Human rights have been very important for the development of patients’ rights in Europe. Via the European Convention on Human Rights and Fundamental Principles (Convention)  and the case law of the European Court of Human Rights in Strasbourg (ECHR), patients have improved their position through the Council of Europe . At the end of the 1960s, and the beginning of the 1970s, the European Court of Justice (ECJ) in Luxembourg started addressing the rights of patients in the context of the European Communities as well. More recently, the Charter of Fundamental Rights of the European Union  (Charter) ¹ has created an additional momentum for patients’ rights in Europe. In addition, private initiatives such as the European Charter of Patients’ Rights of the Active Citizenship Network  indicate the necessity of clear and uncompromised rights for patients in Europe. Finally, certain Member States have incorporated patients’ rights into their constitution or legal statutes.

Complementary and alternative medicine is not considered specifically in the abovementioned documents and case law. Instead, more general rules have been formulated on the levels discussed below. This article concludes with a summary of the influence of the European Convention on Human Rights and Fundamental Principles and the EU rules in relation to the access to complementary and alternative medicine.

European Convention of Human Rights

The ECHR has addressed a number of patients’ rights under the Convention. The famous cases of Pretty² and Goodwin³ address the right of self-determination for patients and the notion of personal autonomy. According to the ECHR in Goodwin ‘[u]nder Article 8 of the Convention in particular, where the notion of personal autonomy is an important principle underlying the interpretation of its guarantees, protection is given to the personal sphere of each individual (…)’. In addition to the right of personal autonomy, the ECHR has also touched upon the right of informed consent⁴ and the right of a second opinion⁵.

Although the Convention safeguards patients’ rights, this does not mean that personal autonomy, informed consent, and second opinion must be considered as absolute rights. Where individual rights are involved, these may always be balanced against the general interest. As a consequence for example, the ECHR has ruled in the case of Pretty that the State may deny terminally ill patients the possibility of assisted termination of life.

European Union

Until the adoption of the Charter at the end of 2000, fundamental rights – and therefore also patients’ rights – were not systematically laid down in European legislation. Although this did not mean that these rights were not recognized under the scope of the European Treaties, it was not clear which fundamental rights were recognized under EU law, and maybe more importantly, the extent to which these rights were accepted. Especially in those cases where the ECJ had an approach that differed from the case law of the ECHR, issues of interpretation could arise. The Charter did not put an end to all of this, but it is the first official document that binds all EU institutions and all Member States, when implementing EU law.⁶

Articles 3 and 35 of the Charter lay down two specific patients’ rights: Article 3 on the right to the integrity of the person states in its first paragraph that: ‘Everyone has the right to respect for his or her physical and mental integrity.’  This closely relates to Article 8 of the Convention with respect to the right of self-determination and the right of personal autonomy. In paragraph 2 of Article 3 of the Charter special attention is given to medicine and biology. According to this paragraph free and informed consent, the prohibition of eugenic practices, the prohibition on making the human body and its parts such a source of financial gain, and the prohibition of the reproductive cloning of human beings need to be particularly guarded. This does not however mean that the right to the integrity of the person is limited to these four issues. Potentially, certain patients’ rights may be tacitly embedded in Article 7 (Respect for private and family life) and Article 10 (Freedom of thought, conscience and religion).

Article 35 of the Charter deals with the right of access to health care. Unlike the aforementioned Articles, Article 35 does not lay down an absolute fundamental right that must be respected by every EU institution and/or Member State. Instead, it provides for a social fundamental right, which may be equated with a moral obligation to make the effort to establish high quality health care for all.

Patients’ rights and CAM

The right to complementary and alternative health care has not been specifically recognised as a form of a patients’ right. As previously discussed in the ECHAMP E-News article on CAM and social security in the EU , health care policies largely remain a competence of national governments. Therefore, it will not be easy to claim an absolute or fundamental right to complementary and alternative health care.

This does not however mean that patients do not have the right of access to CAM. As the case law of the ECJ has proven on a number of occasions, patients may enforce their rights of access to CAM or CAM-related medicinal products indirectly, by making use of the protection under the free movement provisions in the EC Treaty. In Commission v France for example, patients could not be denied the right to receive via mail order from another Member State homeopathic medicinal products that were not registered in their own Member State.⁷

Patients have nevertheless not always been successful in safeguarding their access to the medicinal products or therapies of their choice. As the Antroposana case has proven⁸, the ECJ is not willing to act as a legislator in order to ‘fix’ legislative caveats in existing European legislation. As a consequence, certain anthroposophic medicinal products are currently no longer available in The Netherlands.

Conclusion

Patients’ rights have been generally recognised in the European Union. Some of these rights have been specifically addressed or mentioned in legislation or case law. Examples of patients’ rights are the right of personal autonomy, the right of informed consent, and the right of a second opinion. The right for patients to complementary and alternative health care has not been explicitly recognised. In most Member States the access to CAM is currently not considered an absolute right. Nevertheless, in addition to the generally recognised patients’ rights, patients may indirectly benefit from the provisions on the free movement of goods and services, and the freedom of establishment under the EC Treaty, in order to get access to CAM.

Johan Hulshof
Attorney at Law
Van Benthem & Keulen, Attorneys at Law