New profiles of health patrimonial liability. Optimizing medical and legal practice under a multilevel protection of fundamental rights perspective

Abstract

This paper aims to improve synergies between medical and legal practice in order to optimise the enjoyment of the right to health. The author's approach is based on the multilevel protection of fundamental rights, taking into account in particular the evolving standards of the case-law from the European Court of Human Rights. In this sense, it analyses the deficit aspects of Spanish case-law (both of the Supreme Court and the Constitutional Court) in the area of liability of health administration. To this end, the scope of informed consent and the possibility of alternative medical treatment are examined in conjunction with the principle of ease of proof and the procedural (as well as substantial) dimension of the human rights at stake (mainly those recognised in articles 2, 3, 6 and 8 of the European Convention on Human Rights). Indeed, the domestic reception of the case-law from the Strasbourg Court, alongside other European standards (the European Committee of Social Rights, or the Oviedo Convention on Human Rights and Biomedicine, among others), should facilitate a correct lex artis (medical and legal) from the first line of action. In short, the essay includes some guidelines so that, in the event that the principle of subsidiarity fails and national jurisdictions are not consistent with European standards, possible individual applications to the European Court can be well founded and have a better chance of success.