Equal right to medical care
The equal right to medical care must be guaranteed for the elderly and persons with disabilities in emergency conditions as well as in everyday life. During the coronavirus epidemic, a question has been raised on how to secure the equal right to medical care and intensive care in particular for persons with disabilities and the elderly.
The Act on the Status and Rights of Patients states that every person who is permanently resident in Finland is without discrimination entitled to health and medical care required by his or her state of health within the resources available to health care at the time in question.
The Health Care Act states that the provision of medical care shall be based on the medical or dental diagnosis of the patient and carried out in accordance with harmonised principles of care, where available. The provision of treatment shall be based on the most expedient methods and cooperation. The treatment shall be discussed with the patient and he or she has the right to refuse treatment. If the patient refuses the treatment offered, he or she shall be treated in another medically justified manner.
In its position statement, the National Advisory Board on Social Welfare and Health Care Ethics ETENE stressed that “The aim of healthcare is to guarantee for everyone medically appropriate treatment that corresponds to the patient's needs, taking into account the probable outcome of the treatment.” ETENE (30 May 2020): The ethical principles of social welfare and health care are valid in emergency conditions as well (in Finnish)
A significant aspect concerning medical care and intensive care in particular is the right to life. The right to life is safeguarded in a number of human rights treaties, such as the European Convention on Human Rights. According to Article 2 of the European Convention on Human Rights, “Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”
Care plan must be drawn up with the patient
If necessary, a plan concerning examinations, care, medical rehabilitation or similar measures must be prepared for the patient. The plan must indicate how this treatment is carried out and in what time frame. The plan must also be drawn up in agreement with the patient or the patient’s family member or legal representative.
The plan may include a physician's opinion on limiting care. However, this limitation must be based on listening to the patient’s opinion and assessing the situation with the patient while providing sufficient information to the patient. The patient's wishes regarding care can also be added to the plan. These, too, may include an opinion on limiting care.
However, the care plan and the patient’s wishes regarding care are not exactly the same as limiting care. The care plan and wishes for care should include information on the care issues relevant for the patient. They can be related to many other things than intensive care or resuscitation. Therefore, the practice of updating care plans mainly for making decisions on the limitation of care is problematic. It should also be noted that the patient is always entitled to change his or her wishes for care or request an update of the care plan.
If an adult patient cannot decide on the treatment given to him or her because of mental disturbance or intellectual disability or for other reason, the legal representative or a family member or other close person of the patient has to be heard before making an important decision concerning treatment to assess what kind of treatment would be in accordance with the patient's will. If this matter cannot be assessed, the patient has to be provided with care that can be considered to be in accordance with his or her personal interests.
Limitations of care shall not be discriminatory even in emergency conditions
When considering the provision of intensive care, it should be taken into account whether intensive care is appropriate for the illness being acutely treated. Is the benefit of the treatment sufficient related to the harm caused by it? It is also necessary to check whether the patient has expressed a wish to limit care.
A health care representative may not make a decision on limiting care due to a patient having poor quality of life without hearing the patient or their family. The decision to limit care must be primarily based on a factor such as a condition being treated in intensive care, a difficult form of COVID-19 for example, and not on a physician's assessment of whether the life of a person with a severe disability or a memory disorder is of sufficiently high quality as such.
According to the information received by Kynnys (the Threshold Association), some housing units for people with intellectual disabilities have made proactive decisions not to provide intensive care for residents in potential cases of coronavirus. Kynnys (30 March 2020): Disability cannot be a reason for denying intensive care (in Finnish)
The Finnish Disability Forum (Vammaisfoorumi ry) also raised the question of the right to treatment and called on the Ministry of Social Affairs and Health for instructions on the matter. According to the Forum, the need for care is essential, and the limitations of care shall not be discriminatory even in emergency conditions. Finnish Disability Forum (31 March 2020): Rights of persons with disabilities and their realisation in the exceptional situation caused by coronavirus (in Finnish)
The Ministry of Social Affairs and Health has emphasised that, even under emergency conditions, municipalities must ensure social welfare and health care clients’ right to have access to services based on their individual needs. The Ministry referred to the ethical guidelines published by Suomen Tehohoitoyhdistys (Finnish society of intensive care) in 2019. According to the guidelines, every person whose life is temporarily in danger has equal right to an assessment of the need for intensive care. Ministry of Social Affairs and Health (30 May 2020): People have equal access to services in the coronavirus situation – everyone has access to the help and care they need (in Finnish)
Kaisa-Maria Kimmel, a doctoral researcher specialising in health law, wrote a comprehensive background article on prioritising treatment in emergency conditions. The article discusses, among other things, the prioritisation of care in normal conditions, the legal framework of prioritisation, and the impact of the exceptional situation on prioritisation, with concrete examples of the policies that could be used to prioritise treatment. Kaisa-Maria Kimmel (7 April 2020): Prioritisation of health care in emergency conditions – how to justify the most difficult decisions? (in Finnish)
Parliamentary Ombudsman's decisions
Making DNR decisions at Oulu University Hospital: “... the patient has the right to make decisions about the quality of their own life. However, the quality of life is the subjective experience of each patient, and it is not possible for an outsider to evaluate it reliably.”
Making a Do Not Resuscitate decision: “The patient must be informed of the medical justifications of a DNR decision. It is particularly important to ensure that the information provided is clear and understandable. The provision of this information and its contents must also be recorded in patient documents.”
Impact of DNR decision on patient care: “In its new guidelines, Valvira (National Supervisory Authority for Welfare and Health) has clearly stated that a DNR decision should not affect the patient's other care, and it should be continued as before. Valvira emphasises that a DNR decision is not a care plan.”
Persons with severe disabilities are also entitled to care: "... in some cases, parents have not received sufficient information as required by section 5 of the Patient Act on matters that are relevant in deciding on the limitation of the care of their child; the content, scope and duration of the limitation of care have remained unclear.”
Evaluation of terminating life-sustaining treatment. According to the ECHR, the decision-making process for evaluating the termination of treatment of a patient in a vegetative state met the requirements of Article 2 of the European Convention on Human Rights. In its assessment, the ECHR paid particular attention to national legislation, consultation of the views of the patient or his or her family members, and the potential for legal protection when there were doubts about the realisation of a patient's best interests.
Decision-making procedure for denying experimental treatment. The ECHR found that the decision-making process related to the treatment of a patient with severe disabilities met the requirements of Article 2 of the European Convention on Human Rights. In its assessment, the ECHR paid particular attention to national legislation, consultation of the views of the patient's representative, and the potential for legal protection in the decision-making process.
Afiri v. France 25 January 2018 (in French)
The decision-making process related to the termination of treatment. The ECHR found that the decision-making process related to the treatment of an underage patient with severe disabilities met the requirements of Article 2 of the European Convention on Human Rights. In its assessment, the ECHR paid attention to national legislation, involvement of the patient's guardians and the consultation of their views, and the potential for legal protection in the decision-making process.
Giving consent to treatment. The ECHR unanimously found that the provision of treatment suggested by physicians without the consent of the guardian and without a court decision violated the right to private life of a disabled patient, in particular his or her right to physical integrity.