CYIL vol. 8 (2017)

PETR ŠUSTEK CYIL 8 ȍ2017Ȏ assessing the treatment of mentally ill persons, the ECtHR takes into consideration also their vulnerability 16 and their inability, in some cases, to complain. 17 The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (hereinafter “ European Convention for the Prevention of Torture ”) from 1987 established the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (hereinafter “ CPT ”) as a monitoring body which, by means of visits, analyses the situation in State Parties and makes recommendations. Ratified by all the forty- seven Member States of the Council of Europe, the European Convention for the Prevention of Torture gave rise to a relatively effective tool for securing the actual implementation of the prohibition of torture in Europe. The activities of the CPT also contribute to diverging the criteria of the minimal harshness of treatment required for the case to fall within the scope of Article 3 of the European Convention on Human Rights. 18 3. Invasions of bodily integrity without consent: involuntary hospitalization Free and informed consent represents a legal cause of any invasion of bodily or mental integrity of the individual. Without informed consent, an invasion, however banal or beneficial for the patient’s health, is unlawful. However, there are also different legal causes of these invasions. 19 In Czech law, the respect for bodily and mental integrity is declared in Section 91 of the Act No. 89/2012 Coll., Civil Code (hereinafter “ Civil Code ”), which states that “[a]n individual is inviolable” . The provision of Section 93 specifies that “(1) [e]xcept as provided by a statute, no one may interfere with the integrity of another individual without his consent granted with the knowledge of the nature of the interference and its possible consequences. If a person consents to serious harm being caused to him, it is disregarded; this does not apply if the interference is, given all the circumstances, necessary in the interest of the life or health of the individual concerned. (2) The legal representative may give consent to the interference with the integrity of the person represented if it is for the direct benefit of the person who is unable to give the consent himself.” Informed consent in the context of health care is regulated both in the Civil Code and, as a lex specialis , in the Act No. 372/2011 Coll., on health services and conditions of their provision (hereinafter “ Act on health services ”). Section 28 (1) of the Act on health services states: “Health services can be provided to the patient only with his free and informed consent, unless this Act states otherwise.” Informed consent is further regulated by Section 34 of the Act on health services. In the Civil Code, the provision of information is basically regulated by Section 94 (1): “A person who wishes to perform an intervention on another individual shall clearly explain the nature of this intervention. Explanation is duly provided if it can be reasonably assumed that the 16 See Herczegfalvy v. Austria, (application no. 10533/83), the ECtHR judgment of 24 September 1992, § 82. 17 See Aerts v. Belgium, (application no. 25357/94), the ECtHR judgment of 30 July 1998, § 66. 18 REIDY, Aisling, The prohibition of torture. A guide to the implementation of Article 3 of the European Convention on Human Rights, p. 10-11. (Human rights handbooks, No. 6, Council of Europe, Strasbourg 2002.) accessed 25 April 2017. 19 See HOLČAPEK, Tomáš, Informovaný souhlas. Základní principy. In ŠUSTEK, Petr, HOLČAPEK, Tomáš et al., Zdravotnické právo. (Wolters Kluwer, Praha 2016), p. 232-235.

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