The right to make healthcare decisions: «isomers» of the constitutional and legal construction (theoretical aspects)

New rights, or at least their qualitatively new virtues, are constantly emerging within the gradual but at the same time intensive development of the modern constitutional paradigm. One of these rights is a person’s right to make healthcare decisions, that is decisions taken by an individual concerning his/her health-related issues and access to health services. Although this right is not directly enshrined in the constitutional provisions, it is endowed within fundamental nature, as it is stands as an act of personal autonomy. This article aims to contribute to the understanding of the right to make healthcare decisions as a right that unites in its content a variety of constitutionally based values, and therefore offers qualitatively new approach to the formation of its substantial membrane. It shows that in a normative sense, the aforementioned right is constituted from three integral components: 1) subjective; 2) cognitive and pragmatic; 3) conative. Further, it is argued that the investigated right has its own essence, i.e., precise constitutional content. Within the aid of a so-called “to peel the onion to its core” method, it is discussed on a step-by-step basis, the three layers of the researched right. The authors have doctrinally shaped the following layers of this right, in particular, based on an examination of specialized scholarly literature: the first outer layer, which is composed of a number of independent but interconnected constitutional values; the possibility of justified state intervention in the right to make healthcare decisions; and human dignity as the absolute core of the right, in which the state and its bodies are prohibited from interfering under any circumstances and which cannot be narrowed or limited in any way. Finally, it is concluded that, in case of constitutional protection of the right to make healthcare decisions, the constitutional review body should consider whether testing for the rationality of the introduction of the impugned normative regulation is sufficient, or whether the impugned law (its separate provision) should be tested for proportionality.

medical paternalism, personal autonomy, the right to make healthcare decisions, physical and mental integrity, personal freedom, human dignity, justified interference, constitutional values