Sumienie w międzyludzkim współżyciu

Author(s): Stanislaw Leszek Stadniczeńko,Piotr Zamelski / Language(s): Polish Issue: 5/2013

The subject of these deliberations is conscience, which in various ways affects social as well aslegal relations. Conscience constitutes the natural ability of the mind for the moral evaluation ofactions and phenomena. As an indispensable attribute of a human being, which is possessed byhim/her in an actual or potential way, conscience is the primary norm of conduct with the uniqueability to regulate human behaviour and form interpersonal relations. Within the context of the legal system freedom of conscience appears as an entity which is particularly protected by domestic and international legislators. This study presents the legal and natural, as well as thepersonalistic, approaches, to include a broad spectrum of various opinions. To this end the studyintroduces the discussion of the philosophical, ethical, sociological, psychological, axiological,moral-theological and legal aspects connected with conscience. Special attention is given to theissue of the conscience clause in medical professions, which constitutes an important instrumentin exercising freedom of conscience.

Human rights and the law of human rights: a positive legal regulation of an ontic reality

Author(s): Nagel Kalikst / Language(s): English Issue: 3/2014

The author introduces a fundamental distinction between human rights and the law of human rights which is subsequent to these rights. While examining these issues, the author follows M. Piechowiak and his way of understanding human rights. According to Piechowiak, human rights are objectively existing relationships between a human being and a global good, welfare that is due to him/her. Particular aspects of this global good are what we used to call an object of a particular human right. Therefore, human rights have an ontic nature. These relationships have their normative consequences. It may be stated that these relationships ontologically justify that the norms protecting these rights (actually these relationships) stay in force. These relationships and the norms protecting them can be recognized. Notwithstanding what was stated above, human rights shall be proclaimed and the ontic norms protecting them, adequately recognized, shall be positivised, that is, acts of positive law shall introduce these norms into legal systems.

Wymaganie zgody pacjenta na leczenie w sytuacjach braku szczególnego zagrożenia

Author(s): Teresa Gardocka / Language(s): Polish Issue: 4/2012

Obtaining a patient’s consent for treatment is a practical issue. Every doctor deals with it on aneveryday basis, being aware that providing treatment without this consent is a criminal offence. The issue of consent produces a dilemma of what is more important: life or freedom, a dilemmathat criminal law clearly resolves in favor of freedom. The requirement of obtaining a patient’s consent for treatment allows only for a highly limitedrange of deviations from this rule and causes moral discomfort in doctors and their sense of contradicting the fundamental, deeply internalized duty to treat a patient, which is the basic vocationof a doctor.The legal regulations pertaining to consent for treatment leave much to be desired. Firstly, thepossibility (necessity) of treatment without a patient’s consent which is stipulated in various acts seems inadequate to social needs. Excessive leeway in treatment is provided by the Act on the protection of mental health while abandoning treatment when no consent is given by AIDS victims for the sake of fully observing the principle of medical confidentiality has been unjustified.Secondly, the regulations on the process of obtaining a patient’s consent for treatment are notprecise. In particular, they are difficult for the doctors to interpret. Even when a doctor has an excellent understanding of how to proceed in order to obtain a patient’s consent for treatment,some of the requirements stipulated in the act are unrealistic in practice. It is possible to obtain consent from a guardianship court only under extraordinary circumstances, even when a doctorknows precisely how and when such consent should be obtained.The act makes use of vague notions that are difficult even for a lawyer to identify; for example the notions of “legal representative”, “close relative”, and “guardian”. They are not legally definedand are very unclear for a doctor.The paper makes an attempt to clarify the notions used in the act and find their reference to practicaltasks. This seems useful for practicing doctors who increasingly often seek solutions for complicated situations driven by fear of the potential criminal consequences rather than by concernwith their patient’s wellbeing.

Zgoda na leczenie pacjenta w podeszłym wieku

Author(s): Jędrzej Skrzypczak / Language(s): Polish Issue: 4/2012

The paper emphasizes that both medical and legal practice indicate that the procedure of obtaining consent from elderly patients can generate numerous doubts and problems. Binding normative acts do not apply to the category of an elderly person. Such patients, however, canexperience various cognitive disorders due to their health condition. It is therefore not surprisingt hat in such cases certain doubts may arise as to whether a patient expressed a fully conscious consent for treatment or not. By principle, such issues are regulated by current legal regulations, but they apply defined categories (a person unable to understand the sense of information,an unconscious person, and a legally incapacitated person). When a given case is classified as a certain category, the relevant procedure to obtain the consent for treatment applies. The classification into one of the above categories is conclusive, whereas medicine abounds in extremely‘fluid’and vague situations that can produce different assessments as to whether the consentobtained was actually relevant. Nevertheless, the author of the paper emphasizes that evenunder these circumstances the principle of salus aegroti suprema lex esto, as stipulated in the preamble to the Code of Medical Ethics, applies. He also indicates that, paradoxically, the welfareof the patient will not always mean his/her improved health condition. Sometimes, whenthere is no consent for treatment, the abandonment of treatment will have to be treated as behaviorin the interest of the patient. In this context, there can emerge doubts whether in the case of elderly patients with cognitive dysfunction (which is a comprehensive category, after all) theconsent for treatment or its lack has been duly obtained. It also needs to be borne in mind thata doctor’s activity without a patient’s consent may result in the legal liability of the former.

Obowiązek ochrony tajemnic medycznych a dziennikarskie prawo do informacji

Author(s): Joanna Taczkowska-Olszewska / Language(s): Polish Issue: 4/2012

The paper provides an interpretation of the regulations on medical confidentiality and the regulations that set out the scope of journalists’ right to information. The paper includes the description of the public status of medical confidentiality and the reasons for its protection. The latterare not only related to the requirement of ensuring the individual interests and rights of patients,but they also serve the purpose of implementing broader interests related to the protection ofgeneral social interest, such as providing care for the health of citizens and the protection of appropriateexecution of professions of public trust. The paper also presents the circumstances where it is admissible for a person who is in possession of medical secrets to impart such informationto journalists.

Tajemnica lekarska jako podstawa zaufania w relacji pacjent – lekarz

Author(s): Julita Jabłońska / Language(s): Polish Issue: 4/2012

The paper indicates that while medical confidentiality is obviously not unconditional, it shouldbe remembered that it is a principle with exemptions enumerated in the stipulations of article 40, section 2 of the Act on medical profession and in the Act on patient’s rights and the Commissionerfor the Patient. It is also emphasized that, in accordance with article 40, section 2 of theAct on medical profession, medical confidentiality may only be breached to the extent required.In the author’s opinion, it is obvious that patients have both a psychological need and legal interestin preventing disclosure of information related to their medical history. In order to exercisecomprehensive control over the flow of information that concerns them, patients need both theinstitution of medical confidentiality and the instruments provided by the protection of personaldata procedures, which complement each other. If such an assumption is made, it facilitates thecomprehensive protection of patients’ rights to observe the confidentiality of their medical datain all forms: oral, written or digital. Ensuring such control is indispensable from the point ofview of citizens of a democratic state and an individual functioning in an information society.

Zgoda na zabieg leczniczy

Author(s): Katarzyna Golusińska / Language(s): Polish Issue: 5/2013

271-288A patient’s right to express consent to undergo a medical activity is one of the fundamental rights serving the purpose of protecting individual autonomy. The issue of a patient’s consent to medicaltreatment has long been the subject of multidimensional juridical and medical considerations.

Obowiązek poddania się badaniom lekarskim przez pracowników i kandydatów do pracy, a wolność wyrażenia zgody przez pacjenta

Author(s): Natalia Jabłońska / Language(s): Polish Issue: 5/2013

Article 229 of the labor code stipulates that an employee or an applicant to a given position cannot perform work unless they can produce a valid medical certificate. It is incumbent on the employer to send an employee for preliminary medical examinations, check-ups and periodic examinations and pay for them. The purpose of this provision is to ensure care for employees’ lives and health. The said article neglects, however, the issue of employee consent to undergo medical examinations. This gives rise to the following concerns: 1. does this regulation result in restricting the right to express consent to undergo preliminary medical examinations, check-ups and periodic examinations, and 2. does prohibiting people failing to produce a medical certificate confirming that there are no contraindications for their performance of a given job restrict their freedom to express or withhold their consent to undergo prophylactic medical examinations.

Prawo do własności prywatnej

Author(s): Jerzy Koperek,Adam Koperek / Language(s): Polish Issue: 10/2016

Kwestia praw człowieka

Author(s): Jerzy Koperek,Adam Koperek / Language(s): Polish Issue: 10/2016

Позовна давність у практиці Європейського суду з прав людини

Author(s): Bogdan Karnaukh / Language(s): English,Russian,Ukrainian Issue: 134/2016

Limitation period is the time for an aggrieved person to apply to court. Notwithstanding that aggrieved person after the limitation period has lapsed does not lose substantial right, such a person does lose a right to apply to court for protection. Thus in the situation when a limitation period has lapsed substantial and procedural rules are tightly intertwined. On the one hand, this situation is about some requirements for bringing an action to the court; on the other hand, the loss of judicial protection significantly decreases the value of the substantial right. That is why the improper application of limitation period potentially can threaten all fundamental human rights. Limitation period is a traditional issue in private law. That is why many scholars have addressed it. T. M. Vakhonyeva, V. V. Luts’, O. V. Pushnyak, V. I. Tsikalo,O. V. Shovkova are amongst them. Nevertheless the issue has never been analyzed systematically through the perspective of European Convention on Human Rights and Fundamental Freedoms.The main objective of the paper is to analyze the limitation period from the standpoint of its congruence to different provisions embodied in European Convention on Human Rights and Fundamental Freedoms. First of all the author pays attention to ECtHR case-law concerning the right to a fair trial. In that context limitation period is deemed to constitute a restriction of a right to a fair trial. But such a restriction is not in itself inconsistent with the Convention. In many cases such a restriction is justified first and foremost for the sake of providing legal certainty, which is one of the important aspects of rule of law. Also the author addresses the problem of congruence of limitation period to some other provisions of ECHR, such as: prohibition of discrimination, right to respect for private and family life, protection of property.Limitation period constitute a restriction of a right to access to court. Such a restriction is justified if(a) it does not restrict a right to access to court in such a way that the very essence of that right is nullified;(b) it has a legitimate purpose; (c) the proper balance between the purpose aimed and the restriction is struck. In order for the limitation period to be proportionate with the aim of providing legal certainty,the following requirements should be met: (i) the limitation period is not unduly short; (ii) the application of limitation period is foreseeable; (iii) the application of limitation period is flexible (i.e. it is capable of taking into account different individual characteristics of each case).

CHILD-FRIENDLY LEGAL AID IN CIVIL COURT PROCEEDINGS: International standards and the circumstances in the Republic of Serbia

Author(s): Nevena Petrušić / Language(s): English Issue: 3/2016

The paper discusses international standards on the provision of legal assistance to children in civil and administrative proceedings in the context of the contemporary concept of child-friendly justice. The author critically analyzes the national legal provisions on legal assistance to children, which provide for the implementation of constitutional norms on the right to access to justice and the right to a fair trial. As children are fully entitled to these rights, the author underscores the need to establish an effective and sustainable national system of child-friendly legal aid.

THE ROLE OF LOCAL AUTHORITIES IN EXERCISING AND PROTECTING CHILDREN’S RIGHTS: The Experience of the City of Kragujevac

Author(s): Anika Jakovljević / Language(s): English Issue: 3/2016

As an epicenter of democracy and protection of citizens’ rights in the field of local government, local authorities have a primary role in exercising and protecting the rights of children. As local government authorities are the most significant stakeholders in this area at the local level, this paper analyzes the role of the following local government bodies in the context of the City of Kragujevac: the City Administration for Health and Social Care, the Center for Social Care “Solidarnost,” and the Ombudsman. The activities of the local authorities are numerous and diverse, and they are significantly aggravated in practice by the imprecise delimitation of their responsibilities from the central authorities. However, these institutions are indispensable regarding the protection of children’s rights, providing support to both the child and the family in order to improve and preserve their quality of life, to remove or alleviate the risks of adverse life circumstances, as well as to enable them to become autonomous subjects within the society.

The right to life – a fundamental human right

Author(s): Luminiţa Dragne / Language(s): English Issue: 2/2013

The right to life belongs to the category of human rights, which are inalienable and imprescriptible rights which are inherent to all human beings. By virtue of the right to life, any human being enjoys all the other rights prescribed and guaranteed by the constitution and by the international documents. In The Universal Declaration of Human Rights, the most important document adopted by the General Assembly of the United Nations shortly after the end of the Second World War, it is stipulated that “Everyone has the right to life, liberty and security of person”(art. 3). The enshrinement of the right to life in the Constitution, the fundamental law of the state, confers a fundamental character as it is the core of the fundamental human rights.

ЗА НЯКОИ ПРАВНИ АСПЕКТИ НА ТЕЛЕМЕДИЦИНАТА

Author(s): Maria Radeva / Language(s): Bulgarian Issue: 1/2016

Telemedicine is the use of electronic information and communication technologies to provide and support health care when distance separates the participants. The article contains brief historical overview for the establishment of the term telemedicine, including its usage in Bulgaria. The author emphasizes legal aspect of the telemedicine, which are determinated by the distance between the medical provider and the patient.

The concept of “home” in relation to a professional`s office, according to the jurisprudence of the European Court of Human Rights

Author(s): Andreea Seucan / Language(s): English Issue: 1/2015

The scientific paper covers specific aspects of the concept of home in connection to a professional`s office, according to the jurisprudence of the European Court of Human Rights. It focuses on two specific cases (Niemietz v. Germany and Societe Colas Est and Others v. France). The concept of home is usually related to individuals/natural persons and their private issues. What happens if there is no clear separation between business and private life?Can legal persons claim the same protection as individuals, according to the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms?

Dane biometryczne jako instrument kontroli czasu pracy a ochrona prywatności pracownika

Author(s): Elwira Musiałowicz / Language(s): Polish Issue: 4/2013

The article an attempt to answer to questions concerning the issue of employee working hours of the employee working hours control using biometric data. What is biometric data? Can the acceptance of the employee be a sufficient factor for data processing? Is data processing big interference in the privacy of the employee? Should the employer have the right to requise biometric data from the employee? The author is expressing the view that guaranteeing in legal act chance the possibility of demanding biometric data by employer from employee is unjustified.

Przegląd orzecznictwa Europejskiego Trybunału Praw Człowieka wydanego przeciwko Polsce w 2013 roku w sprawach z aspektami medycznymi

Author(s): Magdalena Zamroczyńska / Language(s): Polish Issue: 5/2013

The European Court of Human Rights was established in 1959 to adjudicate on matters of individual complaints and international cases. The ECtHR ascertains the infringement of rights andfreedoms on the basis of the Convention for the Protection of Human Rights and Fundamental Freedoms, drawn up in Rome on November 4, 1950 and entered into force on September 8, 1953.Poland ratified the Convention on January, 19 1993. In 2013, there was a significant decrease in the number of judiacal decisions in cases against Poland. The analysis of the statistics show that in 2011 were delivered 72 sentences and in 2012– 74 sentences against Poland. However, in 2013, only 23 judical decisions – in 14 cases found inviolation of the Convention. This paper presents the latest statistics on cases against Poland submitted to the Court and presents five judgments issued against Poland in matters with medical aspects.

Sprawozdanie Naczelnego Rzecznika Odpowiedzialności Zawodowej (VI kadencja 2010–2014)

Author(s): Jolanta Orłowska-Heitzman / Language(s): Polish Issue: 5/2013

Report of the Supreme Screener for Professional Liability

Sprawozdanie z pracy Naczelnego Sądu Lekarskiego w VI kadencji za lata 2010–2014

Author(s): Wojciech Łącki / Language(s): Polish Issue: 5/2013

Report on the work the Supreme Medical Court