2
observed by health practitioners as the main elements. These become increasingly
more developed and strict, hand in hand with the progress of science and
technology. The liability of health professionals rests on both pillars.
6.
Moreover, the provision of life and humane treatment protection service in
the area of health care – with the resulting allocation of duties and claiming for
rights – has become remarkably widespread in today’s society through the
construction and operation of “national health systems.” These systems comprise
multiple agents for the service and the relevant obligations: private and public
providers, companies and doctors, health practitioners, supply vendors, and so on.
We are thus dealing with a notoriously large network of rights and duties that is to
be managed by the modern State, even where the State is no longer in charge of
directly providing the service; such network gives rise to specific duties that are
becoming increasingly more complex and growing in number, and relate to the
obligations to respect and guarantee the basic rights that are modernized in this
context: to life and humane treatment.
C)
Health care legislation. Medical file.
7.
It is of the utmost importance, both for a smooth operation of the health
services and for the determination of responsibility possibly arising from medical
care in various fields - in the civil, administrative, criminal, labor spheres--, to
have extensive, sufficient regulations that are up to today’s circumstances and
allow the prevention of problems and the timely, full resolution of problems arising
in this area.
8.
National legislation on health protection, for all the areas I mentioned above,
is already abundant, as is starting to be the case with international regulations as
well –whether binding or indicative in nature. Such regulations usually stem from
two kinds of constitutional provisions: on the one hand, there are those establishing
the right to health protection, viewed as a basic human right; on the other, there
are those allocating, at the State level, the authority and functions that lead to such
protection, viewed as an issue of public interest subject to State protection.
9.
In the instant case, this issue came up in connection with access to the
patient’s medical record or file. It is worth noting the importance, for multiple
purposes, of such comprehensive and changing record of the patient’s condition
and treatment, a record that often proves to be lacking or insufficient to serve its
intended purpose. Hence the various provisions and recommendations regarding
medical files: existence, characteristics, implications, and preservation.
10.
It is also worth insisting –as inferred from the analysis of the instant case–
on the need for domestic legislation to include specific provisions clarifying any
disquieting questions or ruling out unacceptable solutions regarding the disclosure
of the data contained in the medical life, both during the life of the patient –whose
understanding and decision-making abilities might be impaired or non-existent–
and subsequently to the patient’s passing.
11.
Naturally, a person’s privacy must be scrupulously respected; however, it is
also necessary, with the aid of the authorities that will provide guarantees as to the
proper handling of the information, to remove existing obstacles in cases in which it
turns out to be lawful and necessary (given the capacity of the petitioners, the
existing circumstances and the intended purposes) to access data for use in making
urgent decisions or attributing inescapable liability.
D)
Health care legislation. Liability. Crime definition