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The Warsaw Voice » Law » June 3, 2009
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Litigating for the Right to Health
June 3, 2009   
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If newly adopted changes to the act on financing healthcare services from public funds are signed into law by the president, many Polish patients may well see a dramatic change in access to basic healthcare services. If you thought it couldn't get any worse in this field, the new law could be a sore disappointment. Quite soon litigating for the right to health may prove a must for large swathes of the community.

Scholars in health economics and law argue that government intervention in the healthcare market is the result of "market failure." In other words, this theory holds that while in most markets the plain rules of economics lead to socially acceptable results, in the healthcare market the "free hand of the market" does not distribute limited health resources in a socially acceptable way. Thus governments need to intervene to increase the economic efficiency of the market as well as to prevent social disaster. While the theory gives justification for intervention per se, it does not draw a clear line as to where intervention should stop. In other words, we have to decide as a society the extent of government intervention needed to produce the desired efficient and socially acceptable results.

Any economic analysis of this issue in Poland has to be conducted in the light of the constitution. It sets out a detailed list of citizens' rights with respect to healthcare services financed from the public purse. Article 68 of the Constitution states that: (1) Everyone shall have the right to have his/her health protected. (2) Equal access to healthcare services, financed from public funds, shall be ensured by public authorities to citizens, irrespective of their financial situation. The conditions for, and scope of, the provisions of services shall be established by statute.

In a judgment of the Constitutional Court of Jan. 7, 2007 the court explained the constitutional standard for equal access to healthcare financed from public funds. The court noted that the right to healthcare must be read in conjunction with the rule that human dignity is the source of all rights and freedoms. The court also confirmed the view it expressed in a previous ruling that the constitution actually created a substantive right to healthcare.

According to the court, the concept of equal access implies the following: (a) there must be a mechanism enabling the gathering and spending of resources for healthcare, (b) all financial resources must be actually available for all the citizens, (c) access to healthcare financed from public resources must be equal for all citizens irrespective of their financial standing-the scope of healthcare must be defined in detail in by statute, (d) the public authorities are obligated to ensure that the aforementioned standards of access to healthcare are achieved.

These legislative changes herald a sea-change in the healthcare system. Currently, all healthcare services not included in a so-called negative list attached to the act should be accessible to people covered by public health insurance. In future, only certain healthcare services included in a positive list in the Regulation of the Minister of Health will be financed or co-financed from public funds.

Satisfactory answers to a number of basic legal questions are however absent from the new act. The greatest concern is that the act does not clearly define the criteria on which the minister will decide what healthcare services are guaranteed and which should be either co-financed or fully paid by the patient. Further, the act does not provide for any specific legal instruments allowing individuals to claim certain healthcare services or verify the lists of "guaranteed services" enacted by the minister. In essence, the act does not allow for anyone to answer a very basic question: What healthcare services do I have the right to? And that is without stating the obvious-the list of "guaranteed healthcare services" will be included in regulations of the health minister, which may be changed at virtually any time. What's more, the act does not create any mechanism for those in special need-such as pensioners-to adapt to the new system.

These reasons and more beg the question: does this new law meet the standard set by the Constitutional Court? It's too early to proffer a definitive answer at this stage. Nonetheless, in the near future, courts at all levels will most probably be faced with pressing dilemmas presented by the chronically sick and dying, in search of treatment they cannot afford. The constitution will be invoked. Going to court to save your life-is this really the way we're heading?

Ernest Jędrzejewski senior associate at Salans
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