CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ “INTERFERENCE WITH A MINOR’S PHYSICAL INTEGRITY: CZECH CASES … The constitutional complaint of the parents was denied by the Court. The Court made it clear that under circumstances where there had been an imminent danger to a child’s life, whilst the parents decision resulted in restricting the child from potentially life-saving treatment, entrusting the child into the care of a hospital violated neither the parents’ rights under the Article 32 Para 4 of the Czech Bill on Fundament Rights and Freedoms (the exercise of parental responsibility) nor their rights under the Article 16 Para 1 of the Czech Bill on Fundament Rights and Freedoms (freedom of religion and belief ). This protective approach towards the right to healthcare, protection of health, and life of a minor of younger age is shared by most of the western countries 39, 40, 41, and 42 . Thus, in some legislation, the right of an adolescent who is mature enough to understand the consequences of their decision to refuse a blood transfusion is recognised. 43 Based on the wording chosen by the Czech legislature, this is not the case in the Czech Republic. According to S. 95 of the Czech Civil Code, a minor who has not gained full competence yet, is entitled in a common situation to give their consent to a bodily intervention if it is appropriate to their intellectual and volitional maturity, as long as the intervention will not lead to permanent or severe consequences. As regards the minor’s right to refuse a medical treatment, there is no explicit legal provision, except of S. 35 of the Act on Healthcare Services, stating that the opinion of a minor (i.e., also the refusal) regarding a treatment will be acknowledged as a factor of which the significance increases based on the age of the minor. If the minor is above 14, their opinion is significant enough not to be overruled by the opinion of the minors parents; in case of such a dispute, the court needs to decide whether a treatment will be provided. 44 One may only assume that if a minor’s right to consent to a treatment is rather restricted, as showed above, the more would be the right to refuse a (potentially life-saving) treatment. 4.2 Vaccination and the Conscientious Objection on the Side of Patient’s Next of Kin In the Czech Republic, child vaccination is obligatory, consisting of vaccinations against tuberculosis (in selected endangered children, at the age of 4–6 weeks), against diphtheria, tetanus, haemophilus influenza B, hepatitis B, polio, whooping cough (the “hex vaccine”, at the age of 2 months, 4 months, and 11–13 months), against Rubella, Measles, Mumps (at the age of 13–18 months and 5-6 years, and again against the Diphtheria, tetanus, whooping cough, (at the age of 5–6 years and 10–11 years), and polio (at the age of 10 years – 11 years). 45 The vaccination schema, i.e., the illnesses the kids are vaccinated against, and the timing of the vaccination could slightly vary from state to state. 46 It is in the state’s discretion to 39 The German approach is briefly summarized in the Guidelines on Transfusion in Minors, published by the Ethical Committee, available (in German) from: https://ethikkomitee.de/downloads/leitlinie_sa_zj.pdf, pp. 2–3. 40 For Italian law, see e.g., Conti, A. et al. Blood Transfusion in Children: The Refusal of Jehovah’s Witness Parents. Open Med (Wars). 2018; 13; pp. 101–104. 41 For the UK, see Re E (A Minor) (Wardship: Medical Treatment) [1993] 1 FLR 386, and Birmingham Children’s NHS Trust v. B & C [2014] EWHC 531 (Fam). 42 For the US, see Prince v Massachusetts (1944) 321 US 158. 43 For US, see Re Green – 448 Pa. 338, 292 A.2d 387 (1972). Similarly in Germany, regarding the 16-17 year-old patients, as described in https://ethikkomitee.de/downloads/leitlinie_sa_zj.pdf, pp. 3–4. 44 S. 100 of the Act No. 89/2012 Sb., the Civil Code. 45 http://www.szu.cz/uploads/Epidemiologie/Ockovani/ockovaci_kalendar_pro_deti_2022_01_01.pdf. 46 Cf. e.g., the Denmark childhood vaccination program, in which also the meningitidis caused by a pneumococi

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