The Constitutional Court found No 12 / 2024 Coll.
Findings of the Constitutional Court sp. zn.
Valid
12
FIND
The Constitutional Court
of 6 December 2023
sp. zn. Pl. ÚS 38 / 23 on the application for annulment of Sections 2 (2) (e) and 18a of Act No. 563 / 2004 Coll., on pedagogy workers and on the amendment of certain laws, as amended
On behalf of the Republic
On 6 December 2023, the Constitutional Court decided under point Pl.
as follows:
Motion denied.
Reasons
Subject matter and content of the application submitted
1. By a proposal pursuant to Article 87 (1) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution") and Article 64 (1) (b) of Act No. 182 / 1993 Coll., on the Constitutional Court, a group of 20 Senators (hereinafter referred to as "the draftsman") seeks the annulment of § 2 (2) (e) and § 18a of Act No. 563 / 2004 Coll., on pedagogic workers and on the amendment of certain laws, as amended, and Act No. 561 / 2004 Coll.
2. The appellant contends that the practice which the contested provisions establish (in the current legalisation of the alleged unlawful situation which will be discussed below) violates human rights enshrined in Articles 1 to 4 and 31 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter) and in Articles 1, 3 and 4 of the Convention for the Protection of Human Rights and the Dignity of Human Being in the context of the application of biology and medicine: the Convention on Human Rights and Biomedicine (hereinafter referred to as "the Convention on Human Rights and Biomedicine 'or" the Convention').
3. The contested legal provisions are also in conflict with a number of other legal provisions, whether contained in Act No. 372 / 2011 Coll., on health services and the conditions for their provision (Health Services Act), as amended, ("the Law on Health Services'), in Act No. 96 / 2004 Coll., on the conditions for obtaining and recognising eligibility for the performance of non-medical health professions and for the performance of activities related to the provision of health care and on the amendment of certain related laws (" the Law on non-medical health professions', or "Law No 96 / 2004 Coll. '), or in other legislation listed below.
4. The draftsman states that loopedia is a purely medical field in civilised countries and based on widely accepted medical knowledge. According to the legislation applicable and effective at the time of this proposal, this was also the case in the Czech Republic. Logopedia is an indivisible and one only field, and therefore the introduction of an institute (which was already before the current legislation - and illegally used) of the so-called school speech (as a non-medical institute) is misleading and, in view of its nature and health. According to the latest scientific knowledge, general articulation defects account for only about 10% of the logopedic defects, most others classified as so-called neurodevelopmental disorders, genetic base disorders, etc. This is why the study of loopedia in a number of advanced countries has moved or moved to medical faculties (e.g. Sweden, France, United Kingdom).
5. The appellant points out the difference in the training of clinical and school loopeds and points out that although it is based on the same educational basis (i.e. the same Master's pedagogical programme, which is sufficient for the school looped as a special practitioner), the training of the clinical looped is subject to incomparably higher requirements. According to the Law on Non-Medical Medical Professionals, compulsory three-year experience (full-time) is to be completed under the supervision of a clinical speech (trainer). This consists of a basic training strain (18 months) and after successful completion of this practice at a medical facility's logopedic workplace from so-called specialised training (18 months); In addition to daily professional practice, the candidate in the base tribe is obliged to attend courses and seminars focused on related medical fields (phoniatry, neurology, ORL, geriatrics), to manage the essence of anatomy, physiology and pathophysiology in the field of ORL and neurology, and to practice in a bed-based or in a hospital for at least 2 weeks (i.e. a total of 50 days of specialised education). During the so-called specialised training, the candidate must, in addition to the usual speech practice under the guidance of the trainer, attend, among other things, specialist traineeships at a specialised accredited workplace (i.e. in the second part of the practice - 53 days of prescribed specialised training).
6. After three years of practice, the future clinical logoted is required to pass the test before a panel designated by the Ministry of Health, with the compulsory participation of a physician (mostly a phonographer or an ORL physician). Attestation is aimed at voice disorders (voice and respiratory anatomy, voice generation physiology, etc.), speech disorders (anatomy and speech system physiology, specific speech development disorders, organic speech changes, speech fluency disorders - e.g. stutterness, etc.), hearing disorders (e.g. anatomy and auditory system physiology, including related diagnostics), knowledge of related medical fields (foniatrics, audiology, neurology etc.), knowledge of non-medical fields (clinical psychology, phonetics) and finally medical ethics, health organisation, general health insurance system, etc. Two years of compulsory practice, including certified courses, are followed by the attestations and only then does the graduate have the right to conclude a contract with the health insurance company and to perform loopedia as a separate clinical speech.
7. The applicant points out that the loopedia is a so-called non-medical medical medical field focused on the treatment of communication and voice disorders and, in the sense of constitutional order and legislation applicable and effective prior to the submission of this proposal, could only be devoted to persons fulfilling a large set of statutory conditions, in compliance with the legal standards and procedures and with the legal equipment, under the control of the health and hygiene authorities, under compulsory insurance and under contracts concluded with health insurance companies in compliance with Article 31 of the Charter. On the other hand, the mission and competence of special educators following the completion of a Master's pedagogical degree involving the completion of optional subjects, so-called "pediatrics' (loopedia, surdopedias, tyflopedias, somatopedias, etc.) is to deal with the development, education and education of persons affected by both loopedic, surdopedias or other defects. It is essential that this special pedagogical discipline is not intended to treat health defects and disorders, including speech disorders.
8. However, this is precisely what the contested legal provisions serve to do and legalise the long-term tolerated practice of special teachers performing speech counselling with day-to-day operations (i.e. outside school facilities), aimed almost exclusively at the treatment of speech problems. They allow the medical profession to be carried out by a graduate only in the Master's pedagogical programme, immediately after the completion of the pedagogical studies without any prior practice, without further compulsory training, examinations, without control of the state bodies, without being bound to health insurance companies, for considerable cash expenses paid by patients or their parents, although it should be true that the treatment of loopedic defects falls under public insurance with entitlement to free health care.
9. The appellant states that every clinical speech is relatively often faced with the consequences of faulty therapy provided by special educators. The consequences of such unqualified care are often unremovable or hard to remove, since early (and qualified) detection and treatment of loopedic defects have often been essential since the early age of the child. Delaying treatment by about 2 to 3 years of pre-school age may already make it impossible to achieve relevant speech development. As an example, the most common case is that the substitution of development dysphasia with dysplasia (articulation modification) makes overloading of speech function conditional, which very often leads to neurotization of the patient. If the child's parent turns to clinical looped after one or two years of "school therapy" dyssils, such a patient with a neurodevelopmental defect (developmental dysphasia) often becomes stutterable, i.e. a hard to remove defect that is a lifelong problem for the patient.
10. The appellant points out Article 31 of the Charter, which states that everyone has the right to health protection, on the basis of public insurance, citizens have the right to free health care. At the same time, it draws attention to the Convention on Human Rights and Biomedicine, in particular Article 3, which obliges the Member States, within their jurisdiction, to ensure equal access to health care of appropriate quality and to Article 4, according to which any health care operation must be carried out in accordance with relevant professional obligations and standards. At the same time, according to Article 5 of the Convention, each person must be informed in advance of the purpose and nature of the procedure (the procedure carried out in the framework of the healthcare provided), as well as of its consequences and risks.
11. The appellant further points to Paragraph 2 (4) (b) of the Health Services Act, under which "health care is meant to be preventive, diagnostic, medical, rehabilitation [...] or other health performance performed by health professionals (hereinafter referred to as" health performance ') "in order to prevent, detect and eliminate a defect or assess the health condition [§ 2 (4) (a)]; and further to Section 28 (3) (f) of the cited Act, which provides for an obligation to inform the patient in advance of the price of health services not paid or partly covered by public health insurance. In other words, the law prohibits cash payments in the case of performance such as those covered by health insurance and health insurance.
12. The applicant points out that the above-mentioned health care including, within the meaning of § 2 (4) (b) of the Health Services Act, health performance including health performance in the treatment of loopedic defects, which are listed in the International Statistical Classification of Diseases and Associated Health Problems issued to the Professional Health Public and Health Insurance Agency as a disease or health defect (e.g. Aphazie - in MKN under the name R47.0; Cheekiness - F98.6; Dysartrie - R47.1; Dysphagia - R13; Distillation or Development Distillation - F80.0; Development dysphasia - F80.1 and F80.2; Quickiness - F98.5 and others), is paid as a treatment from public insurance. Thus, although the treatment concerned falls exclusively under the medical care of clinical loops, while complying with the standards (procedures) prescribed by the law, school loops for the same performance (including diagnostics), carried out without appropriate education, often collect cash payments in the long term, at a level that exceeds those of health insurance companies to clinical loops.
13. The appellant also sees a contradiction in the contested provisions with Article 23 of the Law on non-medical health professions and other legislation defining the conditions (standards) for the performance of the speech. The provision in question regulates the professional competence to pursue the profession of speech in health [Article 23 (1) of the Act cited is practically identical to the contested provision of § 18a of Act No. 563 / 2004 Coll., on pedagogy workers and on amendments to certain laws, as amended, (hereinafter referred to as "Law on pedagogy workers' or" Act No. 563 / 2004 Coll. '). However, in paragraphs 2 to 4 of Section 23 of the Law on non-medical health professions provides for additional legal conditions for the acquisition of competence for the profession (compulsory three-year practice under the supervision of the clinical looped, test examination, specialist training in clinical loopedia - cf.).
14. According to the appellant, it is clear from the very designation of the law on non-medical health professions that loopedia is a health profession, while in § 23 (5) the legislator determines which activities the profession of loopeda in health includes: "preventive, diagnostic, medical, rehabilitation and dispensary care activities'. The definition of health care activities then corresponds to the definition of health performance in the Health Services Act. None of these health performance is for special educators, since none of these activities can be seen as educational. However, the fact is that all these activities (including diagnostics) are carried out by special educators in the long term and with appropriate public presentations for the cash payments already mentioned.
15. The Convention on Human Rights and Biomedicine establishes an obligation to respect mandatory professional obligations and standards in the field of health care. In this context, the appellant also points out the Decree of the Ministry of Health No. 92 / 2012 Coll., on the requirements for minimum technical and material equipment of health care facilities and home care contact centres, as amended, in which compulsory equipment of an ambulance is prescribed in Annex 2 / I / b.2.5. It also recalls Decree No. 79 / 2013 Coll., on the implementation of certain provisions of Act No. 373 / 2011 Coll., on Specific Health Services, (Decree on occupational medical services and certain types of assessment care), as amended, setting out, inter alia, the requirements of compulsory documentation and other obligations, Act No. 373 / 2011 Coll., on Specific Health Services, as amended, the principles governing the processing of clinical loops, such as for school purposes, as well as other legislation on workplace and work environment requirements or on the conditions of health protection at work (cf. Government Regulation No. 361 / 2007 Coll., as amended, or Government Regulation No. 101 / 2005 Coll., on more detailed requirements for workplaces and working environments).
16. The appellant summarises that, although the legal provisions which follow up to the Charter and the Convention clearly state that the provisions of the Law on Health Services and the Law on Non-Medical Medical Professionals are to be implemented only under conditions and in a manner which is defined in the relevant provisions of the Law on Health Services and of the Law on Non-Medical Medical Professionals, the introduction of the Institute of "School Logopeda" by the contested provisions is to legitimise the apparently illegal state of affairs so far as it allows the individual performances of logoopedical care otherwise subject to the above restrictions, outside the legal regime laid down by professional obligations and standards, and it effectively entrusts health performance to teachers, i.e. not for remuneration. In a situation where the treatment provided cannot be carried out in any other way than through health performance, the applicant considers that the infringement of the Charter and the Convention is evident.
17. The author describes the practice carried out in the Czech Republic in private speech counselling by special and other teachers. On the website they are referred to as advisers providing a special logopedic diagnosis including a history, a logopedic examination and a design of a treatment plan, and a special loopedic therapy based on the diagnosis performed. As part of this presentation, these counselling services and health care are apparently available. At the same time, operators of these logopedic counselling services claim that they do not provide logopedic care on the basis of contracts with health insurance companies (but similar treatment is excluded according to the applicant), and refer to the price list of the logopedic services, where the price for entrance diagnostics or "entry meetings" ranges from CZK 900 to CZK 2,500 to CZK 3,000, prices for subsequent therapies of about 30 min. usually from CZK 300 to CZK 600. As part of the care offered is also the diagnosis and treatment of specific loopedic defects, such as developmental dysphasia, stutterness, etc., it is clear that cash payments for this apparently health care are illegal and unconstitutional, as such care is covered in the practice of clinical loopeds by public insurance under contracts with health insurance companies when establishing detailed calculation criteria.
18. The appellant concludes that the contested legislation is the result of an extremely strong lobbying of teachers, which has also prevailed by clear and specific appeals from doctors and professional companies to draw attention to the imappropriateness of the introduction of the Institute of Education Loops and to the negative effects on children's health.
19. The appellant also refers to the observations of the professional medical associations, originating from the period prior to the adoption of the contested legislation. These observations have already responded to the "logopedic" practice of teachers and highlighted the consequences of this unqualified care.
20. The Association of Practical Physicians for Children and Adolescents (GMP), for example, stated that "there has been growing incompetent efforts in recent years to interfere with the treatment of children with neurodevelopmental disorders. First of all, children with speech disorders (pronunciation), language (complex language system) and social communication. Since neurodevelopmental disorders tend to create comorbidity, often with secondary consequences in the form of other mental disorders, we consider any intervention by teachers in the treatment of diseases to be risky [...] The proposed name of two different professions (clinical logoped x school logoped) will not be distinguished by the public and there will be a completely out of system situation that health care will be provided by school staff without medical qualifications and without any responsibility for care provided."
21. The professional society of practical pediatricians of the ČLS JEP stated that "language and language development disorders are a symptom of the development of the child itself (so-called neurodevelopmental disorders) [...] These are, therefore, mostly malfunctions that must be diagnosed in the area of health, not education, and must be addressed in a comprehensive [...] If we look at the competence of the current special educator, we consider them appropriate to the school environment. Differential diagnostics belong to the hands of a medical professional."
22. Children's Neurology Society, Czech Medical Society J. E. Purkyně stated that "diagnostics of children with neurodevelopmental disorders fall within the competence of qualified health professions, clinical loops, clinical psychologists, pediatric neurologists, child psychiatrists, etc. [...] educational staff (so-called school loops) do not have sufficient qualifications for this comprehensive diagnosis. Inadequate enhancement of the competence of teaching staff in the diagnosis of neurodevelopmental disorders may significantly reduce the quality of care for these patients."
23. The author also attached to the proposal the comments of the Czech Society of Otorinolaryngology and Surgery of the Head and Neck, the Institute of Postgraduate Education in Health, the Association of Outpatient Specialists of the Czech Republic, o. s., which consistently draw attention to the consequences of the introduction of the position of the school logotype in terms of deterioration of the quality of diagnosis and subsequent treatment of speech defects and incompetent care of children at risk of permanent consequences. For the Institute of Postgraduate Education in Health, MUDr. Libor Černý, Ph.D., a member of the Committee of the Phoniatric Section of the ORL of ČLS JEP, Head of the Subdepartment of Phoniatriae and Audiology, Clinical Loopedia, IPVZ Film Clinic, 1st Faculty of Medicine, Charles University. In the context of the contested legislation, it pointed out, inter alia, the confusing situation for parents and inadequate and incompetent care. He also pointed out that without adequate training in medical fields, it is impossible to ensure a competent diagnosis of language and language disorders.
24. The author also attaches experience with similar legislation in Slovakia, to which Slovak spoločnosť pre otorinolaryngológiu and head and neck surgery have been expressed: "Inappropriately designed legislation on the education sector brings an unjustified and undesirable enhancement of the competences of special teachers - school loopeds, without the necessary qualifications and clinical practice, contrary to the legislation applicable to the separate medical field: clinical loopedia. Last but not least, this work causes incompetent interventions of school loops in diagnostics, which in all communication disorders belong according to qualifications to a clinical looped or general physician for children and adolescents, or to another person with medical education."
25. The draftsman also refers to the expression of a multinational speech society which brings together the European Union's loopeds, virtually the European Union's loopeds, the International Association of Communication Sciences and Disorders, which warns against the possibility of diagnosing and treating children and adults with speech, language and communication disorders, as well as persons other than loopeds. This would be contrary to the guidelines of the World Health Organisation (WHO) and the OECD, which recognise speech, language, communication and swallow disorders as a separate profession, whose doctors have specific knowledge, skills and experience in diagnosing and treating people with speech disorders, language, communication and swallowing. These doctors have a defined range of practice that provides them with the highest level of expertise in such problem populations. The Association draws attention to the risks associated with early recognition or inappropriate resolution of speech defects associated with diseases such as polio of children or autistic spectrum disorder, persons who do not have specialised education and clinical experience. The result is lower education, lower literacy and behavioural problems. The Association therefore supports its associate member, the Association of Clinical Loops, in objecting to a change in the status of persons recognised as a competent profession for the evaluation and treatment of a wide range of difficulties in speech, language, communication and swallow.
Observations of the parties, the intervener and the appellant's reply
26. The Constitutional Court has sent a motion to open proceedings to the Chamber of Deputies, the Senate, the Government and the Ombudsman.
27. In its observations, the Chamber of Deputies limited itself to a description of the course of the legislative process which led to the adoption of Act No. 183 / 2023 Coll., amending Act No. 563 / 2004 Coll., on pedagogy workers and amending certain laws, as amended, and Act No. 561 / 2004 Coll., on pre-school, primary, secondary, higher vocational and other education (Education Act), as amended ("Act No. 183 / 2023 Coll. '), and stated that it had given its consent to the draft Act by a constitutional procedure, the Act was signed by the relevant constitutional officials and was duly declared. It is for the Constitutional Court to assess the constitutionality of the contested provisions.
28. In his observations on the proposal, the Senate described in detail the legislative procedure prior to the adoption of the relevant law. He stated that the draft law had been discussed by the Committee on Education, Science, Culture, Human Rights and Petitions and the Constitutional Law Committee, and both of them had consistently advised the Senate plenary to approve it as referred to by the Chamber of Deputies. The draft law was also discussed by the Health Committee; He adopted four amendments containing a terminology change consisting of replacing the term "school logoped" by the term "special teacher for defects and speech disorders," in order to prevent confusion of specifically pedagogical activity with medical care in the field of clinical speech. In the statement of reasons, the Health Committee stated that "there will be no errors and the naming will clearly declare the resort of action, education and competence achieved '. In the general debate, the senators and the senators have been quite extensive in considering how much the school and clinical logos can function alongside each other in practice, but there were no doubts about the constitutional conformity of the proposed" double-rail ". The Senate approved the bill, as referred to by the Chamber of Deputies, when 40 of the 62 senators were voted in favour of it, 3 opposed. The Senate also left the Constitutional Court to examine and rule on the application for annulment of the contested legal provisions.
29. The Government adopted Resolution No 646 on 30 August 2023, which approved its entry into the proceedings before the Constitutional Court and at the same time ordered the Minister for Legislation to draw up, together with the Minister for Education, the Government's observations on the proposal.
30. The Government has proposed to reject the application for annulment of the contested provisions. It is said that the appellant's objections lack any constitutional dimension. The government claims that the legislator does not perceive the profession of speech as a priori of the health profession. This also follows from the Act on non-medical health professions, which consistently uses the terms "clinical logoped" and "logoped in health care." Also in the annex to Government Decree No. 275 / 2016 Coll., on Higher Education Education Areas, the Loopedia Study Programme is included in the field of education "non-teaching pedagogy ', with regard to the type of study programme the graduate applies" in institutions dealing with education, education, guidance and social care as well as health care'.
31. The Government recalls the definition of the essential content of Article 31 of the Charter, which includes the right to health protection and free health care, which has already been carried out by the Constitutional Court in the past, when it stated that Article 31 of the Charter "requires the obligation of the State to provide adequate protection to citizens against factors threatening their health and public health '[finding of 20 May 2008 sp. zl. ÚS 1 / 08 (N 91 / 49 SbNU 273; 251 / 2008 Coll.]. However, the amendment to Act No 563 / 2004 Coll. does not affect the right to health protection. Pursuant to Article 1 (1) of Act No 563 / 2004 Coll., this Act regulates the conditions for the exercise of the activities of teaching staff, the continuing training of teaching staff and their career system, derogations from the arrangements for the organisation of working time and special rules for the negotiation of duration of employment. In the case of the school looped, the law only regulates the way in which a professional qualification is obtained for this category of teaching staff - contrary to the appellant's claim, the legal regulation does not deal at all with the provision of any loopedic services, not only in the field of health, but not even in the field of education, but even less with their reimbursement. Thus, it is clear from the classification of the contested scheme that the school logoted is solely a pedagogical and not a health care worker and that it does not provide any medical performance.
32. The Government recalls that non-medical logopedic care is, according to § 9 (1) (e) of Decree No. 317 / 2005 Coll., on continuing education of teaching staff, accreditation committee and career system of teaching staff, as amended, a long-term part of education and education, namely in the form of a specialised activity of a special educator in the field of school speech. The concept of "school speech" is therefore now established and uncontradictory. In view of the continued increase in speech defects and other speech problems in children and pupils, the Ministry of Education, Youth and Sports proposed to strengthen and deepen speech care in education through the introduction of a special category of educational staff - a school looped. In contrast to the performance of specialised activities, which are mainly work related to direct pedagogical activities (forming a smaller part of the teaching staff's time), the school looped, as a separate pedagogical worker, it is the performance of the school loopedia that performs direct pedagogical activities (and thus deals with the school loopedia in most of its time). The amendment also specified and laid down in the law the qualification conditions for the performance of the school looped activity, in particular the obligation to pass the state final examination of loopedia and surdopedia.
33. It follows from the above that the interests pursued by the contested regulation are legitimate and from a constitutional point of view fully acceptable. The Government also considers that the legal regulation introducing a separate category of pedagogical staff - a school looped - is rational, based on the experience and needs of a given segment of education, namely children, pupils and teachers, and finally that there is no conflicting legitimate interest in this case. The appellant does not question the existence of a school loopedia, they are merely opposed to a teaching staff working in the field of school loopedia being referred to as a school looped. The mere change of the name attaches, by definition, to absurd consequences, such as that a teaching worker - a school logoped could provide medical measures, which does not allow the contested legislation. If the appellant considers the relevant provisions of the Education Workers Act, which newly introduced the category of pedagogical staff, which is the school logoted, for the contradiction with Article 31 (1) of the First Charter, it is appropriate, according to the Government, to review this legislation by means of a so-called "reasonable test."
34. For the above reasons, the Government has proposed that the Constitutional Court reject the application.
35. The Ombudsman informed the Constitutional Court that he would not exercise his right under Paragraph 69 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as the Law on the Constitutional Court) and would not intervene.
36. In its reply to the statements sent, the appellant states that, if the logical care is carried out in a different way than the fulfilment of an extensive set of statutory conditions, while respecting the standards and procedures laid down by law and the equipment provided for by law, it is clear that the constitutional order is infringed. As regards the Senate's observations that the question of constitutional conformity was not discussed in the course of the negotiations of the contested provisions, the appellant states that this was probably not the case because the Convention on Human Rights and Biomedicine was not recalled in the legislative process, the link with the relevant provisions of the Charter is essential in the proceedings before the Constitutional Court.
37. To comment by the Chamber of Deputies, the appellant pointed out that an amendment was submitted to the Chamber of Deputies to change the term "school logoted" to "special educator for defects and speech disorders." It was submitted by Members from all parliamentary parties, which, according to the appellant, is not very common, and was supported by a number of Members - doctors or practitioners - as well as educators, i.e. those based on knowledge of practice in both the health and education sectors. It is also clear from this that the professional public of Members was aware of the negative consequences of the introduction of the Institute of Education Logopeda.
38. It is clear from the Government's statement that school loopeds do not conduct treatment therapies of loopedic defects, including diagnostics, that the government is not aware of the real content of the age-old and repayable practice of special educators in private speech counselling. The appellant refers to the publicly presented offers of these establishments, where the execution of these operations is offered, with the fact that since the contested provisions were effective, the practice described by the school loopeds, which carry out the normally mentioned performance, has grown. The constitutional dimension lies in coherence with the Convention on Human Rights and Biomedicine, according to which it is necessary that any action in the field of health care be carried out in accordance with the relevant professional obligations and standards and with the Charter. If the government emphasizes the separation of the activities of a school looped as a pedagogical worker from the activities of a clinical looped as a healthcare professional, this does not correspond with the implementation of the institute "school looped." Logopedic care as part of education and education could be performed by special educators even without it. However, the appellant sees the actual acquisition of a legal authorisation for the execution of medicinal therapy for the benefit of the institution. The draftsman recalls that the study of logopedia as part of a pedagogical study focuses on the issue of educational and educational procedures in people with a logopedic disability, similar to other so-called "pedias' - tyflopedia, psychopedias, surdopedias, etc. The introduction of the Institute of Education Logopeda therefore considers it as unacceptable as it would be, for example, the introduction of a" school psychiatrist "or" school phoniatrician. "The appellant also draws attention to the fact that the administration does not have an apparatus which would control and penalise the illegal practice of school loops performing medical / medical practice.
Abandonment of oral proceedings
39. The Constitutional Court concluded that further clarification of the case could not be expected from oral proceedings and therefore, in accordance with Paragraph 44 of the Constitutional Court Act, it decided on the case without its regulation.
Management conditions
40. The Constitutional Court is responsible for discussing the application for the annulment of the contested provisions of the Education Workers Act. The appellant is actively authorised to submit the application and the contested provisions are a valid part of the legal order. The Constitutional Court could therefore proceed to a substantive examination of the application.
Constitutional conformity of the legislative process
41. In accordance with Article 68 (2) of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., the Constitutional Court dealt primarily with whether the contested legal provisions were adopted and issued within the limits of the Constitution laid down by competence and in a constitutional manner.
42. The applicant challenges the various provisions of the Act on Educational Workers to the extent that the Act was amended by Act No. 183 / 2023 Coll. The appellant's procedure corresponds to the decision-making practice of the Constitutional Court, according to which the amendment of the law does not have a separate existence, as its content becomes part of the text of the amended law; In the proceedings referred to in Article 87 (1) (a) of the Constitution, only an amended law may be challenged in principle [e.g. order of 15.8.2000 sp. zn. Pl. ÚS 25 / 2000 (U 27 / 19 SbNU 271) or point 57 of the finding of 1.10.2019 sp. zn. Pl. ÚS 5 / 19 (N 168 / 96 SbNU 144; 303 / 2019 Sb.)].
43. The Constitutional Court verified the progress of the process of adopting Act No. 183 / 2023 Coll. based in particular on the observations submitted by the Chamber of Deputies and the Senate, as well as on publicly available electronic sources (the stenograms from the meetings of the two chambers of Parliament, the resolutions and the House and Senate, freely available at http: / / www.psp.cz and http: / / www.senat.cz /), and found from these documents that Law No 183 / 2023 Coll. was adopted in a constitutional manner, signed by the relevant constitutional authorities and was duly declared.
44. Government bill (House Press No. 289 / 0) was approved on 21 April 2023, of the 136 Members present voted for it 94, no one opposed it and 42 abstentions. After the Chamber of Deputies passed the Senate Bill on 2 May 2023, the Senate discussed it at its 12th meeting on 1 June 2023 and approved it by a majority of 40 votes in favour and 3 against the 62 senators present. The law was signed by the President of the Republic on 7.6.2023 and was published in the Collection of Laws in the amount of 90 under No. 183 / 2023 Coll.
45. It can thus be summarised that Law 183 / 2023 Coll. was adopted in a constitutionally consistent manner. It took action on 1 September 2023, including the provisions now contested.
Substantial assessment of the proposal
Relevant legislation
46. Article 2 of the Health Services Act provides as follows:
(2) Health services means:
(a) the provision of health care under this Act by health professionals, as well as activities carried out by other professionals, when these activities are carried out in direct connection with the provision of health care,...
(4) Health care means:
(a) a set of activities and measures carried out on natural persons for the purpose of:
1. the prevention, detection and eradication of diseases, defects or health conditions (hereinafter referred to as diseases),
2. maintaining, restoring or improving health and working condition,...
5. health assessment,
(b) preventive, diagnostic, medical, rehabilitation, nursing or other medical performance by health professionals (hereinafter referred to as health performance) for the purpose referred to in (a), ';
Health care types
(2) The types of healthcare, according to the purpose of providing it, are:
... (b) diagnostic care to determine the patient 's health status and the circumstances affecting the patient' s health, the information necessary to identify the disease, its condition and severity, other information needed to determine the diagnosis, individual treatment and information on the effect of the treatment,...
(d) medical care which is intended to favour the health situation by carrying out an individual treatment procedure, in order to cure or mitigate the consequences of the disease and to prevent or mitigate the extent of invalidity or inadequacy,... '.
47. Professional competence for the profession of speech in health care is provided for in Section 23 of the Act on Non-Medical Medical Professions (Act No. 96 / 2004 Coll.):
"(1) The professional qualification for the profession of speech degree in health care is obtained through the completion of an accredited Master's study course in special pedagogy with a state final examination from speech degree and surdopaedia following the completion of an accredited Bachelor's degree in special pedagogy with a state examination from logopedia and surdopaedia and through an accredited qualification course in health education, which is carried out by a university in accordance with a special legislation.
(2) Until such time as a specialist qualification is acquired, the health service provider shall work with the health service provider under the professional supervision of a health service competent to perform the health profession without professional supervision.
(3) Specialised competence of the speech in health care is obtained through the completion of a 3-year vocational training examination.
(4) The professional and specialised competence to pursue the profession of logopedo in a health profession eligible for medical supervision is obtained through the completion of an accredited master's field of study by a special pedagogy with a state final examination of loopedia and surdopedias, provided that the study in an accredited master's field of study has been initiated in the academic year 2018 / 2019 at the latest, and through a specialist training in clinical loopedia.
(5) Activities in the field of preventive, diagnostic, medical, rehabilitation and dispensary care in the field of clinical loopedia shall be regarded as pursuing the profession of speech in health care. ';
Affected legal provisions
48. The text of the contested legal provisions of Act No. 563 / 2004 Coll. is as follows (marked in bold):
Pedagogical worker
(1) A pedagogical worker shall be the one who is engaged in direct teaching, direct education, direct specific teaching or direct pedagogical or psychological activities by direct activity on the educator to whom he is conducting education and training under specific legislation (hereinafter referred to as direct pedagogical activity); is an employee of a legal person who carries on the activities of a school, or of a State employee, or of a school director, if he is not a legal person pursuing the activities of a school in an employment relationship or if he is not an employee of the State. A pedagogical worker shall also be an employee who carries out direct teaching activities in social services facilities.
(2) Direct pedagogical activities
... (d) special educator,
(e) school logoted,
(f) psychologist,..... "
School Logoped
The school logoped is trained by study for the preparation of school loopeds and by higher education obtained by study in the accredited Master's degree programme in the field of pedagogical sciences.
(a) dedicated to special pedagogy with a state final examination of speech and surdopedia, which does not follow up on an accredited bachelor's study programme;
(b) focusing on special pedagogy with the state final examination of speech and surdopedia, which follows the accredited Bachelor's study programme of special pedagogy; or
(c) focusing on loopedia with state final examination of loopedia and surdopedia. "
The Constitutional Court's own argument
49. First, the Constitutional Court states that the appellant sees a contradiction between the legal provisions under appeal and Articles 1 to 4 of the Charter. In addition, however, the Constitutional Court states that these articles represent principles which are important for the interpretation of individual substantive fundamental rights and are not separate fundamental rights. In particular, the appellant does not argue that the contested legal provisions would contradict, for example, the natural nature of fundamental rights (Article 1), the principle of religious and ideological neutrality of the State (Article 2 (1)), that they would be discriminatory articles (Article 3 (1)), that they would denationalise them (Article 3 (2)), or that their substance and meaning would not be investigated when applying the provisions on the limits of fundamental rights and freedoms (Article 4 (4)). Since the Constitutional Court itself (in the absence of the appellant's argument and as it is bound by a petition and not by the grounds of the application) does not see any reason for the contested legal provisions to conflict in any way with those articles of the Charter, it finds that part of the proposal unfounded.
50. A similar Constitutional Court notes in relation to Articles 1, 3 and 4 of the Convention on Human Rights and Biomedicine. Article 1 implies a commitment by the Contracting Parties to protect the dignity and self-sufficiency of all human beings and the exclusion of discrimination, Article 3 guarantees equal access to health care of appropriate quality and, pursuant to Article 4, any action in the field of health care must be carried out in accordance with relevant professional obligations and standards. On any of these principles, the appellant does not offer relevant constitutional arguments, nor did the Constitutional Court itself find that the contested legal provisions are contrary to them, which will be dealt with in more detail below. The appellant does not even claim that there is a network of clinical loops in the Czech Republic providing available health care of appropriate quality.
51. The point of the appellant's argument is that the contested legal provisions have legitimised the previous manifestly unlawful situation involving the provision of non-medical health services in the field of loopedia by persons other than professionally competent clinical loopeds. It is so obvious that the appellant does not in fact oppose the legislation, but rather the fact, that is to say, against a situation where qualified loopeds are claimed to be people who lack adequate special training for this professional activity. As is provided from the above mentioned overview of the relevant legislation, it is not possible to deduce from anything the right to provide health services in the field of loopedia and school loopeds (cf. Section 23 of Act No. 96 / 2004 Coll.).
52. The Constitutional Court further states that, although the appellant primarily alleges interference in Article 31 of the Charter, which provides for the right to health protection and the right to free health care on the basis of public insurance, its argument relates most to the alleged provision of unqualified care by school loopeds who, without appropriate education, carry out activities covered by the Health Services Act under the performance of health care (diagnosis, treatment). As mentioned above, such care may only be carried out under the conditions laid down above and only after prior informed consent. As a result of the practice of school loops, which do not meet the conditions for health care, there are, according to the applicant, numerous harm to the health of children's patients in particular; This is demonstrated by the appellant by the opinions of professional (medical and non-medical) institutions.
53. However, the nature of the appellant's objections attests rather than the infringement of the right to health under Article 31 of the Charter ("Everyone has the right to health protection. Citizens are entitled to free health care and health care under the conditions laid down by the law,") on the infringement of the closely bound right to the inviolability of a person within the meaning of Article 7 (1) of the Charter, as it is precisely the intervention in the right to health which leads directly to the breach or deterioration of the health of an individual, which is also an intervention in the inviolability of a person (closer to KRATOCHVÍL, J. in KÜHN, Z., KRATOCHVÍL, J., KMEC, J., KOSAR, D. and kol. Big comment. Praha: Leges, 2022, p. 418 et seq. 1113). The right to the inviolability of a person, by the nature of the matter, is the greatest application in the field of health. Therefore, Article 7 (1) of the Charter is the basic reference criterion for assessing the rationality of the proposal ("The non-touchability of a person and its privacy is guaranteed. It can be limited only in cases provided for by law."), for this reason both of these rights will be discussed in the following text.
54. The Constitutional Court has already stated in the past [cf. the finding of 3 May 2017 sp. zn. Pl. ÚS 2 / 15 (N 69 / 85 SbNU 193; 185 / 2017 Sb.)] that the right to health protection affects a number of areas of the functioning of the company which, as a result, make the level of health of its population conditional. The State is responsible for ensuring and fulfilling the right to health, and it is therefore also up to it to take adequate measures to that end. It does so by creating conditions for the wide availability of medical care and improving all aspects of external living conditions [see the find of 23.9.2008 sp. zn. Pl. ÚS 11 / 08 (N 155 / 50 SbNU 365), the find of 27.9.2006 sp. zn. ÚS 51 / 06 (N 171 / 42 SbNU 471; 483 / 2006 Sb.)]. The right to health thus results from a number of positive obligations of the State (in particular the organisational nature), whether they are preventive, hygienic, control or other obligations (e.g. WINTR, J. in: WAGNER, E., ŠIMÍČEK, V., LANGUŠEK, T., SPOSIZIL, I. et al. Charter of Fundamental Rights and Freedoms: comment. 2nd edition Prague: Wolters Kluwer, 2023, p. 683). The primary positive commitment of the State is to adopt appropriate legislative arrangements that will anchor the law and create the necessary legislative framework to ensure it in practice. In addition, it also provides for certain other obligations, consisting, on the one hand, of a negative obligation on the State to refrain from intervening in the health of its citizens and, on the other, of the State to protect individuals against such interference by third parties.
55. The Convention on Human Rights and Biomedicine then emphasizes equal access to health care and also its quality when, in Article 3, the obligation of the Contracting Parties, "taking into account health needs and available resources, takes appropriate measures to ensure equal access to health care of appropriate quality within their jurisdiction." Article 4 then defines the manner in which the health care procedures, including scientific research, must be carried out in accordance with the relevant professional obligations and standards. In Article 23, this Convention obliges the Czech Republic to ensure, without undue delay, adequate legal protection in order to prevent or prevent violations of the rights and principles set out in the Convention, and Article 25 obliges the Contracting States to ensure adequate legal sanctions in cases of infringement of the provisions of the Convention.
56. The quality of healthcare is ensured by extensive public regulation, which imposes a number of positive obligations on health service providers. The provision of health services is regulated by the Health Services Act (Act No. 372 / 2011 Coll.), according to which health care can be provided in the Czech Republic only on the basis of the authorisation to provide health services. Exceptional cases where health services can be provided without authorisation are provided by law. The conditions for the authorisation to provide health services are laid down in Section 16 (1) of the Health Services Act, according to which a natural person requesting the authorisation to provide health services must be eligible for the independent exercise of the health care profession, which he will provide as a health service [point (e)], must be entitled to use for the provision of health services medical equipment that meets the requirements for technical and material equipment, must meet the requirements for the personal security of the health services provided, and the public health authority has approved the operating rules of the health service in which the health services will be operated, under the Public Health Protection Act [point (f), (g), (i)].
57. Differences in the application of fundamental rights under Articles 7 (1) and 31 of the Charter were defined by the Constitutional Court, for example, in the findings of 12.4.2016 sp. zn. I. ÚS 2315 / 15 (N 64 / 81 CollNU 99) and of 9.1.2014 sp. zn. It is necessary to "distinguish between [...] the right to health protection (a set of state measures) and the right to health as part of the constitutional status of the individual (positivus status and negative status) '. The Constitutional Court confirmed that" [z] draví is part of the physical integrity of man and as such is protected by Article 7 (1) of the Charter', whereas Article 7 (1) of the Charter is not, of course, subject to restrictions arising from Article 41 (1) of the Charter [cf. Similarly to the finding of 9.7.2009 sp. zn. II. ÚS 2379 / 08 (N 157 / 54 SbNU 33)]. "Therefore, human health interventions (such as injury by non-compliance) should be reviewed as interference with human physical and mental integrity under Article 7 (1) of the Charter. Only if an individual requests the State to take certain positive measures to protect his or her health (generally in the sense of therapeutic or preventive measures) which do not result from Article 7 (1) of the Charter or Article 8 of the Convention, a review in terms of the right to health under Article 31 of the Charter" (finding sp. zn. I. ÚS 2315 / 15) is appropriate. Similarly, it understands the right to health of the European Court of Human Rights (hereinafter referred to as "the ECHR ') when it imports them from Article 8 of the Convention on the Protection of Human Rights and Fundamental Freedoms, which also includes physical and mental integrity [cf. ECHR judgment in Trocellier v France of 5 October 2006 No 75725 / 01; the same conclusion is contained in the Constitutional Court's finding of 25.7.2023 sp. zn. III. ÚS 39 / 22 (available at https: / / nalus.ujud.cz)].
58. Thus, protection of physical and mental integrity is the content of the right to the integrity of a person, the inherent part of which is health. The impact on human health, whether for example the cause of injury, the cause or worsening of the disease, including diseases, or mental disorders, but also the mere cause of pain, is therefore an intervention in his physical and mental integrity, and thus into the sphere protected by Article 7 (1) of the Charter guaranteeing the integrity of the person and his privacy [finding of 9.2.2021 sp. zn. II. ÚS 1564 / 20 (N 26 / 104 SbNU 319), paragraphs 16.-19; the finding of 14.5.2020 sp. zn. II. ÚS 4100 / 19 (N 99 / 100 SbNU 149), paragraphs 20-21; the finding of 9.7.2009 sp.
59. In order to protect the right to inviolability of a person by the State in the field of health care, it is ensured by the State, on the one hand, by substantive rules relating to the preventive protection of persons against unwanted interference, as well as by the legislation providing for sanctions if it is already affected by the fundamental law. These positive obligations of the State based on Article 4 The Constitution then complements the provision of subsequent judicial protection, that is to say, the guarantee of the procedural protection of the fundamental right to the integrity of a person where it is affected and caused by injury. This can be done both by direct damage to health but, for example, by not improving health, although it could be expected under the circumstances (the finding of 9 January 2014 sp. zn. III. ÚS 2253 / 13), or by the consequent difficulty of social application. The State thus provides procedural instruments so that the damage caused can subsequently be compensated, in particular through full compensation, for both property and non-property damage.
60. In the context of the present case, it can be recalled that the Convention on Human Rights and Biomedicine is already mentioned, which clearly shows that any health care measures can be carried out only after the prior free and informed consent and procedure of the Court of Justice (cf. ECHR judgment in the Benderskiy case against Ukraine of 15.11.2007 No 22750 / 02, § 59). Article 4 Moreover, any health care practice must be carried out in accordance with relevant professional obligations and standards; According to the Health Services Act, the patient has the right to provide health services at the appropriate professional level (§ 28 (2)), which according to § 4 (5) of this Act means the provision of health services according to the rules of science and recognised medical practice, while respecting the patient's individuality, taking into account the specific conditions and objective possibilities [this legal definition was found to be constitutionally conformal by the Constitutional Court of 7 January 2013 sp. zn. ÚS 27 / 12 (N 2 / 68 SbNU 37), paragraphs 349- 354]. According to T. Langášek, the procedure itself carried out without the free and informed consent cannot be of the nature of the case in accordance with professional obligations and standards (see the above mentioned work: WAGNER, E., ŠIMČEK, V., LANGUŠEK, T., CONSIDERATION, I. et al. Charter of Fundamental Rights and Freedoms: comment. 2). The Supreme Court's case-law defines the concept of "preventive, diagnostic or therapeutic procedure corresponding to the highest scientific knowledge achieved. Health care is therefore considered to be health care in line with the current available knowledge of medical science" (e.g. resolution of 10.12.2008 sp. zn. 8 Tdo. 1421 / 2008; Resolution of 15.12.2011 sp. zn. 8 Tdo 1254 / 2011; resolution of 21.10.2009 sp. zn. 8 Tdo 1048 / 2009; resolution of 4.3.2010 sp. zn. 8 Tdo 193 / 2010; www.njud.cz). The Constitutional Court respects this case-law of the Supreme Court and, in some cases, follows [cf., for example, the finding of 2.3.2015 sp. zn. I. ÚS 1565 / 14 (N 51 / 76 CollNU 691)].
61. It follows from the above that an act which is capable of intervening in the right to the integrity of a person may be regarded as contrary to the requirements of its quality and to the absence of adequate care or merely as a failure to provide the consent of the person fully informed of his health, the recommended treatment, the nature of the action or his risks, etc.
62. On the basis of this general definition of the fundamental right to which the contested legislation should be affected, the Constitutional Court refers to the appellant's objections as follows.
63. The Constitutional Court agrees with the appellant that, if persons who do not have appropriate qualifications are carried out actions whose nature is purely health care (diagnosis, treatment) and require high requirements for their qualifications and performance, such practice is not only contrary to subconstitutional legislation but may also interfere with fundamental human rights. In general, non-professional - and therefore low-quality - care is likely to have an impact on the health of those who undergo such care and thus constitutes a negative impact on their physical integrity. Such intervention may also result in the fact that such care is carried out without prior free and informed consent.
64. On the other hand, however, the Constitutional Court did not find that the contested legal provisions introduced such a practice, directly allowing it and in no way legitimising it, as the appellant wrongly considers. The content of the contested legal provisions is merely the introduction of the Institute of Education Logopeda as a worker who directly operates in the education and education sector on the basis of a special legislation ["direct pedagogical activity"; § 2 (1) and § 2 (2) (e) of Act No. 563 / 2004 Coll.]. Therefore, in the case of a speech disorder, the school's speech should be more or less adapted to the diagnosis of clinical speech. Paragraph 18a of the same Act merely defines the requirements for the professional qualification of school loops. In other words, according to the contested legislation, the activity of the school speech is defined as a pedagogical activity, the school speech is referred to as a "pedagogical worker 'and it is necessary to obtain professional qualifications in the field of pedagogical sciences for the pursuit of that activity. The Constitutional Court therefore has established for certain that it cannot be inferred from the contested legal provisions that a school teacher could also perform non-medical medical medical activities, as is the case with clinical loopeds, which are defined as a non-medical medical profession and are subject to completely different professional requirements.
65. Attempts to the alleged legalisation of the author of the described practice indirectly refute also Decree No. 72 / 2005 Coll., on the provision of advisory services in schools and school counselling establishments, as amended, according to which, for example, the obligation of the school looped, if he suspects a clinical diagnosis of the pupil, recommend to him an examination of the health condition by the provider of health services in the relevant field (Annex 1, Article III, point 6). Such situations were therefore also remembered; and contrario it follows that the school logoped is not entitled to determine the clinical diagnosis itself, but is obliged to refer the pupil to the actual professional health care that only the clinical logoped can perform.
66. Therefore, if the contested legal provisions restrict the activities of school loops only to those who are educated and allow them to carry out only and only the education and education of persons with a logopedic problem, i.e. not those covered by health care, it is not possible to see in such arrangements interference with the integrity of persons or their right to health within the meaning of Article 7 (1) of the Charter. In such a situation, however, it is unnecessary to assess the nature of such interference in the basic law and, consequently, the proportionality of the intervention in the context of another potentially threatened basic law, public interest or other similar value which could be affected by the contested legislation. Therefore, in relation to Article 7 (1) of the Charter, the Constitutional Court did not carry out the usual proportionality test as this would be manifestly unnecessary. As has just been explained, the contested legal provisions are not, by their very nature, at all capable of intervening in this fundamental law.
67. If there is a claim of excesses in the exercise of the practice of school loops, that is to say, the alleged exceeding of their competences and the carrying out of diagnostics and subsequent treatment of loopedic defects, which only applies to clinical loopeds (i.e. without adequate qualification and without compliance with the established standards), it is essential from the point of view of the constitutionality of the contested legal provisions that the State has and must have the means to eliminate them. In fact, if the Convention on Human Rights and Biomedicine provides the Czech Republic with adequate legal protection without undue delay in order to prevent or prevent violations of the rights and principles set out in the Convention (including Article 4 of the obligation to carry out health care procedures in accordance with the relevant professional obligations and standards), and Article 25 of the Convention obliges the Contracting States to ensure adequate legal penalties in cases of breach of the provisions of the Convention, the potential breach of the competence of school loops cannot be overlooked and thus accepted. However, this is not the problem of the contested legal provisions but of the de facto supervision of the State.
68. The Constitutional Court, which consistently prefers the constitutional interpretation and application of the legislation before its annulment, cannot therefore abolish the contested legal provisions only because the appellant considers that the supervisory activity (the Constitutional Court is not to assess whether it is justified) is insufficient. Even if the appellant is right, the solution could not be to abolish the contested provisions but to remedy this lack of supervisory activity.
69. In such a case, the resources available to the State in the form of an appropriate legal penalty stem mainly from private and public law and in cases of more serious infringements even from criminal liability, even though in this case they are ultima ratio (see also, for example, KRATOCHVÍL, J. in KÜHN, Z., KRATOCHVÍL, J., KMEC, J., KOSAR, D. and Kol. Charter of Fundamental Rights and Freedoms. Big comment. Prague: Leges, 2022, p. 421: "From the case-law of the Constitutional Court, it can be concluded for the time being that the obligation to penalise a breach of the right to the integrity of a person will be exceptional. More serious interference in physical integrity will fall within the scope of Article 7 (2) of the Charter, which, on the contrary, has a criminal penalty obligation, with close exceptions.")
70. A person who would have been diagnosed incorrectly by an unqualified intervention would not have been recognised in time, and thus also a suitable and particularly timely solution to the developmental defect of speech associated with another disease, which would have led to a lower level of education, deterioration or even non-improvement of health status, would have been a claim for full compensation or non-property damage caused by non-professional care. However, such a person would have to claim his individual claim by means of a civil action. At the same time, the wrongful exercise of health care would be subject, following a complaint, complaint or ex officio complaint (§ 93 et seq. of the Health Services Act) to the control carried out under the Health Services Act (§ 107) by the competent administrative authority. Any misconduct would then give rise to misconduct (§ 114 above).
71. In this context, it should also be noted that, when assessing the nature of the operations carried out, it cannot be considered to be decisive who they are carried out but their actual content, i.e., if they fall within the scope of material health care. Indeed, it would not be possible to accept such an interpretation that if health care activities are carried out by a person who is not a healthcare professional who does not have adequate qualifications or is not carried out at the appropriate professional level (however, clients would have the view that they are healthcare), they cannot be regarded as health care activities and are therefore not subject to adequate requirements and are not subject to State supervision and sanctions.
72. As far as criminal liability is concerned, the facts of an unlawful business offence under Section 251 of the Criminal Code can be mentioned to the extreme. This is the result of a breach of the conditions for the operation of a particular business, i.e. by certain business activities, without fulfilling the legal conditions for their development and their implementation outside the permitted framework, where this is done to a greater extent. The implementation of certain business activities requires authorisation under specific legislation different from the Commercial Act. Such a business under a non-trade authorisation under special legislation is, in particular, the activities referred to in Section 3 (2) of the Trade Act, namely the activities of doctors, pharmacists or health professionals in the provision of health care (see the Law on non-medical medical professions). Cases of all these activities fall within the category of "other business' - other than manufacturing, commercial and providing services - within the meaning of Section 251 (1) of the Criminal Code. Their implementation without the appropriate authorisation, permit or licence and their implementation in a manner that exceeds the limits of the authorisation issued, the authorisation is therefore punishable as an unauthorized business (see SOTOLAR, A. in DRAWLEDGE, A., FREMR, R., DURDÍK, T., RUSSIAN, M., SOTOLAR, A. and kol. a. Criminal Code - comment. Praha: Wolters Kluwer, 2015, § 251).
73. However, apart from the alleged unauthorized practice of school loops, the Constitutional Court must, on the other hand, consider that every person is free and is not obliged to do anything that the law does not impose on him. It follows that also in matters of self-health care, it is up to his free decision whether and to what extent he will undergo certain medical performance and only the law can oblige him to undergo certain examinations [see the finding of 18.5.2001 sp. zn. IV. ÚS 639 / 2000 (N 77 / 22 CollNU 157)]. Therefore, if legal representatives of children with a speech problem are assessed to entrust themselves, instead of a clinical speech, to the care of a school speech, whose competence is limited to care of a "non-health" nature, they cannot be denied the right to such a decision.
74. The Constitutional Court, which consistently advocates the primacy of an individual before the State, which also manifests itself in rejecting the paternalistic concept of the State and presupposing the rationality of human conduct, cannot therefore conclude that there is an unconstitutionality of the contested legislation only because some individuals may be misled by the person of the service provider. Indeed, as is given from the above, the recap of legal regulation is not misleading or even confusing in the sense that it could lead to a mistake in an average-oriented and responsible individual which could subsequently have a negative impact on the health of his child.
75. In this respect, it is also essential that, contrary to the services provided by the clinical loops covered by public health insurance, the applicant itself points out that in the case of school loops, the patients themselves pay their services. It is therefore clear from this point of view that this is not health care, which must be clear to patients (or their parents) and therefore not misled by providers of these services.
76. A similar question may exist for similar ways of solving problems, where it is up to the individual to decide for which form they choose. It is not the task of the Constitutional Court to evaluate on a flat-rate basis, or even to prohibit individuals from making decisions for certain solutions which they consider to be more appropriate or correct. It is essential that they have adequate information in this decision or that they are not subjected to undue pressure and targeted disinformation. However, these cases can be dealt with in the rule of law, not by flat-rate bans of certain procedures, but by imposing individual civil liability (and, in some cases, even public liability) when it comes to excessive conduct, the intention to deceive those interested in these alternative services, the disclosure of false information, etc.
77. If there is a breach of the right enshrined in Article 31 of the Charter, which the appellant claims primarily, the Constitutional Court shall review the contested provisions, knowing that the right to health protection falls within the area of social rights, where the legislator is given a logically greater scope for their limitation than, for example, fundamental rights (see Title 2 of the First Charter) or political title (cf. Article 41 (1) of the Charter). Social rights fall within the so-called positive status, where their substance is the right of the individual to a positive performance by the State, and at the same time those rights can only be invoked within the limits of the laws implementing them. Therefore, when examining the alleged interference with social rights, the Constitutional Court normally applies not the proportionality test, but the "softer 'rationality test.
78. The State is then obliged to create conditions for health rights holders for the wide availability of medical care and improvement of all aspects of external living conditions (see the find of 23.9.2008 sp. zn. Pl. ÚS 11 / 08; the find of 27.9.2006 sp. zn. Pl. ÚS 51 / 06). As mentioned above, the right to health implies a number of positive obligations of the State, in particular to adopt appropriate legislative arrangements which will anchor the right and create the necessary legislative framework to ensure it in practice, but also a negative obligation on the State to refrain from interference in the health of its citizens or the obligation on the State to protect individuals against such interference by third parties.
79. However, in the present case, the appellant does not claim that the State would fail in this positive obligation, for example, in the sense that it would not provide an adequate network of clinical loops, or that it would not impose adequate conditions for the performance of this non-medical medical activity. The Constitutional Court therefore agrees with the view expressed by the Government on the proposal that the appellant does not question the relevance of the school loopedia, if it is actually taken as primarily a pedagogical activity and not a medical activity, but is in fact opposed only to the designation of certain pedagogical staff as a school looped, and from that designation it makes the possibility of providing health-care functions, which, however, has no legal basis at all (see above).
80. The Constitutional Court considers (see, for example, the finding of 3 May 2017 sp. zn. Pl. ÚS 2 / 15) that provision of a functioning health protection system available to everyone, which includes a system of available health care, is part of the State's positive obligations under Article 31 of the first Charter. Similarly, the interpretation of the right to health in Article 12 of the International Covenant on Economic, Social and Cultural Rights (No 120 / 1976 Coll.), according to which States recognise the right of everyone to achieve the maximum achievable level of physical and mental health and take measures to achieve that right, including, inter alia, measures for the healthy development of the child. The European Social Charter (No 14 / 2000 Coll.) then in Article 11 obliges States to take measures aimed at providing advisory and educational services to promote health and to prevent diseases as much as possible.
81. The above-mentioned Convention on Human Rights and Biomedicine also emphasises equal access to health care, as Article 3 provides for the obligation of the Contracting Parties, "taking into account health needs and available resources, to take appropriate measures to ensure equal access to health care of appropriate quality within their jurisdiction '. Access to health care must be based on the principle of equality under this Regulation without unjustified discrimination. In doing so, the Contracting States are obliged to take action to achieve this objective with regard to the resources available to them (see the explanatory report to the Convention on Human Rights and Biomedicine of 4 April 1997, available on the website http: / / www.coe.int / en / web / conventions / full- list / - / conventions / treats / 164).
82. Selected groups are also guaranteed health protection in other international contract documents. The most important commitments of the Czech Republic under the Convention on the Rights of the Child (No 104 / 1991 Coll.) are for the proposal under consideration. Pursuant to Article 24 (1) of the Convention on the Rights of the Child, the Contracting States recognise the right of each child to reach the most achievable level of health and to use rehabilitation and treatment facilities; they are obliged to seek to ensure that no child is deprived of their right to access such medical services.
83. The Constitutional Court has already established, in its earlier decisions (e.g. the finding of 20 May 2008 sp. zn. Pl. ÚS 1 / 08), a steady procedure for assessing the action of the legislature in constitutional rights, with regard to social rights, having regard to Article 41 (1) The Charter need not be a legal regulation in a strict relation to proportionality to the objective pursued by regulation. Therefore, measures need not be necessary in a democratic society, as is the case, for example, for other rights which can be relied on directly from the Charter (see, for example, Article 27 (1), (2) and (3) of the Charter and those listed therein which are not limited by Article 41 (1)). The test of constitutionality in this sense will be such a legal regulation that can be established to pursue a legitimate objective and in such a way as to do so in a way that can be seen as a reasonable means of achieving it, even if it may not be the best, most appropriate, most efficient or most wise [cf. also the finding of 5.10.2006 sp. zn. ÚS 61 / 04 (N 181 / 43 SbNU 57; 16 / 2007 Sb.)].
84. This so-called rationality test consists of four of the following steps:
(a) the definition of the meaning and substance of economic or social law, namely its essential content;
(b) an assessment of whether the law or other legislation does not affect the very existence of economic or social law or the actual realisation of its essential content. If it affects essential content, a normal three-stage proportionality test should be applied. If it does not affect the essential content of social law,
(c) an assessment of whether the legislation contained in the law or other legislation pursues a legitimate objective, that is to say, whether it is an arbitrary substantial reduction in the overall standard of fundamental rights; and
(d) consider whether the means used to achieve it is reasonable, albeit not necessarily the best, the most appropriate, the most effective or the wisest.
85. The first step of the review under this test is to define the meaning and substance of social law, in the case under examination, the right to health protection and, where applicable, the right to free health care.
86. The substance and the meaning (essential content) of the right to health protection as defined in the first sentence of Article 31 The Charter may be considered to create a system of available and adequate medical care for all, including ensuring preventive care, the possibility of taking care of and improving health, as well as protection against negative effects and interventions, both in terms of protection against infectious diseases and protection against, for example, environmental interventions. The content of the law is to ensure the protection of both individual and public health.
87. The Constitutional Court has repeatedly dealt with the essential content of the right to provide free health care and facilities for citizens of the Czech Republic (as defined in the second sentence of Article 31 of the Charter) and defined it as an obligation of the State to create a public health insurance system and to ensure that citizens have a fair, that is to say, the emergence of possible inequalities excluding, the method of access to health care of adequate quality [sp. v. Pl. ÚS 21 / 15 (N 146 / 90 SbNU 369; 233 / 2018 Coll.), paragraph 80, sp.
88. in the sp. zn. III. ÚS 2332 / 16 (N 74 / 89 SbNU 133; paragraphs 41 and 42) The Constitutional Court stated: "The substance and purpose of this fundamental right will be preserved if citizens are guaranteed the free provision of health care and medical supplies necessary to improve or maintain their health or alleviate their suffering, in the form of treatment and treatment which is objectively determined to meet the needs and requirements of the appropriate level and medical ethics. '
89. In the second step of the sensitivity test, the Constitutional Court assessed whether the contested legislation did not affect the very existence of social law or the actual realisation of its essential content. The content of the contested provisions was further described in the section on Article 7 (1) of the Charter. As there, and in relation to Article 31 of the Charter, the Constitutional Court did not find that the legislation which introduced only the new designation of a part of special teachers, together with the establishment of qualification assumptions for the exercise of their activities, consisting in direct pedagogical activities, could, in any way - even potentially - interfere with the law defined by Article 31 of the Charter, even less in its essential content. In short, the legal establishment of the Institute of School Logopeda does not restrict the health activity of clinical logopeds.
90. Therefore, the Constitutional Court did not apply the proportionality test but took the third step of the rationality test, namely to assess whether the legal regulation pursues a legitimate objective and whether it is not an arbitrary fundamental reduction in the overall standard of fundamental rights. The conclusion that the contested legal regulation cannot reduce the overall standard of fundamental rights can be made relatively easy to consider, following the conclusions of the second step of the test, because if the legislation does not interfere at all in the sphere of fundamental law pursued, it can hardly weaken it in any way.
91. The question remains, therefore, whether a legitimate objective is being pursued by the adjustment. The explanatory memorandum to the draft amendment in question states that the improvement and extension of the loopedic care should take place. This objective is considered by the Constitutional Court to be fully acceptable, and the institution itself is certainly not and priori unacceptable; On the contrary, it makes sense for schools to have, in addition to classical teachers, persons who have other specialties and are able to meet the needs of pupils who have certain specific problems. After all, in addition to the school speech, the contested § 2 (2) of Act No. 563 / 2004 Coll. also mentions a special educator, psychologist, leisure teacher or coach. The point is that the contested legal regulation did not extend the competence of school loops, which would interfere with the scope of clinical loops. Furthermore, the explanatory memorandum refers only to the possibility of financial support for the school speech and the improvement of the prestige of the persons carrying out this activity. Therefore, it is not clear that the contested legal regulation would have brought about any fundamental change compared to the existing legislation.
92. Thus, the Constitutional Court merely notes that the explicit adaptation of the qualification requirements effectively leads to the separation of the school's speech from a more general category of special educator, with the qualification condition for these pedagogues being determined separately. In spite of some information on the intended purpose of the introduction of the Institute of Education Logopeda, the Constitutional Court therefore concludes that, in general, legal arrangements addressing the personnel aspect of education and defining the educational requirements of educational staff can be regarded as pursuing a legitimate objective. In particular, an interest in the quality and availability of education is being pursued, including for children with special educational needs.
93. In the final step of the rationality test, the Constitutional Court examines whether the legal means used to achieve the legitimate objective which was assessed in step three is reasonable, albeit not necessarily the best, most appropriate, most effective or wisest. In this particular case, the Constitutional Court has no more fundamental doubts that the actual allocation of part of the special teachers for specialised childcare with a logopedic problem and the setting of higher qualifications can be considered a reasonable measure. This, despite the fact that there may be a certain "overview" for the public, is precisely the name of these pedagogical staff for school loopeds. However, as is given above, this "overview" does not achieve such an intensity that an average informed citizen would not be able to distinguish between the role of the educational and clinical speech (see, in particular, the way in which these services are covered and the different legal requirements for expertise).
94. Nor can it be anticipated, as the appellant contends, that there is a tendency to benefit from such a situation and that, as a result of the contested legal regulation, there is necessarily a deception of the candidates for the provision of the services of the loops. Only future practice will show whether the new legislation will bring possible overlaps to the practice of clinical loops. However, even if this were to happen in the future, the possible solution lies in the greater supervisory role of the State and the use of private and public law resources, and not necessarily in its abolition.
95. Indeed, it is possible to imagine a more precise definition of the activities of school loops and the setting of a system of care for persons with a disability or speech defect so that it is clear that school loops do not replace but only complement the activities of clinical loops. However, even under existing legislation, if there is no distinction between the activities of these two types of loops for the public, there are ways to inform parents in this regard. There is no doubt that it is also possible to appeal to practitioners for children and adolescents, as they, through their own professional societies, have also supported the proposal of a group of senators to refer parents to appropriate explanations and lessons to the relevant health centres in cases of suspected loopedic defect.
96. It can thus be summarised that the contested legal provisions will also stand in the final step of the proportionality test.
Conclusion
97. The Constitutional Court concludes that the appellant is based on the belief that the contested legislation de facto allows school loops to carry out health care, which is entrusted only to clinical loops, and all its reservations depend on that. However, since the Constitutional Court did not find any such authorisation in the contested provisions, it is not logical to deduce from them the alleged interference with fundamental rights.
98. Although the Constitutional Court cannot, of course, rule out that individual excesses of the competences of the school loopeda may occur in practice, even this risk cannot lead to the conclusion of the unconstitutionality of the contested legislation. In such cases, it would be primarily for the person concerned to seek the protection of his rights through a civil action, while at the same time it is for the State to prevent such practice by its control and sanction mechanisms. Even a lack of clinical loops cannot be saturated with less professional care, which cannot be described as health care. The solution can only be a de facto fulfilment of the State's positive obligations, in particular the obligation to ensure sufficient free loopedic care to protect the health - especially of children - of patients. Even the fulfilment of these obligations by the State can be effectively claimed by the application of individual public subjective rights.
99. For all the above reasons, the Constitutional Court rejected the application for annulment of § 2 (2) (e) and § 18a of the Law on Educational Workers under § 70 (2) of the Law on the Constitutional Court.
President of the Constitutional Court:
JUDr.
Sign in for notes, favorites and notifications
Regulation Information
| Citation | The Constitutional Court found no. 12 / 2024 Coll., sp. zn. Pl. ÚS 38 / 23 on the application for annulment of § 2 (2) (e) and § 18a of Act No. 563 / 2004 Coll., on pedagogy workers and on the amendment of certain laws, as amended |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 24.01.2024 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
Public Contracts 5
Smlouva o investičním příspěvku č. 2025/0380 ,,Bytový dům Ke Kaménce´´
Městská část Praha 17
Klevaro s.r.o.
354 900 CZK
25.11.2025
Smlouva č. 2025/0264 o investičním příspěvku ,,Polyfunkční dům Slánská´´
Městská část Praha 17
AL ATTAR NASIR
468 100 CZK
04.11.2025
Notifications
Smlouva č. 2025/0303 - o investičním příspěvku "Padel centrum Borovičky"
Městská část Praha 17
Just padel s.r.o.
2 204 600 CZK
05.09.2025
Smlouva č. 2025/0292 - o investičním příspěvku ,,Bytový dům Žalanského"
Městská část Praha 17
ONN alfa s.r.o.
1 973 048 CZK
31.08.2025
Aplikace Městských stavebních předpisů - právní podpora
Institut plánování a rozvoje hlavního města Prahy
Havel & Partners s.r.o., advokátní kancelář
363 000 CZK
22.08.2024
Source:
Hlídač státu
(CC BY 3.0 CZ)
The regulation text is for informational purposes only.
Comments 0