June 02, 2011
By Laurens Lavrysen*
As Alexandra correctly noted in her post, R.R. v. Poland is a very interesting judgment. The focus of this post will lie on the general health rights implications of this judgment, which exceed the specific context of reproductive health.
In the case of Tysiąc v. Poland (ECtHR 20 March 2007) the Court stated that “once the legislature decides to allow abortion, it must not structure its legal framework in a way which would limit real possibilities to obtain it.” The Court ruled that Poland had violated Art. 8 ECHR because there was no procedure to establish whether Mrs. Tysiąc could have access to a legal abortion on health grounds. She had a severe sight disability and there were serious reasons to believe that her sight would decrease even more if she were to give birth. As she was denied access to an abortion, she eventually became almost blind.
The case of R.R. is quite comparable: the applicant is a woman who had a right to have an abortion under domestic law (on the ground that her fetus was severely malformed) but she was prevented effective access to this right (because the Polish doctors and hospitals she contacted deliberately refused to do a conclusive genetic test before the legal time limit).
The Court’s analysis under Art. 8 ECHR focuses on the right of access to health information. In two British cases concerning soldiers who suffered health problems, possibly as a result of exposure to respectively nuclear and chemical tests, the Court already ruled that Art. 8 entails the right to have access to health information, i.e. classified military files on the tests (McGinley and Egan v. the United Kingdom, ECtHR 9 June 1998 and Roche v. the United Kingdom, ECtHR 19 October 2005). In another case the Court ruled that Slovakia had violated Art. 8 because eight Roma women who became infertile after a caesarian section, presumably because they were deliberately sterilized during this procedure, were denied access to their medical files (K.H. and Others v. Slovakia, ECtHR 28 April 2009). This is however the first case on the access to health information in the pre-treatment phase.
According to the Court, “the effective exercise of this right (of access to information about her or his health) is often decisive for the possibility of exercising personal autonomy, also covered by Article 8 of the Convention, by deciding, on the basis of such information, on the future course of events relevant for the individual’s quality of life (e.g. by refusing consent to medical treatment or by requesting a given form of treatment).” Thereby the Court has implicitly applied the notion of “informed consent”, which requires that a person should be provided with sufficient and understandable information to be able to voluntary consent to a certain medical treatment. By linking this to personal autonomy, the Court has recognized a broad right of access to health information, which is not only confined to reproductive health.
This judgment is very relevant in the light of the upcoming cases regarding the sterilization of Roma women (V.C v. Slovakia; I.G., M.K. and R.H. v. Slovakia; M.V. v. Slovakia; N.B. v. Slovakia and R.K. v. The Czech Republic). In the case of V.C. v. Slovakia, a Chamber hearing was held on 22 March. The case concerns a Roma woman who complains that she was sterilized without her full informed consent. Although she signed a sterilization consent form, she complains that she did not understand the nature and the consequences of such a procedure. In a similar case, the CEDAW Committee (A.S. v. Hungary, CEDAW Committee 29 August 2006) ruled that Hungary had discriminated the applicant in her access to information on health and family planning (Art. 10 (h) CEDAW), had violated her right to appropriate services in connection with pregnancy (Art. 12, (2) CEDAW) and her right to decide, on a basis of equality of men and women, freely and responsibly on the number and spacing of her children and her right to have access to information, education and means to enable her to exercise this right (Art. 16, (e) CEDAW).
Another interesting aspect of the R.R. v. Poland judgment concerns the Court’s response to the Government’s argument that individual physicians have the right to refuse certain services on grounds of conscience. “For the Court, States are obliged to organize the health services system in such a way as to ensure that an effective exercise of the freedom of conscience of health professionals in the professional context does not prevent patients from obtaining access to services to which they are entitled under the applicable legislation.” The freedom of conscience of individual practitioners should thus never disadvantage the patient. Again the Court does not confine itself to reproductive health only, therefore this statement is relevant for all ethically sensitive treatments, as for example euthanasia.
The Court must be hailed for this wonderful judgment in which it gives adequate weight to the personal autonomy and the rights of the patient. It is clear that the interests of the patient should at all times be at the center of attention of the healthcare system.
*Laurens Lavrysen works as a teaching assistant / Ph.D researcher at the Human Rights Centre of Ghent University. His research interest lies in the theory of positive obligations under the European Convention on Human Rights.