CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ CONVENTION ON BIOMEDICINE AND LIABILITY RESULTING FROM DEFICIENCY… personal integrity, autonomy, privacy, and dignity of a human being. It is no coincidence that the Convention on Biomedicine codifies this principle in one of its leading provisions (in Article 5). It would be rather surprising if a breach of this principle had no consequences – and most likely, it would also run afoul with Article 25 of the Convention. We should therefore analyse the effect of a breach of the rule of informed consent may have on the rights and duties of a patient and a health care provider. As they are in a legal relationship regulated in the Czech Republic predominantly by private (civil) law, 11 we will focus on civil liability arising from an intervention carried out without proper legal justification. From a theoretical perspective we may distinguish several different types of cases. First of all, there might be a difference between situations in which there is no consent at all and treatment is administered simply on the basis of the doctor’s opinion about its benefit. To give a rather extreme example, there are documented cases of the past in which Roma women were sterilised without giving consent as a method of birth control by the state (which at that time ran hospitals). 12 Fortunately, this is not a typical scenario; more often consent will be given, but it may be granted by a patient who has not been sufficiently informed about all the required aspects, e.g. the intervention’s consequences, risks or alternatives. Another typology may be built on the harm which the person in question suffered in connection with the intervention. It may well be that although proper consent was lacking or deficient, there was no actual medical harm – the state of health of the patient was not adversely affected or could have even improved as a result of the intervention. The second option is that the patient’s health actually deteriorated, not because of medical malpractice but rather because a risk unavoidably associated with the particular intervention, even if performed flawlessly, materialised. And the third possibility is that not only was proper informed consent lacking, but the diagnostic or therapeutic act was carried out incorrectly and injured the patient. In all three cases the patient’s autonomy and privacy has been interfered with, which may well constitute a legally relevant harm. In the second and third alternative, the patient’s health has also been affected and this could be a separate legal damage of comparable, and sometimes even much greater, gravity. In Czech law it is a generally recognised principle that the protection of personality of a human being – “personality” being understood as a bundle of all various aspects of being human, including rights and intangible assets such as life, health, integrity, reputation, dignity, privacy, name, likeness etc. – is a wide-ranging notion and may cover many different facets. Accordingly, any interference with personality rights must be evaluated comprehensively. In medical cases it is not enough to determine whether an intervention was carried out correctly or not. As the Supreme Court put it: 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. 407-424. 11 Most often it is based on a contract; cf. ŠUSTEK, Petr. Smlouva o péči o zdraví [ Contract for Health Care ]. In: ŠUSTEK, Petr, HOLČAPEK, Tomáš, et al. Zdravotnické právo [ Health Law ] . (Wolters Kluwer, Praha 2016), pp. 38-40; However, similar considerations also apply to care provided outside of a contract (e.g. in an emergency when no consent can be given); cf. HOLČAPEK, Tomáš. Zákroky bez souhlasu [ Interventions without Consent ]. In: ŠUSTEK, Petr, HOLČAPEK, Tomáš, et al. Zdravotnické právo [ Health Law ] . (Wolters Kluwer, Praha 2016), pp. 234-235. 12 Cf. Final Opinion of the Public Defender of Rights of 23 December 2005, File No. 3099/2004/VOP. “Public Defender of Rights” is the official title of the Czech ombudsman.

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