CYIL vol. 9 (2018)

TOMÁŠ HOLČAPEK CYIL 9 ȍ2018Ȏ that while the extent of its review of the case did not allow it to rule on the absence of legal liability of the state for potential harm caused by the obligatory vaccination to the concerned person (e.g. in the form of a negative allergic reaction to the vaccine), the leeway to award compensation in such cases was opened by Article 24 of the Convention, independent of any provision of domestic law, e.g. of the Civil Code. Nevertheless, the court did not analyse this thought in much detail. Another case involving the discussion of the applicability of Article 24 of the Convention involved a patient who suffered harm (damage to trigeminal nerve) due tomedical malpractice. She sued for compensation and was partially successful. However, the majority of her claim was denied by lower courts due to two critical considerations: that it was barred by statute (in the sense of statute of limitations) and that her case was not so extraordinary that she would deserve monetary satisfaction in the amount she requested. The Constitutional Court held 7 that the previous judgments in the case were too formalistic, the claim was not time-barred, and there were exceptional circumstances which should have been reflected in the awarded compensation. According to the court, besides the breach of the claimant’s right to fair trial, her right for adequate compensation stemming from Article 24 of the Convention was also contravened. Again, the court did not analyse this concept further as it was not necessary for its conclusions. But its opinion shows that there is a definite potential for direct application not only of e.g. Article 5, but also of Article 24 of the Convention in relationships between private parties such as those in a dispute arising from medical malpractice. 8 Civil Liability from Deficient Informed Consent in Medicine When we think about informed consent in health care, we can formulate the scope of the necessary information, requirements for the consent to be valid, and other specific conditions and considerations. 9 But a legal discussion would hardly be comprehensive without also contemplating the consequences stemming from any deficiencies. A legal rule whose breach does not have any effect on the position of the persons concerned is rather incomplete. 2.1 General Remarks The principle, which makes any medical intervention conditional on legal justification – typically in the form of an informed consent 10 – is rather important for the protection of 7 Judgment of the Constitutional Court of the Czech Republic of 29 June 2017, File No. I. ÚS 1346/16. 8 Implicitly clashing with the jurisprudence of the Supreme Court, which noted – but also without deeper analysis – that Articles 24 and 26 of the Convention do not provide for any special principles of liability or of burden of proof, and in effect merely refer to the Civil Code. Cf. rulings of the Supreme Court of the Czech Republic of 23 August 2012 and 19 December 2012, Files No. 25 Cdo 1085/2011 and 25 Cdo 2800/2011, respectively. 9 In the context of medicine, the notion of informed consent refers to more than just the transfer of information, it implicitly covers all related aspects of voluntariness, competence, disclosure, and comprehension; cf. DOLEŽAL, Adam. Informovaný souhlas – morální kouzlo a přenos informací [ Informed consent – moral magic and information transfer ]. Časopis zdravotnického práva a bioetiky . (2018, Vol. 8, No. 1), pp. 10-16. For a general overview cf. HOLČAPEK, Tomáš. Obsah a podoba poučení [ Content and Form of Information ]. In: ŠUSTEK, Petr, HOLČAPEK, Tomáš, et al. Zdravotnické právo [ Health Law ] . (Wolters Kluwer, Praha 2016), pp. 238- 250; for an international comparison of selected aspects cf. SMRŽ, Ivo. Informovaný souhlas – problematika rozsahu poučení pacienta o rizicích spojených s navrhovanou léčbou [ Informed consent – extent of disclosure of risk information ]. Časopis zdravotnického práva a bioetiky . (2018, Vol. 8, No. 1), pp. 21-35. 10 For a brief overview of other legal justifications of medical intervention with an emphasis on the controversial area of psychiatric practice cf. ŠUSTEK, Petr. Restrictions of Personal Freedom in the Context of Psychiatric Care 2.

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