issued by the Registrar of the Court
ECHR 116 (2023)
13.04.2023
Failure to protect a patient’s right to informed consent
European Court of Human Rights held, unanimously, that there had been:
a violation of Article 8 (right to respect for private and family life) of the European Convention on
Human Rights as regards the failure to protect Ms Mayboroda’s right to informed consent.
The case concerned the applicant’s allegation that her kidney had been removed without her
consent or even knowledge during emergency surgery for internal bleeding in March 2000. The
intervention had been carried out in the Lviv Regional Clinical Hospital, a public hospital. She had
found out a few months later via an anonymous telephone call that her left kidney “had been
stolen”. An official investigation had concluded that the kidney had been removed to save her life,
while a civil action she had brought had resulted in her being awarded damages against the
consulting doctor.
The Court found in particular that the authorities had not examined whether there had been a
possibility to gain consent to the kidney removal either from Ms Mayboroda before the operation or
from her relatives during the procedure and the State had failed to set up an appropriate regulatory
framework to protect Ms Mayboroda’s right to informed consent.
Principal facts
The applicant, Lyudmyla Ivanivna Mayboroda, was a Ukrainian national who was born in 1952 and
lived in Svalyava (Ukraine). She died in 2016 while the proceedings before the European Court were
still ongoing. Her daughter Myroslava Korostelova continued the application in her stead.
In March 2000 the applicant had her left adrenal gland surgically removed in the Lviv Regional
Clinical Hospital. She was suspected of having developed post-operative internal bleeding, and so
urgent surgery was performed. Having obtained the applicant’s oral consent a team of three doctors
operated. In the course of the procedure the applicant’s left kidney, previously diagnosed as healthy,
was removed.
She was discharged one month and five days later. The discharge certificate did not mention the
removal of her kidney.
Later that year she received an anonymous telephone call stating that her kidney “had been stolen”.
She contacted the press, which led to a senior university faculty member who was the father of Ms
Mayborada’s consulting doctor writing a letter to her to apologise, explaining that no information
had been given in order to facilitate recovery, and that it had been intended to inform her at her
next appointment.
In September 2000 Ms Mayboroda complained to the national Ombudsman, which led to a
prosecutor questioning a doctor involved. Separately, criminal proceedings were initiated against
1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,
any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges
considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final
judgment. If the referral request is refused, the Chamber judgment will become final on that day.
Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.
Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.
