During the applicant’s, Ms. A.K., pregnancy, her doctor had failed to prescribe her a particular test which would allow to determine that her baby has Down's syndrome. She initiated civil proceedings against the doctor and hospital for receiving compensation, but all her claims were dismissed as the doctor alleged that the prescription had been made, but Ms. A.K herself had not attended the test. The institution evaluating the quality of the healthcare (MADEKKI) fined the doctor because of her failure to ensure that Ms. A.K undergoes the test.
Ms. AK complained that, owing to the negligence of her doctor she was denied adequate and timely medical care which would have indicated the risk of her foetus having a genetic disorder and which would have allowed her to choose whether to continue the pregnancy. That has violated her right to private life protected under Article 8 of the Convention.
The Court noted that there were various issues in the case that the national courts have failed to address:
- Ms. A.K. because of her age at the time of pregnancy was among the women to whom the particular test was mandatory.
- If Ms. A.K. would have refused the test, the doctor should have noted that in her notes. Even more, the doctor admits that the medical file of Ms. A.K. had gone missing for some time, but no investigation was initiated.
- As the MADEKKI had recognized the negligence of the doctor, Ms. A.K. had the right under national law to receive compensation in this regard, but the civil courts had not considered it.
Because of these reasons, the Court ruled that there has been a violation of Article 8 of the Convention.