CYIL vol. 13 (2022)

PETR ŠUSTEK CYIL 13 ȍ2022Ȏ crucial question the Strasbourg court would need to answer would be that of the minor’s decision-making capacity. Even outside the framework of the Council of Europe system of human rights protection, children are provided with participatory rights under the United Nations’ Convention on the Rights of the Child. Czech law acknowledges a special status of a minor regarding health care-related decisions since the age of fourteen. That approximately corresponds with the scientific findings on capacity to understand such decisions and their consequences. However, in emotionally loaded situations, adolescents are known to be inclined to taking greater risks as well as to be heavily influenced by their peers. Generally, it is advisable that health care practitioners help the minor to make their decision in a protected environment, having enough time to ponder on it and being shielded from undue influences. However, in cases of Jehovah’s Witnesses’ children, it might not be feasible to do that. Moreover, it is arguably impossible to separate these minors’ opinions and values from their upbringing. The Czech Constitutional Court repeatedly decided that when deciding on the “fast” interim measure, courts often do not have to ascertain the minor’s opinion. This is for two reasons which usually work in synergy: younger children are not capable of understanding complex expert questions regarding medical procedures, and they have not yet been capable of forming their own opinion that would be relevantly independent of the strong parental influence. This is in line with the Convention on the Rights of the Child which makes children’ participatory rights dependent on their capacity to form opinions on the matter in question. It is, nevertheless, important to note that the Constitutional Court dealt with the cases of relatively young children who have not yet fully reached the age of adolescence. Under the Convention on the Rights of the Child, any decision-making regarding a child must as a primary consideration take into account the best interests of the child. The provision of blood products when medically needed is as a rule considered in the little patient’s best interests. Recently, there has been a vivid professional discussion on the suitability of potential replacement of the best interests standard with the harm principle. While this change is (at least in foreseeable future) unlikely to happen, it would not change the practical situation of Jehovah’s Witnesses parents. In most cases, they would still not be able to prohibit the provision of necessary blood products to their children since such a refusal would constitute a significant harm. We believe that Czech legislative approach as well as the relevant case law on the provision of blood products to Jehovah’s Witnesses children are, in principle, in accordance with the demands of the international human rights law. It is also likely that the European Court of Human Rights would come to similar conclusions regarding the proportionality of interference with the relevant parental rights as well as the minors’ decision-making capacity. Nevertheless, future case law both on the national and international level should further precise the conditions for interference with parental rights in certain less obvious situations when the life of the child is not directly endangered, as well as for denying the child their participatory rights.

306