Medical Negliegence and Liability of Health Professionals in the European Court of Human Rights Case Law

Jasna Murgel

doi:10.18690/mls.13.1.21-44.2020

Abstract

Although the European Convention on Human Rights (ECHR) does not explicitly lay down the right to health, it can be derived from the long-term jurisprudence of the European Court of Human Rights (ECtHR) which interpreted certain provisions of the ECHR (in particular articles concerning the right to life, the prohibition of torture and inhuman conduct and the right to private and family life). Based on the ECtHR jurisprudence it may be concluded that the ECHR, albeit implicitly, refers to the right to health as well. It regulates negative obligations reflected in the prohibition of interference with a certain right. It can also be interpreted as setting positive obligations of the states to ensure the exercise of the right to health, although the extent of that positive obligation is still not fully defined. The present contribution focuses on a single segment of the right to health in the practice of the ECtHR, i.e. the Court’s interpretation of the state’s responsibility for medical negligence, especially in the last few years.

Highlights

Abstract the European Convention on Human Rights (ECHR) does not explicitly lay down the right to health, it can be derived from the long-term jurisprudence of the European Court of Human Rights (ECtHR) which interpreted certain provisions of the ECHR
The following article addresses the case-law of the European Court of Human Rights (ECtHR) concerning the responsibility of medical professionals for medical error in the context of Contracting States’ responsibility to ensure the right to health as an emerging right provided by the European Convention on Human Rights (ECHR)
In spite of the fact that the ECHR does not regulate the direct responsibility of medical personnel for a medical error, it can especially in the light of the latest case-law of that Court, be concluded that it imposes on the Contracting States a legal obligation to provide its citizens an appropriate health system in which medical professionals will be able to provide individuals with appropriate medical care, taking into account all the professional rules

Summary

Introduction

The following article addresses the case-law of the European Court of Human Rights (ECtHR) concerning the responsibility of medical professionals for medical error in the context of Contracting States’ responsibility to ensure the right to health as an emerging right provided by the European Convention on Human Rights (ECHR). In spite of the fact that the ECHR does not regulate the direct responsibility of medical personnel for a medical error, it can especially in the light of the latest case-law of that Court, be concluded that it imposes on the Contracting States a legal obligation to provide its citizens an appropriate health system in which medical professionals will be able to provide individuals with appropriate medical care, taking into account all the professional rules. Murgelj: Medical Negliegence and Liability of Health Professionals in the European Court of Human

Medical negligence

The ECHR and the right to health

Human Rights

Negligence and liability of health professionals