2003/06/04 - Pl. ÚS 14/02: Free Health Care

04 June 2003

HEADNOTES

The

contested provision clearly applies only to items mutually connected as

part of payment-free health care, i.e., items which, under the heading

of § 11 para. 1 let. d) fall under “health care without direct payment,

if … they were provided within the scope and under the conditions

provided by this Act.” The ban on accepting direct payment thus applies,

above all, to the performance of  payment-free health care itself. This

follows from the wording of the Act: “for this health care”; from the

previous sentence it is undisputed that “this” care means “health care

without direct payment,” and no other. The ban also applies to

connection with the provision of this care, i.e. again payment-free

care. However, the text of the Act also indicates that nothing prevents

collecting direct payment from insured persons for health care provided

beyond the framework of conditions for payment-free care. In the

Constitutional Court’s opinion, the contested provision does not change

the purpose and meaning of the Act, but only emphasizes protection of

the sphere of payment-free health care from attempts to infringe on its

integrity and narrow its scope. This interpretation is constitutional

and quite proportionate to the meaning of the Act.




CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC


The

Plenum of the Constitutional Court decided today in the matter of a

petition from a group of deputies of the Chamber of Deputies of the

Parliament of the Czech Republic to annul part of the second sentence of

§ 11 para. 1 let. d) of Act no. 48/1997 Coll., on Public Health

Insurance and Amending and Supplementing Some Related Acts, as amended

by later regulations, expressed by the words “or in connection with the

provision of that care”, as follows:
 

The petition is denied.
 



REASONING
 

I.
 

On

17 May 2002 the Constitutional Court received a petition from a group

of deputies, dated 14 May 2002, to annul part of the second sentence of §

11 para. 1 let. d) of Act no. 48/1997 Coll., on Public Health Insurance

and Amending and Supplementing Some Related Acts, as amended by later

regulations (the “Public Health Insurance Act”), expressed by the words

“or in connection with the provision of that care.”
 

The

Constitutional Court determined from the attached page with signatures

of the deputies that the conditions specified in § 64 para. 1 let. b) of

Act no. 182/1993 Coll., on the Constitutional Court, as amended by

later regulations, (the “Constitutional Court Act”) have been met, and

the petition was signed by 54 deputies. Deputy Marek Benda was appointed

as the petitioners’ representative in proceedings before the

Constitutional Court. After removing certain formal defects in the

petition, which was done by a filing from the petitioners’

representative that the Constitutional Court received on 11 July 2002,

the Constitutional Court could consider the substance of the petition.
 

The

group of deputies is of the opinion that the contested provision of the

Act is inconsistent with Art. 3 para. 3, Art. 4 para. 4, Art. 26 and

Art. 31 of the Charter of Fundamental Rights and Freedoms. To begin with

the petitioners pointed out that in their opinion the contested

provision reaches into issues which stand apart the area of regulation

of the act on general health insurance (they pointed in particular to

its § 1). They allege that the provision has no direct connection to the

other parts of the Act and in practice rules out the provision of

health care and services which are not covered by public health

insurance funds.
 

The

petitioner see inconsistency with Art. 26 para. 1 of the Charter of

Fundamental Rights and Freedoms in the fact that the enumerated group of

persons (doctors or other expert health care workers, health care

facilities) is forbidden to receive payment from another group of

persons (the insured) for care or services provided which are not

covered by general health insurance, if they are connected to the

provision of health care which is covered by that insurance. This

allegedly leads to considerable limitation of the provision of health

care. Under Art. 26 para. 2 of the Charter of Fundamental Rights and

Freedoms, a statute may set conditions and limitations on the exercise

of certain professions or activities, but according to the petitioners

the contested provision interferes in these rights in a manner

inconsistent with Art. 4 para. 4 of the Charter of Fundamental Rights

and Freedoms, not preserving their essence and significance. If a person

is authorized to provide health care, and if there is, in addition to

health care fully covered by general health insurance, also care not

covered by this insurance, they say it practically rules out the right

to conduct business if we prevent that person from accepting payment for

that care, if it was provided to a person insured by public health

insurance and if it is connected to the provision of health care which

is covered by general health insurance. Thus, the contested provision

allegedly also de facto rules out the operation of health care

facilities which are not in a contractual relationship with health

insurance companies.
 

Concerning

the contested provision’s claimed inconsistency with Art. 31 of the

Charter of Fundamental Rights and Freedoms, the petitioners stated that

the ban on accepting payment for providing health care or services not

covered by public health insurance also leads to limiting the health

care offered to citizens – insured persons – whereby, according to the

petitioners, they are prevented from exercising their right to

protection of health, enshrined in the cited article of the Charter of

Fundamental Rights and Freedoms.
 

The

petitioners also stated that certain procedures, measures, healing

preparations, or health care aids are not covered by public health

insurance at all (e.g. acupuncture), some only in a limited number (e.g.

care connected to extra-uterine pregnancy a maximum of three times in

one’s life), and some only partially (75% of the price for certain

health care technology means). In some cases only “basic” health care is

covered (e.g. the economically least demanding version of the health

care means). Thus, the Act defines payment-free care under Art. 31 of

the Charter of Fundamental Rights and Freedoms, but according to the

petitioners the contested provision forbids health care facilities to

accept payment from an insured person for care not included in that

payment-free care, if it is connected with the provision of covered

care. In terms of the “intensity of connection” (cf. the contested text

“or in connection with the provision of that care”) the petitioners

divided this connected care or services into the following categories:

- inseparable care (cases where the Act provides only partial coverage

by public health insurance, e.g. by a percentage, common in, for

example, dentistry)
- closely connected care (a suitable preparation

or treatment method exists for improving or maintaining a patient’s

state of health which is not covered by public health insurance, or a

certain basic health care is covered, but health care of higher quality

is available in the alternative, but is not covered)
- connected

care (the insured person wishes to arrange the provision of further

care, following the care covered by public health insurance, but this is

not covered)
- loosely connected care (a health care facility

provides health care covered by public health insurance, which is

connected to the provision of other, non-covered services – e.g. spa

care, with “contributory” spa care only the treatment procedures are

covered, not housing and meals).

According to the petitioners,

it is evident from the foregoing that “connections of various types of

intensity undoubtedly existing between care covered by public health

insurance and non-covered health care.” The level of payment for

non-covered health care or health care provided by a non-contractual

health facility is regulated under § 6 of Act no. 526/1990 Coll., on

Prices, as amended by later regulations, and is regularly updated in the

Bulletin of the Ministry of Finance under § 10 of that Act. Of course,

the contested provision permits accepting payment only in a case where

the provided care is not connected to covered health care.
 

The

petitioners concluded that they consider Art. 26 and Art. 31 of the

Charter of Fundamental Rights and Freedoms to be violated by a situation

where, in their opinion, a citizen, an insured person, practically has

no opportunity to decide on the manner in which he will care for his

health, and only because the method chosen by him is not fully covered

by public health insurance (either because payment is ruled out or

restricted, or because a given health care facility is not in a

contractual relationship with the appropriate health insurance company),

but is connected to care covered by that insurance. If the health care

facility chosen by the insured person nevertheless provides the service

and accepts payment for it, it breaks the law and exposes itself to the

penalty of having the authorization for its activity revoked.
 


II.
 

In

accordance with § 42 para. 3, 4 and § 69 of the Constitutional Court

Act, the Constitutional Court sent the petition in question to the

Chamber of Deputies and Senate of the Parliament of the Czech Republic

for position statements, and also requested a written position statement

from the Ministry of Health.

Statement of the Chamber of Deputies of the Parliament of the Czech Republic
 

The

statement of the Chamber of Deputies of the Parliament of the Czech

Republic of 20 September 2002, signed by its chairman, PhDr. Lubomír

Zaorálek, states that § 11 of the Public Health Insurance Act contains a

list of the rights of an insured person, which include the right to

health care without direct payment, if it was provided to him in a scope

and under conditions provided by that Act, which defines the scope and

conditions under which health care is provided. The Act provides which

health care is covered by public health insurance and which is not,

without forbidding direct payment. Thus, health care is provided without

direct payment or for partial payment, or – in the case of health care

not covered by health insurance – for full payment. In order to ensure

substantive performance in providing health care, health insurance

companies enter into contracts on the provision of health care with

health care facilities. In that case, the health care facility receives

payment from the health insurance company for the care provided. An item

of treatment is paid, and there is no room for further payments by the

insured persons.
 

In the

opinion of the Chamber of Deputies, the petitioners’ objection that the

contested provision rules out the operation of health care facilities

which are not in a contractual relationship with health insurance

companies is unjustified. Health care can also be provided by health

care facilities, which are not in a contractual relationship with a

health insurance company. Thus, health care providers can act as

entities conducting business independently, in their own name, on their

own responsibility, for purposes of achieving profits, and it is up to

the wishes and financial ability of citizens whether they choose such

health care facilities.
 

The

purpose of the contested provision, which forbids accepting payment from

the insured person in connection with providing health care which is,

by law, covered by public health insurance is to prevent a situation

where provision of this care would depend on the financial ability of

the insured person. In the opinion of the Chamber of Deputies, annulling

it would make room for medical facilities and doctors who are

contractually tied to a health insurance company to require various fees

(e.g. registration or entry) from insured persons for whom seeking

health care is not a choice but a necessity. This would deny the right

enshrined in Art. 31 of the Charter of Fundamental Rights and Freedoms,

as well as the purpose of the Public Health Insurance Act, which is

meant to secure it.

Statement of the Senate of the Parliament of the Czech Republic
 

The

statement of the Senate of the Parliament of the CR of 20 September

2002, signed by its chairman, Doc. JUDr. Petr Pithart, states that the

Senate discussed the draft amendment of the Public Health Insurance Act

(Act no. 2/1998 Coll.), which inserted the contested provision into this

Act, on 12 and 13 November 1997 at its 9th session in its 1st term of

office, and passed a resolution whereby it returned the draft to the

Chamber of Deputies with amending proposals. The Chamber of Deputies

discussed the returned amendment, and reconfirmed the originally passed

text. During discussion of the Act in Senate bodies there was, among

other things, discussion concerning the proposed treatment of § 11 para.

1 let. d). The result was passage of the “comprehensive” amending

proposal, in which the Senate addressed, in particular, the issue of the

legal certainty for persons who can be subject to penalties for

violating the cited provision. However, as far as the contested

provision is concerned, the Senate approved a text very similar to that

passed by the Chamber of Deputies and merely attempted a clearer

expression of its purpose (“a health care facility may not accept any

payment from the insured person for this health care or in direct

connection with providing that care”).
 

The

Senate approved this text of the amending proposal in the belief that

this text (and thus also the contested provision) was consistent with

The Constitution of the CR and the Charter of Fundamental Rights and

Freedoms. The Public Health Insurance Act distinguishes care which is

covered by health insurance, non-covered, and partially covered. In

those cases where care is covered, it strictly follows the wording of

Art. 31 of the Charter of Fundamental Rights and Freedoms, and does not

permit taking any payment whatsoever from insured persons for that care.

The definition of what is non-covered or partially covered care is

contained in other provisions of the Public Health Insurance Act.

According to the Senate’s statement, if the petitioners’ opinion, that

the contested provision forbids the relevant person from accepting

payment for providing health care or services not covered by public

health insurance, were correct, the second sentence of § 11 para. 1 let.

d) would have to read, for example, as follows: “A doctor or other

expert worker in health care or a health care facility may not accept

from an insured person any payment for health care covered by health

insurance, including payment for non-covered or partially covered health

care, even though that care is provided in connection with covered

care.”
 

The statement

concludes by stating that the Senate is not of the opinion that the

contested provision restricts the right to conduct business in health

care beyond the framework of constitutional possibilities; in this

regard the Senate also could not agree with the petitioners’ conclusions

that citizens are prevented from exercising, according to their wishes,

their right to protection of health under the cited article of the

Charter of Fundamental Rights and Freedoms.

Position of the Ministry of Health of the Czech Republic
 

In

its written position of 2 October 2002, the Ministry of Health stated,

in particular, that if an insured person is provided health care within

the scope and under the conditions provided by the Public Health

Insurance Act, the insured person has the right to receive this care

without direct payment. This right is “mirrored” by the obligation of

doctors, expert workers in health care and health care facilities to

refrain from conduct which would limit or negate this right. According

to the Ministry, there is no practical difference in the wording of the

contested provision, “for this care” and “in connection with providing

this care”; both are aimed at securing the insured person’s undisputed

right to health care without direct payment, if it is provided within

the scope of the Act. On the contrary, the Ministry of Health believes

that if the contested provision were annulled, and the text “or in

connection with providing this care” were deleted, this right of the

insured person could be relativized. The issues of direct payment of

provided health care are wider. This is a conceptual matter, exceeding

the provision of the Public Health Insurance Act and the petition from

the group of deputies. Therefore, the Ministry is of the opinion that

these questions should be addressed in the context of the entire health

care policy of the CR; therefore the petition to annul the contested

provision is, in that regard, non-systemic.
 

The

Ministry further noted that the contested provision does not rule out

providing health care which is not covered by public health insurance.

Nothing prevents taking payment for health care which exceeds the

definition in the Public Health Insurance Act. Likewise, according to

the Ministry, there is no inconsistency with the right to conduct

business and conduct economic activity. Non-state health care facilities

and doctors have the right to conduct business in accordance with Act

no. 160/1992 Coll., on Health Care in Non-State Health Care Facilities,

as amended by later regulations. However, according to the Ministry’s

position, collecting money from patients n the form of, e.g. various

entry or registration fees and sponsor gifts can not be considered

“doing business.” It can not agree that the provision in question rules

out the operation of health care facilities which are not in a

contractual relationship with a health insurance company. An insured

person is not entitled to health care covered by health insurance in any

health care facility whatsoever, but in a facility which has entered

into a contract with his health insurance company (an exception is the

provision of urgent health care).
 

Concerning

the division of care into “inseparable, closely connected, connected,

and loosely connected,” the Ministry stated that this is a misleading

and self-serving division. One must begin with the question of to what

extent and under what conditions health care is covered under the Act.

Its position further observes, concerning the “analysis of intensity,”

that the Act distinguishes partially covered care only for medications

and health care means in outpatient care. Co-payment for medications and

health care means in inpatient care is ruled out by the Act. With other

health care this care is paid fully or not paid (according to the

appropriate appendix to the Act).
 

According

to the Ministry of Health, doctors could understand deletion of the

contested provision of the Public Health Insurance Act to mean that it

is possible to collect money from patients without any limitations

whatsoever, whether for health care or connected care. If health care

standards existed and were published, and the Health Insurance Act

clearly provided that such standard care is covered by insurance and

that whatever exceeds the standard is subject to direct payment by the

insured person, the situation would be different. However, the problem

lies in the fact that no standards or standard medical procedures are

described anywhere, and if a doctor believes that a particular item of

health care provided is not covered by health insurance, because the

insurance company only covers a certain procedure, health care means or

medication, then the patient has no opportunity to verify whether that

really is so and what the insurance company actually covers. The

existing Act only states what kind of care is covered, not what

procedure that care is to be provided by or which medications or health

care means are to be used in providing it.
 


III.
 

The

Constitutional Court first, in accordance with § 68 para. 2 of the

Constitutional Court Act, reviewed whether the Act whose provisions the

petitioners claim to be unconstitutional was passed and issued within

the bounds of constitutionally provided jurisdiction and in a

constitutionally guaranteed manner. It is evident from the statements of

both houses of the Parliament of the Czech Republic, as well as from

the obtained Chamber of Deputies documents, information on the course of

voting and other accumulated materials, that the Public Health

Insurance Act, as well as the amendment which inserted the contested

provision into it (Act no. 2/1998 Coll., which amends and supplements

Act no. 48/1997 Coll., on Public Health Insurance and Amending and

Supplementing Some Related Acts, as amended by Act no. 242/1997 Coll.),

were passed and issued in a constitutionally prescribed manner and

within the bounds of constitutionally provided jurisdiction, and that

the quorums provided in Art. 39 para. 1 and 2 of the Constitution were

observed. The draft of the amendment to the Public Health Insurance Act

was returned by the Senate to the Chamber of Deputies with amending

proposals. The Chamber of Deputies discussed the returned draft on 2

December 1997 at its 17th session in its second term of office and

reconfirmed its originally passed version (out of 183 deputies present,

171 were in favor and 9 were against). Similarly, the Chamber of

Deputies at its 18th session on 13 January 1998 outvoted the veto of the

president of the republic, (out of 192 deputies present 114 were in

favor and 47 were against). For the sake of completeness, we can point

out here that the reasons for which the Act was returned by the Senate

and vetoed by the president of the republic basically did not concern

the substance of the contested provision.
 

The

petition from the group of deputies to annul the contested provision

did not receive the necessary majority of 9 votes, and as a result the

Constitutional Court denied it.
 

The

Public Health Insurance Act provides in § 11 para. 1 let. d) that an

insured person has a right to “health care without direct payment, if it

was provided in a scope and under conditions provided by this Act. A

doctor or other expert worker in health care may not receive any payment

from the insured person for this health care or in connection with

providing this health care.” In part five, in § 13 et seq. the Act

defines health care which is covered and not covered by health

insurance, and appendix 1 to the Act gives a list of health care items

not covered by health insurance or covered only under certain

conditions.
 

The petitioners,

requesting the annulment of part of the text of § 11 para. 1 let. d) of

the Act, the words “or in connection with providing this care,” take as

their starting point the fact that under the Act, apart from health

care fully covered by public health insurance, there is a whole series

of items, means, preparations, and services which are not covered at

all, or only partly, or only when conditions provided by the Act are

met. The petitioners believe that broadening the formulation of the ban

on receiving payment from the insured person for providing payment-free

health care with the words “or in connection with providing this care”

makes the text so general that it includes basically all health care,

including that which is not covered, which – in their opinion – will

lead to a situation where health care facilities, in order to avoid

suspicion of violating the principle of payment-free health care, will

also avoid such items, means and services as do not fall under the

concept of payment-free health care. In this conception, in the

petitioners’ opinion, the contested provision completely “rules out

providing health care and services which are not covered by general

health care insurance funds.” From there the petitioners then conclude

that there is violation both of the freedom to do business, guaranteed

by Art. 26 para. 1 of the Charter of Fundamental Rights and Freedoms,

and of everyone’s right to protection of health under Art. 31 of the

Charter of Fundamental Rights and Freedoms, because the insured person

does not have the right to decide on the manner in which he will care

for his health only because the manner he chooses is not fully covered

by public health insurance.
 

This

interpretation appears to the Constitutional Court to be completely

self-serving and disproportionate, as the contested provision clearly

applies only to items mutually connected as part of payment-free health

care, i.e., items which, under the heading of § 11 para. 1 let. d) fall

under “health care without direct payment, if they were provided within

the scope and under the conditions provided by this Act.” The ban on

accepting direct payment thus applies, above all, to the performance of

payment-free health care itself. This follows from the wording of the

Act: “for this health care”; from the previous sentence it is undisputed

that “this” care means “health care without direct payment,” and no

other. The ban also applies to connection with the provision of this

care, i.e. again payment-free care. However, the text of the Act also

indicates that nothing prevents collecting direct payment from insured

persons for health care provided beyond the framework of conditions for

payment-free care. In the Constitutional Court’s opinion, the contested

provision does not change the purpose and meaning of the Act, but only

emphasizes protection of the sphere of payment-free health care from

attempts to infringe on its integrity and narrow its scope. This

interpretation is constitutional and quite proportionate to the meaning

of the Act. As is known, if a constitutional interpretation of a

statutory provision is possible, the Constitutional Court gives it

priority over annulling the contested provision. That is the situation

in this case. The Constitutional Court is also of the opinion that the

contested provision does not address the question whether an insured

person is or is not supposed to contribute payment for health care

expenses or in what scope and in what circumstances he is to do so. That

is another area of the public health care issue.
 

The

Constitutional Court also did not find the contested provision to be

inconsistent with Article 26 para. 1 of the Charter of Fundamental

Rights and Freedoms, and inclined toward the position of the Ministry of

Health, which refers in this regard to protection of doctors’ freedom

to do business in accordance with Act no. 160/1992 Coll. Nor can we

agree that the contested provision rules out the operation of health

care facilities which are not in a contractual relationship with a

health insurance company. The insured person’s entitlement to

payment-free care, under the act on general health insurance, quite

naturally concerns care provided in a health care facility which has a

contract with a health insurance company.
 

After

the Constitutional Court determined that the reasons cited in the

submitted petition do not establish unconstitutionality of the contested

provision, it considered whether there are other reasons which would

justify the opinion that it is unconstitutional. It considered, above

all, the question whether the contested provision does not exceed the

framework of the constitutional authorization of Art. 31 of the Charter

of Fundamental Rights and Freedoms, under which citizens have a right,

on the basis of public insurance, to payment-free health care and to

health care aids under conditions specified by statute, i.e. in a scope

which maybe widened or narrowed by statute; only within the bounds of

that statute can one seek to enforce this constitutional right (Art. 41

of the Charter of Fundamental Rights and Freedoms). The Public Health

Insurance Act, as amended by later regulations, is undoubtedly such a

statute. Thus, on that basis, the provision on payment-free health care

covered by public insurance, completed with the phrase “or in connection

with providing this care,” is constitutional, as it is a specification

which, in scope, is only a detail in the overall framework of health

care and does not violate, but rather makes more precise, the principle

of payment-free health care under Art. 31 of the Charter of Fundamental

Rights and Freedoms. In view of its scope, the contested amendment also

can not be reinterpreted as if it represented considerable interference

with the principles of regulation of health insurance or as interference

with the proportionate equivalence of the protection of insured

persons. Deliberating the possibility that annulling the contested

provision of the Act might send a signal which would make easier the

reconstruction of payment-free care toward greater co-payments by

insured persons (e.g. payments for hospital food, for prescriptions, for

treatment items, and so on) appears to the Constitutional Court to

completely deviate from the task which is now before it in connection

with the petition from the group of deputies. The possible removal of

the amendment, as a sort of first step to changing the health care

policy of the state, would mean exceeding the jurisdiction of the

Constitutional Court in the direction of a constitutionally inadmissible

position of a “positive legislator,” an instigator of new regulations

regardless of the fact that the contested provision is consistent with

the Constitution. Such a step belongs on to the Parliament of the CR,

whose task it is to weigh the abilities of public funds and evaluate the

appropriateness of applying the principles of equivalence and

solidarity in the overall regulation of health care in a new situation.

In this situation, the Constitutional Court merely refers to its

judgment of 12 April 1995, file no. Pl. ÚS 12/94, promulgated under no.

92/1995 Coll., and also published in volume 3 of the Collection of

Decisions of the Constitutional Court on p. 123 et seq., and the

dissenting opinions attached to it.
 

The

Constitutional Court is aware that these questions are part of an

entire complex of public health care issues, which is based on certain

constitutional principles, and whose overall regulation should respond

to solutions which are current in the developed democratic states and

internationally agreed or recommended positions.
 

Therefore

the Constitutional Court also considered – peripherally – premises

which can, though indirectly, have an influence on the concept of the

individual provision which represents only a particular detail of the

overall regulation of general health insurance.
 

In

its deliberations, the Constitutional Court begins with the

constitutional concept of protection of health, which is enshrined in

Art. 6 para. 1 of the Charter of Fundamental Rights and Freedoms, under

which “everyone has the right to life,” and in Article 31 of the Charter

of Fundamental Rights and Freedoms, which reads: “Everyone has the

right to protection of health. Citizens have the right, on the basis of

public insurance, to payment-free health care and to health care aids,

under conditions provided by statute.”
 

The

statutory framework for providing health care also corresponds to the

Charter of Fundamental Rights and Freedoms. Act no. 20/1966 Coll., on

Care for the Health of the People, as amended, in Art. III begins with

the premise that a prerequisite for care for the health of the people is

“immediate application of the results of scientific research in

practice,” and provides in § 11 para. 1 that health care facilities

shall provide health care “in accordance with the currently available

knowledge of medical science.” Likewise, Act no. 123/2000 Coll., on

Health Care Means and Amending Certain Related Acts, also imposes an

obligation § 1 to provide health care “through suitable, safe and

effective health care means.”
 

This

sets, in accordance with constitutional principles, a developmental

trend for public health care toward quality, full-value and effective

care on the basis of the equality of all insured persons. For

constitutional and statutory principles this care can not be divided

into a kind of basic, “cheaper” but less appropriate and les effective

care, and an above-standard, “more expensive” but more suitable and more

effective one. The difference between standard and above-standard care

may not consist of differences in the suitability and effectiveness of

treatment. The law does not regulate what health care a doctor or health

care facility may provide, but what kind it must provide in the general

interest so that all insured persons have a right, in the same degree,

to such treatment and medication as meets their objectively determined

needs and the requirements of the appropriate level and of medical

ethics. Thus, the developmental orientation of health care, supported by

laws, is based not on shifting “better” items of health care from the

sphere of payment-free care into the sphere directly paid by insured

persons, but, in contrast, toward improving the items provided

payment-free from public health insurance. This concept also corresponds

to international conventions, such as the Convention on Human Rights

and Biomedicine, and recommendations, e.g. Recommendation Rec (2001)13,

of the Committee of Ministers of the Member States of the Council of

Europe, which was approved on 10 October 2001. The Committee of

Ministers emphasized that Article 3 of the Convention on Human Rights

and Biomedicine requires that entities concluding contracts on health

care ensure equal access to health care of appropriate quality. The

Constitutional Court adds that Article 4 of this Convention of also

imposes an obligation “to perform all measures in the area of care and

health in accordance with the appropriate professional obligations and

standards.” The Convention entered into force for the Czech Republic on 1

October 2001 (no. 96/2001 Coll. of International Agreements).
 

Appendix

1 to the Czech Public Health Insurance Act gives a list of health care

items not covered by health insurance or covered only under certain

conditions; appendix 2 part A gives a list of medicinal substances,

where it defines substances fully covered, partially covered, and not

covered by public insurance, and part B gives a list of substances with

limitations on indications and prescription. Appendix 3 contains lists

of health care technology means, not covered and covered by health

insurance, and appendix 4 concerns dentistry products identified to be

covered by an insurance company, or indicating the maximum amount of

coverage. It is evident from this regulation as well that the contested

provision of the Act does not and can not exclude from health care the

provision of services which are not covered by compulsory insurance.
 

It

can be acknowledged that the existing framework is not sufficiently

clear, so that an ordinary insured person can sometimes be asked for

direct payment even when it is not justified. If public health insurance

is to approach the European standard, it would evidently be necessary

for the Act to clearly and understandably define the possibilities for

private payment by insured persons, evidently similarly as in developed

European states, Germany, Switzerland, etc. For example, in Germany,

although around 10% of inhabitants have private insurance with

commercial insurance companies, the quality of private care is provided

on the same level as public health insurance and under common state-wide

directives. Public hospitals provide the same health care items,

including the same types of health care materials which are fixed to the

human body, e.g. endo-prostheses, both for privately insured persons

and for persons insured in statutory hospital insurance companies,

including the scheduling of patients for health care items according to

expert criteria, and not according to the ability to contribute to

payment. In public hospitals, a private patient or a publicly insured

person can order and separately pay for, as supplemental items and

services, only officially approved items with officially confirmed

prices, the provision of which does not affect the level of health, e.g.

special accommodations, food, choice of doctor or nurse, or a different

type of bandage or medication.
 

Nevertheless,

if we turn away from the overall issues of our health care and return

to the petition from the group of deputies, it is impossible not to see

that the contested provision of the amendment to the Czech Act concerns

only one problem, and a partial one, in the overall regulation of public

health care. Therefore, the task of the Constitutional Court is not to

evaluate this overall regulation of health care or the amendment of the

Act as a whole. The purpose of the contested provision is undoubtedly to

prevent the unlawful collection of money for those provided services

which are covered by compulsory, general health insurance, whether they

are various registration fees and administration fees or payments for

those types of health care and treatment items which are identified as

“better,” above-standard and more expensive, even though they fall into

the sphere of services fully covered by public health insurance.
 

After

reviewing the petition from the group of deputies the Constitutional

Court concluded, for all the foregoing reasons, that the petition to

annul the contested provision is not justified, and therefore denied it.

Notice: Decisions of the Constitutional Court can not be appealed.

Brno, 4 June 2003
 

 



Dissenting Opinion
of

Constitutional Court judges P.H., J.M. V.C., V.Č., V.G., J.M., A.P.,

filed under § 14 of Act no. 182/1993 Coll. to the Constitutional Court’s

judgment in the matter of the petition from a group of deputies of the

Chamber of Deputies of the Parliament of the Czech Republic to annul

part of the second sentence of § 11 para. 1 let. d) of Act no. 48/1997

Coll., on Public Health Insurance and Amending and Supplementing Some

Related Acts, as amended by later regulations, expressed by the words

“or in connection with providing this care.”

This dissenting

opinion, filed to the verdict of the judgment of the relevant minority,

which denies the petition from a group of deputies of the Chamber of

Deputies of the Parliament of the Czech Republic to annul part of the

second sentence of § 11 para. 1 let. d) of Act no. 48/1997 Coll., on

Public Health Insurance and Amending and Supplementing Some Related

Acts, as amended by later regulations, expressed by the words “or in

connection with providing this care,” is based on the following

arguments:
 

The decisive

reason for the relevant minority’s vote (see judgment file no. Pl. ÚS

3/96) is the statement that the cited statutory provision’s

inconsistency with Art. 26 and Art. 31 of the Charter, claimed by the

petition, misses the purpose and meaning of that provision. This is

because, as stated in the judgment’s reasoning in this regard, “the

contested provision only emphasizes protection of the sphere of

payment-free health care from attempts to infringe on its integrity and

narrow its scope,” and "the contested provision does not address the

question whether an insured person is or is not supposed to contribute

payment for health care expenses or in what scope and in what

circumstances he is to do so.  That is another area of the public health

care issue.”
 

The statutory

provision in question was incorporated into the Public Health Insurance

Act by an amendment passed under no. 2/1998 Coll., in the version

proposed by deputy Eva Fischerová on 17 October 1997 in the second

reading of the discussion of the government draft of the Act, which

amends and supplements Act no. 48/1997 Coll., on Public Health Insurance

and Amending and Supplementing Some Related Acts, in the Chamber of

Deputies of the Parliament of the Czech Republic. Deputy Fischerová

justified her proposal with these arguments: “No regulation addresses

the unlawfulness of the step of accepting payment in connection with

providing health care covered by public health insurance, in relation to

all health care facilities. It is these now so unpleasantly familiar,

psychologically extorted contributions to administration, so-called

“gifts” in direct relation to provided care, or fees for illegitimate

identification cards, which are required in amounts of 200-400 crowns,

or registration fees, which are illegally introduced in a number of

doctors’ practices. I am convinced that my proposal, which I am now

presenting, is not redundant. In a situation where doctors are called on

by their representatives to unlawfully require payment for care covered

by public health insurance or direct connection with this care, it is

necessary to use all opportunities to protect the constitutional rights

of citizens by establishing appropriate penalties, even if for a limited

period, in the amendment of Act no. 48 of 1997 Coll. Although the

rights of the insured citizen are enshrined in the legal norms which I

mentioned, the lack of penalties for accepting payment in Act no. 48

leads to a paradoxical, even absurd situation. To a certain extent

penalties are optional, in the sense of an authorization for health

insurance companies and state administration bodies, so that access to

health care can not become worse. In these cases, a state administration

body will be obliged to use its authorization to impose financial

penalties.”
 

The meaning and

aim of the statutory provision at issue thus became to remove the cited

unclear interpretative points in the existing regulation and to clearly

confirm that double payment for provided health care was ruled out. In

response to cases appearing in practice, this meant in particular double

payment for items which are not direct health care but are tied to it.
 

The

undersigned judges (the “judges”) fully agree with that part of the

judgment’s reasoning which interprets the contested provision in such a

way that it does not prevent collecting direct payment from insured

persons “for health [inserted by the judges] care provided above the

framework of conditions for payment-free care.” The distinction in the

Public Health Insurance Act between health care without direct payment

and health care with the possibility of such payment can be derived just

from the first sentence of the contested provision, and the amendment

in question only confirms that distinction. The judges are aware that

the petitioners claimed the contrary, and that thus the analysis in the

judgment’s reasoning convincingly and constitutionally contradicts their

claim.
 

However, the judges

point to the settled case law of the Constitutional Court, under which

this court is bound only by the proposed judgment, not the reasoning, of

the petition. They concluded that the contested provision is

inconsistent with Art. 31 of the Charter in connection with Art. 2 para.

2 of the Charter and Art. 1 para. 1 of the Constitution, for a

different reason than the petitioners claim.
 

Under

Art. 31 of the Charter, “everyone has the right to protection of

health. Citizens have the right, on the basis of public insurance, to

payment-free health care and to health care aids, under conditions

provided by statute.” This statute is Act no. 48/1997 Coll. on Public

Health Insurance (the “Act”), which governs public health insurance and

the scope and conditions under which health care is provided on the

basis of this Act (§ 1 of the Act).
 

The

Act creates for the citizen an obligatory insurance relationship, the

content of which is set by the Act. In setting the content of this

relationship, the legislature is bound by the constitutional order,

above all the substantive scope of the constitutional right to

protection of health. In regulating public health insurance this Act can

not exceed this substantive framework for “protection of health,” and

may regulate only the provision of care which serves for the “protection

of health” (a ban on arbitrariness). The insured person transfers to

the insurance company, for payment, risks which can arise to him through

danger to his health or infringement of his health. In contrast,

insurance premiums may not be used to pay things, steps, procedures, or

services which do not serve to protect the insured person’s health, but

to satisfy other needs, e.g. in securing living conditions.
 

The

contested provision is systemically placed in the part of the Act

“Rights and Obligations of the Insured Person.” One of the obligations

of the insured person is the obligation to pay premiums to the

appropriate health insurance company, unless this Act provides otherwise

[§ 12c)]. On the basis of the contested provision, the insured person

has the more detailed right to “health care without direct payment”

(“payment-free health care”). By amendment of no. 2/1998 Coll. the

contested provision was supplemented to the effect that in future one

can not accept any payment from the insured person not only for “payment

free health care” itself, but also “in connection with providing this

care,” i.e. in connection with providing payment-free health care.

Therefore, the decisive factor is that the care be provided in

connection with payment-free health care, without the contested

provision determining its nature in more detail. This leads to the

conclusion that the obligation is imposed for care to be provided which

is not “health care,” but is care provided by a health care facility in

connection with payment-free health care (e.g. providing food, or

cleaning). Other insured persons are also required by law to contribute

to this type of care.
 

This

type of payment-free care is a deviation from the constitutionally

protected right to protection of health. Art. 31 of the Charter gives

authorization for a statute to determine the conditions for providing

payment-free “health” care, not care which is not health care but is a

component of satisfying a person’s necessary needs independently of

protection of health. In this regard the statute exceeded the limits of

the constitutional order by making it impossible to collect from insured

persons direct payment for care which is not health care and which, in

and of itself, does not serve to protect the health of the insured

person. It thus creates non-objective and unreasonable differences

between insured persons to whom such payment-free non-health care is

provided and those insured persons to whom it is not provided, although

both categories are forced to satisfy the corresponding needs

independently of any simultaneously provided health care.
 

Even

if the legislature’s intent does not correspond to the foregoing

analysis of the contested provision, the judges emphasize that in the

case of a provision which implicitly imposes an obligation on an

individual (the obligation to contribute to payment-free non-health care

of other insured persons), one can not rely on ratio legis when

evaluation such a provision’s consistency with the constitutional order,

but it is necessary in the first place to take an objective analysis

into account (see also Art. 2 para. 3 of the Constitution). One of the

most important democratic European lawyers of the 20th century, Gustav

Radbruch, expressed, in this regard, the thesis of “content independence

of the law,” which fully applies to this case of the constitutionality

of part of the second sentence of § 11 para. 1 let. d) of Act no.

48/1997 Coll., on Public health Insurance, as amended by later

regulations: “The will of the legislature is not a method of analysis,

but the goal of analysis and the result of analysis, an expression for

the a priori necessity of systemically not inconsistent analysis of the

entire legal order. Therefore, one can state, as the will of the

legislature, something which was never present as the conscious will of

the author of a statute. An interpreter can understand a statute better

than its creator did; the statute may be wiser than its author – it must

be wiser than is author.” (G. Radbruch, Rechtsphilosophie.

Studienausgabe. Hrsg. R. Dreier, S. Paulson, Heidelberg 1999, p. 107.)
 

The

wording of the contested statutory provision thus opened the question

of payment for care other than health care, although connected to it,

from public (statutory) health insurance. It thereby opened the question

of the cited provision’s inconsistency with Art. 31 of the Charter,

which presumes only payment for items of health care from that type of

insurance. It must be emphasized that finding part of the second

sentence of § 11 para. 1 let. d) of Act no. 48/1997 Coll., on Public

Health Insurance, as amended by later regulations, to be inconsistent

with Art. 31 of the Charter does not automatically give rise to the

necessity of direct payments for acts other than items of health care,

but connected to them. The instrument of contractual insurance can be

considered a more standard approach to solving this problem.
 

The

Constitutional Court spoke on the constitutional safeguards of social

security primarily in its judgment in the matter Pl. ÚS 12/94. It said

the following: “ in all existing systems of social security, the

principles of solidarity and equivalence are represented in varying

degrees. Every system of social security brings with it the advantaging

of certain social groups, depending on whether the viewpoint of

solidarity is given preference or whether the principle of equivalence

is given priority. This is reserved to the legislature, which can not

proceed arbitrarily, but in setting preferences must take into account

the public values pursued.” In other words, the court provided that it

is the legislature’s obligation to transparently express the ratio of

the components of solidarity and equivalence in the social insurance

system (including health insurance). It also provided that this division

may not be arbitrary. In the opposite case, i.e. in the absence of the

element of equivalence, the institution loses its legal nature, cease to

be insurance, and acquires the character of a tax.
 

Thus,

Art. 31 of the Charter, in connection with Art. 41 and Art. 4 para. 4

of the Charter, gives rise to the insured person’s fundamental right for

a component of equivalence transparently determined by the legislature

in public health insurance, in such a degree as preserves the nature of

the legal institution of insurance and does not change it into a tax.
 

The

statutory provision contested by the petitioner does not meet these

constitutional safeguards. Not only does it make room for coverage of

care other than health care, even if connected to health care, by

statutory health insurance, but it does not, either in and of itself, or

in connection with other provisions of the Public Health Insurance Act,

contain a transparent delineation of the ratio of the components of

solidarity and equivalence from the viewpoint of covering items of

health care by public health insurance.
 

The

judges can not agree with that part of the judgment’s reasoning which

anticipates their dissenting opinion and gives it the function of a

signal which is to make easier “the reconstruction of payment-free

treatment toward greater co-payments by insured persons,” whereby it

allegedly exceeds the jurisdiction of the Constitutional Court “in the

direction of a constitutionally inadmissible position … regardless of

the fact that the contested provision is consistent with the

Constitution.” The dissenting opinion clearly indicates that, although

the subjective intent of the legislature apparently is in accordance

with the constitutional order, in contrast, the resulting objective

product of its legitimate intent is not consistent with the

constitutional order. The Constitutional Court is called on by the

Constitution to evaluate the constitutionality of valid

sub-constitutional regulations, not the aims which led to their being

passed. Therefore, the part of the sentence in the contested provision

expressed by the words “or in connection with providing this care”

should have been annulled.

Brno, 4 June 2003