COVID-19

The current COVID-19 pandemic is creating extreme constraints on health care systems in all member States. The increasing number of severely ill patients raises major ethical challenges that professionals and competent authorities have to address. Difficult decisions have to be taken concerning the society as a collective, and within the health care at an individual level. It is essential that such decisions meet the fundamental requirement of respect for human dignity and that human rights are upheld to ensure that these situations do not increase existing vulnerabilities and do not lead to discrimination in the access to healthcare.

Oviedo Convention

The Convention on Human Rights and Biomedicine (the Oviedo Convention) is the only legally binding instrument at an international level addressing human rights in the field of biology and medicine. Building on the European Convention on Human Rights, it develops its principles relevant to the biomedical field. It thus provides a unique human rights legal framework to guide decisions and practices both in the clinical context and in the research field.

The principles and provisions in the Oviedo Convention reflect and reinforce the fundamental and indissociable link between human rights, solidarity and responsibility which is essential in addressing the current crisis caused by the COVID-19 pandemic.

Read more about the provisions of the Oviedo Convention

In this connection, certain elements of the preamble to the Oviedo Convention have never been more important, namely the importance of greater unity between member States for the maintenance and further realisation of human rights, the need for international cooperation, and the rights and responsibilities of all members of society.

Under the Oviedo Convention, member States are obliged to protect the dignity and integrity of everyone, without discrimination, with regard to the applications of biology and medicine. This obligation becomes particularly relevant in the event of a public health emergency, where certain individuals or groups may find themselves in a situation of vulnerability.

The Convention states that appropriate measures shall be taken - mindful of health needs and available resources - to provide equitable access to healthcare of appropriate quality (Art 3 Oviedo) which, in accordance with the person’s medical needs, shall be designed to improve his or her state of health or alleviate his or her suffering.

As a general rule, an intervention in the health field may only be carried out after the person concerned has given free and informed consent to it (Art. 5). In emergency situations, when doctors may be faced with a conflict of duties between their obligations to provide care and to seek the patient's consent, the Convention allows them, subject to meeting certain conditions, to carry out immediately without waiting for the patient’s consent, any medically necessary intervention for the benefit of the health of that individual patient.

Equally relevant, Article 10 of the Oviedo Convention re-affirms the right to privacy in the health field.

The Oviedo Convention provides for specific protective provisions for participants in biomedical research laid down in its Article 16 and 17. The Convention does not allow any restriction to the respect of these provisions, even if such research aims at the protection of public health (Art. 26 par. 2). The protection of participants in research is however further developed in the Additional Protocol to the Oviedo Convention concerning Biomedical Research, namely when it comes to research in emergency clinical situations.

Possible exceptions to the exercise to the rights and protective provisions laid down in the Oviedo Convention are provided in its Article 26. These exceptions are aimed at protecting collective interests and include the protection of public health. However, any such restriction to be admissible shall be prescribed by law and be necessary in a democratic society for the protection of the collective interest at stake. These conditions are to be interpreted in the light of the criteria established by the European Court of Human Rights in particular those of necessity and proportionality.

European Convention on Human Rights

In the framework of the European Convention on Human Rights, member States are committed to protecting in law everyone’s right to life (Art 2) which has to be done in a manner without discrimination (Art 14). To this end, even in a time of public health emergency, it is not possible to derogate from the commitment to protecting the right to life (Art 15). Equally relevant is the right to respect for a person’s private life, which encompasses the right to protection of personal data, including health-related data (Art. 8). Even though there may be interferences with the exercise of this right in the interest of protecting public health, any such interference has to be in line with the principle of proportionality and must be limited to the strictly necessary.

European Social Charter

In the framework of the European Social Charter, member States are committed to the right to protection of health, including to prevent as far as possible epidemic, endemic and other diseases (Art 11).