Table 4: Patient Care and the
Right to Bodily Integrity
Examples of Human Rights Violations
- Physicians either fail to obtain consent from patients before performing medical procedures, or do not provide patients with enough information to make an informed decision.
- In the case of a very young patient or a patient lacking capacity, the hospital does not allow for a substitute decision-maker.
- A hospital lacks standardized procedures for obtaining patients’ consent to participate in scientific research.
- Physicians ignore patient wishes regarding treatment.
- Patients are not allowed to switch physicians or health care providers.
Note On Bodily Integrity in International and National Treaties: The right to bodily integrity is not specifically recognized under the ICCPR, ICESCR, or European conventions, but has been interpreted to be part of the right to security of the person (ICCPR 9, ECHR 5); the right to freedom from torture and cruel, inhuman, and degrading treatment (ICCPR 7, ECHR 3); the right to privacy (ICCPR 17, ECHR 8); and the right to the highest attainable standard of health (ICESCR 12, ESC 11).
|Human Rights Standards||Treaty Body Interpretation|
|ICESCR 12(1): The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.||CESCR General Comment No. 14(8): Explaining that the right to health includes “the right to be free from torture, non-consensual medical treatment and experimentation.”|
|Human Rights Standards||Case Law|
|ECHR 8(1). Everyone has the right to respect for his private and family life, his home and his correspondence.||ECtHR: Pregnant mother wanted access to genetic test to determine the health of her child within the time-limit for abortion to remain a lawful option. The Court stated that“[c]ompliance with the State’s positive obligation to secure to their citizens their right to effective respect for their physical and psychological integrity may necessitate, in turn, the adoption of regulations concerning access to information about an individual’s health.” The Court also reasoned that the “right of access to such information falling within the ambit of the notion of private life can be said to comprise, in the Court’s view, on the one hand, a right to obtain available information on one’s condition. The Court further consider[ed] that during pregnancy the foetus’ condition and health constitute[s] an element of the pregnant woman’s health.” The Court therefore found a violation of Art. 8. R. R. v. Poland, 27617/04 (May 26, 2011).
ECtHR: “The imposition of medical treatment, without the consent of a mentally competent adult patient, would interfere with a person’s physical integrity in a manner capable of engaging the rights protected under Article 8 § 1 of the Convention.” Pretty v. United Kingdom, 2346/02 (Apr. 29, 2002), para. 83.
ECtHR: “The applicants maintained that the decisions to administer diamorphine to the first applicant against the second applicant’s wishes and to place a DNR notice in his notes without the second applicant’s knowledge interfered with the first applicant’s right to physical and moral integrity as well as with the second applicant’s Article 8 rights. . . . The Court considers that, having regard to the circumstances of the case, the decision of the authorities to override the second applicant’s objection to the proposed treatment in the absence of authorisation by a court resulted in a breach of Article 8. . . .” Glass v. United Kingdom, 61827/00 (Mar. 9, 2004).
ECtHR: “The applicant complained that her right to respect for her private and family life had been violated as a result of her sterilisation without her full and informed consent.” The Court found that there was a violation of Art. 8. V.C. v. Slovakia, 18968/07 (November 8, 2011).
|ECHR 8(1). Everyone has the right to respect for his private and family life, his home and his correspondence.||ECtHR: The applicant, NB, was sterilized while undergoing a Caesarean section at a public hospital. However, NB was only 17 years old at the time of the intervention, so she was also legally a minor. The hospital, in addition to having NB sign the consent form after the administration of tranquilizing premedication, never obtained the consent of her legal guardians. NB did not learn of her sterilization until several months after the fact because it was not noted in her release report from the hospital. The Court unanimously held that NB had been sterilized without informed consent and in contravention of Articles 8 and 13. N.B. v. Slovakia, 29518/10 (June 12, 2012).
ECtHR: Between 1977 and 1979, the applicant was placed in a clinic against her will, where she was immobilized and received medical treatment against her will. The Court found that “[i]n so far as the applicant argued that she had been medically treated against her will while detained, the Court reiterates that even a minor interference with the physical integrity of an individual must be regarded as an interference with the right to respect for private life under Article 8 if it is carried out against the individual’s will.” The Court also found that she was administered medication against her will and that this too constituted an interference with her right to respect for her private life under Art. 8. Storck v. Germany, 61603/00 (June 16, 2005).
ECtHR: Following police custody, the applicant alleged that the police forced a gynaecological examination of his wife by a doctor without her consent. The Court found that there was no consent and that “in the circumstances, the applicant’s wife could not have been expected to resist submitting to such an examination in view of her vulnerability at the hands of the authorities who exercised complete control over her throughout her detention.” The Court held that there was a violation of Art. 8. Y.F. v. Turkey,
World Medical Assembly, Declaration of Tokyo: Guidelines for Physicians Concerning Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to Detention and Imprisonment (www.wma.net/en/20activities/10ethics/20tokyo/index.html)
European Charter of Patients’ Rights
Art. 4: A patient has the right to refuse a treatment or a medical intervention and to change his or her mind during the treatment,
refusing its continuation.
Art. 5: The patient has the right to freely choose from among different treatment procedures and providers on the basis of adequate
Declaration on the Promotion of Patients’ Rights in Europe
Art. 3.1: The informed consent of the patient is a prerequisite for any medical intervention.
Art. 3.2: A patient has the right to refuse or halt a medical intervention.
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (2001) stated that “every competent patient…should be given the opportunity to refuse treatment or any other medical intervention. Any derogation from this fundamental principle should be based upon law and only relate to clearly and strictly defined exceptional circumstances.”
European Convention on Human Rights and Biomedicine, Art. 5: An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it. See also Explanatory Report, paras. 34-40 (interpreting the general rule of consent found in the European Convention on Human Rights and Biomedicine).