A court has held hospital authorities and the Superintendent of Public Health responsible for breaching the fundamental rights of doctor Naged Megally’s survivors by denying them a private autopsy to determine the cause of his death. 

Judgment was delivered on Friday morning in proceedings instituted by the widow, son and two daughters of the specialist in foetal medicine who died almost a year ago after being admitted to hospital in critical condition. 

Megally, long-afflicted by a neuromuscular condition, had a long and complicated medical history which, according to his family, was not adequately diagnosed and assessed before medication was administered during his last weeks in hospital. 

The doctor’s death followed a number of surgeries and weeks at Mater Dei Hospital’s ITU where the patient appeared to be making progress before his condition took a turn for the worse. 

His family were informed about some “mysterious” condition affecting the patient’s windpipe two days or so before his death, they said. That condition was subsequently identified as the cause of death.

But the family was not convinced. 

They repeatedly requested an autopsy, insisting that the procedure was to be done within the scope of a magisterial inquiry. 

They sought recourse before the criminal courts seeking judicial authorization. But their bid proved unsuccessful. 

The Criminal Court rejected the family’s request because the necessary pre-requisites for a magisterial inquiry were lacking. 

Family accused hospital of holding body 'hostage'

The family then sought recourse before the constitutional courts claiming that hospital authorities were holding the body of their loved one “hostage” inside the morgue for months on end, defying their call for an autopsy and thus violating their fundamental right to private and family life. 

The court pointed out that delays in releasing the corpse for autopsy were not attributable to the hospital but were caused by the criminal proceedings triggered by the family and ultimately rejected by the courts. 

As for the family's insistence on the unconditional release of the corpse, the judge agreed with the hospital authorities in arguing that their refusal was a justified interference to the applicants' fundamental right.

Justice Mark Simiana concluded that the applicant’s right was indeed breached by the hospital’s chief executive officer and the Superintendent of Public Health. 

The court threw out the respondents’ pleas except for one, declaring the Health Minister as non-suited. 

The respondents had argued that the family failed to exhaust ordinary remedies.

But the court held that an ordinary action for judicial review of the authorities’ decision would not have been “an adequate and effective” remedy. 

Referring to ECHR caselaw, the judge observed that that foreign jurisprudence did not appear to have yet tackled the issue regarding whether the right to family life included the right to a private autopsy as requested in Megally’s case. 

The family’s relationship to the late doctor undoubtedly fell within the definition of the right to family and private life and the quality of that relationship was hardly impacted by his death. 

Every person had a right to attend to a relative’s funeral, he said.

Any autopsy or organ donation without the consent or against the will of the deceased’s family fell within the parameters of that fundamental right as defined under article 8 of the European Convention on Human Rights. 

It logically followed that the funeral and any intervention on the corpse were acts affecting that fundamental right because they had an impact not only on the risidual relationship between the survivors and the deceased but also affected the relationship among the survivors themselves. 

It was logical that death negatively impacted the family of the deceased and that negative effect was further accentuated when the cause of death was unknown or was being contested as in Megally’s case, the court said.

It followed that the family’s right to know the cause of death also fell within the parameters of article 8. 

The respondents said that the cause of death was known but the family did not accept it and insisted on an autopsy. 

The hospital authorities agreed but the family wanted the procedure done under a magisterial inquiry. 

The family insisted on the autopsy being done by pathologists of their choice and demanded possession of their relative’s corpse. 

The court did not agree that the corpse was to be unconditionally released. 

However the court upheld the family’s suggestion for “alternative remedies.”

The court concluded that the family’s fundamental right had been breached and ordered the Mater Dei CEO and the superintendent of public health to grant authorization for the autopsy. 

Family to select pathologists

That procedure is to be performed at Mater Dei within 15 days by two pathologists selected by the family from a list of specialists on the Medical Council register and paid for by the family. 

The autopsy is to be conducted in the presence of an observer chosen by the hospital to ensure it was done according to applicable regulations.

The payment for that procedure has already been deposited by the family, who must also pay a quarter of the legal expenses. The court did not award the applicants any compensation for damages.

The court also abbreviated the time limit for appeal to five days. 

Lawyers Tonio Azzopardi and Ryan Falzon assisted the family.