HEALTH AND HUMAN RIGHTS IN THE EUROPEAN CONTEXT • 19
der the European Social Charter or under the European Convention on Human
Rights ... and health care is a prerequisite for the preservation of human dignity."8
States must protect their citizens against threats to their lives emanating from se
rious environmental, and similar, health risks. The responsibility of the State applies
particularly to persons who are deprived of their liberty (prisoners, or persons com
pulsorily confined to a hospital). Prisoners must receive adequate treatment that will
preserve their health and well-being. A lack of medical assistance for serious health
problems not suffered prior to detention, may amount to a violation of the prohi
bition of torture, or to degrading treatment or punishment (Article 3, ECHR).9 It
may be the case that the practical demands of imprisonment (limited resources) in
fluence the scope of the duty to provide detainees with care, so that the principle of
the equivalence of prison health care with that of the outside world is not complied
with. However, the prisoner's dignity, together with the prohibition of discrimina
tion when it comes to access to health care, limits deviations from the standard of
care.
Respect for private life (Article 8, ECHR) plays a part in relation to health and
health care in many aspects. Private life is a broad concept. It encompasses, inter alia,
aspects of an individual's physical and social identity and mental health, it plays a
role after death,10 in relation to bio-banks,11and information failures.12 It incorpo
rates the right to respect the decision to become, and not to become, a parent, in
cluding becoming a genetic parent.13 Legislation dissuading health professionals
from assisting in home births is an interference with the exercising of the right to
respect the private life of the prospective mother. "The notion of a freedom implies
some measure of choice as to its exercise" ... "Therefore the right to become a parent
includes the right of choosing circumstances of becoming a parent:'14 Without ap
propriate safeguards against the disclosure of medical information, those in need of
medical assistance may lose confidence in the medical profession, and in the health
services in general; they may be deterred from seeking medical assistance and this
may be to the detriment of their health.15 The right of the patient to hold control
over his (her) personal information has become vulnerable for violation because of
the application of information and communication technology in health care and
8 Digest of the case law of the European Committee of Social rights, 1 September 2008, Council of Europe, p. 81. <.www.coe.int>
9 Pakhomov v. Russia, 30 September 2010, no. 4491/08 (First section), 18 European Journal of Health Law (2011), pp. 83-79.
10 Odievre v. France, 13 February 2003, no. 42326/98; Bioethics and the case law of the Court, Report of the Research Division of
the European Court of Human Rights, working document (2009 ), pp. 50-51.
II Van der Velden v. the Netherlands, 7 December 2006, no. 29514/05, supra note 10, pp. 47-48.
12 Codarcea v. Romania, 2June 2009, no 31675/04, 16EuropeanJournal of Health Law (2009), pp. 370-372.
13 The prohibition of discrimination, Article 14 ECHR, is relevant also. S.H. and others v. Austria, 1 April 2010, no. 57813/00
(First section), 17 European Journal of Health Law (2010), pp 307-313. Paras 58-60 provide an overview of the notion of"private
life" ( article 8) as seen by the Court.
14 Ternovsky v. Hungary, 14 December 2010, no. 67545/09 (second Section), 18 European Journal of Health Law, (2011), pp.
221-237.
15 Z against Finland, 25 February 1997, no. 9/1996/627 /811, 4 European Journal of Health Law (1997), pp. 303-308.