Too old for sex

In Carvalho Pinto de Sousa Morais v Portugal the European Court of Human Rights has held that it was discriminatory to reduce a 50-year old woman’s compensation for medical negligence on the ground that sex was not as important to her as it would be to someone younger. 

Basic facts 

After an operation in May 1995 for a gynaecological problem, Ms Carvalho Pinto started to suffer intense pain, a loss of sensation, incontinence, difficulty walking and sitting, and having sexual relations. She was subsequently told that a nerve had been injured during the operation. 

In April 2000, she started a claim against the hospital which carried out the procedure for damages of just over 325,000 euros, of which almost 250,000 was for non-pecuniary damage owing to the physical disability caused by the operation. 

Decisions of lower courts 

In October 2015 the Lisbon Administrative Court awarded her 80,000 euros in compensation for non-pecuniary damage and 92,000 euros for pecuniary damage, of which 16,000 euros were for the services of a maid that Ms Carvalho Pinto had had to hire to help with household tasks. 

She appealed the decision, arguing that she should have been awarded the full sum for non-pecuniary damage. However, the Supreme Court not only reduced her compensation for the services of the maid from 16,000 to 6,000 euros, but also the compensation for non-pecuniary damage from 80,000 to 50,000 euros on the basis that she had been suffering with the gynaecological condition for at least two years before the operation. In addition, “at the time of the operation [she] was already 50 years old and had two children, that is, an age when sex is not as important as in younger years, its significance diminishing with age”. 

Relying on Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the European Convention on Human Rights, Ms Carvalho Pinto alleged sex discrimination. 

Decision of Court of Human Rights 

Noting that the advancement of gender equality was a major goal for member states, the Court held that there would have to be “very good reasons” before a difference of treatment on grounds of sex could be accepted as compatible with the Convention. These would not include “references to traditions, general assumptions or prevailing social attitudes in a country”. 

Although domestic courts sometimes have to consider the age of claimants, the question at issue here was not to do with age or sex as such, but rather the assumption that sexuality was not as important for a 50-year-old woman as for someone younger, an assumption that reflected a traditional idea of female sexuality as being essentially linked to child-bearing. 

Although the Supreme Court had taken into account the fact that the pain suffered by Ms Carvalho was not new, her age and sex seemed to have been decisive factors. This approach was also reflected in its decision to lower the amount allocated to her in respect of the costs of a maid on the grounds that, given her age, she “probably only needed to take care of her husband”. 

In contrast, the Portuguese Supreme Court of Justice had taken a very different approach in two earlier complaints by two male patients about medical malpractice. In those cases, it had found that because the men could no longer have normal sexual relations, they had suffered “tremendous/strong mental shock”, regardless of their age or whether they had had children or not. 

The Court therefore concluded that there had been a violation of Article 14 taken in conjunction with Article 8.