6 - Fundamental rights and health care

Summary

Introduction

The Charter of Fundamental Rights of the European Union (EU Charter) has caused much debate and controversy since it was proclaimed in Nice in December 2000. For health care lawyers, the potential impact of the EU Charter on law and policy in the EU Member States is particularly intriguing. While there is a long history of engagement with litigation concerning human rights and health care in many European jurisdictions, what is notable is the considerable diversity of approaches to fundamental human rights that relate to health. The EU has shown increasing involvement with health care law and health policy over the last fifteen years. It is also increasingly concerned with human rights. What is perhaps not yet so clear is how the two will relate to each other. In other words, how will enhanced engagement with human rights at the EU level impact upon health law? And will one consequence of the EU Charter be that a particularly ‘EU’ approach to human rights in health and health care develops?

Section two of this chapter explores the relationship between human rights and the regulation of health and health care. It considers various human rights principles with relevance in health contexts, as developed at the international and Council of Europe level. By reference to selected examples, it explores some of the ways in which human rights have affected health and health care at the Member State level. Diverse national approaches to controversial ethical questions may give rise to particular challenges for the EU in attempting to construct health and health care law and policy in the light of human rights principles in the future.