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these principles, which in no case may be violated, be it civil, criminal, political or a
case of national emergency” (Article 25).
132. The Court positively assesses the adoption of measures aimed at supervising
and monitoring the rendering of health care services and at promoting the protection
of the rights to life, to humane treatment, and to health of the individuals who are
under medical treatment.
3)
Health professionals. Duties of physicians in professional practice.
133. Many international instruments establish the specific duties of physicians and
make up a detailed framework for the practice of this profession, subject to highly
relevant ethical and legal obligations and to first-order social expectations.
Physicians are concerned with the preservation of fundamental values of individuals
and of humankind as a whole.116
4)
Legislation applicable to medical malpractice
134. The adaptation of domestic legislation to the American Convention, pursuant
to Article 2 thereof, is to be made according to the nature inherent to the rights and
freedoms and to the circumstances in which such adaptation is to be made, in order
to ensure the enjoyment, respect, and protection of such rights.
135. In the instant case, it has been alleged that there was no legislation on
medical malpractice or that it had shortcomings. Naturally, States must adopt the
necessary measures, among which is the enactment of criminal laws and the
creation of a judicial system to prevent and punish the violation of fundamental
rights, such as the right to life and humane treatment. As far as substantive criminal
law is concerned, such purpose is realized through the enactment of adequate
criminal descriptions in accordance with criminal legal provisions, which meet the
requirements of punitive law in a democratic society and which are adequate for the
protection of goods and legal interests, from a criminal perspective. As far as
procedural criminal law is concerned, it is necessary to have the effective resources
to ensure access to justice and the full satisfaction of legitimate claims in a timely
manner.
116
World Medical Association International Medical Ethics Code, Duties of Doctors towards patients,
October 1949; American Medical Association Principles of Medical Ethics, principles I and VIII, version
adopted in 1847 and amended on June 17, 2001; Declaration of the World Medical Association on
HIV/AIDS and Medical Profession, Article 2, October 2006; World Medical Association Declaration of
Helsinki. Ethical principles for medical research involving human subjects, Article 21, June 1964; United
Nations Principles of Medical Ethics relevant to the role of health personnel, particularly physicians, in the
Protection of Prisoners and Detainees against torture and cruel, inhuman, and other degrading treatment
or punishment, Principle 1, December 18, 1982; World Medical Association Declaration of Geneva,
paragraph 5, September 1948; Havanna Medical Charter, Principle II, December of 1946; World Medical
Association Declaration of Tokyo. Guidelines for Medical Doctors concerning Torture and other Cruel,
Inhuman, and Degrading Treatment or Punishment in relation to Detention and Inprisonment, Article 5,
October 1975; Finnish Medical Association Ethics Code, Article I, May 6, 1998; and Declaration of Hawaii
adopted in 1977 at the Sixth World Congress of Psychiatry, Article 7, 1977.