CYIL vol. 8 (2017)

TOMÁŠ HOLČAPEK

CYIL 8 ȍ2017Ȏ

4. Transnational Aspects The importance of an international system of protection of human rights grows, some of its rules have already reached the status of peremptory international law and even more may attain it in the future. 34 It is not solely a European matter. Nevertheless, as we have used examples of application (or non-application) of doctrine of loss of chance from national case law of several European countries, we will similarly utilise European conventions concerning protection of human rights and consider their impact on the issue in question. After all, the countries from whose case law the examples given above stem are often 35 contracting parties of these conventions. The European Convention on Human Rights 36 does not specifically focus on the issues of liability for medical malpractice. We may refer to the fundamental principle of protection of life (Article 2) in association with the right to an effective remedy (Article 13), but these are rather general provisions, which do not offer much guidance in connection with our main topic. The European Convention on Human Rights and Biomedicine 37 is a much more specific document as regards the field of professional medicine, adopted to reflect “the accelerating developments in biology and medicine”. 38 Apart from enjoining respect for primacy of human being and their will (e.g. by means of necessity of informed consent), maintaining of access to health care and proper professional standards etc., the Convention contains a chapter prescribing several basic rules concerning infringement of the Convention’s provisions. Article 23 requires that the contracting states provide “appropriate judicial protection to prevent or to put a stop to an unlawful infringement of the rights and principles” set forth in the Convention “at short notice” . Article 24 stipulates that a person who has suffered “undue damage resulting from [a medical] intervention is entitled to fair compensation according to the conditions and procedures prescribed by law” . And under Article 25 the contracting states are to provide for appropriate sanctions for infringement of the Convention’s provision. In the context of liability for medical malpractice, Article 24 is the most relevant one. As it was drafted with a view to cover many different national legal systems, its language is rather vague. According to the explanatory report, 39 the expression “undue damage” was used 34 Cf. ŠTURMA, Pavel, Lidská práva jako příklad kogentních norem obecného mezinárodního práva [ Human Rights as an Example of Peremptory Rules of General International Law ]. In: ŠTURMA, Pavel, FAIX, Martin (eds.), Lidskoprávní dimenze mezinárodního práva [ Human Rights Dimension of International Law ] . Univerzita Karlova v Praze – Právnická fakulta, Praha 2014, pp. 17-18, 22. 35 But not always – e.g. Germany and the United Kingdom have not signed the Convention on Human Rights and Biomedicine mentioned below. Nevertheless, their national systems of human rights undoubtedly offer a comparable level of protection. 36 Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, as amended by subsequent Protocols. 37 Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, signed in Oviedo on 4 April 1997. 38 Ibid. , Preamble. 39 Explanatory Report to the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, drawn up under the responsibility of the Secretary General of the Council of Europe and authorised for publication by the Committee of Ministers in December 1996. The report is not an authoritative interpretation but covers the main issues of the preparatory works and so helps to clarify the object and purpose of the Convention.

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