CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ “INTERFERENCE WITH A MINOR’S PHYSICAL INTEGRITY: CZECH CASES … be illegal regardless whether it is a patient’s wish. 21 As there is an absolute prohibition of direct, deliberate and active disconnection of continuous life-support, according to some authors the clinical practice has been using the obvious statutory loophole in order to bypass the prohibition by what is known as positive pressure ventilation (PPV ventilator), i.e., a ventilator with a timer which needs to be reactivated regularly. This technical solution turns the continuous modality into the regime of discrete modality and thus enables the patients to refuse a not-so-continuous life support. 22 Anyway, the intricate concept of refusing a treatment gets even more complicated if the patient concerned is aminor. Regardless of whether it is a parent of aminor, who is the decision maker on behalf of the minor, or the minor themselves, minors right to access healthcare and thus their right to protection of their health and life represent with no exaggeration the most important values in a democratic society and shall not be compromised lightly, especially not by the minor’s parent’s cultural and religious background. This approach is also in line with the principle that the freedom of thought, conscience, and religion is only recognised as long as its manifestation does not interfere with the public safety, protection of public order, health of morals, or the rights and freedoms of the others. 23 The case law available in the Czech Republic on this matter is rather limited, exhausting itself mainly on refusal of blood transfusion and mandatory childhood vaccination out of alleged religious reasons. To my knowledge at least, there has not been a case brought up to any of the higher Czech courts in which a minor patient or the patient’s legal guardian actually demanded a particular invasive treatment out of their religious beliefs (like e.g., a bloodless alternative for a heart surgery which is as a rule not covered by the public health insurance 24 or a further mechanical ventilation after the so-called brain death) 25 and were denied the access to it. 3. The Czech Experience with Cultural and Religious Dimension in Healthcare Deliberately leaving aside for the moment the brief analysis of the famous three cases decided by the Czech Constitutional Court in which minors and religious beliefs were involved, in this chapter, attention will be paid to other general examples of cultural and religious perspectives in the healthcare in Czech Republic. First of all, I will focus on the experience of Roma patients whose lifestyle could differ significantly from the mainstream population. Then I will present a case of parents who refused an abortion and I will discuss the consequences these parents needed to face during the rest of the pregnancy and after a severely disabled child was born. Last but not least, I will elaborate further on what I consider to be a religious insensitivity of the Czech healthcare system (or at least the healthcare workers who are participating in it) by introducing a recent case of Jehovah’s Witness in need of a gynaecological surgery, also pointing out the lack of controlling mechanism regarding 21 STEINBERG, A., SPRUNG, C.L. The dying patient: new Israeli legislation. Intensive Care Med. 32, pp. 1234– 1237 (2006). 22 RAVITSKY, V. Timers on ventilator, BMJ . 2005 19 Feb; 330(7488): pp. 415–417. 23 Art. 9(2) of the Convention on Human Rights and Biomedicine. For the US context, see the famous case of Employment Division v. Smith. Analogous limitation applies to the exercise of patient autonomy, cf. Art. 26 of the Convention on Human Rights and Biomedicine. 24 Veselības ministrija (case C-243/19 ECLI:EU:C:2020:872). 25 Cf. the tragic case of 13-year-old Jahi McMath in 2013 (Windkfield v. Children’s Hospital Oakland et al.).

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