CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ FUTILE MEDICAL CARE: CHILDREN, PARENTS AND COURTS nature take its course. For reasons of age, unconsciousness or other mental incapacity, the patient is unable to make any decision in this respect, and this impairment is not about to change in any foreseeable future. This underlying scenario may be then divided into two subcategories. One comprises an “easier” case in which both the health professionals and the patient’s parents and other family members agree that curative (or life-sustaining) treatment is ineffective and not beneficial, and should be ended. Here no apparent conflict exists, but law could still require an official authority, such as a court, to rule on the matter in the interest of the child. The other category is far more complicated: here the parents and family members, or at least some of them, want the treatment to continue against the doctors’ recommendations. We will approach the topic mostly from a European perspective. That means that several international treaties and also case law of the European Court of Human Rights come into play. 1.1 Selected International Treaties The European Convention on Human Rights 3 contains two provisions which may be seen as the most pertinent to the discussed issues. According to its Article 2(1), everyone’s right to life shall be protected by law . According to its Article 8(1), everyone has the right to respect for his private and family life, his home and his correspondence . Both provisions, while of quite fundamental character, are rather general and leave much open to interpretation. In addition, the member states enjoy a significant margin of appreciation, in other words, power to regulate matters to some extent as they see fit, by domestic law which does not have to be uniform throughout Europe. Turning specifically to children, we may note that the Convention on the Rights of the Child 4 states in its Article 3(1) that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration . According to Article 3(2) of the same Convention, States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures . When ending of ineffective care is under consideration for adults or older minors, albeit at the time unable to communicate their opinion, it is appropriate to give due weight to what they said or otherwise expressed in the past. Pursuant to Article 9 of the Convention on Biomedicine 5 , the previously expressed wishes relating to a medical intervention by a patient who is not, at the time of the intervention, in a state to express his or her wishes shall be taken into account . However, this principle is not very helpful with regard to little children, as they 3 The Convention for the Protection of Human Rights and Fundamental Freedoms, adopted on 4 November 1950. The Czech Republic is a legal successor to the Czech and Slovak Federative Republic, which ratified the Convention; it was published in the Collection of Laws under no. 209/1992. 4 The United Nations Convention on the Rights of the Child, adopted on 20 November 1989. The Czech and Slovak Federative Republic ratified the Convention; it was published in the Collection of Laws under no. 104/1991. 5 The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, adopted on 4 April 1997. The Czech Republic has ratified the Convention; it was published in the Collection of International Treaties under no. 96/2001.

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