Public Lecture, 22 October 2015

1. Challenges to the Right to
Health Care. A Comparative
Perspective.
André den Exter

2. 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?

3. 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

4. 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’

5. 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)

6. The Justiciability of Health Care Access: Case
studies at the European Human Rights Court
Medical 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

7. The Justiciability of Health Care Access: Rationing
by 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):

8. The Justiciability of Health Care Access (2): Tragic
cases
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 & Rationing
Procedure

9. 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 moral
dilemmas
 Importance of professional guidelines/protocols, adressing
both clinical and cost-effectiveness & human rights arguments
 Fair rationing

10. Relevance to Ukraine?

11. 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
/
Contact: denexter@bmg.eur.nl