CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ TWO DECADES OF THE CONVENTION ON BIOMEDICINE: HAS IT BEEN ANY GOOD? of information that should be provided to a patient. If the patient confided themselves to the expert care of the physician, they expected the physician to know best what information, how, when, and whom to tell. According to the general opinion, it was usually best to conceal the truth of a serious health condition such as cancer. In cases of especially vulnerable patients, for example elderly persons, it was also normal that physicians and the family cooperated in caring for the patient while hiding the true diagnosis from them. The wide use of pia fraus , a merciful lie, was considered a normal and noble part of the physician’s calling. 20 The paternalistic medical paradigm is clearly reflected in the literature. In his influential book on liability in health care from 1970, Jaromír Štěpán argues that in case of a certain and imminent threat to life, a physician has a duty to provide the patient with the necessary care even if it was against the patient’s will. According to Štěpán, it would be nonsensical if criminal law generally punished the failure to save a person who was trying to commit suicide while the physician would be obliged to respect this person’s wish to be allowed to die. Even though Štěpán acknowledged this was a minority opinion, the mere fact that it was a relevant legal opinion illustrates well the level of paternalism in Czechoslovak health care. 21 In 2001, the basic health care legal regulation was still represented by a law from 1966, i.e. the Act No. 20/1966 Coll., on the Care for the Health of the People. Even though amended several times after 1989, the Act on the Care for the Health of the People was still embodying the socialist spirit of collectivism. Informed consent was regulated very vaguely in the Act. Physicians were obliged to inform the patient but at the same time they were relatively free in deciding on the scope and form of the information. Still, the statute was relatively progressive in 1960s Czechoslovakia, given that a patient’s consent was not even mentioned in the previous statute of 1951. However, the law in practice was often very different from the law on the books in socialist Czechoslovakia. A patient’s individual choice was frequently considered a mere nuisance in the provision of health care. It can be reasonably doubted that the principle of a patients’ co-decision, even in a relatively limited form embodied in the Act on the Care for the Health of the People, was really respected in practice of the socialist health care. 22 Even long after the revolution in 1989, the requirement of a patient’s consent was usually “fulfilled” by having patients sign forms with content that could be best described as consent to anything. These forms in fact failed to inform patients and provided health care providers with only very limited legal protection. 23 It is noticeable that under socialist law, the physician-patient relationship was considered to fall under the scope of administrative law or a mixture of administrative and civil law, rather than constitute a purely civil-law relationship. The element of inequality between for Medical Law of the Faculty of Law, Charles University (hereinafter “the conference Twenty Years of the Convention on Biomedicine”). 20 For a very brief introduction to the recent history of paternalism in Czech medicine, see HAŠKOVCOVÁ, Helena. Lékařská etika. [Medical Ethics.] 4 th edition. Galén, Praha 2015, pp. 77-78, 83-87. 21 ŠTĚPÁN, Jaromír. Právní odpovědnost ve zdravotnictví. [Legal Liability in Health Care.] 2 nd edition. Avicenum, Praha 1970, pp. 132-133. 22 See ŠUSTEK, Petr, HOLČAPEK, Tomáš. Informovaný souhlas. Teorie a praxe informovaného souhlasu ve zdravotnictví. [Informed Consent: Theory and Practice of the Informed Consent in Healthcare.] ASPI, Praha 2007, p. 14. 23 Ibid., pp. 3-4.

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