Medical self-determination in liability law
PhD student: Mrs R.S.M. Bosch
Promotors: Dr K.E.C.T. Swinnen, K.J.O. Jansen
Duration: 1/9/2022 - 31/8/2028
The right to self-determination is not explicitly mentioned in the law. In contrast, it does operate in civil law, among other things. In short, the right to self-determination means that a person may shape his or her own life. One aspect of civil law in which the right to self-determination is reflected is medical liability. It also permeates certain general provisions of the European Convention on Human Rights ("ECHR"), such as the right to life (Art. 2 ECHR), prohibition of torture and inhuman or degrading treatment (Art. 3 ECHR) and right to respect for private life (Art. 8 ECHR). Hereafter I refer to this sub-aspect as: 'medical self-determination' and 'liability law'. The right to self-determination can play a role in both the establishment phase (e.g. on the basis of a breach of contract within the meaning of article 6:74 BW or a tort within the meaning of article 6:162 BW) and the scope phase. This already indicates that several bases are possible in liability law. All the more so because of the many faces the right to self-determination can have. By way of illustration an example: a well-known married couple is on their way to the hospital for the delivery of their first child. Mother's contractions follow more and more rapidly and when they arrive at the hospital, labor begins almost immediately. One of the most beautiful moments in their lives turns into a nightmare. The couple had not been informed about the pros and cons of a C-section or a natural birth. Had the mother known the risks of natural childbirth, she would have wanted a C-section. Her less pleasant experience did not end here. After the birth of their first child, the child was found to have hemophilia. Her doctor had missed this result in the blood test she had taken during her pregnancy. Had the couple known this, they would have terminated the pregnancy. The couple's medical situation then made headlines because a caregiver had sold the mother's medical records to the media. In this one example, the mother's right to self-determination is violated multiple times: (1) violation of the obligation to obtain informed consent (art. 7:448 jo. 7:450 BW), (2) wrongful birth and (3) violation of the confidentiality of the medical data. The father's right to self-determination is also violated in one of these incidents: wrongful birth. These several violations may not be "resolved" with the same remedies. My main question is: Under what conditions can liability law provide an adequate remedy for a provider's violation of medical self-determination? Specifically, I examine how the medical right of self-determination works its way into liability law (what bases are possible in the event of a violation) and what remedies are available in return. The various bases for liability (and the associated remedies) in the event of a violation of the right to medical self-determination are relevant, because victims increasingly seek protection for their interests in fundamental rights, especially those in the ECHR. It is therefore important to remove ambiguities about the effect of the medical right to self-determination. For victims (and their lawyers), it helps if they know which basis is most successful. Clarity can therefore even speed up the legal process, because lawyers can make better assessments. Thereby also because judges know which framework applies. This includes looking across the border to see if the system can be simpler or clearer. The methods used in this research are: dogmatic and external comparative law research.