CYIL vol. 9 (2018)

PETR ŠUSTEK CYIL 9 ȍ2018Ȏ the parties of the administrative-law relationship was significantly weakened, 24 but this categorisation still reflects the underlying understanding of health care as an exercise of the state’s responsibility and power. It was not before the derogation of the Act on the Care for the Health of the People that the Czech health care system fully dealt with these tendencies to understand the health facilities as authorities to which patients are subordinated. 25 Since the socialist law did not consider the physician-patient relationship a civil-law one, health care was excluded from the requirement of true and full information in civil- law relationships. On the contrary, the Act on the Care for the Health of the People in its Section 23 obliged a physician only to provide suitable information with regard to the protection of a patient’s mental state. This approach was considered to be in accordance with the Hippocratic tradition, 26 while the Western emphasis on the provision of full information was criticised as cruel both to the patient and the physician. 27 A related practical example of pervasive paternalism is the fact that patients were often denied access to their own medical records. From August 2001, Section 67b of the Act on the Care for the Health of the People provided patients with the right to all information kept in their medical records. However, medical personnel usually interpreted this provision as an obligation to orally inform patients about the content of the records rather than provide access to the records. In practice, it was still the physician’s decision on what information the patient would be provided with. Even several years after the ratification of the Convention, disputes regarding the patients’ access to medical records were still brought before the courts 28 . In this social environment and everyday health care practice the Convention was ratified. The author remembers that when he gave a lecture on the topic of “Informed Consent According to the Convention on Biomedicine” at a conference organised by one of the Czech medical schools and a large hospital three years after the ratification, the audience was astonished by the requirements of the Convention. The attending physicians were mostly surprised by the obligation to inform a patient of the risks and alternatives of a planned procedure: this information was traditionally considered an unnecessary disturbance of the patient’s inner peace and their determination to undergo the procedure. There were many similar occasions at the time. The Convention suddenly landed in the above-described environment, resembling a messenger from a different world. 24 ŠTĚPÁN, Jaromír. Právo a moderní lékařství. [Law and Modern Medicine.] Panorama, Praha 1989, pp. 12-13. 25 ŠUSTEK, Petr. Zdravotnické právo. [Health Law.] In ŠUSTEK, Petr, HOLČAPEK, Tomáš (eds.). Zdravotnické právo. [Health Law.] Wolters Kluwer, Praha 2016, p. 38. 26 Hippocratic tradition is formed by a large body of texts written in the course of several centuries by many authors who signed their works with Hippocrates’s name. Many of these texts are contradictory in their content. Taking this into account, it is true that a Hippocratic text titled Decorum or On Honourable Conduct advises physicians to conceal most things from a patient, enable the patient to get rid of the thoughts on illness, and never tell the patient about a poor prognosis or risks. See O dobrém vystupování [On Honourable Conduct], Chapter 16. In BARTOŠ, Hynek, FISCHEROVÁ, Sylva. Hippokratés. Vybrané spisy. [Hippocrates. Selected writings.] OIKOYMENH, Praha 2012, p. 270. It should be noted that Decorum was written probably as late as the 1 st or 2 nd century A.D., so it could not possibly be written by Hippocrates himself. Ibid., pp. 263-264. In some other Hippocratic texts, on the other hand, an open disclosure of relevant facts to a patient seems to be encouraged. See MILES, Steven H. Hippocrates and Informed Consent. The Lancet. (2009, Vol. 374, No. 9698), pp. 1322-1323. accessed 6 June 2018. 27 ŠTĚPÁN, Jaromír. Právo a moderní lékařství. [Law and Modern Medicine.] Panorama, Praha 1989, pp. 13-15. 28 See for example the Supreme Court of the Czech Republic judgment of 30 August 2011, no. 25 Cdo 3562/2009.

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