Is the sacrament anointing the sick without authorisation an infringement of the personal good?


In a judgment of 20 September 2013, II CSK 1/13, the Supreme Court addressed the problem of granting the sacrament of anointing the sick to a non-believer. The claimant was a patient at the Independent Public Clinical Hospital in the Cardiac Surgery Clinic. After the operation he was placed into a pharmacologically induced coma. Remaining in this state, he was granted the sacrament in question by a priest who was a chaplain contracted by the Hospital. The claimant learned about it while checking the medical documentation after leaving the hospital.


In the cassatory claim against the judgment of the Court of Appeals in Szczecin (which rejected his claim) the claimant alleged that the judgment infringes Articles 23 and 24 of the Civil Code (which define personal goods) and Articles 415 and 448 of the Civil Code (on redress for their violation).

Submitting a person to unacceptable religious practices is not, therefore, an insignificant, banal thing that does not deserve protection under Article 23 of the Civil Code.

The Supreme Court indicated, among other things, that the violation of the “freedom of religion” as a personal good occurs in the case of impeding or preventing someone from expressing his or her religious beliefs and following his or her religious practices. It takes place not only in the case of performing actions against him or her in the form of harassment in various spheres of social or professional life because of religious beliefs, but also in the case of imposing upon him or her an obligation to accept a particular religion or to perform certain religious practices. The same applies to submitting a person to actions in the form of religious practices against his or her will. Additionally, the Court accentuated also the duties arising from Article 57 Paragraph 2 of the Polish Constitution of 2 April 1997, and Articles 36 and 37 of the Act on the Rights of Patient and the Rights of Patients’ Representatives of 6 November 2008. Under these provisions, in the face of deterioration in a patient’s health or a life-threatening situation, the defendant, as a medical entity performing medical activity (such as stationary health services), was obliged to allow the patient to contact a cleric of his denomination.


Keeping these conclusions in mind, the Court pointed out that accepting a certain philosophy of life, which involves practicing a certain religion or refusing to practice that religion, and participating in actions that manifest that choice, is crucial for the sense of identity and for the sense of integrity between the values a person follows and to which his or her conduct corresponds.

According to the Court, for a believer being granted a sacrament is an act of major spiritual importance. An action by which the act is done does not become trivial and insignificant, when performed with respect to a non-believer who declares his or her opposition to it. Submitting a person to unacceptable religious practices is not, therefore, an insignificant, banal thing that does not deserve protection underArticle 23 of the Civil Code. The Court found the defendant’s position whereby according to statistics, 90% of the Polish population is catholic, to be erroneous.


Upon the grounds mentioned above, the Supreme Court quashed the sentence challenged by the claimant and returned the case to be heard again by the Court of Appeals. In its new judgment, the Court of Appeals found that the Independent Public Clinical Hospital had infringed the personal good of the defendant, though it did not agree to the sum of claimed (PLN 90 000, approximately 22 000 euro), instead awarding a lower compensation. The defendant announced it would be filing another cassatory claim.


Posted on by Joanna Buchalska in General Issues

About the author

Joanna Buchalska
Joanna Buchalska

Ph.D., a lecturer at Kozminski University and a supervisor of the Students’ Organisation “Actio Efficiens”; Judge's assistant in the Civil Chamber of the Supreme Court of the Republic of Poland; formerly a trainee in the DIPP Department in OHIM and a junior associate in a Polish leading patent, trademark and design law firm; she prepared her doctoral dissertation – “Invalidity and Cancelation of the Design Right”.