CYIL vol. 9 (2018)

PETR ŠUSTEK CYIL 9 ȍ2018Ȏ a formal (a tactful and discreet provision of information in suitable circumstances) or material meaning (regarding the scope of the information). 35 In light of the Convention, this understanding was no longer sustainable. 36 According to Article 5 of the Convention, valid informed consent requires the provision of “appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks” . The Explanatory Report to the Convention clarifies that the required information includes objective information by the responsible health care professional not only about the nature and the potential consequences of the planned intervention, but also about its alternatives. 37 Therefore, the legislature had to change and expand Section 23, intentionally employing the terms used in the Convention. 38 In its new wording, the crucial part of Section 23 explicitly stated that a health care professional informs a patient about the aims and nature of the provided health care and any used diagnostic method or treatment, as well as its consequences, alternatives and risks. The provision of Section 23 also contained a new specific regulation of related issues such as the provision of information to a patient’s close persons if informing of the patient is not possible, or a patient’s right to prohibit the provision of information to certain persons. The transformation of Czech medical law was, however, completed no earlier than in 2012, when new medical law regulations came into force, or arguably in 2014, when the new Civil Code came into force. A key medical law reform was represented by the enactment of three acts in 2011, which came into force on 1 April 2012: Act No. 372/2011 Coll., on Health Services and Conditions of Their Provision (hereinafter “Act on Health Services”), Act No. 373/2011 Coll., on Specific Health Services (hereinafter “Act on Specific Health Services”), and Act No. 374/2011 Coll., on Emergency Medical Services. Especially the Act on Health Services and the Act on Specific Health Services, which taken together can be unofficially called the “health care code”, are profoundly permeated by the principles of the Convention. 39 Both of these Acts contain a modern regulation of informed consent. Its general regulation is now embodied in Sections 31 to 35 of the Act on Health Services which includes a list of information that must be provided to a patient. 40 Within the Act on Health Services, informed consent is set in the broader context of a catalogue of the rights of patients (Sections 28-40), which is strongly influenced by the Convention. 41 A physician is still entitled to conceal the information about diagnosis or prognosis, but only in an absolutely necessary scope for an absolutely necessary time, and only if it can be reasonably assumed that the provision 35 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, pp. 47-48. 36 Ibid. 37 Article 35 of the Explanatory Report to the Convention. 38 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. 49. 39 The Explanatory Reports to both of these Acts explicitly state that the new regulation reflects the needs resulting from the Convention. Explanatory Report to the Act on Health Services, General Part, A.1., Explanatory Report to the Act on Specific Health Services, General Part, A.1. 40 Section 31(2) of the Act on Health Services. 41 Explanatory Report to the Act on Health Services, Special Part, explanations to relevant Sections.

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