Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Publicación cientíca en formato digital
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185
Depósito legal pp 197402ZU34
ppi 201502ZU4645
Vol.40 N° 74
2022
Recibido el 15/07/22 Aceptado el 16/09/22
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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Bi blio gra fía, en el Cen tro La ti no ame ri ca no para el De sa rrol lo (CLAD), en Bi blio-
gra fía So cio Eco nó mi ca de Ve ne zue la de RE DIN SE, In ter na tio nal Bi blio graphy of
Po li ti cal Scien ce, Re vencyt, His pa nic Ame ri can Pe rio di cals In dex/HAPI), Ul ri ch’s
Pe rio di cals Di rec tory, EBS CO. Se en cuen tra acre di ta da al Re gis tro de Pu bli ca cio-
nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
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Asis ten tes Ad mi nis tra ti vos
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Vol. 40, Nº 74 (2022), 704-721
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Social and legal problems of
discrimination by age in the medical eld
DOI: https://doi.org/10.46398/cuestpol.4074.39
Nataliia Gren *
Olena Hutsuliak **
Ruslana Dostdar ***
Ivan Peresh ****
Vadym Roshkanyuk *****
Abstract
The article aims to analyze the medical and legal aspects of
human equality. Discrimination in the medical eld aects both
medical personnel and patients. The authors have used the method
of comparison of legal regulations of various states, the systematic
method, which allowed to reconcile the approaches: medical and
legal and the synergistic method as a method of development of
a modern globalizing society. It has been found that the typical
policy of agism includes the requirement to examine elderly physicians as
to their competence or skills without objective and substantiated reasons.
Everything leads to the conclusion that, discrimination of elderly patients
manifests itself in treating them with less respect and courtesy and providing
a worse level of services in medical institutions. Discrimination of gediatric
patients is caused by their lack of legal opportunity to express their opinion
on consent or voluntary refusal of treatment, including vaccinations.
Keywords: discrimination in the medical sphere; medical personnel;
patients; vaccinations; COVID-19.
* PhD, Judge, Lviv District Administrative Court 79018, 2 Cholovskyi Str., Lviv, Ukraine. ORCID ID:
https://orcid.org/0000-0001-5780-9423
** PhD, Associate Professor, Department of Constitutional, International and Criminal Law Vasyl’ Stus
Donetsk National University 21021, 21 600-richya Str., Vinnytsia, Ukraine. ORCID ID: https://orcid.
org/0000-0002-7639-9551
*** PhD, Associate Professor, The Department of Maritime and Commercial Law, Faculty of Maritime
Law, Admiral Makarov National University of Shipbuilding, 9 Heroiv Ukrainy Ave., Mykolaiv, 54025,
Ukraine. ORCID ID: https://orcid.org/0000-0001-8614-7561
**** PhD, Associate Professor of the Department of Theory and History of State and Law Uzhhorod National
University Head of department (Theory and History of State and Law), 26, Kapitulna, Uzhhorod,
Ukraine, 88000. ORCID ID: https://orcid.org/0000-0002-3485-7278
***** PhD, Head of the Department of Commercial Law Uzhhorod National University, 26, Kapitulna,
Uzhhorod, Ukraine, 88000. ORCID ID: https://orcid.org/0000-0002-3083-5231
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Problemas sociales y jurídicos de la discriminación por
edad en el ámbito médico
Resumen
El artículo pretende analizar los aspectos médicos y jurídicos de la
igualdad humana. La discriminación en el ámbito médico afecta tanto
al personal médico como a los pacientes. Los autores han utilizado el
método de comparación de la normativa legal de varios Estados, el método
sistemático, que permitió conciliar los enfoques: médico y jurídico y el
método sinérgico como método de desarrollo de una sociedad moderna en
vías de globalización. Se ha comprobado que la política típica del agismo
incluye la exigencia de examinar a los médicos de edad avanzada en cuanto a
su competencia o habilidades sin razones objetivas y fundamentadas. Todo
permite concluir que, la discriminación de los pacientes de edad avanzada
se maniesta en el trato con menos respeto y cortesía y en la prestación de
un peor nivel de servicios en las instituciones médicas. La discriminación
de los pacientes gediátricos se produce por su falta de oportunidad legal
de expresar su opinión sobre el consentimiento o la negativa voluntaria a
recibir tratamiento, incluidas las vacunas.
Palabras clave: discriminación en el ámbito médico; personal médico;
pacientes; vacunas; COVID-19.
Introduction
The widespread spread of digital technologies and the creation of new
information and communication methods create conditions in which
the boundaries of a person’s personal space are either completely erased
or become thin, balancing on the verge of full disclosure of personal
information. A person’s age, personal and professional life become public
knowledge, are studied in detail, and “aunted. The consequence of this is
that the thin line that exists between a person’s private life and society at
the present stage, which encroaches on their personal freedom and values,
subjects the individual to discrimination to one degree or another.
Dierentiation, exclusion, restriction or preference that denies or
diminishes the equal exercise of rights represent all manifestations of
discrimination, which is a widespread problem in contemporary society,
infringing upon individuality, democracy, humanism, equality and other
value categories developed by humankind throughout its history.
Everyone has the right to be treated equally, regardless of his or her
race, ethnicity, nationality, class, caste, religion, creed, sex, language,
sexual orientation, gender identity, sex characteristics, age, health or other
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Social and legal problems of discrimination by age in the medical eld
condition, merely on the basis that he or she is a self-sucient person and
possesses individual dignity. However, social stereotypes quite often violate
the individual value of an individual only on the basis that he/she belongs
to a “dierent group”. To be dierent in today’s world, to maintain your
individuality and personal boundaries, is becoming increasingly dicult.
The world is changing rapidly, crushing in its path everything that used
to be considered acceptable, permissible and right for society. The values
that were cherished yesterday are no longer of any value today. Human life,
which in past eras was short, fraught with diculties and dangers, had a
special value for every human being. Thanks to modern technologies, in
particular those that have recently emerged in the eld of medicine, human
life has become easier, longer, and, at the same time, the attitude toward
people, especially the elderly, has changed.
One of the most common manifestations of discrimination is ageism since
it aects people of all ages and is particularly prevalent today. A wide range of
interdisciplinary research shows that individuals face discrimination based
on age in many contexts, including health care. Ageism, which is dened
as “the systematic stereotyping and discrimination of people because of
their old age”, is widespread in society, and a signicant proportion of older
people report experiencing age discrimination in their daily lives.
It would seem that medical professionals, who help everyone to extend
their lives, are a category that should not be discriminated against, but
rather admired, respected, and thanked. But the realities of everyday life
show the opposite process. Both medical workers and patients are subject
to discrimination in the medical sphere. The peculiarities of discriminatory
manifestations against them require a substantive analysis.
1. Materials and Methods
The authors have used the method of comparing the legal regulation of
several states, the systematic method, which allowed reconciling medical
and legal approaches and the synergistic method as a method of developing
a modern globalizing society.
2. Results and Discussions
2.1. Discrimination of medical workers in the workplace
At all times, elderly people have evoked associations with wisdom,
experience and competence in one sphere or another. If we talk about
the image that arises in our minds when we talk about a folk healer, for
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example, it is likely to be an old man or an old lady, who is respected by the
entire population of a particular locality. But modern society, overloaded
with new technologies, with the help of which it has been able to defeat
more than a dozen deadly diseases that have killed several thousand people
on all continents, perceives in a completely dierent way medical workers
who have reached old age.
Health care workers are discriminated against based on their age in the
workplace. Workplace discrimination should be understood as any act or
failure to act, expressing any direct or indirect disparagement, exclusion
or privilege on the basis of race, color, political, religious or other beliefs,
sex, ethnic or social origin, property, place of residence , on linguistic or
other grounds unrelated to the professional qualities of an employee or
group of employees, if they are aimed at limiting or prevent the recognition,
enjoyment or exercise on various grounds of labor rights, are arbitrary and
entail legal liability.
One of the signicant problems of modern society is the rapid aging of
the population. The birth rate is falling rapidly in all countries of the world,
which inevitably leads to an increase in the number of elderly people.
The population is aging, and changes in the population age structure
has led to an aging national workforce. An important challenge for rms
and organizations is the impact of an aging workforce on labor costs,
productivity, and the economic sustainability of the organization.
However, an aging population also entails individual problems, it is a
factor that violates the humanistic doctrine and infringes on human rights.
This is logical from the point of view that man functions not only as a
biological being or a social unit, but is also a person, an individual, with a
distinctive, characteristic only for him character, way of thinking, and views
on life.
The attitude towards the elderly in society, as a category of the population
that has “outlived” it’s time and is more of a burden than an asset for the
nation, is also conrmed by scientic research and experiments. Health care
workers, similar to all other workers, are discriminated against as their age
increases. The results of a recent economic experiment conrm this trend,
in which more than 6,000 ctional resumes with randomly assigned age
information (35-70 years old) were sent to Swedish employers concerning
vacancies in low- and medium-skill occupations.
The callback rate begins to fall substantially for workers in their early 40s
and becomes very low for workers close to retirement age. The decline in
the callback rate by age for women is precipitous compared to that for men.
Employers’ stereotypes regarding the ability to master new tasks, exibility,
and ambition seem to be important explanations for age discrimination
(Carlsson and Eriksson, 2019).
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Social and legal problems of discrimination by age in the medical eld
The indicated issue concerns all spheres of economic activity, however,
taking into consideration signicant educational requirements, the period
of training, which is much longer for medical workers (on average, it takes
from 10 to 14 years to become a fully licensed doctor) (How long does it
take to become a doctor? n.d.), the issue of age discrimination in the eld of
labor becomes particularly important.
According to the American Medical Association, 43% of all doctors and
surgeons are 55 or older. Specialists, on average, are older than primary
care physicians. These gures provide the basis for an increase in cases
of ageism. Advances in medicine have given humans longevity, but this
longevity can be lost if the medical community negatively perceives old-
age doctors (Ageism in medicine: A look at medical ethics, laws, and
regulations, 2020).
On the other hand, to be objective, given the long period of training of
medical professionals, as well as the long time it takes them to acquire the
necessary knowledge, skills, and abilities to become a specialist in this eld,
such age gures seem adequate.
Currently, about 5% of health care facilities have age-related screening
policies. The typical agism policy includes the requirement to test an older
physician’s competence or skills without objective, reasonable methods;
inquiries on disability; or requiring an employee to undergo a physical,
medical, or cognitive examination without reasonable belief or justication
that the physician cannot perform the essential functions of his or her job.
Aging is associated with a decline in cognitive abilities and other
functions, and proponents of age-based screening programs argue that
assessments are necessary to protect patient safety. For instance, the
U.S. Equal Employment Opportunity Commission disputes mandatory
retirement policies or other forms of age discrimination against Yale New
Haven Hospital on their general “senior doctor” policy, which requires a
series of mandatory tests starting at age 70 (U.S. The Equal Employment
Opportunity Commission, 2022).
It would seem to be quite reasonable approach and reasonable
requirements to medical workers, based on the best motives, care about the
patient, and the quality of medical services that are provided to him. But,
on the other hand, there is a ne line between caring for the patient and
discriminating against the medical professional, which is manifested by
the implication that the elderly person cannot properly, professionally, and
competently, perform his ocial duties because of the age in which he is.
The question arises as to whether the professional performance of the
duties of a health care worker is related to the age of the worker. Academic
research on this subject argues that there is no such correlation. There is no
conclusive evidence that older doctors perform worse. The research shows
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that between the ages of 40 and 75, average cognitive ability declines by
more than 20%, but there is considerable variability from one individual
to another, indicating that while some older physicians have profound
impairments, others retain their abilities and skills.
Studies have shown high mortality rates from cardiovascular procedures
performed by, for example, older surgeons, however, high mortality rates
from gastrointestinal surgeries performed by younger surgeons (Dellinger
et al., 2017).
We should note that the senior population performs a very important
function; not only do they impart knowledge and experience, but they also
provide a signicant portion of the working sta. In today’s world, there
is no tendency for the birth rate to increase. Pandemics, natural disasters
of a global nature, and local and international conicts only exacerbate
the situation. Accordingly, the process of aging of the world’s population
will continue to gain momentum in the future. The nation’s population is
aging, and older people need more medical care, with the U.S. estimating a
shortage of at least 46,000 physicians by 2032. Senior specialists can help
to tackle this issue.
At a time when it is impossible to stop the aging of mankind, it is
necessary to take urgent measures to preserve the intellectual potential
already available in all spheres of life, including medicine, regardless of
the age of its representatives. A comprehensive legal and social policy is
needed to overcome this problem. In particular, the most eective method
of overcoming discrimination is administrative and nancial leverage
against employers. Experts state that in the States where the legislation
on age discrimination allows a greater penalty, there is less discrimination
against senior people (Neumark et al., 2019).
2.2. Age discrimination of patients
It is also surprising that those who took the Hippocratic oath, medical
professionals, competent specialists, and professionals who should treat
all patients with respect, including the elderly, often show the opposite of
the stated behavior. The most common practice is discrimination against
patients by health care providers. Discrimination as patients in the eld
of health care is primarily suered by the elderly. The recent research
performed by experts proves that among participants who reported
experiencing age discrimination (1,406 respondents) said they were treated
with less respect and courtesy (45,1%) reported being treated as being
unreasonable and indicated that they received worse services or treatment
in health care institutions (41.4) (Jackson et al., 2019). Other studies show
that one in ve adults over the age of 50 is discriminated against in health
care institutions (Rogers et al., 2015). This leads to the conclusion that the
problem is extremely widespread.
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Nataliia Gren, Olena Hutsuliak, Ruslana Dostdar, Ivan Peresh y Vadym Roshkanyuk
Social and legal problems of discrimination by age in the medical eld
Health care providers must oer health care to all patients equally, and
patients should not be discriminated against under any circumstances on
the basis of sex, nationality, religion, ethnicity, gender identity or age. In
practice, however, age has served as a criterion for establishing treatment
policy. Older women with breast cancer tend to have fewer options for
conservative breast surgery than younger women (Smith et al., 2009).
In addition, women over 70 years old are 40% more likely to be scheduled
for radical surgery than younger women (Di Rosa et al., 2018). Nursing
care for immunotherapy, breast reconstruction, and chemotherapy is less
available for older patients with breast cancer than for younger patients
(Schroyen et al., 2016). According to this study, we can conclude about a
kind of neglect of elderly patients, about age discrimination against them.
This raises another question, whether age discrimination applies only to
the category of the elderly. As practice shows, this category of the population
is not the only one when it comes to discrimination, biased and ambiguous
treatment of patients in the medical eld. Issues of the legal status of
children in the medical sphere are of particular importance. The category of
patients in need of a special consent procedure primarily includes children.
The Convention on the Rights of the Child in Article 1 states that “a
child is every human being below the age of eighteen years unless under
the law applicable to a particular person he or she attains majority earlier”
(Council of Europe, 1996). The perception of the concept of “child” and the
denition of the boundary from which a person becomes an adult, capable
of understanding this or that situation, of perceiving its consequences, will
dier from country to country, which is related to the cultural and social
factors of a particular society. Regardless of this, however, the obvious need
is to determine the age of the child we are considering as a patient.
A child’s ability to participate in the treatment process depends on his
or her age. The consideration of underage patients’ opinion contributes to
more eective protection of their legitimate interests. As stated in Article
2 of the Convention on the Rights of the Child, “States Parties shall take
all appropriate measures to ensure that the child is protected against all
forms of discrimination or punishment on the basis of the status, activities,
expressed opinions or beliefs of the child”.
Moreover, Article 12 of the Convention explicitly states that a child who
is capable of forming his or her own views should be assured the right to
express those views freely in all matters aecting the child, the views of the
child being given due weight in accordance with age and maturity.
Another international instrument, the Convention for the Protection
of Human Rights and Dignity of the Human Being with regard to the
Application of Biology and Medicine (known as the Oviedo Convention)
declares in Article 6 that: “The opinion of the minor shall be taken into
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consideration as an increasingly determining factor in proportion to his or
her age and degree of maturity” (Council of Europe, 1997). However, the
initial age limit of a child’s age when his or her opinion is taken into account
in the case of a medical intervention is dierent (Miric, 2020).
For instance, Section 4-4 of the Norwegian Patients’ Rights Act states
that when a child “has reached 12 years of age, he or she shall be allowed to
give his or her opinion on all questions concerning his or her own health”
(The act of 2 July 1999 no. 63 relating to patients’ rights (the patients’
rights act), n.d.). The similar norm can be found in Art. 26 of the Icelandic
Patients’ Rights Act (Iceland - patients’ rights act no 74/1997, 1997).
There is no clear lower boundary for considering a patient’s opinion in
Australian law, but it is explained here that “when a person is under the age
of 16 and a health care professional, observing him/her, believes that they
can make decisions about themselves, they are given the right to decide
their own health care” (Consent to Medical and Healthcare Treatment
Manual - Policy and procedure manuals, n.d.).
In a number of countries this age of voluntary consent is below the age
of majority. It can be 13 years old (the Czech Republic, Denmark, Ireland,
Latvia, Poland, Spain, Sweden, Great Britain), 14 years old (Ukraine, Russia,
Bulgaria), 16 years old (Hungary, the Netherlands). By a certain time, limit,
patients cannot provide informed consent or refusal of intervention, this
right is fully transferred to their parents or other legal representatives, who
are responsible for the life and health of their children and must legally
represent their interests. It is considered that the child has reached a certain
level of development, socialization, in order to understand the meaning of
his/her actions and to be able to express his/her position, but cannot yet
fully enter into legal relations on his/her own. We consider this position to
be reasonable.
However, there is a wide range of countries, such as Cyprus, Croatia,
Estonia, Finland, France, Greece, Italy, Latvia, Portugal, Romania, and
Slovenia (Consent to use data on children, 2018), where only parents,
without asking minors’ consent, must agree to medical interventions. All
the above is additional evidence that the legislator, when adopting a rule of
law, is primarily guided by the cultural traditions of his people.
We believe that this approach is clearly discriminatory. A person at the
age of supposedly 17 years old is mature enough to take responsibility for his
or her own life and health. Issues of medical intervention are particularly
sensitive information. For example, a girl of this age can lead a sexual life,
has the biological ability to become a mother of a child, but she cannot
independently decide the question of reproduction, birth, or termination
of pregnancy, since she is underage, and her legal representative decides
these issues.
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Nataliia Gren, Olena Hutsuliak, Ruslana Dostdar, Ivan Peresh y Vadym Roshkanyuk
Social and legal problems of discrimination by age in the medical eld
Obviously, in this situation, we are no longer talking about a child,
but about a person who has entered adulthood and is responsible for
the decisions he makes independently and adequately perceives their
consequences. Children should not only be cared for, but also prepared
for independent life. In this way, minors are given the opportunity to
express their individual opinions, defend their beliefs, and learn to take
responsibility for themselves and their health.
2.3. Discrimination in the sphere of vaccination
On the one hand, humanity is successfully ghting terrible diseases,
such as plague and smallpox, while on the other hand, it is facing new health
challenges. The COVID-19 pandemic is a vivid example of the fact that
humanity was not prepared for new threats on a planetary scale in the eld
of medicine. Not only was the issue of combating the new disease and its
consequences acute, but also the methods of combating it, and a new form of
discrimination associated with vaccination against it emerged. Even before
the outbreak of the coronavirus disease, there were two opposing groups of
people in the world, those who supported the vaccination of children and
those who considered it unnecessary and harmful.
Another aspect related to the legal status of children in the medical eld,
namely the possibility of medical intervention with parental consent, the
issue of vaccination, and the consequences that can occur if parents refuse
to immunoprophylaxis of their children from serious diseases (which, by
the way, are most dangerous precisely in the rst years of life, therefore,
the argument of anti-vaccinationists “when a child grows up, he/she will
decide themselves on getting vaccinated”, as horrible as it sounds, requires
the continuation “if he/she survives”).
Numerous cases have been known in which children unvaccinated
due to parental persuasion have died or become disabled from tetanus
or polio, infections that can be controlled by specic prophylaxis. At the
same time, the bacterium Clostridium tetani, which causes tetanus, exists
almost everywhere, an infection can occur even from micro-injuries, and
the eectiveness of vaccination against this disease reaches almost 100%.
There is an opinion that such parental behavior, in general, is a violation
of the rights of the child to health Caplan and Hotez (2018), and in case
of serious consequences, it can be qualied as a negligent performance of
parental duties and entail legal responsibility.
Whether it’s easy for parents to decide whether to vaccinate their child
when it comes to preventing him or her from contracting a deadly disease,
or the possible unavoidable negative health consequences of vaccination,
obviously not. Mass refusal to vaccinate (without a valid reason) is recognized
by the WHO as one of the 10 most dangerous threats to public health (Ten
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health issues WHO will tackle this year, 2019). But the issue of compulsory
vaccination is certainly not topical. Even the Covid-19 pandemic, caused
by the SARS-CoV-2 virus, has not convinced the global community to
impose compulsory vaccination due to concerns about compliance with the
principle of non-discrimination.
Thus, PACE Resolution 2361 (2021) “COVID-19 vaccines: ethical, legal
and practical considerations” (Doc. 15212) provides that the Assembly
calls on member states and the European Union to “ensure that citizens
are informed that vaccination is not compulsory, that no one can be
subjected to political, social or other pressures to be vaccinated unless they
themselves so choose”; “ensure that no one is discriminated against for not
being vaccinated for possible health risks or unwillingness to be vaccinated”
(Parliamentary Assembly Resolution 2361, 2021).
This demonstrates that the trend toward prohibiting coercive medical
interventions with respect for human dignity has persisted since the
establishment of the six principles of legitimate medical research (later
expanded to 10) known as the Nuremberg Code, among which is the
principle of free consent, which requires precisely the free and informed
consent of the individual to the intervention. This principle was further
recognized in the 1966 International Covenant on Civil and Political Rights
(Article 7), the 1997 Oviedo Convention on Human Rights and Biomedicine,
and the 2005 Universal Declaration on Bioethics and Human Rights with
respect to any medical intervention.
Thus, the parental decision to vaccinate or not to vaccinate their children
at this stage of the formation of international human rights standards
can hardly be subject to peremptory inuence by the state. This situation
should be inuenced by strategies to popularize immunoprophylaxis,
prevent the spread of misleading or distorted information about the “harm”
of vaccination, and spread reliable information about its importance in
preventing or eliminating a number of deadly infectious diseases altogether.
What is indisputable is that in doing so, a ne line must be preserved
between the needs of the entire state to ensure the health of its people
and the boundaries of each individual’s private life, rights and legitimate
interests.
Thus, in the absence of an opportunity to eectively address the issue
of parental violation of children’s rights and the violation by such actions
of everyone’s right to a safe environment and sanitary and epidemic well-
being, other aspects of this issue are worth considering. There are at least
two issues that fall within the realm of age discrimination, which arise
precisely on the basis of the “anti-vaccination” behavior of parents.
The rst is the issue of protecting children who cannot be vaccinated
for various reasons (health status, immunosuppressive therapy, newborn
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Social and legal problems of discrimination by age in the medical eld
period, lack of vaccines, etc.), and which ones are most in need of protection
through collective immunity. The second is the normative prohibition of
unvaccinated children from attending childcare (educational institutions),
which is prevalent in a number of European countries.
Regarding the rst issue, it was the need to develop collective immunity
to protect the small proportion of persons who are contraindicated by
vaccination that led to the development and adoption of the famous
“Lorenzini Law” prohibiting children from attending school without
vaccination (Lege Vaccini, 2021). The information spread about a case
where an eight-year-old child could not attend school in Rome because of
a weak immune system. After long-term treatment for leukaemia, the child
was at risk of infection because a percentage of the students at the school
had not been vaccinated, including several children in the same class.
It appears that in a state governed by the rule of law, in civil society,
in a world that seeks to spread the ideas of justice, equality, tolerance,
and the rule of human rights, this kind of discrimination is perhaps the
most inhumane. Considering this, it is important to understand that when
we are talking about diseases that are transmitted from person to person
(anthroponoses), especially if transmission occurs through airborne
droplets, it is by no means a personal matter of an individual.
The conrmation of the unacceptability of such an approach can be
seen even in those ECtHR decisions that generally uphold the idea of self-
determination in medical care. Thus, in the case of Jehovah’s Witnesses of
Moscow and Others v. Russia (Application no. 302/02) (2010) the ECtHR
on the basis of analysis of national practice noted:
Although the public interest in preserving the life or health of a patient was
undoubtedly legitimate and very strong, it had to yield to the patient’s stronger
interest in directing the course of his or her own life ... free choice and self-
determination were themselves fundamental constituents of life and that, absent
any indication of the need to protect third parties – for example, mandatory
vaccination during an epidemic, the State must abstain from interfering with the
individual freedom of choice in the sphere of health care, for such interference can
only lessen and not enhance the value of life (ECHR, n.d.).
Thus, in this case the scales of justice tipped in the direction of the
decision to protect human rights, namely his right to dispose of his life and
health.
An extremely important event precisely in relation to the debate on
compulsory vaccination marked the current 2021, namely: The Grand
Chamber of the European Court of Human Rights (by a vote of 16 to 1) ruled
on April 8, 2021, in the case of Vavřička and Others v. the Czech Republic
(Applications nos. 47621/13 and 5 others). Notably, for the rst time,
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Vol. 40 Nº 74 (2022): 704-721
the European Court ruled on compulsory vaccination against childhood
diseases that are well-known to medical science (Court’s rst judgment on
compulsory childhood vaccination: no violation of the Convention, n.d),
and the Court found no violation of Article 8 of the Convention.
The Court determined that the purpose of the Czech legislation is to
protect against diseases that may pose a serious health risk. This applies
both to those who receive appropriate vaccinations and to those who
cannot be vaccinated and thus are in a state of vulnerability, relying on the
achievement of a high level of vaccination in society as a whole to protect
against contagious diseases. This goal is consistent with the public health
and the protection of the rights of others as recognized by Article 8 of the
Convention (Q&A on the case of Vavřička and Others v. the Czech Republic,
2021).
The Court’s interpretation of Article 2 (right to life) and 8 (right to respect
for private life) of the Convention as a positive obligation of states to take
appropriate measures to protect the life and health of individuals within
their jurisdiction requires particular attention. In the Czech Republic, the
obligation to vaccinate represents the national authorities’ response to an
urgent social need for protection against any downward trend in vaccination
rates among children.
According to judicial practice, children’s best interests are paramount
in all decisions concerning them. It follows that states have an obligation
to place the interests of the child, as well as those of children as a group,
at the center of all decisions aecting their health and development. About
immunizations, the aim should be to protect every child from serious
diseases.
In most cases, children who receive a full immunization schedule during
their rst years of life achieve this. Those who cannot be administered such
treatment are indirectly protected from contagious diseases if the necessary
level of vaccination coverage is maintained in their community; that is,
protection occurs from collective immunity. This health policy is based on
appropriate arguments and as such is consistent with the best interests of
targeted children.
In the Court’s view, it cannot be seen as disproportionate for the State to
require those for whom vaccination poses a remote health risk to accept this
commonly used protective measure as a legal obligation and in the name of
social solidarity for the sake of the small number of vulnerable children who
cannot benet from vaccination. The Court concluded that it was a valid
and legitimate decision for the Czech legislature to make this choice, which
is fully consistent with the public health rationale.
The decision under consideration also relates to the other issues
highlighted above in the area of age discrimination in the medical eld,
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Nataliia Gren, Olena Hutsuliak, Ruslana Dostdar, Ivan Peresh y Vadym Roshkanyuk
Social and legal problems of discrimination by age in the medical eld
which arises from parents’ refusal to vaccinate their children, namely the
non-admission of such children to pre-school educational institutions. The
ECtHR considers that this “means the loss of an important opportunity to
develop their personalities. But it was a consequence (clearly provided for
in the legislative texts) of the parents’ choice to decline to comply with a
legal duty, which was aimed at the health of young children and had an
essentially preventive rather than punitive character”.
In other words, limiting the ability of unvaccinated children to exercise
their right to education specically in full-time form (provided they retain
access to other forms of education) seems justied. However, such measures
are extremely traumatic specically for the child, who faces the inability
to attend school with his peers, and therefore feels dierent, dangerous,
and perhaps even “contagious” (given how cruel children are sometimes,
and how they are not fully aware of the nature of the issue, which has been
dicult even for adults to perceive and correctly interpret the ban by his/
her classmates to study together with all because of the danger of contagious
diseases).
It seems that the entire world community must now unite to minimize
the manifestations of the anti-vaccine movement and make its supporters
aware of how they, by their own actions, are contributing to the violation of
the rights and discrimination of their children, and what consequences this
will have on their health, both physical and psychological.
Thus, we cannot speak of discrimination against those who oppose
vaccination, if only because every rejection increases the likelihood of the
entire human civilization being killed by a deadly disease.
Whether discrimination is a factor that aects human life solely in the
social aspect is evidently not. Finally, discrimination on any basis negatively
aects a person’s social standing, as well as causes severe psychological and
physical consequences.
Researchers have examined the hypothesis that psychological distress
through perceived discrimination can lead to chronic pain, where perceived
discrimination is based on age, gender, race, ethnicity, disability, sexual
orientation, height/weight, religion and other characteristics.
Using a sample of 1,908 people in the U.S., they found statistically
signicant relationships between perceived daily discrimination and
psychological distress, between lifetime discrimination and psychological
distress, and between psychological distress and chronic pain. Overall,
experts estimated that 4.1 million people in the United States in 2016, aged
40 and older, experience chronic pain caused by increased psychological
distress, where psychological distress has increased through perceived
discrimination (Brown et al., 2018).
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Discrimination is neither age, nor social status, nor a certain color. It is a
destructive restriction of human rights and freedoms in society. In fact, this
does not only apply to the elderly. It also applies to adolescent behavior.
Perceptions of discrimination are associated with more depressive and
internal symptoms; greater psychological distress; lower self-esteem;
weaker academic achievement and inclusion in the educational process;
less academic motivation; greater involvement in risky sexual behavior
and drug abuse; and greater association with deviant peers (Benner et al.,
2018).
Conclusion
The age of digital society dictates its own rigid rules for the survival of
human civilization. More and more often in today’s world, one person’s
interests are being sacriced for common interests, infringing on his
personal and professional life. Discrimination extends to almost all aspects
of human life. Age discrimination is a common form of discrimination. The
eld of medicine, as one of the most important to ensure the continuation of
human life, is also subject to discrimination. In the medical eld, it aects
both medical personnel and patients.
Since a person’s life consists not only of ensuring his vital activity as
a living organism, but also as a representative of society, his professional
activity, and social life are also important. Discrimination in the labor
sphere is associated with age in all professions. However, medical workers,
given a longer period of training than other professionals, have the problem
of insucient period of professional realization.
The typical agism policy includes the requirement to test an older
physician’s competence or skills without objective, reasonable methods;
inquiries on disability; or requiring an employee to undergo a physical,
medical, or cognitive examination without reasonable belief or justication
that the physician cannot perform the essential functions of his or her job.
The motivation is the assumption that aging is associated with a decline
in cognitive abilities and other functions, and proponents of age-based
screening programs argue that assessments are necessary to protect patient
safety. However, this policy is opposed to age discrimination, is considered
illegitimate, and patient safety should be addressed with a more exible,
individualized approach.
Discrimination against elderly patients is manifested through the
treatment with less respect and courtesy and providing a worse level of
services in medical institutions. Discrimination against paediatric patients
occurs due to their lack of legal opportunity to express their opinion
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Nataliia Gren, Olena Hutsuliak, Ruslana Dostdar, Ivan Peresh y Vadym Roshkanyuk
Social and legal problems of discrimination by age in the medical eld
regarding voluntary consent/refusal to receive treatment since only legal
representatives have this right until children reach the age of majority
(particularly in countries such as Cyprus, Croatia, Estonia, Finland, France,
Greece, Italy, Latvia, Portugal, Romania, and Slovenia).
The refusal of a child’s legal representatives to vaccinate also creates a
legal conict between the right to privacy and the right to life and health
of the child. Discrimination, in this case, consists in the lack of immune
protection and in counteracting socialization through the normative
prohibition of unvaccinated children from attending children’s institutions
(educational institutions). The latter general peremptory norm also
discriminates against individuals who are medically prohibited from being
vaccinated, although it is justied in the context of protecting public health.
Issues of age discrimination in the medical eld should be further
studied in order to develop practical, eective methods to combat ageism,
since its existence is unacceptable in today’s civilized society.
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Esta revista fue editada en formato digital y publicada
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Universidad del Zulia. Maracaibo-Venezuela
Vol.40 Nº 74
