CYIL vol. 9 (2018)

PETR ŠUSTEK CYIL 9 ȍ2018Ȏ helped to clarify certain questions and further contributed to the equalling of the positions of a physician and a patient. 48 Legislative changes could be understood as a direct consequence of the ratification of the Convention. There have also been, however, many court decisions referring to the Convention and its principles. 49 Furthermore, an indirect consequence of the Convention is the awakening of the awareness of patients’ rights. Once the public got used to the new emphasis on autonomy of will and the partnership model of medicine, many people started to demand their rights. The number of lawsuits for damages, as well as for the infringement of personal data subjects’ rights, started to rise. 50 The Convention strengthened the trend of the judicialization of politics. 51 While this tendency of the courts to interfere with political questions is controversial, the fact that the Czechs started to stand up for their rights even in the context of health care is to be appreciated. The states not ratifying the Convention As already mentioned, the Convention has not yet been ratified by approximately two- fifths of the Council of Europe member states. More importantly, with the exception of France, all of the largest European states have abstained from the ratification. And even France ratified the Convention as late as in 2011 after a long period of reluctance, officially waiting for the relevant national law to be amended so it would be compatible with the Convention. However, France was also afraid that the ratification would restrict too much of its legislative possibilities regarding controversial issues including research on embryos in vitro. 52 Several states have not ratified the Convention for similar reasons. The United Kingdom has not even signed the Convention. It is sometimes stated that the United Kingdom’s legal system is very complex for the sudden change that would be required by the Convention: 4. Restrictions of Personal Freedom in the Context of Psychiatric Care in the Czech Republic. In Czech Yearbook of Public & Private International Law. Česká ročenka mezinárodního práva veřejného a soukromého. Vol. 8. Česká společnost pro mezinárodní právo, Praha 2017, pp. 412-414, 417-420. 48 See the Explanatory Report to the Civil Code, Special Part, to Sections 2636 and 2637. See also ŠUSTEK, Petr. Zdravotnické právo. [Health Law.] In ŠUSTEK, Petr, HOLČAPEK, Tomáš (eds.). Zdravotnické právo. [Health Law.] Wolters Kluwer, Praha 2016, pp. 38-41, DOLEŽAL, Tomáš. Vztah lékaře a pacienta z pohledu soukromého práva. [The Physician-Patient Relationship from the Private Law Perspective.] Leges, Praha 2012, pp. 124-130. 49 See for example the Supreme Court of the Czech Republic judgment of 29 April 2015, no. 25 Cdo 1381/2013, or the Constitutional Court of the Czech Republic decisions of 20 August 2004, no. III. ÚS 459/03, of 2 November 2010, no. I. ÚS 2121/07, of 27 November 2012, no. Pl. ÚS 1/12, of 2 March 2015, no. I. ÚS 1565/14. 50 For a brief introduction to the practice of Czech medical negligence disputes, see HOLČAPEK, Tomáš. Občanskoprávní odpovědnost v medicíně a její uplatňování u českých soudů. [Civil Liability in Medicine and its Application by Czech Courts.] Právní rozhledy . (2016, Vol. 24, No. 9), pp. 305-311. 51 For a general definition of the term, see VALINDER, Torbjörn. The Judicialization of Politics – A World-wide Phenomenon: Introduction. International Political Science Review. (1994, Vol. 15, No. 2), pp. 91-99. 52 See TEBOUL, Gérard. Ratification de la convention d’Oviedo par la France. [Ratification of the Oviedo Convention by France.] Éthique & Santé. (2012, Vol. 9, No. 1), pp. 39-43. See also Jan Malíř’s presentation titled “Legitimita a autorita Úmluvy dvacet let poté” [“Legitimacy and Authority of the Convention After Twenty Years.”] at the conference Twenty Years of the Convention on Biomedicine; the presentation is available at accessed 6 June 2018.

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