Consent to medical treatment granted by a minor K 16/10
The challenged provisions are consistent with the Constitution.
At the hearing on 11 October 2011 at 1 p.m., the Constitutional Tribunal considered an application of the Polish Ombudsman concerning consent to medical treatment granted by a minor.
The Constitutional Tribunal adjudicated that:
1) Article 22(4) of the Act of 19 August 1994 on the protection of mental health in the part containing the wording “over the age of 16”;
2) Article 32(5), Article 32(6) in the part containing the wording “who has reached the age of 16”, and Article 34(4) of the Act of 5 December 1996 on the professions of medicine and dentistry;
3) Article 17(1) in the part containing the wording “including a minor who has reached the age of 16” as well as Article 17(3) in the part containing the wording “who has reached the age of 16” of the Act of 6 November 2008 on patients' rights and the Ombudsman for Patients
- are consistent with Article 41(1) in conjunction with Article 48(1), second sentence, Article 72(3) of the Constitution and Article 12(1) of the Convention on the Rights of the Child, adopted by the General Assembly on 20 November 1989, as well as with Article 47 in conjunction with Article 48(1), second sentence, Article 72(3) of the Constitution and Article 12(1) of the Convention on the Rights of the Child.
The Constitutional Tribunal drew attention to the fact that, although Article 48(1), second sentence, and Article 72(3) of the Constitution as well as Article 12(1) of the Convention on the Rights of the Child require that the child should be requested to voice his/her opinion in all matters affecting the child, and the views of the child should be given due weight in accordance with the age and maturity of the child, but they do not require that these views should have any direct legal effects. The provisions do not provide for a sanction for an infringement of an obligation established therein or necessity to refer to a third party, when an authority delegated to decide about the situation of the minor does not agree with his/her views. They also contain no information about the minimum age at which the views and actions of the child should bring about a change in the legal situation or trigger legal consequences. Neither do they provide for a prohibition against the introduction of a formal dividing line in relation to age, or a variety of such dividing lines which are actually also present in the Constitution, by granting the right to vote at the age of 18, or by prohibiting permanent employment of children under 16. The challenged provisions which assign legal significance to the views of a minor over the age of 16, and relate them to particular effects, go beyond the scope of the legal standard which obliges the above-mentioned authorities to listen and consider the views of the child before taking a decision concerning the child. A possible further extension of these regulations remains within the remit of the legislator.
Apart from arguments arising from the analysis of constitutional norms, when assessing the legitimacy of the allegation formulated by the applicant, in the opinion of the Tribunal, one may not disregard the question whether it is actually possible to implement the proposal which constitutes the essence of the application. It seems obvious that making the need for personal consent of an under-age patient generally contingent upon his/her stage of development would necessitate the creation of institutional evaluation of that development in each individual case. This would, in turn, necessitate the provision of such service in virtually every health centre. Also, this would delay providing medical care. In the view of the Tribunal, another possibility, i.e. leaving the assessment of the awareness of the patient at the discretion of medical personnel assigned to carry out core health care activities (admission to hospital, a procedure, examination), could lead to much more serious infringements of patients’ rights than those which – according to the applicant – occur in the context of currently binding provisions. Carrying out an adequate assessment of what is beneficial for a given minor requires the knowledge of the needs, circumstances and sensitivity of a particular child. Naturally, the most suitable persons to do that are those who have a close relationship with the child because of blood relations or due to taking care of the minor.
The adopted solution is consistent with the Constitution and the Convention on the Rights of the Child, although it may be evaluated as unsatisfactory for a number of reasons. However, that kind of evaluation of a legal regulation goes beyond the scope of jurisdiction of the Tribunal.
A separate analysis is needed for the Ombudsman’s allegation of the legislator’s systemic inconsistency as regards specifying the rights of minors. The Ombudsman indicated regulations concerning the situation of under-age patients that were different from the challenged regulations; these were, in particular, provisions providing for the following:
- a requirement to obtain the consent of a minor over the age of 13 for taking a sample of his/her bone marrow
- a requirement to obtain the written consent of a minor as regards his/her participation in a medical experiment (apart from the consent of the child’s statutory representative), even if the minor is under the age of 16, but is capable of voicing his/her opinion as regards taking part in the experiment;
- the performance of an abortion on a minor over the age of 13 to be contingent upon her written consent.
The legal evaluation of the existing state of affairs should begin with the statement that the diversity of solutions contained in legal acts of equivalent rank in the hierarchy of acts does not, per se, constitute a basis for declaring any of the adopted regulations to be unconstitutional. It should be stressed that adjudication in that regard falls outside of the scope of jurisdiction of the Constitutional Tribunal. The Tribunal has been established to adjudicate on the conformity of the provisions of lower rank to the provisions of higher rank in the hierarchical structure of the sources of law. The Tribunal has no power to assess the “horizontal” consistency of legal acts.
This general stance does not rule out the possibility that, in a particular case, diversification of statutory regulations has a completely arbitrary and accidental character, which virtually leads to an infringement of the principle of equality with regard to individuals who are in a similar situation. However, in the view of the Constitutional Tribunal, this is not the case in the context of the indicted provisions, since the Tribunal notices rational considerations which justify diverse regulations. Above all, it should be emphasised that the provisions challenged by the Ombudsman have a general character and regulate typical situations, whereas legal acts which grant a wider scope of decisions to the child concern exceptional circumstances.
What distinguishes them is the lack of a typical medical purpose of a procedure a given patient is to be subjected to. The cases of bone marrow transplants, abortion or participation in a medical experiment in the context of minors are extremely rare and do not concern emergencies. These considerations suffice to justify their separate regulation. In the view of the Constitutional Tribunal, the legislator has no constitutional obligation to transfer these special solutions to statutes that regulate basic health-care services which are provided on a mass scale.
The Tribunal stated that the challenged provisions did not limit the rights of under-age patients, who enjoyed the guarantees of Article 41(1) and Article 47 of the Constitution, interpreted in conjunction with Article 48(1), second sentence, as well as with Article 72(3) of the Constitution and Article 12(1) of the Convention on the Rights of the Child, beyond the boundaries outlined by those provisions.
The hearing was presided over by Judge Mirosław Granat, and the Judge Rapporteur was Judge Małgorzata Pyziak-Szafnicka.
The judgment is final and its operative part shall be published in the Journal of Laws.