The right to health and limitations related to implementation thereof

Boiko I.V.
Candidate of Juridical Sciences (Ph. D.),
Associate Professor of Administrative Law Department at 
Yaroslav Mudryi National Law University of Ukraine

Health is considered to be one of the greatest values for an individual in particular and society as a whole. Every person has the right to be healthy. This right is natural for a person, since everyone can take actions aimed at maintaining and improving his or her health or refrain from actions that can lead to deterioration thereof, or independently decide which health condition is acceptable to a person and accordingly maintain it. The constituent of the right to health is the opportunity that is enshrined in the European Social Charter and is worded as follows: "Everyone has the right to use any measures that enable him or her to achieve the best health condition." 
The right to health is understood as the ability of aperson to maintain his or her health by appropriate actions (or inactivity) in a manner that does not violate the rights of others. The right to health care, including the right to medical care, belongs to the so-called second generation of human and civil rights and freedoms. 
The interests of different subjects, such as people, groups of people, public organizations, providers of medical and pharmaceutical services, interests of the community, society and the state, overlap in the sphere of health care. The state faces the task of regulating social relations in this area in such a way as optimal reconcillation the rights and interests of the subjects of law. 
The right to health is not limitless. While exercising his or her rights and freedoms, every person shall only be subject to such restrictions that are prescribed by law solely for the purpose of ensuring the proper recognition and respect to the rights and freedoms of others, and to ensure fair requirements of morality, public order and welfare in a democratic society. 
Legal restriction of the rights of citizens whose health condition endangeres deterioration for others, and the rights and freedoms of the other individuals is one of the most effective tools for ensuring public health. The principle of optimal combination of public and private interests in the health sector can be named as the basis of such an instrument. 
The limitation of human rights related to the implementation of the right to health is due to the need to ensure, first of all, public interest. Public interest in the field of health care can be formulated as maintaining the level of health and preservation of the genetic pool of the Ukrainians. Therefore, state agencies, local self-government bodies and other persons vested with managerial powers in the field of health care, are those agents who care about securing this interest. 
The need for public interest encourages the application of human rights restrictions related to the health condition of certain persons or their non-compliance with the provisions of health legislation. Modern European standards formulate requirements for the application of human rights restrictions. Though, restrictions should be established exclusively by laws; be proportional to the purpose specified by the constitution and laws; be justified by the public interests necessary for the normal functioning of a democratic society or the protection of the rights of other people. In addition, any restriction of rights should be applied only if there are no other less burdensome measures to achieve the goal of securing public interests, the rights of others; consequences of rights restrictions should not be excessive; restrictions should not distort the essence of the restricted rights. 
Restrictions, related to health or non-compliance with health regulations, are divided into the following varieties. 
1. Restrictions due to the protection of the population against infectious diseases. The infectious disease is the basis for limiting person’s rights to work and education. Such measures are proportional in the situation when sick people can become the source of the disease for others. As for persons who refuse or evade mandatory preventive vaccinations or children who have no vaccinations, the restriction of their right to education on such grounds appears to be disproportionate to declared goals. The judicial practice of resolving disputes concerning the restriction of the right to education of non-inoculated persons indicates that there is no unambiguous position of the courts in these cases. Legal restrictions on human rights should promote the protection of the rights of others. It is precisely this motive that forces courts to make decisions against the rights of those children who do not have prophylactic vaccinations. The author believes that limiting the right to education for children who did not undergo prophylactic vaccinations by restricting their right to education and refusing to admit them to the educational institutions, although this right is established by law, is disproportionate to the purpose specified by the Constitution and laws; also, such legal position of the courts is not justified by the public interests necessary for the normal functioning of a democratic society or the protection of the rights of other people.
2. Restrictions related to mental health disorders. Mental disorders are grounds for limiting the civil capacity of an individual, if such a disorder significantly affects his or her ability to realize and / or control his or her actions. Such a restriction may be exercised only by the court in the manner prescribed by the Civil Procedural Code of Ukraine. The right to work may be limited in connection with the mental state of person’s health. Such a restriction can be deemed as proportional, since it concerns the right to engage in certain types of activity, defined by the legislation, aimed at securing interests of other persons (in the public interest).
3. Restrictions related to the abuse of an individual by alcoholic beverages, narcotic drugs, as well as in connection with exposure to medicines that reduce his or her attention and reaction rate. The court may limit the civil capacity of an individual, if he or she abuses alcoholic beverages, narcotic drugs, toxic substances and thus places him- or herself or family, as well as other persons whom he or she is legally obliged to withhold, in a difficult financial situation. Persons who drive vehicles, river or small size vessels and for whom there are reasons to believe that they are in a state of alcohol, narcotic or other intoxication or under the influence of medicinal products that reduce their attention and reaction rate, are subject to removal from the driving of these vehicles, river or small size wessels and observed to the state of alcohol, narcotic or other intoxication or the influence of medicinal products that reduce their attention and reaction rate. The purpose of such a restriction is to prevent the commission of offenses that could cause damage to the life, health or property of others. The presence of public interest in the application of such measures is obvious, their establishment is necessary for the normal functioning of a democratic society and the protection of human rights. 
4. Restrictions related to the state of health as a condition for engaging in certain types of professional activity. By their very nature, the conditions for entering the service to the state agencies can be also deemed as certain restrictions to the right to hold certain positions for citizens who, due to the state of physical and mental health, do not meet the requirements established by law. Such restrictions are justified by the public interests necessary for the normal functioning of a democratic society, since government officials holding positions at various state agencies, are empowered to enforce others, and, in different cases, have discretionary power that requires them to have proper level of mental and physical health. 
Consequently, the legal restrictions of human rights established by the legislation of Ukraine related to the state of their health or the implementation (non-fulfillment) of the requirements of the legal norms in the field of health care, in the vast majority correspond to modern European standards for the application of human rights restrictions.