The Constitutional Court found No 207 / 2003 Coll.

Motion denied.

On 17 May 2002, the Constitutional Court submitted a proposal by a group of Members of 14 May 2002 to repeal part of the sentence of the second provision of Paragraph 11 (1) (d) of Act No. 48 / 1997 Coll., on Public Health Insurance and amending and supplementing certain related laws, as amended (hereinafter referred to as "the Act on Public Health Insurance '), expressed in the words" or in connection with the provision of such care'.

From the attached signature sheet of Members, the Constitutional Court found that the conditions laid down in Section 64 (1) (b) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Law on the Constitutional Court ') were met, with 54 Members confirming the proposal in question. A representative of the appellants in the proceedings before the Constitutional Court was appointed by Mr Marek Benda. Following the removal of some of the formal defects of the application, which occurred with the submission of a representative of the appellants received by the Constitutional Court on 11 July 2002, the Constitutional Court was able to deal with the application in substance.

The Group of Members considers that the contested provision of the law is contrary to Articles 3 (3), 4 (4), 26 and 31 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter). First of all, the appellants pointed out that, according to them, the contested provision interferes with a matter which is outside the scope of the regulation of the General Health Insurance Act itself (they pointed out, in particular, Article 1 thereof). It is alleged that the provision has no direct link to the other parts of the law in question and practically excludes the provision of health care and services which are not covered by public health insurance.

Opposition with Article 26 (1) The Charter sees that a taxa-listed group of bodies (doctor or other health professional) is prohibited from accepting reimbursement from another group of bodies (insured) for any care or services not covered by public health insurance, if they relate to the provision of health care covered by that insurance. This allegedly leads to a significant reduction in healthcare provision. Article 26 (2) While the Act may lay down conditions and restrictions for the pursuit of certain professions or activities, the contested provision, according to the appellants, interferes in such rights in a way contrary to Article 4 (4) of the Charter, not sparing their substance and purpose. Where an entity is entitled to provide health care and where, in addition to health care fully covered by general health insurance as well as non-covered care, it is said to be virtually an exclusion of the right to do business, preventing that entity from accepting payment for such care, provided that it has been provided to a public health insurance participant and is related to the provision of health care covered by general health insurance. The contested provision thus allegedly also effectively excludes the operation of health care facilities which are not under contract with health insurance companies.

The alleged contravention of the contested provision with Article 31 of the Charter was alleged by the appellants that the prohibition on accepting the remuneration for the provision of health care or services not covered by public health insurance also limits the supply of health care for civil servants, which, according to the appellants, prevents them from exercising the right to health protection enshrined in that Article of the Charter.

The applicants further claimed that certain procedures, procedures, medicines or medical devices are not covered by public health insurance at all (e.g. acupuncture), some in limited numbers only (e.g. no more than three times for life care related to ectopic pregnancy), and some only partially (75% of the price for certain medical devices). In some cases, only "basic" health care is covered (e.g. the most economically demanding medical device). The Act therefore defines the so-called free care within the meaning of Article 31 of the Charter, but according to the applicants, the contested provision prohibits medical institutions from accepting payment from the insured person for care not included in that care if it relates to the provision of care paid. From the point of view of the "intensity of the context '(cf. the text under appeal" or in connection with the provision of such care'), the applicants divided this related care or service into the following categories:

- inseparable care (cases where the law provides for only partial remuneration from public health insurance, e.g. by percentage; common in dental),

- closely related care (there is an appropriate medicine or treatment method for improving or maintaining the patient's health status, which is not covered by public health insurance, or some basic health care is covered, and alternatively healthcare is available better but not paid),

- related care (the insured person has an interest in agreeing to provide additional care related to public health care, but no longer covered),

- widely related care (the health care facility provides public health care, with which the provision of other services that are no longer paid for - for example, in the spa care voucher, only medical treatments and not accommodation and meals are covered for the so-called spa care allowance).

According to the applicants, it is clear from the above that "there is undoubtedly a link between the different types of intensity between the care covered by public health insurance and the care not paid for '. The amount of the reimbursement in the case of health care not paid or provided by non-contractual medical institutions is in substance regulated within the meaning of Section 6 of Act No. 526 / 1990 Coll., on Prices, and is regularly regulated in the Bulletin of the Ministry of Finance pursuant to Section 10 of the quoted Act. However, the contested provision allows for payment only where the care provided is not related to healthcare paid.

The applicants concluded that they considered it a breach of Articles 26 and 31 of the Charter to be a situation where, in their view, the civil insurer is practically unable to decide on the way in which he will take care of his or her health, only because the method chosen by him is not fully covered by public health insurance (either because the payment is excluded or limited or because the medical institution is not in a contractual relationship with the relevant health insurance undertaking), but is related to the care covered by that insurance. If, however, the insured person of the chosen healthcare establishment provides such care and accepts payment for it, he shall transfer the law and issue a penalty for the withdrawal of his entitlement to work.

The Constitutional Court, in accordance with the provisions of Sections 42 (3) and (4) and 69 of the Law on the Constitutional Court, sent the proposal in question to the Chamber of Deputies and the Senate of the Parliament of the Czech Republic and requested the written opinion of the Ministry of Health.

In the observations of the Chamber of Deputies of the Parliament of the Czech Republic of 20 September 2002, signed by its President PhDr. Lubomír Zaorálk, it is stated that the provisions of Section 11 of the Public Health Insurance Act contain a list of the rights of the insured person, including the right to health care without direct remuneration, provided that he has been provided to the extent and under the conditions laid down in that Act, defining the scope and conditions under which health care is provided. The law specifies which health care is covered by public health insurance and which is not covered without prohibiting direct payment. Health care is therefore provided without direct payment or partial financial payment, or - in the case of health care from health insurance not paid - full financial payment. In order to ensure that health care is provided in kind, health insurance companies conclude contracts with health care institutions. In such a case, the health care institution shall accept payment from the health insurance company for the care provided. The healing performance is paid and there is no room for further payments from the insured parties.

The appellants' objection that the contested provision excludes the operation of medical facilities which are not in contractual relationship with health insurance companies is unfounded, according to the Chamber of Deputies. Health care may also be provided by health care establishments which are not in contractual relationship with the health insurance company. In this way, health care providers can act as self-employed, on their own behalf, on their own responsibility for making profits, and it depends on the will and financial possibilities of citizens to choose such a healthcare facility.

The purpose of the contested provision, which prohibits payment from the insured person in connection with the provision of health care which is legally covered by public health insurance, is to prevent a situation where the provision of such care would be dependent on the financial possibilities of the insured person. In the opinion of the Chamber of Deputies, its abolition would open up an area in which healthcare establishments and doctors contracted with a health insurance company could demand from insured persons for whom seeking health care is not an option but a necessity, various fees (e.g. registration or entry). This would deny the right enshrined in the 31 Charter as well as the purpose of the Public Health Insurance Act to ensure it.

In the opinion of the Senate of the Parliament of the Czech Republic of 20 September 2002, signed by its President, Dr Petr Pithart, it is stated that the Senate discussed the draft amendment to the Act on Public Health Insurance (Act No. 2 / 1998 Coll.), which introduced the contested provision in the Act on 12 and 13 November 1997 at its 9th meeting in the first term of office, and adopted a resolution returning the proposal to the Chamber of Deputies with amendments. The Chamber of Deputies, which returned the bill, discussed and maintained its original approved text. During the negotiations of the law in the Senate bodies, the proposal was discussed, inter alia, on the proposed amendment to the provision of Paragraph 11 (1) (d). The result was the approval of the so-called comprehensive amendment, which the Senate addressed, in particular, the issue of legal certainty for entities liable to be penalised for infringement of the provision cited. However, as regards the contested provision, the Senate approved a text very similar to that adopted by the Chamber of Deputies and merely attempted to express its meaning more clearly ("the health care facility may not accept any payment for such health care or in direct connection with the provision of such care from the insured person ').

The Senate approved that text of the amendment in the belief that this text (and thus the contested provision) was in line with the Constitution of the Czech Republic (hereinafter referred to as the Constitution) and the Charter. The Act on Public Health Insurance distinguishes care from health insurance paid, not paid and partially paid. In those cases where care is paid, it strictly takes into account the dictation of the 31 Charter and does not allow for any payment from insured persons for such care. The adjustment of what is unpaid or partially paid care is then included in other provisions of the Public Health Insurance Act. If the appellants' view is to be valid that the contested provision prohibits the competent bodies from receiving payments for the provision of health care or services not covered by public health insurance, the second sentence of Paragraph 11 (1) (d) would, according to the Senate, have to read, for example: "A doctor or other health professional or health care institution may not accept any payment from an insured person for health insurance, including non-paid or partially paid health care, even if such care is provided in connection with the care paid '.

The statement is concluded by stating that the Senate does not consider that the contested provision limits the right to do business in the health sector beyond constitutional possibilities; in this context, neither could the Senate agree with the conclusions of the appellants that citizens are prevented from implementing the right to health protection under the cited article of the Charter as they wish.

In its written opinion of 2 October 2002, the Ministry of Health stated in particular that if the insured person is provided with health care to the extent and under the conditions laid down in the Public Health Insurance Act, the insured person is entitled to such care without direct payment. This right is "mirrored" provided by the obligation of doctors, other health professionals and health care institutions to refrain from acting that would restrict or negate that right. According to the Ministry, there is no practical difference in the dictation of the contested provision "for such care 'and" in connection with the provision of such care', both of which are intended to ensure the indisputable right of the insured person to health care without direct remuneration, if it is granted to him within the scope of the law in question. On the contrary, the Ministry of Health considers that if the contested provision had been repealed and therefore deleted the text "even in connection with the provision of such care ', the declared right of the insured person could have been relativised. The issue of direct reimbursement of healthcare provided is wider. This is a conceptual matter, exceeding the provisions of the Public Health Insurance Act and the proposal of a group of Members. The Ministry therefore considers that these issues should be addressed in the context of the whole health policy of the Czech Republic; the application for annulment of the contested provision is therefore unsystemic in that sense.

Furthermore, the Ministry noted that the contested provision does not exclude the provision of health care which is not covered by public health insurance. There is nothing to prevent a remuneration being levied for healthcare in excess of the definition of the Public Health Insurance Act. There is also no conflict with the right to do business and operate an economic activity under the Ministry. The right to do business is for non-state health establishments and doctors in accordance with Act No. 160 / 1992 Coll., on Health Care in Non-State Health Facilities, as amended. However, according to the Ministry's opinion, the collection of funds from patients in the form of, for example, various input or registration fees and sponsorship donations cannot be considered as "business'. It cannot be accepted that the provision in question excludes the operation of health establishments which are not in contractual relationship with a health insurance undertaking. The claim of the insured person is not the provision of health care covered by health insurance in any medical institution but in one which has a contract with his health insurance company (except for the provision of so-called urgent health care).

In order to divide care into "inseparable, closely related, related and widely related ', the Ministry stated that it was a misleading and purposeful division. It must be based on the extent to which and under which health care is covered under the law. In addition to the" intensity analysis' carried out, it is further noted in the opinion that the law distinguishes between partially paid care only for medicines and medical devices in outpatient care. Involvement in medicaments and medical devices in bed care is excluded in the law. For other healthcare, this care is paid in full or not (the relevant annex to the Act).

According to the Ministry of Health, the deletion of the contested provision of the Public Health Insurance Act could be understood by doctors as being possible to collect from patients without any limitation of the amount for either health care or related care. If so-called health care standards and the Health Insurance Act were to exist and published, the Health Insurance Act would clearly provide that such standard care is covered by insurance and that what goes beyond the standard is subject to direct remuneration by the insured person, the situation would be different. However, the problem lies precisely in the fact that no standards or standard medical procedures are described anywhere, and if the doctor considers that the health performance provided from the health insurance is not covered, because the insurance company only pays for a certain procedure, medical remedy or medicine, then the patient has no way of checking whether it really is and what the insurance company actually pays for it. The current law merely states what kind of care is covered, not by what procedure or using which medicines or medical devices are to be provided.

The Constitutional Court first examined, in accordance with § 68 (2) of the Law on the Constitutional Court, whether the law in respect of which the appellants object to the unconstitutionality of its provisions was adopted and issued within the limits of the Constitution laid down by competence and in a constitutional manner. It is clear from the observations of the two chambers of the Parliament of the Czech Republic, as well as from the relevant House Prints, data on the course of the vote and other materials collected, that the Act on Public Health Insurance, as well as its amendment, introduced into that Act by the contested provision (Act No. 2 / 1998 Coll., amending and supplementing Act No. 48 / 1997 Coll., on Public Health Insurance and on the Amendment to certain related laws, as amended by Act No. 242 / 1997 Coll.), was adopted and issued in a constitutional manner and within the limits of the constitutional powers provided for, in accordance with the provisions laid down in Article 39 (1) and (2) of the Constitution. The draft amendment to the Public Health Insurance Act was returned by the Senate to the Chamber of Deputies with amendments. The Chamber of Deputies, which returned the bill, debated on 2 December 1997 at its 17th session in the second parliamentary term and maintained its original approved text (of 183 Members present, 171 to 9 against). Similarly, the Chamber of Deputies, at its 18th meeting on 13 January 1998, overvoted the veto of the President of the Republic (of 192 Members present there were 114 in favour and 47 against). For the sake of completeness, it can only be noted at this point that the reasons for which the law was returned by the Senate and vetoed by the President of the Republic did not in principle concern the substance of the contested provision.

The motion of a group of Members to repeal the contested provision did not reach the necessary majority of 9 votes and was consequently rejected by the Constitutional Court.

The Act on Public Health Insurance in § 11 (1) (d) provides that the insured person is entitled "to health care without direct payment, provided that he has been provided to him in the extent and under the conditions laid down by that law. A doctor or other health professional or health care establishment may not accept any payment for such health care or in connection with the provision of such care from the insured person '. In Section 5 of Section 13 et seq., the Act defines health care paid and care not covered by health insurance, and in Annex 1 to the Act lists health performance from health insurance not covered or paid only under certain conditions.

The appellants, requesting the annulment of a part of the text of § 11 (1) (d) of the cited Act, namely "even in connection with the provision of such care ', are based on the fact that, in addition to public health insurance, there is a wide range of performance, means, products and services which are not covered at all or only partially or only when the statutory conditions are met. The applicants consider that, by extending the wording of the prohibition to accept payment from the insured for the provision of free health care of the word" even in connection with the provision of such care', the text is so general that it covers essentially all healthcare, including that which is not covered, which, in their view, will lead to health care establishments avoiding suspicion of violating the principle of free health care, avoiding such performance, means and services not covered by the concept of free health care. In this view, the appellants consider that the contested provision "excludes the provision of health care and services not covered by public health insurance '. From there, the applicants import infringements of both the freedom of business guaranteed by Article 26 (1) of the Charter and the rights of everyone to health under Article 31 of the Charter, since the insured person does not have the right to decide on the manner in which he will take care of his or her health, only because the method chosen by him is not fully covered by public health insurance.

Such an interpretation appears to be entirely purposeful and disproportionate to the Constitutional Court, since the contested provision clearly only follows actions related to each other in the framework of free health care, namely those which, according to the introductory wording of Section 11 (1) (d), fall under "health care without direct remuneration if... it has been granted to the extent and under the conditions laid down in this Law '. Therefore, the prohibition on receiving direct remuneration concerns the actual exercise of free health care. This follows from the rule of law:" for this health care', the wording of the preceding sentence undoubted that "this' care means" health care without direct payment 'and no other. The prohibition also concerns the connection with the provision of such care, i.e. free care again. However, it is also clear from the text of the law that there is nothing to prevent a direct payment from insured persons for healthcare provided in excess of the conditions for free care. In the view of the Constitutional Court, the contested provision does not change the meaning and content of the law, but only highlights the protection of the free health care sphere from attempts to undermine its integrity and narrow its scope. This interpretation is constitutionally conformal and the meaning of the law is entirely proportionate. As is known, if the constitutional interpretation of the legal provision is possible, the Constitutional Court gives it priority over the abolition of the contested provision. That is the case here. In addition, the Constitutional Court considers that the contested provision does not address the question of whether or not the insured person should pay the cost of health care or to what extent and in what context the insured person should pay. This is, in itself, another subject of public health care.

The Constitutional Court also found no contradiction in the contested provision with Article 26 (1) of the Charter and opted for the opinion of the Ministry of Health, which in this context refers to the protection of the business freedom of doctors in accordance with Act No. 160 / 1992 Coll. Nor can it be accepted that the contested provision excludes the operation of health establishments which are not in contractual relationship with a health insurance undertaking. The right of an insurer under the General Health Insurance Act for free care applies naturally to the care provided by a health care institution which has a contract with a health insurance company.

After the Constitutional Court found that the reasons set out in the submitted proposal did not give rise to the unconstitutionality of the contested provision, it considered whether there were other reasons to justify its inconstitutionality. In particular, he was concerned about whether the contested provision does not go beyond the constitutional mandate of Article 31 of the Charter, according to which citizens have the right, under public insurance, to free health care and to medical supplies under the conditions laid down by the law, to the extent that it can be extended or narrowed by the way of the law, and only within the limits of that law can this constitutional right be invoked (Article 41 of the Charter). Such a law is undoubtedly the Public Health Insurance Act, as amended. On this basis, therefore, the provision on the invalidity of public health care, supplemented by "even in the context of the provision of such care ', is constitutionally consistent, as it is a specification which, in its scope, constitutes only a detail of the overall health care arrangements and does not interfere with its content, but specifies the principle of free health care under Article 31 of the Charter. In view of its scale, the contested amendment cannot be reinterpreted, as if it were a substantial intervention in the principles of health insurance arrangements, or as an intervention in the appropriate equivalence of the protection of insured persons. The decision to revoke the contested provision of the law could send out a signal that would facilitate the reconstruction of free medical care towards greater participation of insured persons (such as hospital allowances, recipes, treatment operations, etc.), appears to the Constitutional Court to be completely out of line with the task which the Constitutional Court faces in relation to the proposal of a group of Members. Any removal of the amendment as a first step towards a change in the state's health policy would mean exceeding the authority of the Constitutional Court towards a constitutionally inadmissible position of a" positive legislator, "an inspirer of new modifications, regardless of the fact that the contested provision is in line with the Constitution. Such a move is only for the Parliament of the Czech Republic, whose task is to consider the possibilities of public funds and to assess the adequacy of the application of the principles of equivalence and solidarity in the overall regulation of health care in a new situation. In this context, the Constitutional Court merely refers to its finding of 12 April 1995 sp. zn. Pl. ÚS 12 / 94, published under No 92 / 1995 Coll. and published also in Volume 3 of the Collection of Finances and Orders of the Constitutional Court on page 123 et seq., and to the different opinions attached thereto.

The Constitutional Court is aware that these issues are part of the whole public health-care complex, which is based on certain constitutional principles and which should respond by its overall adjustment to solutions common in advanced democratic states and internationally agreed or recommended opinions.

Therefore - rather on the edge - The Constitutional Court also dealt with the starting points which may, albeit indirectly, also affect the concept of an individual provision representing only a certain detail of the general health insurance scheme.

The Constitutional Court bases its reasoning on the constitutional concept of health protection, which is enshrined in Article 6 (1) of the Charter under which "Everyone has the right to life 'and in Article 31 of the Charter, which reads:" Everyone has the right to health protection. Citizens are entitled to free health care and medical supplies under the conditions laid down by the law on the basis of public insurance.'

The Charter also corresponds to the legal framework for healthcare provision. Act No 20 / 1966 Coll., on the care of the health of the people, as amended, in Article III, is based on the fact that the precondition for the care of the health of the people is "the prompt application of the results of scientific research in practice," and Article 11 (1) provides that health care establishments provide health care "in accordance with the current available knowledge of medical science." Likewise, Act No. 123 / 2000 Coll., on Medical Devices and on the amendment of certain related laws, requires in § 1 to provide health care with "appropriate, safe and effective medical devices."

This is in line with the constitutional principles of the development trend of public health care in the direction of quality, full-fledged and effective care on the basis of equal status of all insured persons. From constitutional and legal principles, this care cannot be divided into basic, "cheaper" but less suitable and less effective, and above-standard, "more expensive," but more appropriate and more effective. The difference between standard and superior care should not consist of differences in the suitability and efficacy of the treatment. The law does not regulate the health care that a doctor or health care facility can provide, but which it must provide, in the general interest, so that all insured persons are equally entitled to treatments and treatments that meet objectively identified needs and requirements of appropriate level and medical ethics. The development orientation of health care, based on laws, is therefore not based on the transfer of "better" health care activities from free care to the area of insured persons directly paid, but rather in the direction of improving the activities provided free of charge from public health insurance. This concept also corresponds to international conventions such as the Convention on Human Rights and Biomedicine, as well as recommendations such as Recommendation Rec (2001) 13 of the Committee of Ministers to the Member States of the Council of Europe, which was approved on 10 October 2001. The Committee of Ministers stressed that Article 3 of the Convention on Human Rights and Biomedicine requires bodies concluding health care contracts to ensure equal access to health care of appropriate quality. The Constitutional Court adds that Article 4 of this Convention also provides that "any action in the field of health care... shall be carried out in accordance with relevant professional obligations and standards." The Convention itself entered into force on 1 October 2001 for the Czech Republic (No 96 / 2001 Coll.).

The Czech Public Health Insurance Act in Annex 1 lists the health performance of health insurance not covered or covered only under certain conditions, Annex 2, Section A lists the active substances for which it defines substances fully covered, partially covered and not covered by public insurance, and Section B lists substances with indication and prescription restrictions. Annex 3 contains lists of medical devices not covered or covered by health insurance, and Annex 4 refers to dental products marked by the insurance undertaking's remuneration, or to the maximum amount of such remuneration. It is also clear from this provision that the contested provision does not exclude and cannot exclude the provision of services not covered by compulsory insurance from healthcare.

It can be admitted that the current arrangements are not clear enough, so that a simple insured person can sometimes be successfully referred to direct payment even where it is not justified. If public health insurance is to be brought closer to the European standard, the law would probably need to define clearly and clearly the possibilities for the private payment of insured persons, probably in the same way as in the developed European countries, Germany, Switzerland. For example, in Germany, although around 10% of the population are privately insured with commercial insurance companies, the quality of private care is provided at the same level as public health insurance and under common national directives. In public hospitals, the same medical performance is provided, including the same types of medical material firmly linked to the human body, such as replacements, both for privately insured persons and for insured persons of statutory health insurance companies, including the timing of the patient's inclusion in health performance according to professional criteria and not according to the ability to pay extra. A private patient or a publicly insured person may order and pay, as supplementary acts and services, in public hospitals, only officially approved items with officially confirmed prices, the provision of which does not affect the level of health such as special accommodation, catering, free choice of doctor or nurse, other type of bandage or medication.

However, apart from the overall issue of our health care and returning to the proposal of a group of Members, it cannot be seen that the contested provision of the amendment of the Czech law concerns only one, namely a partial problem in the overall regulation of public health care. It is therefore not the task of the Constitutional Court to assess this overall health regulation or the amendment of the law as a whole. The purpose of the contested provision is undoubtedly to counter the illegal collection of money for those services provided which are covered by compulsory general health insurance, whether these are various registration fees and overheads, or then the remuneration for those types of health and medical performance which are referred to as "better ', above-standard and more expensive, even if these are types which fall within the scope of services fully covered by public health insurance.

After examining the proposal of a group of Members, the Constitutional Court concluded, for all those reasons, that the application for annulment of the contested provision was not justified and therefore rejected it.

Pursuant to Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, the judges JUDr. Vojtěch Cepl, JUDr. Vladimir Čermák, JUDr. Vojen Güttler, JUDr. Pavel Holländer, JUDr. Jiří Malenovský, JUDr. Jiří Mucha and JUDr. Antonín Procházka took a different view to the decision of the plenary.