The publication presents several dozen judgements of European and constitutional tribunals and of Polish as well as foreign courts which relate to the main issues of the debate conducted in Poland nowadays. They illustrate current development trends that occur in Polish and European medical law and also reveal the complexity and intricacy of medical issues. Separate statements enclosed to some judgements highlight the broad scope of problems arising in that field.
Glosses to each of the judgements and separate footnotes referring the reader to the literature provide a complete description of the subject matter. They also clarify the normative context of the cases reviewed. Moreover, all comments present problems from legal, ethical, political and even economic perspective. Both theoretical and practical aspects of issues concerning vindication of claims and the range of presentation of claims are highlighted in the book.
The Authors contributing to the publication are affiliated with the University of Warsaw. Their main research interests include medical law, civil law, constitutional law and European law.
The book is recommended for lawyers and physicians as well as all those interested in the field of bioethics and the issues of the health care.
Abbreviations 9
Introduction 11
Chapter I Constitutional standards 19
1. Right to conscientious objection 21
2. Medical ethics 28
3. Research experiment on humans 32
4. Status of a conceived child 39
5. Information about health condition 50
6. Constitutional right to health protection 55
7. Statute of limitation for claims 63
8. Protection of incapacitated persons 70
9. Filiation of a child 77
10. Medical ethics II 82
Chapter II European standards 91
I. Jurisprudence of the European Court of Human Rights 93
1. Transsexualism 93
2. Assisted suicide 102
3. Substitute consent 108
4. Civil liability for childbirth 112
5. Abortion 117
6. Medically assisted procreation 128
II. Jurisprudence of the Court of Justice of the European Union 133
7. Abortion and free movement of services 133
8. Legislative competence in the sphere of health protection 141
9. Financing of cross-border medical services 147
10. Biotechnological directive 155
11. Right to reimbursement for cross-border treatment 162
12. Reimbursement for unauthorised cross-border treatment 170
Chapter III Autonomy 185
1. Relative indications for procedure 187
2. Scope of duty to inform 190
3. Cosmetic surgery and duty to inform 193
4. Scope of duty to inform II 196
5. Duty to inform and civil liability 200
6. Burden of proof of providing information 204
7. Procedure utilizing products not admitted to trading 209
8. Validity of consent to surgery and lack of written form 213
9. Blank consent 217
10. Refusal of service and duty to inform 221
11. Duty to inform and omission of procedure 226
12. Penal liability for treatment without consent 231
Chapter IV Civil liability 235
I. Liability principles and basis 237
1. Liability based on the principle of equity 237
2. Concurrence of liabilities 241
3. Organisational fault of a hospital 245
4. Grounds for hospital's liability 250
5. Insurer's liability 256
6. Grounds and prerequisites for compensation claims 261
II. Establishment of causal nexus and damage 265
7. Contributory negligence of the injured and refusal of treatment 265
8. Prerequisites for compensation and experiencing no harm 270
9. Proving in medical proceedings 276
10. Hypothetical consent and legally relevant damage 280
11. Hypothetical consent and scope of duty to inform 284
12. Duty to inform and legally relevant damage 289
13. Hypothetical consent and lack of information 296
III. Standards of health care services 304
14. The highest standard available 304
15. Average standard 307
IV. Childbirth as source of liability 311
16. Birth of a disabled child 311
17. Liability for costs of maintaining a child 318
18. Constitutionality of classifying a child as damage 326
19. Costs of maintaining a child as damage 333
20. Birth as damage - wrongful life 342
Chapter V Procreation 347
1. Sterilisation of disabled persons 349
2. Artificial heterologous insemination 354
3. Status of human body 358
4. Substitute maternity 365
5. Limits of duty to protect human dignity 369
6. Status of human gametes 376
7. Penal protection of a child during labour 381
Chapter VI End of life 389
1. Living will 391
2. Doctor's duty to provide aid 396
3. General duty to provide aid 401
4. Persistent therapy 406
5. Discontinuation of nutrition in vegetative state 417
6. Assisted suicide 427
7. Siamese twins separation 434
Chapter VII Other cases 443
I. Problems of transsexuality 445
1. Correction of birth certificate 445
2. Sex affiliation as personal right 450
3. Declaring the sex of a transsexual person 454
II. Problems with financing of health care services 458
4. Financing of extra-contractual services 458
III. Other issues 465
5. Experiment on a person being artificially sustained alive 465
6. Psychiatric confidentiality 470
List of rulings 475
Index 479
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