|Statewatch article: RefNo# 33215
|Statewatch News Online, February 2014
|On 14 January 2014, the Madrid provincial court ruled in favour of the appeals submitted by Ferrocarril Clandestino and her mother Clementine Samba [assisted by SOS Racismo Madrid], and the Asociación de Letrados por un Turno de Oficio Digno [ALTODO] to overturn the decision to shelve investigations into the death of Martine Samba. The Congolese woman was detained in Madrid's detention centre foreigners in the Aluche neighbourhood for 38 days, until she died in the 12 de Octubre hospital on 19 December 2011. The key focus of the case is whether inadequate medical care provided to Martine Samba in the detention centre [CIE, centro de internamiento para extranjeros] had a role in her death and may result in charges of manslaughter being brought against the centre's medical staff.
The prosecuting magistrate provisionally suspended investigations and shelved the case on 18 August 2012, arguing that there was no clear cause-effect relationship between the care afforded to the detainee and her death, and that a correct diagnosis and earlier treatment would not have prevented her death as a result of cryptococcal disease (an AIDS-related opportunistic fungal infection). Based on the legal doctor's reports, the prosecuting magistrate found that:
- she died of systemic cryptococcal disease, the intermediate cause was blood poisoning and the immediate cause was heart and lung failure caused by the infection;
- she had AIDS;
- she was attended by qualified doctors even time that she requested medical assistance;
- the treatment prescribed was correct for the symptoms she complained about, although it had no impact on the disease she was eventually understood to have suffered from;
- it was difficult to diagnose her situation due to the disease's scarce clinical manifestations until a few hours before her death;
- even if the diagnosis had been correct, she was affected to such an extent that it would not have changed the final outcome.
The counterarguments presented in the appeals suggested that:
- she was not properly examined upon entry in the CIE;
- she was not always attended by the medical staff, but also by two qualified nurses;
- a translator was not always available;
- attempts were made to intentionally silence or minimise her symptoms; the symptoms made it necessary to suspect a more serious disease, but no efforts beyond the treatment of symptoms were made to understand what lay beneath them;
- the final outcome may have been avoided if she had received adequate treatment.
When Samba entered the CIE, she was "well", according to the initial medical examination, dated 12 November 2011. The decision notes that this represents "little more than formal compliance with the rules", which is dangerous considering the "special characteristics of the population that enters the CIE". Moreover, Samba asked to be visited on the same day for flu-like symptoms and itching in the perineal region. This last symptom could have alerted the medical staff, considering that she came from a country where AIDS is endemic. Considering that migrant women who are detained in CIEs often embark upon long journeys (lasting several years), they are often raped or find themselves in situations in which they have to engage in prostitution. Her clinical record shows that she was not always visited by doctors, whereas her assessment by nurses is detailed in three occasions. She was visited with a translator present only on one occasion, on 14 December 2011. The official medical record submitted by the firm responsible for providing medical care in the CIE (SERMEDES, Servicios Médicos Especializados) "did not coincide" with the handwritten clinical record in several points and it is alarming that relevant data that should have been taken into account is alarmingly concealed.
The variety and nature of her symptoms on the ten occasions in which she requested medical treatment (she was in the CIE for 38 days) should have led to suspicion that she suffered from a more serious disease, a possibility that was not considered. She was not even given a blood test, and correct treatment may have prevented her death. This view is contradicted by the medical doctor's report, although other medical reports are available that disagree, highlighting that there was "poor praxis by the medical staff, by not complying with usual clinical protocols and not carrying out the relevant diagnostic tests to determine the cause" of the patient's symptoms and to rule out an HIV/AIDS infection in a young Congolese woman. A correct diagnosis would have allowed treatment to improve her immunologic condition considerably and would have forced the investigation, diagnosis and treatment of opportunistic infections such as cryptococcal disease, enabling adequate and timely treatment that was likely to have prevented her death. Another doctor supported the view that her symptoms required testing for AIDS as a potential underlying disease, all the more so as the person comes from region where it is endemic and the treatment could have considerably reduced the likelihood of the fatal outcome. Although these two doctors' reports were on behalf of the plaintiffs, they are recognised experts whose view deserves consideration. Other accounts submitted to the police or the judge responsible for jurisdictional control of the CIE [Juez en Funciones de Control Jurisdiccional del CIE] by other detainees, and by the Red Cross coordinator in the centre, claim that Samba was ill for three weeks, suffering, with a serious headache, and "she did nothing other than cry, moan and complain".
The legal doctor's conclusion are viewed as including a degree of "incongruence". While Samba was so ill from cryptococcal disease that she died, the doctor claimed that the disease is "almost always fatal" but only "if it is not treated", which leads to consider that a different outcome may have been possible if she had been treated 38 days earlier.
The ruling explains that doctors cannot be required for their diagnoses to always be correct, and a "mere scientific error" cannot be punished. They cannot be expected to be extraordinarily capable or specialised, but they can be sanctioned for "inexcusable mistakes or outstanding negligence". Culpability relies on the doctor having been in a position to avoid behaving in the way that had harmful results. Permanent generalisations must be avoided. The duty of care must be established and then gauged, on the basis of the concurring circumstances, including the activity that is carried out and is subject to a judgement, the risk to people, and the technical or scientific expertise required for an activity.
The ruling highlights the special situation experienced by people who are denied their freedom through detention in CIEs, who do not have the option of resorting to other medical services than those available in the CIE or those that the latter refer them to. If they do not refer the patient to external services, they are in a "peculiar limbo" that makes their role as guarantors with regards to detainees particularly important. While it is early to convict or acquit the accused, it is the right time to assess whether the evidence to understand what actually happened exists, so as to enable a serene reflection on whether the centre's medical staff had any penal responsibility. If the staff had stopped investigating the cause of her illness adequately, this may have turned the risk of dying from an infection into a risk that moves beyond the borders of a permissible risk, which is forbidden and which the medical staff in question must answer for.
This may be the case, and it would explain the contradictions between the handwritten and typed reports referred to above, which appear to conceal the medical staff's knowledge of relevant symptoms that should have given rise to suspicion of a serious disease but were dismissed. This is why the investigation must be completed, revoking the dismissal of the case that was issued, for the sake of the principle of effective judicial safeguard due to the denial of access to relevant elements of evidence.
A joint statement issued by Pueblos Unidos, SOS Racismo Madrid, Comisión Cerremos los CIE of Ferrocarril Clandestino, ALTODO, Médicos del Mundo, and Inmigrapenal welcomed the decision, arguing that it confirms what they have repeatedly claimed, namely:
"1. That when, like in this case, harm to a juridical right takes place in the context of denial of freedom in the custody of the state's security forces and bodies, according to repeated constitutional jurisprudence, there is a special mandate to undertake investigations and to exhaust as many reasonable possibilities of inquiry as may prove useful to shed light on an event.
2. When the state denies someone their freedom, it turns into the guarantor of their rights, particularly of their life and health. The case of Samba Martine, far from being an exception, shows that the state is not guaranteeing these people's rights, which makes their detention unconstitutional, and CIEs must be closed down."
The ruling (in Spanish): Auto 13/2014, Audiencia Provincial, de Madrid, Sección Trigésima, 14.1.2014. [pdf]
"Ordenan reapertura de la investigación penal por la muerte de Samba Martine", 28.1.2014, joint statement by Pueblos Unidos, SOS Racismo Madrid, Comisión Cerremos los CIE of Ferrocarril Clandestino, ALTODO, Médicos del Mundo, and Inmigrapenal
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