ABSOLUTE HUMAN RIGHTS IN THE FIELD OF HEALTHCARE: LEGAL GROUNDS FOR RESTRICTION
Authors: Myronova G. A. 
Published: October 2021

The article examines the legal nature of absolute human rights in the field of health care. It has been substantiated that certain personal inalienable rights of an adult able-bodied patient are derived from the constitutional absolute human rights. These include the right to consent to medical intervention, the right to refuse medical intervention and the right to receive medical information about himself/herself.

Оbjective process of personal autonomy boundaries expanding in the healthcare sector makes the studied issues topical. There is an expansion of legal opportunities for a person to allow, restrict or prohibit interference with privacy in the provision of medical care in absolute legal relations. In view of the above, there is a need for scientific analysis of the phenomenon of absolute human rights in the field of health care, revision of the established doctrinal provisions and verification of compliance with positive legal regulation.

The purpose and objectives of the study of absolute human rights in the field of health care are: to substantiate the specifics of those constitutional human rights in the field of health care, which have the nature and characteristics of absolute rights; to determine the appropriate legal grounds for their restriction; to find the relationship between absolute constitutional and personal non-property rights in the field of health care.

The status of right as an absolute constitutional right presupposes certain objective differences in the process of exercise of this right and in the mechanism of intervention of the state and other participants in relations of its exercise. The absolute status of the right presupposes that the exercise of the right by its subject is opposed by the legal obligation of all other participants in the relationship to refrain from any factual and legal actions or omissions that may lead to its violation. Also, in the modern understanding of the absoluteness of right there is such a dimension as a special order of restriction.

The constitutional principle of absolute effect means that exceptions to the restriction of the scope of human and civil rights and freedoms are established only by the Constitution of Ukraine itself, and not by laws or other normative acts. This principle also means that all restrictions on rights that have constitutional protection, despite the fact that they are additionally regulated or protected by sectoral legislation, must be interpreted and regulated taking into account the primacy of constitutional protection of rights. Therefore, the enshrinement of constitutional human rights in special legislation should pursue the goal of providing additional protection of these rights and additional mechanisms for their implementation.

Personal non-property rights to consent to and refuse medical intervention in Ukraine are derived from the human rights enshrined in Art. 28 and Art. 29 of the Constitution of Ukraine, which grant the right to respect for dignity and personal inviolability. Such a doctrinal binding of the rule of Art. 28 to the context of medical care is quite appropriate, because the term “medical experiments” can be broadly attributed to any medical intervention. Constitutional right to inviolability of Art. 29 also includes physical integrity and the prohibition of interference with the human body by means of medical methods of diagnosis, prevention, treatment without consent. Thus, the constitutional prohibition to subject a person without his or her free consent to medical intervention, as well as the constitutional prohibition of torture, cruel, inhuman or degrading treatment, is absolute in Ukraine and is subject to no restrictions.

Rule of Art. 32 of the Constitution of Ukraine allows to extend the constitutional regulation on the interpretation of the right of a person to receive at his/her own will and at any time all medical information about himself/herself. The right of a person to receive medical information about himself/herself has the features of an absolute right, as all other subjects – public authorities and bodies of local self-government, institutions, and organisations – have a duty to refrain from actions or omissions that may lead to a violation of this right. Also, the right to information about oneself belongs to the absolute right on such a basis as a special procedure of restriction. In the light of what has been said about the nature of absolute constitutional right and the special conditions of its restriction, any restriction of the right to consent to medical intervention, to refuse to receive medical information from an able-bodied adult is unconstitutional.

However, both the legislation and the legal doctrine of Ukraine allow the possibility of ignoring the human right to consent to medical intervention, refusal of such, the right to medical information about himself/herself on various legal grounds provided by civil law. Paragraph 5 of Art. 284 of the Civil Code of Ukraine allows to provide medical care and medical intervention without the consent of the patient. Item 3 of Art. 285 of the Civil Code of Ukraine allows medical workers to provide incomplete information about the state of health of a person, to limit the possibility of acquaintance with certain medical documents.

The enshrinement of constitutional human rights in special legislation as personal non-property rights of an individual should pursue the goal of additional protection of these rights relating to particularly vulnerable public and personal goods. Contrary to this, the current civil legislation introduces additional grounds for restricting the constitutional absolute rights in addition to those contained in the Constitution of Ukraine. Civil law should also provide additional legal safeguards for respect for the dignity and inviolability of the person in civil relations in the field of medicine, in particular, to promote the exercise of the potential of absolute constitutional human rights in transparent and accessible civil law mechanisms. 

Thus, the inclusion of constitutional human rights in civil law should provide additional legal safeguards for respect for the dignity and inviolability of the person in civil relations and additional civil remedies for the exercise of human autonomy in the field of medicine. The author offers some civil remedies for the patient to exercise their absolute rights.