CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ CONVENTION ON BIOMEDICINE AND LIABILITY RESULTING FROM DEFICIENCY… However, in the very case, the judgments of lower courts which followed the Supreme Court decision awarded the claimant compensation for pain, suffering and loss of faculties, i.e. for personal injury, not for breach of other personality rights. The second Supreme Court decision rejected an appeal lodged against them, implicitly confirming them as correct at least in respect of application of legal principles (findings of fact are not reviewed by the Supreme Court). Does it mean that notwithstanding the assertion to the contrary, the care provider does bear the health risks associated with the treatment carried out without proper informed consent even if performed technically correctly? From the perspective of causation, there would be no obstacle. Without the intervention (properly unauthorised and therefore unlawful), there would have been no breach of personality rights and no materialisation of risks. A causal link connects the procedure with all types of harm, including interference with autonomy, deterioration of health, and also any emotional suffering. As a consequence, if we are to distinguish the extent of liability among the various scenarios which may occur, causation is not always a sufficient criterion. The overall fairness of the result becomes crucial. Liability should only be found when it is fair and just to do so, especially considering the general purpose of civil liability and the need for an optimal level of sanctioning of undesired behaviour, which does not make socially beneficial activities such as health care prohibitively costly for the providers. For this reason, we should differentiate between cases in which there was no consent at all and the doctors carried out the intervention without any regard for the will of the patient (for an example see the general remarks above) and those in which the consent was given but was not sufficiently informed. In the former situation, it seems entirely fair to hold the care provider liable for any and all negative consequences of their action, thus comprising both interference with autonomy and integrity on the one hand and deterioration of health, if any ensues, on the other. However, should consent be given, but without the patient’s having received the required information, we may put aside, in line with the cited Supreme Court decision, cases in which the missing information was not material. If the patient does not prove that with such information there was real probability that they would have decided differently, the lack of information was immaterial for granting the consent and did not affect the actual outcome. In this scenario, any adverse consequences are comparable to an accident which befalls the patient and no liability should arise. Proceeding to cases in which relevant, important information was lacking, we may further subdivide them depending on the type of risk which materialised. If the consent was not properly informed on the whole because some relevant information had not been provided but the patient had been informed about the particular risk which materialised, the duty to compensate harm should only cover unlawful interference with autonomy (because an intervention was carried out without due legal justification) but not any worsened state of health. This proposition is an attempt to find balance between the lack of respect for personal integrity and autonomy at one extreme and too onerous liability of health care providers for consequences of their otherwise beneficial activity at the other. After all, if what actually happened was something which the patient had been informed about and therefore should have taken into consideration, a duty to provide compensation for it would amount to insurance rather than a civil liability obligation. The same legal outcome should be reached

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