International Concerns about Forced Sterilisations of Romani Women Prompt Amendments to the Slovak Health Care Act
15 December 2004
On October 21, 2004 the Slovak Parliament finally adopted amendments to the Healthcare Act, which will come into force on 1 January 2005. Amendments to Slovak legislation regulating issues such as contraceptive sterilisation, informed consent, and access to medical files, have been prompted by considerable international criticism following reports on forced sterilisation of Romani women in Slovakia throughout 2003. The ERRC, among other organisations, has raised concerns with international organisations about instances of racially-based contraceptive sterilisation of Romani women, without free and informed consent, documented by the ERRC in 2002-2003.
In December 2003, the ERRC examined a draft version of the Slovak Healthcare Act and an accompanying Sterilisation Regulation, and found that these fell far short of meeting relevant international legal standards. On 18 December 2003, the ERRC sent a letter to the Slovak Minister of Health giving a detailed legal commentary on the relevant international standards. For example on informed consent, the European Convention on Human Rights and Biomedicine (ECHRB), which entered into force in Slovakia on 1 December 1999, states in Article 5 that "An intervention in the health field may only be carried out after the person has given free and informed consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks. The person concerned may freely withdraw consent at any time." The explanatory report to this Convention states that "this information must be sufficiently clear and suitably worded for the person who is to undergo the intervention. The person must be put in a position, through the use of terms he or she can understand, to weigh up the necessity or usefulness of the aim and methods of the intervention against its risks and the discomfort or pain it will cause".
The ERRC, in its letter to the Slovak Minister, suggested changes to key, deficient, articles in the Slovak draft Act and Regulation. The letter urged the Slovak government to amend the draft Act on Healthcare and Sterilisation Regulation, before they are sent to the Legislative Council of the Slovak Republic, so that any legislation adopted meets Slovakia's international obligations.
The Health Care Act that was approved by the Slovak Parliament in October 2004, incorporates to a considerable degree the concerns voiced by the ERRC regarding the legal framework regulating contraceptive sterilisation and informed consent. In particular, the Act introduces a separate chapter (Chapter III) on sterilisation, assisted reproduction and medical genetics; thereby eliminating any separate Sterilisation Regulation. Article 40(2) of the Act states that "sterilisation may be carried out only on the basis of a written request and written informed consent1". The information that must be provided to the patient to constitute informed consent is set out in Article 6 of the Act and would appear to meet European Convention on Human Rights and Biomedicine standards. The Act states that information shall be provided by the attending healthcare professional "about the purpose, nature, consequences and risks" of the treatment, the possibility to choose from a range of methods of treatment, and the risks associated with refusal of treatment. This information shall be provided "comprehensively, considerately, without pressuring, and corresponding with the mental and emotional maturity and health condition of the person to be instructed, while providing the opportunity and sufficient time to freely decide…"
For sterilisation operations, Article 40(3) of the Act further stipulates, among other provisions, that informed consent should include information on alternative methods of contraception and planned parenthood, and on the medical consequences of sterilisation as a method making infertility irreversible, and that a patient's circumstances may change since sterilisation was requested.
Under the Act, sterilisation cannot be carried out until 30 days have passed after the informed consent was given. Consent can be withdrawn at any time before the medical intervention is performed. Pursuant to Article 246b of the Act, illegal sterilisation by a healthcare professional carries a minimum penalty of imprisonment of three to eight years.
On access to medical records, the person authorised on the basis of a power of attorney may consult the person's medical records, and make notes or copies of the records on site. The law specifically provides that anyone refused lawful access to medical records may reverse this through a court decision. This will hopefully make it easier for victims of forced sterilisation, together with their lawyers, to gain access to their medical records, and thereby bring before the courts the proof that illegal practices had been carried out. The revised Act will hopefully provide a much needed safeguard against any further illegal sterilisation, and bring patients rights to informed consent into domestic legislation.
- Our emphasis.