Risikovorsorge als Eingriff in das Recht auf körperliche Unversehrtheit Gesetzliche Erschwerung medizinischer Forschung aus Sicht des Patienten als Grundrechtsträger

The contemporary dogmatics of the administrative law of risk regulation aims at coping with uncertainty. A so-called »potential of concern« ascribed to modern technologies in general is identified as the relevant source of uncertainty. That potential is rationalized as the possibility of the existence of yet undiscovered harmful effects of a new technology. Claiming a potential of concern with respect to a specific technology is deemed to justify protective legislative measures that impair basic rights of companies involved in that technology. The essay argues that maintaining that doctrine correlatively requires considering potential harm caused in benefactors of new technologies by the pertinent protective legislative measures an impairment of the benefactors' basic rights. Specifically, an impairment of patients' right of physical integrity is present when risk regulation delays or prevents nanomedical research results and thus the availability of a new cure. Dogmatic consistency demands not to mistake the uncertainty of the success of medical research for an excuse to deny the rights-impairing character of retardant regulations. A genuinely endogenous nature of a disease will not negate the impairing character of retardant regulations. A present disease allows for a reliable prognosis of the manifestation of a disease in the next moment. The occurrence of a disease therefore is not merely a past and completed, thus unchangeable event. Rather, the disease renews itself from moment to moment and state action can prevent or cause such re-occurrence. State action causes the re-occurrence of a disease when risk regulation delays the recovery of a patient who would otherwise have benefitted from nanomedical research at an earlier point in time. At that specific point in time, the patient would be healthy in a situation without state interference; he will still be sick in the situation with legal interference by the state. Thus it can be said the state caused the patient's sickness at that specific point in time. Patients have access to judicial review of an overly prohibitive interpretation or application of risk regulating statutes if the pertinent statutes warrant a respective individual public right. The involvement of patients' basic right of physical integrity seems to make such warrant constitutionally mandatory. If the statute itself disproportionally puts the containment of the technological potential of concern over patients' interests, patients have access to judicial review by a constitutional court. The essay eventually argues that patients' associations should be granted a right of action even if there is no present violation of an individual's right. Such right of action would cover situations in which the fields of medical application of nanotechnology are still unknown, yet the delay of research results and thus the availability of a new cure seem possible.