Citizens must not lose any of their rights just because their state of health has changed. Moreover, their human rights require increased protection since due to their disease they have become more defenceless. The Constitution, as a basic law, the norms of the Act on Health and the Civil Code ensure the protection of those individuals’ rights who get in touch with the health care system.
The declaration of patients’ rights by themselves does not ensure the automatic assertion of patients’ rights. For this pur-pose creating legal institutions is required which are to pro-vide aid in the effectiveness of laws and initiate appropriate legal remedy in case of legal grievances.
Our new constitution, i.e. the Basic Law of Hungary comes into force on the 1st January 2012. Its Article XX says briefly in Section 1, that everyone is entitled to physical and mental health. Section 2 discusses a variant of it when it declares that the assertion of the above right is fostered by Hungary by also the organization of health care provision.
The concept of a patient is defined by the Act on Health, according to which a patient is a person using or receiving healthcare services.
Consequently it is not only an individual whose health is impaired who can receive and does indeed receive the servic-es provided by the health care system but it refers to a wider aspect of healthcare examples of which are. screening exami-nations, preventive care, aesthetic interventions etc.
Patients’ rights do not only refer to patients but in certain cases to their relatives, heirs or heiresses. Besides, patients’
rights are independent of citizenship, potential insurance legal terms, just as the force operation of the Act on Health also comprises natural persons residing in the territory of the Republic of Hungary, the health care providers operating here and the healthcare activities pursued by them. Furthermore, legislation also includes the operational force of the Act refer-ring to health care services delivered by social welfare institu-tions providing personal care.
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are24The right to health care is a general definition which is filled with content by further parts of the Act.
The Act on Health guarantees the following rights to each patient:
• the right to receive, in an emergency, life-saving care or care to prevent serious or permanent impairment to health;
• the right to have the patient’s pain controlled and his suffering relieved;
• the right to health care justified by his health condition;
• the right to appropriate healthcare services which have to be of the highest level available among the given ob-jective circumstances. Healthcare is considered appro-priate if delivered in compliance with the professional and ethical rules and guidelines;
• the right to continuously accessible health care i.e. the operation of the health care delivery is such as to enable its use 24 hours a day;
• the right to equal healthcare service i.e. to healthcare which is free from discrimination;
• the right related to freely choosing the attending physi-cian and the medical institution, the limitation of which is the health care providers medically justified availabil-ity or if the choice is not precluded by the professional contents of the health service justified by the patient’s condition, by the urgency of care or the legal relation-ship serving as the basis for the use of the service;
• the right to be informed about the healthcare provider ensuring appropriate care;
• the right to be placed on a waiting list.
Within the right to health care there are also existing re-strictions about receiving justified care and freely choosing the attending physician (professional competence, the opera-tional order of the healthcare providing institution, territorial restrictions, interventions to be paid for, loaded state/waiting list, the right to deny care as it is written in Section 131 of the Act on Health etc.). The right to refuse healthcare from the doctor’s part is an option in certain cases or an obligation in other instances.
A physician may refuse to examine a patient seeking care
• if prevented from doing so because of the immediate need to care for another patient or
• because of a personal relationship with the patient;
• if the given treatment is in conflict with the physician’s moral outlook, conscience or religious convictions;
• if the patient seriously violates his obligation to cooper-ate;
• if the patient behaves in a manner that insults or
threat-ens the physician, unless this behaviour can be attrib-uted to the disorder;
• if the patient’s behaviour puts the life or physical well-being of the physician at risk.
In these cases the patient has to be referred to another physician.
A physician may refuse to provide care for a patient only fol-lowing an examination if he determines that
• the patient’s health status does not require medical care;
• the treatment requested by the referring physician or the patient is not justified professionally;
• the healthcare provider does not have the personnel or objective conditions needed to provide the care and he refers the patient to a professionally responsible health-care provider;
• the condition of the patient does not require immedi-ate intervention and the physician orders the patient to return at a later time or the intervention is professionally not justified.
A physician compulsorily must refuse care
• if he is physically unfit to provide it because of his own state of health or other obstacle,
• if based on the patient’s examination it can be deter-mined that the treatment requested by the referring physician or the patient conflicts with statutes or pro-fessional rules.
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igniTy25In the course of health care, the patient is entitled to be treat-ed with respect and honour, his rights relattreat-ed to him as a per-son must be respected. In the course of health care, only the interventions necessary for the examination and medical care of the patient may be performed.
In the course of health care, a patient may be restricted by physical, chemical, biological or psychological methods and procedures exclusively in case of emergency, or in the interest of protecting the health of the patient or others.
In this case the application of restrictive methods or proce-dures shall be exclusively ordered by the patient’s attending physician or in exceptionally justified cases, a registered spe-cialist nurse may also give temporary order for the restriction.
One of the big problems of the contemporary Hungarian health care system from the patients’ part is waiting, which is drawn into the conceptual sphere of the right to dignity by legislation, when it says that a patient may only be made to wait on grounds and for a duration which are reasonable. The case with a fractured leg, reviewed in the first part must be referred to at this place again.
21 Act on Health Title 1 Section 1
22 Act on Health Title 1 Section 2 Subsections (1) to (5)
23 See in details Polecsák, M. pp 27–29, See also Kőszegfalvi, E.
p 91 24 Act on Health Sections 6 to 9 25 Act on Health Section 10
The exposition that in the course of health care, for pro-tection of his modesty, the patient’s clothing may only be re-moved for the necessary time and to the professionally justi-fied extent became part of this Act also with the development of patients’ rights. This issue is dealt with in more details by the Health Care Ministerial Decree 30/2007 (22 June) on the regulation of healthcare workers.
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onTacT26The right to have contact may be exercised by the patient ac-cording to the hospital regulations existing in the in-patient institution, while respecting his fellow-patients’ rights and thus ensuring health care to be undisturbed.
Regarding a patient in a severe condition, a minor, a wom-an in childbirth wom-and her newborn baby, the Act ensures more rights for them than general regulations do. In the first two cases it is based on subjective right that patients are assured to have contact with close relatives, whereas in the third case it re-fers to a continuous contact between the mother and the baby.
• A patient is in a severe state when due to his condition he is incapable of physically taking care of himself, or his pain cannot be relieved with medication, or he is in a crisis situation.
• A minor is a person under the age of 18 who has the right to have his parent, legal representative or a person designated by him or by his legal representative stay with him.
• A woman in childbirth shall have a right to designate a person of age to stay with her continuously during labour and delivery, and after delivery, to have her newborn baby placed in the same room with her, provided it is not excluded by the mother’s or the newborn baby’s health condition. As a result of this the number of deliveries with fathers or grandparents present has increased significant-ly by nowadays, which, along with the spread of alterna-tive childbirths, has transformed the methods of labour and delivery. Naturally the regulations of the hospital, the time limitations of visiting patients must be kept. The hos-pital may define the number of visitors a patient may have at a time, in cases when there is reason for it, the hospital may prohibit visitation or may order epidemiological ar-rangements visitations by children may also be restricted.
The patient having the right to keep contact with a representa-tive of the church in compliance with his religious convictions and, in general, freely practise his religion are of high priority.
As a further major rule the patient is also entitled to use his own clothes and personal belongings.
The patient’s right to self-determination also includes that with an expressed disposition the patient may forbid the in-stitution delivering his health care to give information about him to anyone or to publicly display where he is placed.
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aciliTy27The patient has the right to leave the healthcare facility, unless he threatens the physical safety or health of others by doing so. In the case of an incapable patient this right may be exer-cised with the agreement of the legal representative. (A parent, a guardian, or a trustee, who can be a legal representative.)
If required by the patient’s condition, the competent au-thorities have to be notified about the fact that the patient has left the healthcare facility. In case of an incapable patient the legal representative must be notified.
All in all a patient must be aware of the risks they subject themselves to by leaving the healthcare facility. Once the patient has been fully informed about the risks this dialogue must must be documented fully in the patient’s records.
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nformaTion28Exercising the right to be provided with information is a pre-requisite for the appropriate effectiveness of the right to self-determination. Pursuant to this the patient has the right to receive information on their state of health in a general sense and on a continual basis.
The patient has the right to complete information about every essential circumstance, provided in an individualized form before starting certain interventions because proper familiarity consti-tutes the basis for the patient’s decisions concerning his health status. The patient has a right to be informed even in cases where their consent is not otherwise a condition for initiating medical care. Informing the patient primarily has to involve their right to consent to or refuse a medical intervention. The patient has the right to pose additional questions during information and subse-quently, besides they have the right to know the identity, qualifi-cations and professional status of those directly providing services.
The patient has to be informed in a way which is compre-hensible for them, with regard to their age, education, knowl-edge, state of mind. If necessary, the services of an interpreter or a sign language interpreter must be supplied for the provision of information as well ensuring consent is fully understood.
A capable29 minor who has already turned 16 years of age30 may waive the right of being informed, except in cases when they must be aware of the nature of their illness in order not to endanger the health of others.
In this part of the Act one of the most commonly applied, argued about and due to its potential shortage, protested law is discussed. According to the ministerial reasoning added to the Act on Health, the right to be provided with information is the prerequisite for the appropriate effectiveness of the right to self-determination.
All the scientific literature, may it be a case collection of the rules of court31 or scientific literature on medical
compensa-tional responsibility,32 it dedicates its major part to this right, since practically if there is a debate between the healthcare facility and the patient, this right almost certainly is stressed may the debate be the result of not keeping either the moral or the legal norms.
As we have referred to it earlier, it is of utmost importance to emphasize that oral information cannot be substituted by handing over the general informational materials prepared in advance. All this was brought about by the development of patients’ rights, including the right to information (see the dogmatic differences in terms of the right to information be-tween Act II of 1972 and Act CLIV of 1997).
The Supreme Court announced in a theoretical decision that
”The hospital owes compensational responsibility if the patient is not provided objective, thorough and realistic in-formation.
The patient’s statement of consent of examination, treatment and surgery given upon admittance to the hos-pital is not sufficient by itself to prove that the patient re-ceived appropriate information prior to the surgery.” Act II of 1972 Section 45 Subsection /1/, Section 47 Subsection /3/ 15/1972 /August 5/ Ministry of Health, Section 83 Sub-section /1/, Section 87 SubSub-section /2/ Supreme Court No.
III. 22. 083/1998
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DeTerminaTion33The right to self-determination is based on constitutional rights, consequently its essential content is unrestrictable. The most important guarantee for the effectiveness of the right to self-determination is that as a major rule, it is a prerequisite that the performance of any health care procedure is subject to the patient’s consent thereto granted on the basis of ap-propriate information, free from deceit, threats and pressure, which consent may be withdrawn from the patient’s part.
A capable patient may exercise the right to self-determina-tion via a legal representative in case of the existence of ap-propriate formalities /complete authorization with the power of proof etc.
The Act fully defines the cases upon the occurrence of which a patient’s statement of consent about an intervention may not be required e.g. when the patient’s life is in direct danger or the failure to carry out the given intervention or action would seri-ously endanger the health or physical safety of others.
From the point of view of patients’ rights it is absolutely necessary to get to know Section 75 Subsection (3) of the Civil Code too, according to which the rights of an individual are not violated by the behaviour that the entitled person con-sented assuming that yielding the consent does not violate or endanger the interests of the society.
In the course of health care the physical well-being of a patient will, or may, be hurt in a given case, although it might be for the sake of healing, especially in case of an invasive intervention. The definition of the latter is indicted in Act on Health Section 3 Subsection M), according to which an inva-sive intervention is a physical intervention penetrating into the patient’s body through the skin, mucous membrane or an orifice, excluding interventions which pose negligible risks to the patient from a professional point of view of intervention.
Act on Health Section 3 Subsection l) defines intervention, which logically bears a wider scope than invasive interven-tion. According to this intervention is any physical, chemical, biological or psychological act performed to for preventive, diagnostic, therapeutic, rehabilitation, or other purposes which will, or may, result in a change in the patient’s body, fur-thermore, any procedure related to examinations performed on a corpse and the removal of tissues and organs.
Act on Health Section 15 Subsection (1) declares that the patient is entitled to the right of self-determination, which may only be restricted in the cases, and in the way defined by law.
The right to self-determination includes the issues listed below:
• the patient is free to decide whether they wish to use health care services;
• whether the patient consents to any interventions, and if they do, to which ones;
• which procedures they refuse;
• the right to participate in the questions concerning their examination and treatment.
It is a fundamental prerequisite for performing health care inter-ventions and exercising the above rights that the patient yields their consent based on appropriate information, free from deceit, threats and pressure. After the model of international standards, it is called informed consent by the scientific literature that deals with Hungarian medical law. Section 3 Subsection (2) of the Char-ter of Fundamental Rights of the European Union, announced on 7 December 2000, also lays down that in the area of medical sci-ences and biology a person’s free consent based on information must be respected according to the procedures set by law.
In the course of health care it often occurs that health care providers come into contact with patients who are either
26 Act on Health Section 11
27 Act on Health Section 12
28 Act on Health Sections 13 and 14
29 Everyone is capable whose capability is not restricted or excluded by law Civil Code Section 11 /A person over the age of 18 is capable unless he is under guardianship restricting or excluding his capability/
30 A minor is a person who has not yet turned 18 years of age except for his having got married. Civil Code Section 12 A minor is capable in a restricted way if he has already turned 14 years of age and he is not incapable. Civil Code Section 12/A
31 Dr. Köles, T. (1999), Orvosi műhibaperek, HVG-ORAC, Lap- és Könyvkiadó Kft.
32 Dósa, Á. (2004), Az orvos kártérítési felelősség , HVG-ORAC, Lap- és Könyvkiadó Kft.
33 Act on Health Sections 15 to 19
80 Textbook of Nursing Science Chapter 3 The Hungarian and International Attributes of Legal Health Care Regulation 81 incapable or have limited capacity to consent to treatment.
Their statement of consent is required to be gained in one way or another as well. For this they have to be aware of some concepts. Without the knowledge of this, the informing doc-tor cannot find their way about who to inform about what and to what extent, who needs to be searched for in case of
Their statement of consent is required to be gained in one way or another as well. For this they have to be aware of some concepts. Without the knowledge of this, the informing doc-tor cannot find their way about who to inform about what and to what extent, who needs to be searched for in case of