CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ RESTRICTIONS OF PERSONAL FREEDOM IN THE CONTEXT OF PSYCHIATRIC CARE … other party has understood the nature and purpose of the intervention, including the expected consequences and possible dangers to his health, as well as whether or not a different approach is possible.” Furthermore, among the norms regulating rights and duties of the contract for health care parties, the Civil Code states in Section 2642 that “[e]ach health care intervention requires the consent of the patient, unless a statute provides that such consent is not required”. Specific rules apply to the informed consent of minors, regulated by Section 35 of the Act on health services and, basically, in Sections 95, 100 and 101 of the Civil Code. The informed consent of adult persons without full legal capacity is regulated by Section 35 of the Act on health services and, basically, in Sections 100 and 101 of the Civil Code. Unless it is stated in law, the informed consent does not have to be in writing. However, consent with hospitalization must always be provided in written form. 20 Section 96 of the Civil Code contends an exhaustive list of cases in which an interference with the integrity of an individual requires a written informed consent. 21 Section 97 (2) specifies that “[u]nless the consent must be granted in writing, it is presumed to have been granted.” A contrario , in the case that the consent must be granted in writing, the provider of health services needs to keep the consent form as evidence in a potential medical negligence litigation. The consent granted may be always withdrawn in any form, regardless of the necessary form of granting. If there is uncertainty about whether consent was withdrawn in a form other than in writing, it is presumed not to have been withdrawn. 22 A very serious restriction of patient’s freedom is represented by hospitalization without consent. Act on Health Services regulates this matter in Sections 38 to 40. Generally, the involuntary hospitalization is permissible on the basis of a decision of a public authority (most often a court). 23 For example, a patient can be subjected to involuntary isolation, quarantine or treatment according to the Act No. 258/2000 Coll., on the protection of public health, or an involuntary examination in the course of judicial proceeding according to procedural rules. 24 Section 99 of the Act No. 40/2009 Coll., the Criminal Code, regulates the penal measure of protective treatment, which can be imposed upon a person in several cases: i) if the person has committed an act which would otherwise be regarded as a criminal offence for which he or she is not criminally liable due to insanity and his or her remaining at liberty is dangerous, ii) if the person has committed a criminal offence in a state of diminished sanity or in a state caused by a mental disorder and his or her remaining at liberty is dangerous, or iii) if the person abuses an addictive substance and has committed a criminal offence under 20 Section 34 (2) of the Act on health services. 21 Section 96 states that the consent to an interference with the integrity of an individual must be in writing in three cases: – the consent to a separation of a body part which will not regrow, – the consent to a medical experiment on an individual, or – the consent to an intervention which is not required with respect to the health condition of an individual; this does not apply in the case of cosmetic intervention not resulting in any permanent or serious consequences. 22 Section 97 of the Civil Code. 23 There are three kinds of such decisions: a court decision ordering a protective treatment, a decision ordering an isolation, quarantine, or treatment according to the Act No. 258/2000 Coll., on the protection of public health, and a decision ordering a physical examination according to the Act No. 141/1961 Coll., on criminal judicial procedure, or the Act No. 292/2013 Coll., on specific court proceedings. 24 See Section 127 (4) of the Act No. 99/1963 Coll., the Civil Procedure Code, Section 38 of the Act on specific court proceedings, or Sections 114 and 116 to 118 of the Act No. 141/1961 Coll., the Criminal Procedure Code.

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