CYIL vol. 13 (2022)

PETR ŠUSTEK

CYIL 13 ȍ2022Ȏ

2. The “Fast” Interim Measure to Protect the Minor’s Life and Health In situations when a minor’s life or health are in immediate danger, a special type of interim measure might be applied according to Section 452 and following of Act No. 292/2013 Sb., on Special Court Proceedings (Act on Special Court Proceedings). 11 This interim measure represents a fast, urgent variant compared to the “ordinary” interim measure 12 used in most other situations. 13 The court can order the “fast” interimmeasure only on the proposal of the child protection authority. 14 In practice, the provider of health services who wants to perform a blood transfusion in a child despite their parents’ disapproval, first turns to the municipal office, 15 which then submits a proposal for the issuance of an interim measure to the court. The court immediately appoints a minor’s guardian, usually another child protection authority. 16 The guardian, though, only represents the minor in the matters related to the proceedings and the interim measure. The parents’ rights and duties otherwise remain intact. The court must decide about the proposal for the interim measure without delay, no later than twenty-four hours after its submission. 17 It is because of this urgency that the court does not have sufficient time to require evidence for the claims of the health services provider. 18 In its above-presented 2004 judgment, the Constitutional Court even reasoned that in similar cases, “the opinion of a treatment facility that is evidently qualified (…) is sufficient to support the court decision”. 19 It might happen that it is for any reason impossible to obtain the court decision on the interim measure. This would most likely be due to time urgency of the case. Physicians are then allowed to provide all the life-saving interventions since urgent care necessary to prevent death or serious bodily harm can be provided without the consent of the legal representatives. 20 Even in cases of doubt, it is commendable that health professionals do whatever is necessary to save the patient. If they do so contrary to the law, the surviving patient might sue the provider of health services for the interference with their physical integrity. However, if they let the patient die and the relatives of the deceased prove they should have saved their life, the compensation may be much higher; and the health professionals might even be criminally prosecuted. It is, therefore, safer to risk erring on the side of saving life. 21 11 The substantive legal basis of the said type of interim measure is found in Section 924 of Act No. 89/2012 Sb., the Civil Code. 12 The “ordinary preliminary measure” is based on Section 74 and following of Act No. 99/1963 Sb, the Civil Procedure Code. 13 See STAVINOHOVÁ, J. Komentář k § 454. [Commentary to Section 454.] In LAVICKÝ, P. (ed.). Zákon o zvláštních řízeních soudních. Řízení nesporné. Praktický komentář. [Act on Special Court Proceedings. Non Adversarial Proceedings. The Practical Commentary.] Wolters Kluwer, Praha 2015, p. 769. 14 Section 454(1) of Act on Special Court Proceedings. 15 See STAVINOHOVÁ, J. Komentář k § 454. [Commentary to Section 454.] In LAVICKÝ, P. (ed.). Zákon o zvláštních řízeních soudních. Řízení nesporné. Praktický komentář. [Act on Special Court Proceedings. Non Adversarial Proceedings. The Practical Commentary.] Wolters Kluwer, Praha 2015, p. 769. 16 Section 455 of Act on Special Court Proceedings. 17 Section 456 of Act on Special Court Proceedings. 18 See the decision of the Constitutional Court of 19 January 2021, file no. I. ÚS 3444/20, paragraph 13. 19 The judgment of the Constitutional Court of 20 August 2004, file no. III. ÚS 459/03. 20 This rule can be found in Section 38(4)(b) of Act No. 372/2011 Sb, on Health Services and Conditions of Their Provision, as well as in Section 99 of the Civil Code. 21 See ŠUSTEK, P. Právní postavení a možnosti lékaře při odmítání trasfúze krve příslušníkem Náboženské společnosti Svědkové Jehovovi. [The Legal Position of a Physician and Their Options When a Member of the

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