Constitutional Court: Ignoring mobbing faced by nurse violates rights

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The Constitutional Court has finalized the application of a nurse who applied to the top court on the grounds that she was subjected to the insults and mobbing of a doctor. The court has concluded that her right to "personal inviolability, corporeal and spiritual existence" was violated.

Working at the Department of Anesthesiology and Reanimation of the İstanbul University's Cardiology Institute, nurse N.A. made applications and complaints about the issue, but they were ignored by the hospital administration and the investigations were dropped.

The Constitutional Court has concluded that the nurse's right to "personal inviolability, corporeal and spiritual existence", as guaranteed by Article 17 of the Constitution, has been violated. The court has ruled that a copy of the ruling shall be sent to the İstanbul 7th Administrative Court in order to eliminate the consequences of the rights violation in question.

No disciplinary penalty, no investigation

In the report prepared by G.A., the investigator appointed by the hospital administration, it was indicated that the doctor facing the complaint, H.Ö.U., had "uttered remarks going beyond the limits of criticism" and that "psychological harassment and a violation of personality rights should be mentioned in the event that such behavior was continuous."

The report noted that the necessary should be judged by the court and, thus, did not foresee any disciplinary penalties for the doctor.

In the justified ruling of the Constitutional Court published in the Official Gazette yesterday (April 12), it is indicated that "despite this report, there is no disciplinary investigation finalized by the administration or a judicial investigation conducted by the public prosecutor's office."

Underlining that the nurse was also diagnosed with "major depressive disorder with somatic complaints", the top court has indicated that both the assessment of the expert and the diagnosis in question are in compliance with the incidents that the nurse experienced in her workplace.

'Her life became unbearable'

The Constitutional Court has concluded that what the nurse was subjected to reached an unbearable dimension and intensity.

In coming to this conclusion, the top court has indicated that the remarks and behavior of H.Ö.U against the applicant were "continuous" and referred to the "lengthy period" of the process through which the nurse submitted petitions of complaint to the administration at different times, she submitted a petition of complaint to the public prosecutor's office, a medical documentation and scientific assessment report was issued on the applicant and a report was prepared by G.A.

The top court has also concluded that no effective investigation was carried out regarding the application of the nurse.

According to the justified ruling, "It has been understood that no effective administrative investigation was carried out in the light of the complaints made by the applicant in the concrete case and the administration did not show the necessary care and attention to take measures with the aim of ensuring that the related behavior of H.Ö.U. would not continue."

'Public authority should take measures'

In its justified ruling, the Constitutional Court has also underlined that "public authorities should not only detect the situations which constitute psychological harassment, but they should also take swift and effective measures to prevent or compensate for such behavior."

The court has concluded that the administration did not carry out a finalized investigation and "the rejection of the administrative court did not contain relevant or adequate grounds in such a way to protect the safeguards pertaining to the indivdiual's right to protect and improve her material and spiritual existence or to compensate for the losses incurred by the applicant."

What happened?

Nurse N.A. said that she was treated by anesthetist and her superior H.Ö.U in such a way that she was humiliated, her professional and personal honor was tarnished and she was psychologically harassed. She submitted a petition to the Institute Directorate in 2015.

The nurse said that the doctor told her, "You don't know anything, I don't want to work with you, I will send you away" and when the cables broke during a surgical operation, the doctor kicked her out of the operating room, saying, "You put the broken cables on purpose." She added that the doctor always made degrading and insulting remarks against her and the team.

After she was diagnosed with "major depressive disorder", N.A. submitted another petition and wrote that her complaints were increasing incrementally. She also applied to the İstanbul Chief Public Prosecutor's Office and filed a complaint against H.Ö.U. on charges of "torment" and "misconduct in office." However, the prosecutor's office gave a decision of lack of jurisdiction and sent the file to the Rectorate of İstanbul University.

Filing a lawsuit for damages in response, N.A.'s petition indicated that the psychological harassment of the doctor was overlooked by the administration, no sanctions were imposed on the doctor and the complaints of her and other employees were kept in suspense.

The administrative court dismissed the lawsuit for damages filed by the nurse on the grounds that "the administration did not have a grave negligence in the context of psychological harassment and that the conditions for paying non-pecuniary damages were not constituted."

After the appeals court rejected her application as well, N.A. applied to the Constitutional Court. The justified ruling of the top court dated January 12, 2022 was published in the Official Gazette on April 12, 2022. (AS/SD)