CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ TWO DECADES OF THE CONVENTION ON BIOMEDICINE: HAS IT BEEN ANY GOOD? of the information could inflict severe harm to a patient’s health (the so-called therapeutic privilege). 42 Other main areas of regulation embodied in the Act on Health Services which are influenced by the Convention concern, for example, the keeping of medical records or personal data protection (Sections 52 to 77a). Furthermore, Article 4 of the Convention, setting the requirement of professional standards, 43 inspired the definition of the appropriate professional level (standard of care; de lege artis , or the law of the art, standard) both in the Act on Health Services [Section 4(5) 44 ] and case law. 45 The change of paradigm is reflected even in the terminology used in the Acts, including their names. The previously-used term “care for the health of the People” contained two paternalistic elements. The word care implies an unequal relationship between a caring person and a helpless person who needs to be taken care of. The use of the word “the People” made it clear that the regulation aimed at the abstract collective entity rather than an individual patient. The new term “health services” therefore shifted the emphasis to an individual and their position as an autonomous and equal party of the health care professional-patient relationship. The health care reform was, in a certain sense, completed with the enactment of Act No. 89/2012, the Civil Code (hereinafter “Civil Code”), which came into force on 1 January 2014. The Civil Code has its own regulation of informed consent in Sections 93 to 103 and 2638 to 2641. It is not always clear which statute, i.e. either the Civil Code or the Act on Health Services, should take precedence in a specific situation – this question must always be answered with respect to a particular norm. 46 However, the values in both the Acts are the same: the Civil Code also strongly supports the autonomy of the will of an individual. The Civil Code establishes the contract for health care as a new contractual type. Nowadays, almost all health services are provided on a contractual basis and therefore, the relationship between a provider of health services and a patient is usually a civil-law one. The only exception is the provision of health services without consent in situations in which it is explicitly permitted by the law (for example emergency care or mandatory treatment in case of certain contagious diseases). 47 While this is not revolutionary, the new contract type 42 Section 32(2) of the Act on Health Services. 43 Article 4 of the Convention: “Any intervention in the health field, including research, must be carried out in accordance with relevant professional obligations and standards.” 44 Section 4(5) of the Act on Health Services defines the appropriate professional level as “the provision of health services according to the rules of science and acknowledged medical procedures with the respect to the individuality of the patient and with regard to the particular conditions and objective possibilities”. See the inspiration mainly in Articles 32 and 33 of the Explanatory Report to the Convention. 45 See for example the Supreme Court of the Czech Republic decisions of 22 March 2005, no. 7 Tdo 219/2005, of 10 December 2008, no. 8 Tdo 1421/2008, of 21 October 2009, no. 8 Tdo 1048/2009, of 27 April 2017, no. 25 Cdo 2144/2015, or the Constitutional Court of the Czech Republic decision of 9 January 2014, no. III. ÚS 2253/13. 46 See HOLČAPEK, Tomáš. Informovaný souhlas v právním řádu. [Informed Consent in the Legal System.] In ŠUS- TEK, Petr, HOLČAPEK, Tomáš (eds.). Zdravotnické právo. [Health Law.] Wolters Kluwer, Praha 2016, p. 236. 47 See ŠUSTEK, Petr. Zdravotnické právo. [Health Law.] In ŠUSTEK, Petr, HOLČAPEK, Tomáš (eds.). Zdravot- nické právo. [Health Law.] Wolters Kluwer, Praha 2016, pp. 40-41, and HOLČAPEK, Tomáš. Práva člověka převzatého do zařízení bez souhlasu a detenční řízení. [The Rights of a Person Hospitalized Without Consent and the Detention Proceedings.] In ŠUSTEK, Petr, HOLČAPEK, Tomáš (eds.). Zdravotnické právo. [Health Law.] Wolters Kluwer, Praha 2016, pp. 228-231. For an overview in the English language, see ŠUSTEK, Petr.

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