National Health Service user identity card.
RULING Nº 221/2009
5 of May of 2009
The rule that requires a National Health Service (SNS) user to pay for services provided solely because he has not fulfilled the burden on him to demonstrate that he holds a user’s card within ten days of being called on to pay the costs of healthcare, does not constitute a disproportionate restriction on the protection of health, and thus does not represent a breach of the constitutional right to health protection.
Under the terms of the applicable legislation, the representative of the Public Prosecutors’ Office at the Constitutional Court asked the Court to declare unconstitutional, with generally binding force, the rule set out in the legislation on the National Health Service user identity card that prohibits the charging of sums other than user charges for the provision of healthcare, when interpreted in such a way as to require payment for services provided solely because the user has not fulfilled the burden on him to demonstrate that he holds a user’s card within ten days of being called on to pay the costs of healthcare. The Constitutional Court had already held this interpretation to be materially unconstitutional in at least three concrete cases. The issues in this case were: whether it was possible to say that this interpretation was in conformity with the principle of a democratic state based on the rule of law and on respect for and the guarantee of the fundamental rights; the legal force which the Constitution gives to those rights; and the constitutional right to the protection of health.
When the National Health Service user identity card was created, the intention was to simplify people’s access to the National Health Service, without undermining the principles of the Service’s universality and fairness.
The idea was also to make it easier for people to provide proof of their identity when they use the health services, although the card was in fact identical to those that already existed for the users of health subsystems. So, according to the then current legislation, the card was to be optional and was designed to enable holders to prove their identity to both National Health Service institutions and services, and private bodies in the health field.
The legislation was subsequently changed to make it obligatory for users to present their identity card. Although the new text expressly states that a user’s failure to identify himself by means of the card can never lead to a refusal to provide healthcare, it does impose consequences for such failures: users who are not properly identified and do not prove, within ten days of being asked to pay the expenses of the healthcare provided, that they hold, or have applied for, a National Health Service user identity card, are now required to directly pay the expenses derived from the healthcare in question.
The Ruling emphasises that the provision of healthcare via the establishments and services that form part of the National Health Service (which is defined as a service that is universal in terms of the population it covers, and one that is designed to provide, or ensure the provision of, global care that is tendentially free of charge to users) constitutes the practical implementation of the constitutional right to the protection of health which, in this respect, possesses the nature of a social right that is, to a certain degree, normatively binding. This is an obligation with which the Constitution charges the state, as a means of implementing a fundamental right, and not a line of action whose nature is merely that of an element of a political programme.
The fact that this right to the protection of health possesses the nature of a constitutional rule which requires practical implementation means that it serves as a parameter for controlling the constitutionality of legal or regulatory measures that affect the right, or render it impossible to exercise. In this sense it is possible to say that rules concerning the provision of services by the state are unconstitutional if they violate either the minimum required content of a fundamental social right, or the innate constitutional principles applicable to a democratic state based on the rule of law – as would be the case if one were to unjustifiably restrict the scope of the right to be a beneficiary. The Ruling says that, in the case before the Court, the change which the legislative authorities made to the nature of the National Health Service user identity card – which made it go from being an alternative means of proving that a person was a beneficiary to being the only way for a person to identify himself to the health services, and that a person is thus liable to pay the costs of medical assistance if he does not prove, within ten days of being called on to do so, that he either holds the identity card or has applied for one from the services with the competence to issue it, and which concomitantly established the presumption that the interested party is not a National Health Service beneficiary – does not in itself affect the constitutional right to health protection. Instead, the Court considered that this legal requirement represents the imposition of a mere procedural condition on the exercise of the right in question, which enables health centres and establishments in the hospital network to control people’s access to the healthcare provided within the scope of the National Health Service.
In the Ruling that created the first jurisprudence on this matter and whose generalisation with generally binding force was requested by the Public Prosecutors’ Office in the present case, the Court had considered that a rule which requires a user who is lacking in financial resources to actually pay for clinical services provided, merely as a consequence of his failure to fulfil a manifestly secondary procedural or formal requirement, is incompatible with both the principle of proportionality and the universal and tendentially free nature of the National Health Service, which is itself an expression of the fact that the Constitution enshrines the right to health.
However, in the jurisprudence established by the present case, the Constitutional Court considered that the National Health Service is a public service which, as such, is subject to its own organisational and operational rules, which can be modified in the light of changes in the way in which, at any given moment in time, it is felt that this public interest should be pursued. The fact is that the users of a public service, be it free or fee-paying, are subject to the legal and regulatory rules on the conditions under which they gain access and use, such that in order to benefit from the advantages offered by the service, they must fulfil the corresponding duties, burdens and requirements. There is therefore no justification for talking in this respect about a principle of guilt, as if one were dealing with a question of civil, criminal or administrative liability.
Private individuals who wish to gain access to the goods or services provided by the Public Administration place themselves in a special legal situation that is derived from the relationship involved in the use of a public service. This relationship presupposes that the individuals concerned possess corresponding rights on the one hand, but are also simultaneously placed in legal positions which result from the law, regulations or the mere exercise of legal/public powers to regulate, and which entail equally corresponding “disadvantages” or burdens that constitute the counterpoint to the benefits that can be obtained via the practise of an administrative activity that is in the general interest. As such, the legal consequences that arise from a user’s failure to fulfil any of the duties or requirements to which he is subject, are not dependent or any prior finding of wrongdoing (unless the law itself lays down criteria for so classifying a private individual’s behaviour) and are a mere objective product of the organisational and operational scheme of the service in question, as set out in the applicable legal rules.
The Constitutional Court thus concluded that the rule before it should not be declared unconstitutional.
The Ruling was the object of five dissenting votes, including that of the President of the Court (cases involving the generalisation of existing jurisprudence are subject to the procedure applicable to the successive abstract review of constitutionality, which requires that the Constitutional Court sit in plenary). With the exception of one of the dissenting opinions, which also mentions the question of determining the extent of the Court’s powers to address particular issues in cases concerning the “generalisation of rulings of unconstitutionality”, all the opinions are essentially based on a violation of the principle of proportionality that ought to be observed in matters involving a restriction of fundamental rights, which, according to the dissenters, is not observed if one accepts this interpretation of the rule in question. The dissenting opinions emphasise that that which is at stake is not the obligatory nature of the requirement to present the card, but rather the fact that there must be a guarantee that the user is aware that such presentation is a condition for exemption from payment for the service. Users are not told that they have to present the card or prove they have applied for one. The Public Administration simply sends them a notification to pay the costs of providing the healthcare services; and the fact that the private individual in question does not receive the payment demand through no fault of his own has no effect on the imposition of the ensuing consequences. The fact that that which the beneficiary of the healthcare may be asked to do may not be very burdensome, does not obviate the disproportionate nature of the consequences of failing to comply with the rule, especially when the beneficiary was not informed of those consequences, and/or when there is proof that he did not receive the payment demand through no fault of his own. Bearing in mind that that which is at stake is the exercise of a fundamental social right as important as is the right to the protection of health, the dissenting Justices considered that conditioning that exercise by imposing a procedural burden, in which failure to fulfil that burden is linked, no more no less, to the pure and simple prevention of the exercise of the right in question, cannot but be deemed a flagrant violation of the principle of proportionality when restrictions or conditions are imposed on a right that is both tendentially free and enshrined by the Constitution. They considered that the rule does not fulfil the requirement of need (the Public Administration can control a user’s entitlement to the services of the National Health Service via computerised databases); and that the extremely serious nature of the consequences (having to pay the full costs of hospital assistance) is disproportionate to the much less serious nature of any lack of procedural cooperation by the interested party.