CYIL vol. 10 (2019)

TOMÁŠ HOLČAPEK CYIL 10 ȍ2019Ȏ Czech Republic. He teaches civil procedure and health law. Furthermore, he is a practicing attorney with main focus on civil law and litigation. Introduction Most countries in the world are faced with the challenge of providing accessible, efficient and high-quality health care to their populations. They often struggle to deal with limited means, unstable demographic development, fast appearance of new medicaments and technologies, and many other factors. It is in the public interest to promote such principles and measures which may have positive impact on the individual relationships within which health care is provided. One of the essential components of the relationship between a health care provider and a patient is their mutual trust. Without it, effective cooperation is much more difficult, or outright impossible. Notwithstanding all scientific progress, the patient’s health may deteriorate. Sometimes the care provider is responsible due to an error, e.g. in diagnosis or treatment. Sometimes it is simply the effect of natural factors. In all these aspects and situations, a critical role is played by communication between the care provider and the patient. It is not unidirectional. However, for obvious reasons, it is primarily the task of the professional care provider to manage and support it. A complicated dilemma may occur when the care provider becomes aware that some kind of malpractice took place, perhaps during performance of a particular medical intervention. One of the natural impulses on the part of most human beings that become aware of an error attributable to them is to deny it. But that runs against the principle of open, honest communication. And while it may make sense from the point of view of immediate interest of a particular care provider, in the long run it creates suboptimal environment for patients, thus operating contrary to reasonable public policy. 1. Context Not surprisingly, the law in many countries seeks to push the care providers to choose the open, honest approach. The law often states both that the provider is obliged to provide complete and truthful information to the patient about the latter’s state of health, and that the patient is entitled to such information 2 – these are the opposite sides of the same coin. In the context of Council of Europe member states, this principle has found its way to codification in an international treaty – the Convention on Human Rights and Biomedicine. While it has not been accepted by all European countries, its Article 10 paragraph 2, which stipulates that everyone is entitled to know any information collected about his or her health, 3 has its counterparts in the legal systems even of those countries which have not acceded to the Convention. Incidentally, the Czech Republic is one of the Council of Europe member states

2 Cf. SALAČ, Josef. Právo na informace o zdravotním stavu [ Right to Information about State of Health ]. In: ŠUSTEK, Petr, HOLČAPEK, Tomáš, et al. Zdravotnické právo [ Health Law ] . (Wolters Kluwer, Praha 2016), pp. 209-210. 3 For the purposes of this text we will leave aside potential restrictions allowed under Article 10 paragraph 3 of the Convention.

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