Case 36/2000 (X. 27.) AB

The Court issued this decision in response to numerous petitions challenging the constitutionality of the sections of the Act CLIV of 1997 on Healthcare pertaining to the treatment of psychiatric patients, especially those with limited disposing capacity.

One petitioner objected to the provision of the AH which allowed a therapist to use the assistance of the police to implement necessary interventions. This petitioner alleged that such provision violated the constitutional protections guaranteeing fundamental rights, a prohibition of discrimination, the right to human dignity, a prohibition on torture, cruel, inhuman or humiliating treatment, and the right to health.

Another petitioner objected to the provisions of the AH which contained rules for restricting the psychiatric patient’s personal freedom, without defining exactly what methods of restrictions could be used. This petitioner alleged that such provisions violated the constitutional guarantee to the right to human dignity and the right to personal freedom. This petitioner also objected to the rule that a patient may be deprived of personal freedom on the grounds of endangering himself or others.

Another petitioner objected to several provisions of the AH which related to treatment of patients with limited capacity–specifically, with respect to (a) such patients’ right of consent and refusal of medical treatment; (b) the restriction of such patients’ rights on the grounds of endangerment to themselves or others and (c) the rule requiring courts to act in non-litigious proceedings during the medical treatment of such patients. This petitioner alleged that such provisions violated the constitutional guarantee against discrimination and of protection of fundamental rights, human dignity conscience and religion.

The Court held that Sections 12 para. (1), Section 17 para. (2), and Section 20 para. (1) of the of Act CLIV of 1997 on Healthcare (“AH”), which governed the restriction of the rights of patients on the basis of endangerment to others, were constitutional.

Since Section 12 provided no legal penalty for patients who left medical facilities, and only allowed departure from a facility where a patient was not a danger to others, the Court determined that it did not violate Article 55 (guaranteeing protection of fundamental freedoms) of the Constitution. Moreover, as Article 12’s regulation of mental patients’ rights was based on the reasonable grounds of protecting others, such Article did not breach Article 70/A (prohibiting discrimination) of the Constitution.

Sections 17 and 20 of the AH provided that patient consent was not required if lack of treatment would seriously threaten others. The Court held that Sections 17 and 20 of the AH did not violate Articles 8 (guaranteeing protection of fundamental freedoms) or 60 (guaranteeing protection of freedom of conscience and religion) of the Constitution because such articles did not protect conduct that infringed on the fundamental rights of others.

The Court held that applying the same restrictions on the self-determination of medical care to psychiatric patients with limited capacity as were applied to those patients with no capacity breached Article 54 (guaranteeing the right to human dignity) of the Constitution and thus struck down the language that allowed such in Section 16 para. (2) of the AH. In making such determination, the Court decided that the AH’s restriction on self-determination was disproportionate to the goals of the act. It held that the same standards should not apply to all patients with varying degrees of capacities, but a tailored variety of rules should be used.

The Court held that the use of the term “invasive” in Section 16 para. (4) of the AH (which provision allowed a patient’s representative to exercise the right of consent and refusal only for “invasive” interventions, which the petitioner argued were not the majority of psychiatric interventions) was not unconstitutional. The Court found that AH could differentiate between the right of consent and refusal to be exercised by the patient’s legal representative as such differentiation in the scope of exercising the rights of representation would not be detrimental to the patients themselves.

The Court dismissed the petitioner’s argument regarding the provisions which allowed police assistance in implementing a necessary intervention, noting that the petitioner had misconstrued the provision in question.  According to the Court, this provision only allowed for the use of police assistance against a legal representative refusing to consent to life-saving support and not the patient himself.

The Court ruled that the provisions applying special rules on the rights of psychiatric patients did not violate Article 70/A of the Constitution (prohibiting of discrimination) as it was acceptable for additional regulations and “positive actions” to apply for the protection of vulnerable group. Moreover, the Court, with reference to prior case-law and the European Convention on Human Rights, noted that such measures could be justified by the case of psychiatric patients endangering themselves and others and did not violate Article 55 para. (1) (guaranteeing the right to freedom and personal security) of the Constitution.

The Court ruled that there was an unconstitutional legislative omission in the AH in that the legislature did not provide regulations describing when the personal freedoms of psychiatric patients protected by Article 55 para. (1) of the Constitution could be restricted. The AH simply repeated the constitutional standard of proportionality but did not establish any regulations to guide the enforcement of the rights that were guaranteed. The absence of those regulations unconstitutionally created room for arbitrary application of coercive measures.

The Court dismissed the challenge to Section 199 para. (4) of the AH, which regulated emergency treatment given to a patient prior to a court’s ruling, noting the procedural guarantees protecting the patient’s fundamental rights which would be in effect during this period. The Court also dismissed the challenge to Section 201 para. (9) of AH (calling for the court proceedings under the AH to be of a non-litigious nature). The petitioner claimed that this provision violated the constitutional prohibition of discrimination in Article 70/A, since litigious proceedings provided extra safeguards. However, the Court held that non-litigious proceedings were a reasonable way to address some of the problems posed by medical treatment, such as the need for privacy and for a swift resolution.

Several judges concurred or dissented with the opinion. Dr. Bagi argued that the declaration made by a legal representative, as specified in the AH, offered sufficient guarantees that physicians could not act arbitrarily. Dr. Harmathy argued that Parliament should have specified, “for the case of medical examination, treatment and intervention affecting persons who do not qualify as having full disposing capacity, the rules guaranteeing the right to self-determination.” Dr. Nemeth argued there was not an unconstitutional omission of regulations mandating when the personal freedoms of patients could be restricted and that the AH was sufficient to ensure proportionate restrictions. Dr. Vasadi argued that it was unconstitutional to restrict the right of consent for patients with limiting disposing capacity to the same extent as those with no disposing capacity. She further argued that the lack of any capacity to make decisions was sufficient to justify legal action and that requiring someone to decide for those with limited capacity would actually protect the right to self-determination of those with limited capacity.

“The Constitutional Court holds that the above provision is not in conflict with Article 70/A of the Constitution either, as the regulation of the patients’ rights in a way different to the general rules is based on reasonable grounds: protecting the rights of others. The Constitutional Court has been engaged in interpreting Article 70/A para. (1) of the Constitution in several of its decisions. According to the established practice of the Constitutional Court, this provision of the Constitution is interpreted as a constitutional requirement specifying the general principle of equal rights. It has been pronounced by the Constitutional Court that the prohibition specified in the Constitution primarily covers discrimination regarding constitutional fundamental rights; if the discrimination does not concern a fundamental right, the unconstitutionality of the differing regulation may only be established if violating the right to human dignity. In its practice so far, the Constitutional Court has considered discrimination between the subjects of law to be unconstitutional in the latter scope if the legislature arbitrarily differentiates between the subjects of law under the same regulatory scope without due reasons.” Page 15.

“In the opinion of the Constitutional Court, the statutory regulation applying the same rules on the right of consent and refusal related to medical care concerning incapable patients and patients with limited disposing capacity without due regard to the relevant causes is unconstitutional. Restricting the right to self-determination of patients with limited disposing capacity the same way as applied to incapable patients violates Article 54 (1) of the Constitution. The Constitutional Court holds that although a limited capacity of discretion may constitutionally justify the statutory restriction of one’s autonomy to act, the method of restriction institutionalised in a uniform manner – and the same way as in the case of incapable patients – in Section 16 para. (2) of the AH is not proportionate to the purported objective. The legislature’s objective that independent legal declarations made in the course of medical care should be based on the patient’s due discretion does not necessarily mean that in the case of persons with limited disposing capacity this purpose may only be achieved by absolutely restricting their rights of consent and refusal. Both the need to consider the cause of limited capacity (such as age) and the fact that different forms of medical treatment may determine the disposing capacity related to medical care justify the lifting (mitigation) of the general restriction. In the opinion of the Constitutional Court, the right of consent and refusal of patients with limited disposing capacity should be regulated within the “range” of rules falling between those applicable to incapable patients and the ones applicable to patients with full disposing capacity.” Pages 22-3.