CYIL vol. 9 (2018)

TOMÁŠ HOLČAPEK CYIL 9 ȍ2018Ȏ if the consent is invalid (e.g. due to lack of information), but there are no adverse health consequences. Again, the care provider should only be liable for interference with privacy, autonomy, and integrity. A suitable satisfaction may consist in an apology or a symbolic monetary amount. However, if material information was lacking and the risk that materialised was one about which the patient had not been properly informed, the care provider should be liable not just for interference with autonomy and integrity, but also for any deterioration of health, which is directly related to the risk. An analogy may be drawn from liability for incomplete or incorrect information under section 2950 of the Civil Code. 19 Health care is typically provided by professionals and for remuneration, even if paid indirectly through health insurance, and the providers should thus be responsible for harm suffered as a result of incorrect or incomplete information given to the patient. Conclusion We began by considering the potential direct applicability of some provisions of the Convention on Human Rights and Biomedicine in the Czech Republic in respect to civil liability of health care providers in cases of deficient informed consent with an intervention. While some of its provisions may seem directed more to the national Parliament than to individuals, the case law of the Constitutional Court of the Czech Republic suggests – in opposition to the Supreme Court’s more conservative approach – that it may be sometimes possible to utilise the Convention to affect the outcome of specific legal disputes. Nevertheless, even if the Convention was not directly applicable with relation to the topic of this text, its influence on the rather rapid development of Czech law should not be overlooked. As demonstrated on selected cases decided by the Supreme Court, the Czech judiciary is becoming more sympathetic towards claims based on the lack of informed consent, in particular deficiencies in the information provided to a patient by a health care professional. From a rather negative starting viewpoint, the courts have become more accustomed to actually awarding compensation in some situations. Nevertheless, the main principles are not settled, and in many aspects deserve a further debate and greater clarification. The interests of fairness and justice require that claimants who suffered harm as a consequence of unlawful behaviour on the part of care providers should receive adequate compensation or satisfaction. Article 24 of the Convention does not specify an amount or the extent, but it is clear that it should be proportionate to the harm and reflect all the circumstances. We have therefore suggested the lines on which the principles of civil liability from deficient informed consent could develop in order to give full effect to the Convention, distinguishing various scenarios that occur in medical practice. Arguably, it is not necessary to adopt new legislation to achieve this effect; it should be sufficient to take the Convention into consideration when attempting to find a balanced approach between the extreme positions of denying all compensation on the one hand and making the provision of health care too burdensome and costly on the other. It remains to be seen which way the Czech courts will 19 “A person who offers professional performance as a member of a vocation or profession, or otherwise acts as an expert, shall provide compensation for damage caused by his provision of incomplete or incorrect information or harmful advice provided for consideration in a matter related to his expertise or skill. Otherwise, only damage intentionally caused by providing information or advice is subject to compensation.”

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