Med. pravo., 2014; 2(14): 37-47
Jean Monnet Chair EU Health Law, Institute of Health Policy and Management, Erasmus University Rotterdam, Rotterdam, the Netherlands, and Visiting professor International Health law, Lviv National Medical University, Ukraine
Justiciability of the Right to Health Care
The term ‘justiciability’ refers to the ability to claim a remedy before an independent and impartial body when a violation of a (human) right has occurred or is likely to occur.1 In case of the right to health care, on several occasions, domestic and international courts held claims on health care access justiciable, providing an effective remedy to enforce its realization.2Nonetheless, courts recognize that the necessary means are not infinite. Therefore, concepts such as progressiveness, core obligations, proportionality, and the state’s margin of appreciation provide important tools to mitigate excessive health care claims. Hereafter, selected cases adjudicate the constitutionality of the right to health care or related rights-claims, such as the right to (private) life and equality; either or not by referring to international human rights treaties. The examples are merely illustrative for the - innovative - approach applied by the judiciary when reviewing the constitutionality of health insurance reforms, and in case of enforcing health care access, notably in case of access to new medical treatment methods and high-cost medicines.
Key words: health care, justiciability, access to health care
1. International Commission of Jurists, Courts and the Legal Enforcement of Economic, Social and Cultural Rights. Comparative experiences of justiciability, Geneva 2008, p.6.
2. Federal By-law on Health Insurance AS 2011 654 (Explanatory note), Art. 71a (3) KVV, reading.
3. A and others v. UWV, 18 October 2007 (ECLI-NL-CRVB-2007-BB6578) X v. CIZ, 9 May 2012 (ECLI-CRVB-2012-) X v. Agis, 6 June 2012 (ECLI-NL-CRVB-2012-BW7707)
4. A v. AchmeaZorgverzekeringen, 8 September 2006 (ECLI-NL-CRVB-AY8221) C. v. BAZ Nijmegen, 29 May 1996 (ECLI-NL-CRVB-1996-AL0666)20.In case of differential treatment of cost sharing. A v. NUTS, 13 December 2001 (ECLI-NL-CRVB-2001-AE8567).
5. X v. Maastricht, 14 December 2010 (ECLI-NL-CRVB-2010-BO6734).
6. ECrtHR App. no 30909-06, Panaitescu v Romania
7. ECrtHR App. no. 47039-11 and 358-12.