, the second sentence of subsection (4) of § 766, which states that "If the decision of the legal representative appears to damage the interests of the patient, the provider of healthcare services shall not comply with the decision," is at odds with § 16 and 28 of the Estonian Constitution, according to which everyone has the right to life, and everyone is entitled to protection of their health, respectively.

Defendant cites prior court rulings

In its response, the defendant cited several prior rulings, including a Nov. 29, 2010 decision (link in Estonian) in which the Criminal Chamber of the Supreme Court found that the decision whether to use a treatment method that is not generally recognized falls within the competences of medical experts.

The defendant also referred to a June 13, 2018 decision (link in Estonian) in which the Civil Chamber of the Supreme Court also ruled that the patient cannot dictate means of treatment to their healthcare providers.

In response to the plaintiffs' claims regarding alleged breaches of constitutional rights, in particular the right to life, the defendants cited a European Court of Human Rights (ECtHR) ruling from Nov. 13, 2012, noting that a patient's right to life has not been breached if, under current rules, patients with terminal illnesses are not granted access to unauthorized experimental treatment. The defendants found that § 16 and 28 of the Constitution do not grant the patient the right to demand the use of a generally unrecognized method of treatment.

In another reference to practices in place elsewhere in the EU, the defendant highlighted the homepage of the U.K.'s National Health Service (NHS), where it is explained that a GP, or family doctor, "doesn't have to prescribe a particular medication or treatment for you if they think it's not the right option."

The defendant likewise noted concerns that, should the appeal be satisfied, patients could start demanding the use of insufficiently studied medications; healthcare providers may not be sufficiently knowledgeable or equipped to provide generally unrecognized treatment; the right to demand treatment could also include the right to demand an overdose, i.e. active euthanasia; bailiffs who generally lack medical expertise would be involved in enforcing court orders; and conflicts may arise between patient-demanded and Estonian Health Insurance Fund- (Haigekassa-)funded medications or procedures.

Supreme Court: Patient cannot dictate treatment

On Sept. 26, the Civil Chamber of the Supreme Court dismissed the plaintiffs' appeal, leaving the lower courts' rulings in place.

Referring to § 760 and the first sentence of § 762 of the VÕS, the Supreme Court found that a healthcare service provider is required to provide healthcare services to an individual applying for them unless the terms or conditions of the contract applied for are in conflict with provisions of the law or the standard terms of a contract for the provision of healthcare services, and that healthcare services must "at the very least" conform to the general level of medical science at the time the services are provided, and with the care which can typically be expected of healthcare service providers.

Estonia's top court also cited the same June 13, 2018 Supreme Court ruling highlighted by the defendant, noting that while that case centered around dental care, the Civil Chamber found the ruling to be relevant in the case of the 15-year-old patient and her mother — that the patient cannot dictate specific methods of treatment to healthcare providers.

Referring to subsection (1) of § 763 of the VÕS, the Supreme Court found that the law provides for healthcare providers to use a generally unrecognized method of treatment  on patients in very serious condition in cases in which the usual methods are likely to yield less success, the patient has been informed of the nature and possible consequences of the method in question, and the patient has provided their consent for the use of this method. The patient does not, however, have the right to demand such treatment, and treatment methods that are not generally recognized can only be used on agreement, i.e. only if the healthcare provider agrees to it.

No single legal regulation yet

Asked whether it was common to cite foreign rulings or precedent, Kivi, the Supreme Court spokesperson, explained that in more difficult cases, other countries' laws are indeed occasionally looked up.

"As was done in this case as well," she said. "The chamber examined German and Austrian law, among other things. The Supreme Court could not find evidence that such treatment could be privately demanded in any other country either. The EU also lacks harmonized law in the case of private claims — which is what it was, in this case."

Kivi added that while this particular claim was a private one, i.e. patient v. hospital, there have been public cases in Estonia involving the use of experimental or very expensive drugs, such as the case of Marge Valdmann, a patient diagnosed with a rare type of blood cancer, who lost her court battle against the state as represented by Haigekassa.

The spokesperson also brought up Hristozov v. Bulgaria, the ECtHR ruling cited by the defendant, noting that the judges in the case actually lacked consensus regarding whether the state in question should allow the use of experimental treatments upon the request of critically ill patients.

"While party states are starting to develop a consensus regarding the use of experimental drugs under certain conditions, this consensus nonetheless hasn't developed into a single legal regulation," Kivi said. "In a 4:3 ruling, the [European Court of Human Rights] found that the state may defend individuals from their own ill-advised decisions. According to the divided judges, the decision to use experimental drugs is clearly personal, and the state does not have the power to restrict this right, as no equivalent public interests exist that would require balancing."

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Editor: Aili Vahtla



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