CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ JEHOVAH’S WITNESSES AND THE BEST INTERESTS OF THE CHILD interimmeasure based on a girl which should have been vaccinated against tetanus after a minor injury caused by a horse. In the decision file no. I. ÚS 3444/20, the court reasoned that [i]n the implementation of the child’s participation rights, guaranteed by Article 12 of the Convention on the Rights of the Child, the degree of their involvement in the proceedings that affects them depends on their intellectual and voluntary maturity, the ability to formulate and express their own opinion. From the point of view of the Constitutional Court, the general courts (…) proceeded appropriately if they did not ascertain the opinion of the minor, i.e., a ten-year-old, on the issue of vaccination with the tetanus vaccine or the necessity of her hospitalization, as it cannot be assumed that she would, with regard to the expert nature of the question, as well as the assumed stress associated with the injury, hospital visit and subsequent attempts to enforce a preliminary measure, be able to form her own (independent) opinion, which the court could take into account and which could influence it in judgment. 39 In other words, the views of the minor in question do not always have to be taken into account in the court decision-making. This is primarily true if the circumstances of the case strongly suggest that the minor could have not formed their own independent opinion at all. Even if the child thinks something about the situations and feels strongly about it, such a position does not qualify as a relevant opinion unless the minor is both sufficiently mature to understand the problem and sufficiently in control of their emotional reactions. Conclusion In relation to life-saving medical treatments, Czech case law, especially that of the Constitutional Court, has adopted a stance strongly preferring a minor’s right to life and to the protection of health over the relevant rights of their parents, especially the right to respect for private and family life or the right to freedom of thought, conscience, and religion. When the Jehovah’s Witnesses parents refuse to grant their consent with the provision of blood products to their child, a special procedure may be activated so the court issues the so-called “fast” interim measure by which it appoints a guardian for the minor and allows a health services provider to carry out the needed procedure. When the life or health of the minor are indeed endangered, the Constitutional Court understands such an interim measure to be necessary in democratic society. Even though the court must decide on a “fast” interim measure within twenty-four hours, the minor’s health condition might be so rapidly deteriorating that it is not possible to wait for it. In that case, the law specifically states that urgent care necessary to prevent death or serious bodily harm can be provided without the consent of the legal representatives. International law does not specifically address the problem of blood products refusal. However, the basic rights guaranteed by some of the international law instruments (especially the European Convention on Human Rights) are crucial for finding the proportional balance of state interventions to health care decision-making regarding children. While the European Court of Human Rights upholds an adult and competent patient’s autonomy reflected in the option to refuse life-saving treatment, it has not yet dealt with a case specifically concerning the refusal to provide blood products to a minor. Nevertheless, it can be expected that the

39 The decision of the Constitutional Court of 19 January 2021, file no. I. ÚS 3444/20, paragraph 16.

305