Czech Conmstitutional Court, Pl. ÚS 1/08, Stabilization of Public Budget - Health Care Fees

The petitioners sought to annul a statutory provision which imposed an obligation of a patient to
pay 30 CZK „regulation fee“ when seeing a doctor. They argued it violated the right to free health
care (based on a systém of public health insurance) under art. 31 of the Czech Charter of
Fundamental Rights and Freedoms.

(…)

97.

Social rights, or rights connected with the provision of medical care, were not introduced in
European constitutions until the 20th century. It first happened in the so-called Stalinist
Constitution of the Unions of Soviet Socialist Republics, adopted by the 8th Extraordinary Congress
of Soviets of the USSR on 5 December 1936, or in Chapter X, Art. 120. Under that article, “Citizens
of the USSR have the right to materiál security in old age, as well as in case of illness and
invalidity. This right is secured by the extensive development of social insurance of workers and
employees on the state account, payment free doctor’s help for workers, and an extensive network of
spas that are available for use by the working people.” (Cf. the translation in K. Malý, Prameny ke
studiu dějin státu a práva socialistických zemí I. SSSR 1917-1945 [Sources for the Study of the
History of the State and Law in Socialist Countries I. USSR 1917-1945], Praha 1987, p. 128) The
cited Stalinist Constitution from 1936 also enshrined the principle that “In the USSR, work is the
obligation and honor of every citizen capable of work, on the principle: ‘He who doesn’t work, let
him not eat!’” Legal history judges the provisions of the Constitution on Social Rights from 1936
to the effect that “it was an expression of the endless insolence of communist propaganda, which
successfully confused the world’s democratic and, especially, anti-fascist public (including
through this constitution, promoted as a true picture of the Soviet environment). None of these
provisions had an appropriate real effect; everything was cruelly inconsistent, not only with the
reality of practice, but mostly also with the relevant statutory or sub-statutory regulations” (cf.
D. Pelikán, Dějiny ruského práva [History of Russian Law], C.K. Beck [sic, should be C.H.] , Praha
2000, p. 77). In the Czech lands the right to protection of health was first enshrined in § 29 par.
13 of the Constitution of the Czechoslovak Republic no. 150/1948 Coll. (the “1948 Constitution”).

The cited § 29 of the 1948 Constitution read: (1) Everyone has a right to protection of health. All
citizens have a right to medical care and for security in old age as well as during incapacity to
work and inability to support themselves. (3) These rights are ensured by laws on national
insurance, as well as by public health and social care. The adoption of this provision was preceded
by formulation of the principles of health care policy in the Košice government program and the
program of the government created in the 1946 elections. “The health care policy of the most
influential party (the Communist Party) was in large part based on projects developed during the
war by communist doctors. It vehemently promoted Soviet models, although in a form modified in the
spirit of central European traditions of social medicine (cf. Svobodný, Hlaváčková, Dějiny
lékařství v českých zemích [History of Medicine in the Czech Lands], p. 219). Finally, from the
regulations preceding the current legal framework we must mention Art. 23 of the Constitution no.
100/1960 Coll., under which:

(1) All workers have the right to protection of health and to medical care, as well as the right to
material security in old age and during incapacity to work.

 (2) These rights are ensured by the care taken by the state and social organizations to prevent
illness, the entire organization of healthcare, the network of medical and social facilities, the
continually expanding payment-free medical care, as well as organize care for safety at work,
sickness insurance, and retirement security.”

However, in the year when Act no. 20/1966 Coll., on Care for the Health of the People, was adopted
“the proclamation that “the right to health care is one of the fundamental civil rights” expressed,
more than the real situation, only the wishes “of the party and the government.” In further
balancing in 1970 the leading figures in our health care recognized a number of problems that,
according to them, arose from long-term neglect of investment, the “inheritance” from the
capitalist economy, surviving features in the relationship between doctor and patient. It is
characteristic that most of the problems in the new health care systém were seen in the sphere of
economics, not politics (cf. Svobodný, Hlaváčková, Dějiny lékařství v českých zemích [History of
Medicine in the Czech Lands], p. 221). Expert medical literature considers the situation in health
care in the 1980s to have been critical, with reference to the fact that this was know by official
representatives and critics outside and inside the regime, including the speakers of Charter 77, in
documents on health care from the years 1983-1985.

98.

The Constitutional Court also considered the petitioners’ argument, presented at the hearing on 1
April 2008, that the framers of the Constitution, before adopting the Charter, weighed whether to
expressly include “payment-free” in Art. 31 of the Charter or not. According to the petitioners,
because the “payment-free” alternative was chosen, Art. 31 cannot be interpreted against its
meaning, in the spirit of the alternative that was, in the end, not chosen by the framers of the
Constitution.. The Constitutional Court notes that, especially in the area of social rights, under
certain conditions a conflict could arise between the will of the framers of the Constitution and
the political reality of the time. “If, in certain countries, a constitution does not correspond to
political reality, it is not because one or another institution or one or another form are not
viable, but because the spirit of that constitution is (temporarily) foreign to the political
conditions of a given country.” (B. Mirkine-Guetzevitch, Les Constitutions de ľ Europe nouvelle,
II. édition [The Constitutions of Modern Europe, 2nd edition], Paris 1930, p. 53).

99.

The Constitutional Court cannot fully agree with the petitioners’ claim

that a number of constitutions from European states enshrine the right

to …health care in various degrees. A comparative study shows that this

right tends to be constitutionally guaranteed in various degrees in the

constitutions of states that joined the European Union in 2004. The

right is not guaranteed, e.g., in the Netherlands or Sweden; in other

countries, e.g., France or Belgium, only a right to a doctor’s

assistance is guaranteed, but not a right to payment-free doctor’s

assistance. In this regard, mention is often made of the Italian

Constitution of 1947, which, in Art. 32 “guarantees free medical

treatment to the poor” (cf. the translation in: V. Klokočka, E.

Wagnerová, Ústavy států Evropské unie [The Constitutions of European

Union States], LINDE Praha 1997, p. 191). From a comparative standpoint,

the closest example to this matter is undoubtedly the Slovak one,

which, of course, the petitioners themselves point to, though with the

emphasis on the dissenting opinions of Judges Ludmila Gajdošíková and

Eduard Bárány. In the cited judgment, file no. Pl. ÚS 38/03 of 17 May

2004, no. 396/2004 Coll. with an analogous version of Art. 40 of the

Slovak Constitution and Art. 31 of the Czech Charter, the Constitutional

Court of the Slovak Republic ruled on an analogous petition concerning

“requiring payment for a certain part of the provision of health care

provided on the basis of health insurance, such as services and

activities which are closely related to health care provided on the

basis of health insurance, but are not an immediate component of it.”

The Constitutional Court notes that in the comparative law part the

cited judgment of the Constitutional Court of the Slovak Republic also

considered the arguments in the judgment of the Constitutional Court of

the Czech Republic no. Pl. ÚS 14/02. The Constitutional Court of the

Slovak Republic finally, in the statement of law of its judgment Pl. ÚS

no. 14/94 (promulgated as no. 396/2004 Coll.) stated the assumption that

“payment free care under Art. 40 of the Constitution has its “scope,”

i.e. that not everything is provided payment-free.”


100.

For legal philosophy considerations, the Constitutional Court turned

primarily to the field of medical ethics. Here it first states that the

Hippocratic oath addresses the ethical aspects of the exercise of the

medical profession, and the oath does not contain an obligation to

provide medical care payment-free. The Constitutional Court is aware of

the difference between ideal medicine, i.e. medical procedures in

accordance with the newest developments in science and technology and

available medicine, i.e., the situation in practical medicine. The

specialized literature states that in centuries of science and

technology the distance between ideal and available medicine has

increased. It concludes “we cannot assume that the mathematics of mercy

could permanently solve the conflict between ideal and available

medicine. This is because the initial weighing exchanged economic

problems for ethical ones …. The state’s economy is a limiting factor on

available medicine, not the only one, but unquestionably a significant

one. A wealthy state simply has the resources to reduce the conflict

between ideal and available medicine to the lowest possible level …. The

problem of ideal and available medicine really does not affect ‘only’

patients on dialysis, but in various forms and levels of urgency affects

absolutely everyone …. The society-wide permeation of this issue and

the required level of information are prerequisites for the purposeful

and effective engagement of healthy citizens to the benefit of the

needy” (cf. H. Haškovcová, Lékařská etika [Medical Ethics], Galén Praha

1994, pp. 81-89).


101.

 The Swiss essayist Jürgen Thorwald wrote on this topic that “doctors must

give politicians the correct numbers” (see J. Thorwald, Pacienti

[Patients], Osveta, Bratislava 1975). “The fundamental contradiction of

health care in the Czech Republic today is the ability to provide a

patient care at an international standard, but strongly limited by

financial possibilities” (see Svobodný, Hlaváčková, Dějiny lékařství v

českých zemích [The History of Medicine in the Czech Lands], p. 222).

The report “Economic Survey of the Czech Republic 2008” published by the

Organization for Economic Cooperation and Development (OECD) states

that “in the first phase of reform, small regulatory fees were

introduced, a step that the OECD recommended in its previous evaluation,

and which should help limit the need for health care” (see Policy

Brief, OECD, April 2008).


102.

For the foregoing reason, the Constitutional Court concluded that the

reasonableness test in the case of social law is methodically different

from a test that evaluates proportionality with fundamental rights,

“because social-economic aspects play a much greater role here.” The

rationality test, especially in a situation where the Constitutional

Court concluded that a judgment [sic – petition?] could be denied for

reasons of maintaining restraint, has a more orientational and

supportive role here.


103.

In combination with the requirements arising from Art. 4 par. 4 of the

Charter we can describe 4 steps leading to a conclusion that a statute

implementing constitutionally guaranteed social rights is or is not

constitutional:

1) defining the significance and essence of the social right, that is a certain essential content.
In the presently adjudicated matter, this core of a social right arises from Art. 31 of the Charter
in the context of Art. 4 par. 4 of the Charter.

2) evaluating whether the statute does not affect the very existence of the social right or its
actual implementation (essential content). If it does not affect the essential content of the
social right, then

3) evaluating whether the statutory framework pursues a legitimate aim; i.e. whether it does not
arbitrarily fundamentally lower the overal standard of fundamental rights, and, finally

4) weighing the question of whether the statutory means used to achieve it is reasonable
(rational), even if not necessarily the best, most suitable, most effective, or wisest.


104.

Only if it is determined in step 2) that the content of the statute interferes in the essential
content of a fundamental right should the proportionality test be applied; it would evaluate
whether the interference in the essential content of the right is based on the absolutely
exceptional current situation, which would justify such interference.


105. Thus, it follows from the nature of social rights that the legislature cannot deny their
existence and implementation, although it otherwise has wide scope for discretion.


106.

The essential content (core) of Art. 31, second sentence of the Charter is the constitutional
establishment of an obligatory system of public health insurance, which collects and cumulates
funds from individual subjects (payers) in order to reallocate them based on the solidarity
principle and permit them to be drawn by the needy, the ill, and the chronically ill. The
constitutional guarantee based on which payment-free health care is provided applies solely to the
sum of thus collected funds.


107. As indicated by the evidence presented, the fees introduced by the Act regulate access to
health care that is paid from public insurance, whereby they limit excessive use of it; the
consequence is to increase the probability that health care will reach those who are really ill.
Thus, through the fees, the legitimate aim of the legislature is met, without the means used
appearing unreasonable.

108. Therefore, the contested legal framework did not deny the essential content of the
constitutionally guaranteed fundamental right, as it was described above, and the statutory
framework did not deviate from pursuing a legitimate aim, and is not obviously unreasonable.
Therefore, we can conclude that the contested legal framework did not exceed the given criteria.


109. The Constitutional Court, applying the rationality test, evaluated the relationship between
Art. 31, which includes the right to protection of health and payment-free health care, with the
aims and purposes that the legislature held up for itself by adopting the contested legal
framework. In evaluating the suitability of the chosen institutions “one must conclude that the
state has an obligation to provide citizens sufficient protection from factors that endanger their
health and public health care“ (see K. Klíma and collective of authors, Komentář k Ústavě a Listině
[Commentary on the Constitution and the Charter], March 2005, p. 861). “The state’s obligation to
protect health and everyone’s right to protection of health also corresponds to everyone’s
obligation to respect measures adopted to protect health” (see V. Pavlíček and collective of
authors., Ústava a ústavní řád České republiky II. Práva a povinnosti, [The Constitution and
Constitutional Order of the Czech Republic II. Rights and Obligations] 2nd ed., Praha 1999, p.
251). The rationality test evaluates whether the contested legal framework does not bring
disproportionate, even if – as will be explained below – constitutional interference in the
relationships between the patient, the health care facility, and the health insurance company, to
which these parties became accustomed in the period before the present legal framework went into
effect.