European convention of human rights and the right of health in Cyprus

Posted on 31 Dec 2019, by Michalis Kosta

Τhe tragic situation of the country's public hospitals is often witnessed by the citizens of Cyprus. In relation to other European Union States, Cyprus has the lowest position on public health spending money. As a result, public hospitals suffer from staff shortages and a lack of adequate equipment and medicines. The level of patient care is significantly degraded and inadequate, while many patients wait for months on waiting lists until they are provided with the necessary treatment. Another major issue is the fact that Cyprus does not have an emergency unit dedicated to children.

In light of the above, it remains remarkable that no case has been brought or filed before the European Court of Human Rights to examine whether the above issues could infringe the right to public health care in the light of the European Convention on Human Rights.

The scope of the right to health under the Convention is broad and is determined by the circumstances of the particular case. Within a broader context, the Convention obliges Member States to take effective measures to safeguard the health of an individual. For the purposes of this article, we focus on Article 2 (the right to life) and 8 (the right to respect for private and family life).     

According to Article 2, Member States are obliged to avoid acts or omissions which endanger the life of the person or seriously harm his/her health. The application of this article is activated mainly when there is a suspicion of a threat to one's life without, however, ultimately causing death. An example, is the case of Oyal v. Turkey App. No. 4864/05, in relation to a blood transfusion for medical reasons immediately after the birth of a boy, who became infected with HIV. The Court ruled that the life-threatening character of the disease has brought the case within the scope and consequently into the violation of the right to life. The court held that, although the national courts had taken a sensitive and positive approach in determining liability, the treatment was inadequate. Notably, it was explained that the most appropriate remedy, under the circumstances, was not only an amount of compensation but also medical expenses for the boy's entire life.

In addition, Article 8 of the Convention and the right to respect the private life has become significant in the application of the right to health. Notably, the Court linked the concept of privacy with the right to protect the physical, moral and psychological integrity of the person. Emphasis was given to the right of women to choose and/or to exercise personal autonomy, such as refusing medical care or seeking a particular form of medicinal care. In Tysiac v. Poland no.5410 / 03, the Court underlined the duty of the Member States to ensure effective access and mechanisms for abortion by establishing appropriate medical conditions.It was emphasised, inter alia, that under Article 8 women have the right to choose whether to have an abortion or not, concluding that Poland was in breach of its positive obligations to safeguard the right to privacy. The Court, however, in such judgments has been very cautious, pointing out that Article 8 should apply in specific cases and with respect to the culture and social beliefs of each Member State.

Therefore, in the context of the restructuring of the health system and the establishment of GESY, Cyprus should ensure that there is an adequate system that covers the needs of all social classes without discrimination, to protect and respect the physical integrity of the person, including his/her personal autonomy and the right to choose. In order to ensure and effectively implement the above rights, Cyprus must upgrade its care level immediately by increasing public grants, not only by addressing staff shortage issues but also by taking steps to minimise the errors of important equipment and medicines.

Undoubtedly, the design of a health system must be guided by the abovementioned basic standards, while at the same time any care should be affordable and comprehensive for all. Adequate health infrastructures such as hospitals, medicines, primary care should be available in all cities and communities.

Every care provider must meet the needs based on gender, age, culture, language and different lifestyles based on the patient’s dignity and confidentiality of personal data. At the same time, it should be medically appropriate, guided by quality standards and control mechanisms, and be provided on time in a safe manner and in the best interests of the patient.

The content of this article is valid as at the date of its first publication. It is intended to provide a general guide to the subject matter and does not constitute legal advice. We recommend that you seek professional advice on your specific matter before acting on any information provided. For further information or advice, please contact Michalis KostaLegal Consultant at Michalis.Kosta@kyprianou.com.