CYIL vol. 12 (2021)

CYIL 12 (2021) CZECH EXPERT STATEMENTS ON PATIENT PRIORITISATION IN THE COVID-19… 4. International Law Considerations For patient prioritisation, the most relevant provision of the Convention on Human Rights and Biomedicine 59 is Article 3 which guarantees the right to equitable access to health care. In the context of relatively wealthy European countries, this right primarily means “ the absence of unjustified discrimination ”. 60 Its exercise is obviously limited by the available resources. 61 The Explanatory Report to the Convention on Human Rights and Biomedicine explicitly acknowledges that “ State measures to ensure equitable access may take many different forms and a wide variety of methods may be employed to this end ”. 62 While a breach of the Convention on Human Rights and Biomedicine does not give rise to a claim before the European Court for Human Rights (ECtHR), 63 the denial of life- saving care could also violate the right to life under Article 2 of the European Convention on Human Rights. 64 The ECtHR has set two types of alternative exceptional situations when the breach of Article 2 can occur. 65 First, a denial of access to life-saving treatment must knowingly put the patient’s life in danger (it is not a “mere” incorrect of delayed treatment). The second alternative is that there is a systemic or structural dysfunction of hospital services that the authorities which knew or ought to have known about the risks failed to sufficiently address. 66 The state might be held accountable if four cumulative criteria are fulfilled: 1) healthcare providers deny a patient emergency medical treatment despite being fully aware of the risks, 2) the dysfunction is systemic or structural, 3) there is a causal link between the systemic dysfunction and the harm, and 4) the dysfunction has resulted from the failure of the state to meet its obligation to provide a regulatory framework. 67 A state-approved (or at least tolerated) algorithm of patient prioritisation can undoubtedly be understood as a systemic measure. Nevertheless, in a pandemic situation with the objective impossibility of providing standard care to all patients, it can hardly be considered a failure. In the same way, the violation of Article 2 should not be automatically assumed in all cases when patients are knowingly denied life-saving intensive care in a crisis. In this respect, it could be crucial that Czech law requires the provision of at least the minimum urgent care possible at the moment. We may recall the above-mentioned principle “ ad impossibilia nemo 59 Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine of 1997. 60 Explanatory Report to the Convention on Human Rights and Biomedicine, to Article 3, point 25. 61 See ibid., point 26. 62 Ibid., point 27. 63 See ANDORNO, Roberto. The Oviedo Convention: A European Legal Framework at the Intersection of Human Rights and Health Law. Journal of International Biotechnology Law. (2005, Vol. 2, No. 4), p. 136. 64 See for example Nitecki v. Poland (App. No. 65653/01) ECtHR, First Section, Decision of 21 March 2002, or Pentiacova and Others v. Moldova (App. No. 14462/03), ECtHR, Fourth Section, Decision of 4 January 2005. 65 For a more detailed analysis of possible violations of Article 2 of the European Convention on Human Rights consisting in the limitations to the access to health care, see ŠUSTEK, Petr. Non-Compliant Patients and the Restrictions of their Exercise of Right to Health. In ŠTURMA, Pavel, LIPOVSKÝ, Milan (eds.). 70 th Anniversary of the Universal Declaration of Human Rights. rw&w Science and New Media, Passau-Berlin-Prague 2019, pp. 136–137. 66 See Lopes de Sousa Fernandes v. Portugal (App. No. 56080/13), ECtHR, Grand Chamber, Judgment of 19 December 2017, §§ 191–192. 67 Ibid., §§ 191–196.

357