3. Content of the rights and obligations of medical personnel providing personal health care services

The right of the individual to health care, both, nationally and internationally, is emphasized in adopted papers as one of the fundamental rights of the individual, without which the individual would not be able to exercise his or her other economic, political and social rights. It also embraces the right to have and maintain the best possible physical and psychical state of health. This part includes conditions and criteria for the quality of personal health care.

The individual's right to health is a second generation of social rights and is understood in interaction with other fundamental rights, both belonging to the category of social rights, such as social security law, and classical rights, such as the right to equality and autonomy[24]. The individuals' rights to health are also reflected in the case law of the Constitutional Court of the Republic of Lithuania. Requirements arising from the provisions of Paragraph 1 of Article 53 of the Constitution, such as "the State shall take care of the human health and guarantee medical assistance and services in case of the human illness", presuppose that individual and public health is one of the most important public values[25]; public health care is an important goal brought by the Constitution, and taking care of people’s health is treated as a function of the State[26]. According to the jurisprudence of the European Court of Human Rights, under certain circumstances, where a person loses his or her right to health care, such a disqualification may be regarded as inhumane treatment and may contradict Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms[27]. 

In Paragraph 1 of Article 53 of the Constitution, the following terms: "medical care", "medical services", "free medical care" are entrenched. Interpretation of these terms is an important issue in the scope of the state's duty to care for human health and provide medical care and services in the event of illness.

The Constitution in Article 53, does not disclose expressis verbis the content of the notions "medical care" and "medical service". The individual's right to health care is detailed in other legal acts. For example, Article 6.725 of the Civil Code regulates the provision of personal health care by defining the rights and obligations of both, the personal health care provider and the patient. It should be noted that this legislation does not distinguish between the types of personal health care service and the professional categories of the service provider.

Laconically it is defined as natural or legal persons, who are licensed to provide personal health care services in accordance with the following: the Law on the Health System of the Republic of Lithuania, the Medical Practice Law of the Republic of Lithuania, the Dental Practice Law of the Republic of Lithuania, the Law on Health Care Institutions of the Republic of Lithuania, and the Law on Nursing Practice of the Republic of Lithuania. Personal health care services are specified in the second part of Article 6.725 of the Civil Code and are considered to be related to the following activities:

1. Preventive medical care:

1.1. Information services on disease prevention issues;

1.2. Preventive health check-ups.

2. Medical assistance:

2.1. Primary, secondary and tertiary health care services; [28]

2.2. Prosthetics of limbs, joints and organs;

2.3. Medicines and medical aids;

2.4. Orthopaedic techniques.

3. Medical rehabilitation, nursing, social services and care:

3.1. Nursing and social services and support services in hospitals;

3.2. Medical rehabilitation, including sanatorium spa treatment.

The specific list of licensed personal health care services is specified in a sub statutory legal act - the list of licensed personal health care services approved by the Order of the Minister of Health, detailing the list of licensed inpatient, outpatient and general health care services[29], which includes, inter alia, services in the field of ambulance and nursing. The nature of these services is determined by the importance of health care, as an area of public activity and the consequent need to guarantee the proper provision of health care to the public. The person providing health care as a professional has specialized knowledge of vital human issues, i.e. he/she knows and is capable more than others to provide necessary health care, and has a recognized right to apply specialist knowledge and qualifications. The qualification of a specialist creates a presumption of the quality of the services rendered, the person relying on the specialist must feel safe, and therefore, the person of the relevant profession is subject to stricter requirements of diligence, caution and care. This is an essential feature of a professional's responsibility and their actions are judged not from the standpoint of a wise and attentive person, but by a standard of wise and careful professional conduct [30]. These criteria, both, at the legislative level and in the case law, allow defining the responsibilities of persons providing health care. One of the primary duties is the duty of care. This obligation is specified in Article 6.732 of the Civil Code. The statutory requirement implies that the individual health care provider must provide the degree of care expected of an honest personal health care provider. The law itself does not specify the degree of care. The latter has been developed by case law and doctrine. The courts have repeatedly stated that, generally, a medical practitioner cannot guarantee that a specific result will be achieved, for example, that the patient will be cured. The conduct of a medical practitioner is not measured by whether or not a particular result has been achieved, but by the fact that his or her behaviour is in conformity with the legal provisions governing the provision of medical services and with professional ethics. There is an obligation between the patient and the medical practitioner (health care institution), the content of which is the duty of the medical practitioner to ensure that this obligation is fulfilled with the utmost effort, i.e. ensuring the highest degree of diligence, care, caution and skill. When providing health care, medical institutions must fulfil their obligation based on maximum effort.[31] The standard of maximum effort should not be oriented towards the experience or qualifications of a particular professional, but it should mind the manner in which a particular professional service has been rendered, with regard to the utmost care and attention under the same circumstances. It follows from the requirement that, in the case of a particular service, the medical practitioner did the utmost to perform their duty and that the health services were up to date with the state of science. Thus, when providing a health service, the individual will: (1) be aware of any advances in modern science that may be relevant to its delivery; and 2) be sure to consider those achievements that may contribute to the success of the treatment. [32] In order to fulfil the duty of care, medical standards are developed that guide (regulate) the activities of a medical practitioner when solving individual diagnostic, clinical, preventive, etc. issues related to a particular illness or other health problems. [33] The standard consists of some norms (recommendations) that regulate the actions of medical practitioners in diagnosing, treating, and surmising individual diseases and their groups. This is manifested in a certain pattern of action: initial suspicion based on the symptoms observed in the initial examination; confirmation of initial suspicion by further investigation; final diagnosis, treatment. In the context of the content in question, this is important for the legal evaluation of options for controlling aggressive patient behaviour.

For example, an aggressive patient who has been diagnosed with a psychiatric disorder is prescribed medication to eliminate arousal of aggressive behaviour towards himself/herself or the environment and, as appropriate, the attending physician or another person authorized by medical standards determines dosages to perform this type of action. [34] It follows that actions directed at the control of the aggressive patient, which are not covered by diagnostics or treatment, cannot be assessed in accordance with the criteria of medical standards, but under the law governing exclusions of legal liability. 

It is also noteworthy, that the Constitution also raises additional requirements for the implementation of the individual's right to health care as the right to receive services of a respective nature. Paragraphs 3 and 4 of Article 21 of the Constitution state that it is prohibited to harm, torture or otherwise degrade a person, to treat him or her cruelly, and to impose such punishments. No scientific or medical testing may be carried out on a person without his/her knowledge and free consent. In addition, Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the jurisprudence of the European Court of Human Rights[35]  imply the right of the individual to decide on the provision of healthcare, i.e. which services may only be provided with the patient's consent[36]. 

The doctrine of law relates this to the protection of a person against the provision of forced health care, which can be applied only in the manner as prescribed by law[37]. Advances in medical science have provided the basis for the emergence of new legal rules governing the behaviour of health care professionals and patients, which, together with the evolution of medical science, have led to an increase in patients' awareness of their rights. The formerly paternalistic model of physician-patient relationships has become obsolete these days and is considered controversial in today's health legal system. The paternalistic attitude of the healthcare professional to the patient restricts the patient's freedom, i.e. the patient cannot be an active and equal participant in the health care process and make free, reasonable decisions.[38] For this reason, another important duty for the individuals providing personal healthcare services is to obtain consent from the informed patient for the provision of personal healthcare. The implementation of the consent from the informed patient is based on the objective of protecting patients' rights and well-being, in other words, giving them the freedom to make informed choices. The consent of the informed patient is not only a legal obligation, but also an ethical and moral one rising from the fiduciary [39]relationship between the physician and the patient.  

The legal doctrine and case law have formed a four-pronged system to provide information to the patient, namely:

  • the physician must respect the patient's autonomy,
  • the physician must not harm the patient,
  • the physician must act exclusively in the best interests of the patient,
  • the physician must be honest, caring and just.

The Convention for the Protection of Human Rights and Dignity in the Field of Biology and Medicine, also known as the Oviedo Convention, lays down a general rule that any intervention in the field of health may be conducted only with the free and informed consent of the person concerned; the person concerned shall be given an appropriate prior notice of the purpose and nature of the intervention, as well as its effects and risks; the person is also free to withdraw their consent at any time. It should be noted that the scope of information is the issue of law in every state, and therefore, the legal framework and case law interpreting and modelling the institute of consent for the informed patient may differ from state to state. The jurisprudence of the Court of Cassation takes the view that the health care professional has an obligation to inform the patient about the typical and specific risks, as well as the rare ones. [40] The requirement of the informed consent does not apply to the provision of emergency medical care where the patient cannot express his or her will. This is also the case when healthcare must be provided to a patient who cannot be considered capable of self-interest evaluation. The choice of health care to be provided to the patient and the extent to which it is available shall be left to the discretion of the healthcare provider and, where appropriate, of the doctors' council in the sole interest of the patient.

Review questions:

1. What is the content of an individual's right to health?

2. What are the different types of personal healthcare services?

3. What does the duty of care mean when providing personal health care?

4. What does the maximum effort standard mean?

5. What is the legal treatment of the actions of a person's health care provider in addressing patient anxiety resulting from aggressive behaviour towards himself or herself or the environment?

6. What does the informed patient consent mean?

7. In what cases the patient's consent is not required for the provision of personal health care?