access to health care kiev lecture 2015
TRANSCRIPT
Challenges to the Right to
Health Care. A Comparative
Perspective.
André den Exter
Outline
• Background
• Meaning of the Right to Health Care in International Law: Recent Developments
• The Right to Health Care in National law
• The Justiciability of Health Care Access: Case studies
• Future Challenges
• Relevance to the Ukraine?
Background
Economic crisis & Increase health care costs
Health care market reforms
Rationale
Health care access as a recognised human right
Litigating healthcare access
Rationing
Role of the Legislature
Meaning of the Right to Health Care in International Law: Recent Developments
Art. 12 (1) ICESCR ‘highest attainable standard of physical and mental health’
Art 12(2) ‘Steps to be taken to achieve the full realisation of this right, in particular ....’
General Comment on Health No. 14:- Minimum core obligations - Typology of obligations- AAAQ- Progressive realisation & no retrogressive measures
Monitoring health care access and ‘human rights indicators’
The Right to Health Care in National law: Global Trends
Constitutional / Statutory Right
Explicit or implicit recognition
Constitutional commitments:
- equitable distribution and non-discriminatory access
- treaty obligations outlined in international law
- irrespective the health care model
Monitoring and review system (accountability)
The Justiciability of Health Care Access: Case studies at the European Human Rights CourtMedical asylum seekers
D. v. UK, App. no. 30240/96 (St Kitts): Deportation AIDS infected patient subject to inhuman treatment?
Prisoners
G. v. France, App no. 27244/09: Lack specialized treatment/ psychiatric supervision and inappropriate conditions detention: Inhuman degrading treatment
Non-listed treatment methods
Panaitescu v Romania, App no 30909/06 (ECtHR, 10 April 2012): denial of life saving medicine; breach right to life
Hristozov v. Bulgaria, App no 47039/11 and 358/12 (ECtHR, 13 November 2012: no obligation to regulate access to unauthorised medicines
The Justiciability of Health Care Access: Rationingby national courts
UK: Swindon NHS Primary care Trust (Herceptin litigation)
Netherlands: Cost sharing under Health Insurance Act annuled under ILO Convention 102/ECSS provisions (29-5-1996, 8-9-2006)
Poland and Czech R.: Introduction HIS and Co-payments: (restricting benefits); (K 8/96, 275 and K7/95, 414; Pl. US 1/08, 23 September 2008)
Austria: Viagra and Human Rights; OGH (10 ObS 12/06x):
The Justiciability of Health Care Access (2): Tragiccases
New medical technologies and limited cost-effectiveness
Germany: BVG 6 Dec 2005 (Nikolaus Beschluss): lifesaving (experimental) medicine
‘Constitutional rights & likely positive effect on the course of the disease’
Switzerland: Fed. Supreme Crt. (Myozyme case), 23 Nov 2010
‘Cost-effectiveness threshold 100.000 CHF QALY’
Policy Implications: Transparent criteria & RationingProcedure
Future Challenges
Rationing and Role Judiciary
Innovative approach: Expanding definition human rights & measuring States’ progressive realisation
Court’s referral to and applying Oviedo Convention, art. 3
Role of the EU Court Justice and EU Human Rights Charter
Democratic debate on Rationing decision-making and moraldilemmas
Importance of professional guidelines/protocols, adressingboth clinical and cost-effectiveness & human rights arguments
Fair rationing
Relevance to Ukraine?
References
A. den Exter, Health care Law-making in CEE. Review of a Legal-
Theoretical Model, Maklu Press (2002)
A. den Exter and M. Buijsen (eds.), Rationing Health Care. Hard choices
and unavoidable trade-offs, Maklu Press (2010)
A. den Exter (ed). Compendium of European Health Law, Maklu Press
(2016)
/www.bmg.eur.nl/english/research/eu_projects/jean_monnet_programme
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Contact: [email protected]