The Constitutional Court found No 77 / 2014 Coll.
The Constitutional Court found of 25 March 2014 sp. zn.
Valid
77
FIND
The Constitutional Court
On behalf of the Republic
On 25 March 2014, the Constitutional Court decided, under point Pl. ÚS 43 / 13, in a plenary composed of the President of the Court and Judge, Mr Pavel Rychetský and the Judges Stanislav Balík, Mr David, Mr Jaroslav Fenyk, Jan Filip, Mr Vlasta Formánková, Mr Ivana Janů, Mr Křímír Křírka, Mr Vladír Musil, Mr Rámíměr Sludeček, Ms Tomková, Mr Jiří Zemánková and Mr Michaela Židlická, on the proposal of the Senate of the Parliament of the Czech Republic, represented by Dr. Milan Čichnochony, a lawyer, with a seat in Ostrava-Portion, the main Class 1196, on the abolition of Decree No 267 / 2012 Coll.
as follows:
The Decree of the Ministry of Health No. 267 / 2012 Coll., on the establishment of the Indicative List for Spa Rehabilitation Care for Adults, Children and Adolescents, is hereby repealed on 31 December 2014.
Reasons
Summary of the proposal
1. On 23 August 2013, the Constitutional Court received a proposal from a group of 21 senators ("the appellant '), under which Senator MUDr. Mgr. Vladimir Plaček was acting, on the abolition of the Decree of the Ministry of Health No. 267 / 2012 Coll., on the establishment of an indicative list for the spa rehabilitation care of adults, children and youth (" the contested decree'), possibly on the annulment of § 2 (2) of the contested decree.
2. The appellant considers that the Indicative List for Spa Rehabilitation Care for Adults, Children and Adolescents (hereinafter referred to as the "Indicative List") should have been adapted by law, or in the form of an annex to the Act. The provision of spa rehabilitation care falls within the scope of the right to free health care on the basis of public health insurance within the meaning of Article 31 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter '), which implies that the determination of the extent to which such care is covered by public health insurance is reserved for a law approved in the framework of parliamentary democratic debate and cannot be the subject of only a statutory law.
3. In relation to the provisions of Paragraph 2 (2) of the contested order, according to which the last medical stay in the defined period before the entry into force of that order is considered to be a basic medical stay and therefore all other medical stays corresponding to the same indication as repeated stay, the appellant contends not only to Article 79 (3) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution) but also to the principles of predictability of law, legitimate expectations and legal certainty. It is convinced that the contested provision regulates the legal relationships arising before its effect in a constitutionally non-conformal manner, as it interferes with the legitimate expectations of patients who have a further, or repeated, medical stay. They can no longer count on this stay to be paid for by public health insurance and are forced to pay for it from their own resources, which is necessarily reflected in their property sector.
4. In particular, a significant reduction in the possibility of repeated treatment resulting from the contested decree is, according to the applicant, a reduction in the usability of the spa facilities and a related reduction in the quality of the spa care. This situation may have a negative effect on citizens' health, as treatment procedures have a positive effect only at a distance of time during long and repeated application. For this reason, it considers that the contested decree affects the very existence or actual implementation (essential content) of the right to health protection and the right to free health care on the basis of public insurance, which is contrary to Article 4 (4) in conjunction with Article 31 of the Charter. It is of the opinion that the limitation in question of this fundamental right will not stand up to the principle of proportionality and that it can be granted a discriminatory nature. It also notes the infringement in relation to the right to business under Article 26 of the Charter.
Proceedings before the Constitutional Court
5. The Constitutional Court pursuant to Article 69 (1) and (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as the Law on the Constitutional Court) sent the proposal to the Ministry of Health (hereinafter referred to as "the Ministry") as a party to the proceedings and to the Ombudsman, who is entitled to intervene in the proceedings.
Expression of the Ministry of Health
6. According to the opinion of the Minister for Health, Dr. Martin Holcát, MBA of 3 October 2013, the Ministry of Health issued the contested Decree pursuant to Article 79 (3) of the Constitution on the basis of Article 33 (2) of Act No. 48 / 1997 Coll., on Public Health Insurance and on the amendment and addition of certain related laws, as amended by Act No. 369 / 2011 Coll., ("the Act on Public Health Insurance '). The possibility of providing spa care as a paid service arises from the above legal provision, with the contested decree determining only its indicative conditions, which are of a professional medical nature. However, the decree itself does not impose limits on fundamental rights and freedoms. It does not directly concern the right to health protection, it does not regulate in any way the conditions under which authorisation to provide health services can be obtained, nor does it prevent providers from offering such services, whether they are services paid or not covered by public health insurance. If the health status of the insured person requires the provision of spa care, a proposal shall be made for that care, and only after the medical examiner has confirmed it, can it be covered by health insurance. In view of the preparation and approval of the contested decree, including the relevant comment procedure, which the Minister has summarised in detail, it should not be maintained that its adoption was accompanied by the absence of a democratic debate.
7. On the objection of retroactive activity, the Minister stated that the contested decree makes a new distinction between primary and repeated treatment, with patients first having to undergo a basic stay and only then possible restay. Since the previous Decree No. 58 / 1997 Coll., establishing an indication list for spa care for adults, children and adolescents, did not know these concepts, it was necessary to ensure continuity of decisions on the proposals for spa rehabilitation care. It is for this purpose that the transitional provision of Paragraph 2 (2) of the contested order, the annulment of which the appellant claims by its potential petition, defined the basic treatment stay already in relation to the previous stays. The fact that this provision applies for the period 2009 to 2012 is intended to reflect the longest period laid down in the indication list as a condition for re-residence, which is 36 months in indication I / 1 (malignant tumors). A patient who completed anti-cancer treatment in 2010, for example, and subsequently had a spa treatment in accordance with previous regulations, will be able to undergo a repeated stay, as his previous stay will be considered essential under the new decree. If, on the contrary, this provision were to be repealed or not previously contained in the Order, this patient would first have to fulfil the conditions laid down for the basic stay, including taking up treatment within 12 months of the end of the comprehensive anticancer treatment, which, however, would not be possible given the time span. In that case, the patient would be damaged by a new decree. The Minister adds that the legal or legislative method used and the technical reflection of the status of insured person under the new legislation is not unusual in the Czech legal order [cf. § 98 (1) of Act No. 111 / 1998 Coll., on universities and on amending and supplementing other laws (Act on Higher Education), or § 59 of Act No. 85 / 1996 Coll., on advocacy], the purpose of which is to strengthen the principle of legal certainty in the context of reimbursement relations in the public health insurance system. It's not a violation of the ban on real retroactivity.
8. The indication list is an important professional element for health service providers when prescribing spa care to insured persons, and the reasons for its adoption were purely professional. The purpose of the new regulation, which replaced the previous Decree No. 58 / 1997 Coll., was in particular to reflect current medical knowledge and procedures, including the possibility of pharmacotherapy, to ensure the effective provision of spa rehabilitation care, the effective use of health insurance funds, the reserve of funds for the treatment of those insured persons, where the assumption of significant benefits for improvement or maintenance of health, the definition of the extent of comprehensive spa rehabilitation care to status after serious accidents, operations and the treatment of serious diseases and the extension of care contributions. In acute care, mini-invasive patient-friendly operating procedures are available today, many diseases can be detected in time using modern diagnostic technologies and then also treat in time, or their development prevents modern pharmaceuticals. The need for subsequent spa rehabilitation care has changed in many diseases, both in terms of duration of treatment and repetition of treatment stays.
9. The Minister further notes that the contested decree was drawn up on the principle of establishing uniform conditions for the provision of spa rehabilitation care. In defined spa places, a local natural source is available, which has certain chemical and physical properties, which have beneficial effects on the treatment of a specific diagnosis. All places where there is a proven source with the relevant medicinal properties and where the Ministry issued permission to use the resource under Act No. 164 / 2001 Coll., on natural medical resources, sources of natural mineral water, natural spa and spa sites and on the amendment of certain related laws (spa law), as amended, are included in the indication list. This is intended to achieve an objective, equal and transparent approach to the provision of health services. In addition, a range of diseases that can be treated here has been expanded in many places. In its observations, the Minister explains the reasons for the professional nature which led to the determination of the basic duration of the treatment in adults for just 21 days and draws attention to the possibility of its extension to the physician's proposal and to the patient's medical condition for most indication subgroups. It is therefore given the possibility of individual determination of the duration of the patient's treatment stay, taking into account his specific health status, and thus of making effective use of funds for adequate treatment. In the event of repeated treatment, the duration was 14 to 21 days. This stay is provided following the basic stay, with the fact that it is no longer a serious condition, for example directly linked to acute bed care. In the case of paediatric patients, the minimum duration of treatment is 28 days.
10. The Minister does not consider the argument of unfulfilled spa facilities to be relevant because the purpose of the indicator list is not to fulfil them, but to define the conditions and assumptions for the provision of spa care covered by the public health insurance scheme. The decrease in the number of patients is influenced by more undeniable factors, including the solvency of the population, the influence of the labour market, which does not always allow the working groups to have a long spa stay in the context of incapacity for work or leave, and the strengthening of the effectiveness of treatment when approving proposals by health insurance companies. It has been developed gradually in recent years, and it is up to all stakeholders (including health insurance companies, doctors who propose spa rehabilitation care and its providers themselves) to respond to it. Despite this, the care in question remains available to all patients who have been designed and approved. The Ministry has no signals that these patients will not "get to the spa" or have to wait for them. At the same time, it cannot be overlooked that rehabilitation care is provided outside the spa, for example in professional medical institutions or in the form of outpatient care with specialists. It is up to the attending physician to suggest what form of care for the patient due to his current and general condition. An individual approach to a particular patient is always essential. Finally, the Minister rejected the discriminatory nature of the contested decree. The same care shall be given to those belonging to the same indication group or sub-group. Nor is it clear from the proposal what the infringement of Article 26 of the Charter is to be.
The Ombudsman's observations
11. On 12 September 2013, i.e. within the ten-day deadline, the Constitutional Court received a communication from the Ombudsman at the time, Dr Pavel Varvařovský, that it was intervening under Paragraph 69 (3) of the Law on the Constitutional Court. In its subsequent observations of 30 September 2013, it then stated that it was in agreement with the appellant's argument. According to settled case-law of the Constitutional Court, the statutory law cannot interfere with matters reserved for the law, namely to lay down primary rights and obligations, but does not respect the contested decree. By establishing what is considered to be care paid and what is not, it goes beyond the scope of the statutory regulation. As regards Article 2 (2) thereof, the Ombudsman takes the view that this provision regulates the legal relationships arising before the contested decree is effective, and can therefore be granted inadmissible retroactive effect. Not only is it contrary to the principles of predictability of law and legal certainty, but in the case of the first use of a medical stay for the effectiveness of a new decree, which is not the first in order, it also involves intervention in the legitimate expectations of insured persons who are no longer covered by the public health insurance system. For these reasons, it proposes that the Constitutional Court repeal the contested decree.
Replication of the applicant
12. Those comments were sent to the appellant, who responded by reply of 29 October 2013. First, he stated that he maintained his proposal and considered it justified. In his view, the system of primary and repeated treatment cannot be described as favourable to citizens. Although the decree allows the stay to be extended, this possibility is in practice used by revision doctors only to a very small extent. The fact that there is constant improvement in the area of treatment procedures does not change the fact that a spa rehabilitation stay has an effect on repeated and long-term application. However, this cannot be the case in the case of a significant loss of patients threatening the continued functioning of the spa facilities, which, according to the statements of these facilities published in the media, is the contested decree. Moreover, as a result, the principle of legitimate expectations of citizens is also broken, because they cannot count on health insurance to cover their treatment as part of a newly established system of primary and recurrent treatment. The Ministry should have introduced this system in such a way that it did not affect legal relations retroactively. This is a fundamental and crucial factor in the whole thing. His argument that the repeal of the transitional provisions will damage the rights of existing patients who will not be able to undergo repeated treatment without establishing a primary treatment stay is in fact a confirmation of the retroactive operation of the contested decree. The appellant considers that the repeal of that provision will not lead to a breach of the rights of patients, as the Constitutional Court Act allows the enforceability of any satisfactory finding to be deferred. The Ministry will thus have time to process the legislation or part of it in such a way that it is constitutionally conformal. In the final part of his observations, the appellant reiterated his claim that the contested decree limits the right to health protection within the meaning of Article 31 of the Charter and that the list of indications should have been part of the Annex to the Act and should not have been part of only the implementing legislation.
13. By its submission of 23 December 2013, the appellant added his argument to the memorandum of the Association of Spa Points of the Czech Republic and the Association of Medical Spa of the Czech Republic, which, in his view, proves the alleged facts.
Oral proceedings
14. In accordance with Article 44 of the Law on the Constitutional Court, the Constitutional Court has ruled on a case without oral hearing, since further clarification of the case could not be expected.
Assessment of whether the decree was issued on the basis and within the limits of the law
15. The Constitutional Court notes that it is competent to consider the application in question, which was submitted to it by an authorised appellant [Paragraph 64 (2) (b) of the Law on the Constitutional Court], is admissible and fulfils all the statutory requirements. It was therefore able to proceed to a substantive review of the contested order, in accordance with Paragraph 68 (2) of the Constitutional Court Act first dealing with the question of whether it was accepted and issued in a constitutional manner and within the limits of the constitutional competence provided for.
16. The Constitution confers powers on ministries and other administrative authorities to legislate, but the implementation of which can only take place on the basis and within the limits of the law if they are empowered by law. That provision should be interpreted strictly in the sense that this authorisation must be specific, unambiguous and clear [cf. the finding of 21 June 2000 sp. zn. ÚS 3 / 2000 (N 93 / 18 CollNU 287; 231 / 2000 Coll.)]. If that is the case, the Constitutional Court examines whether the statutory law was passed by a state body authorised to do so and within the limits of its competence, that is, whether it was within the limits and under the law (secundum et intra legem) and not outside the law (preater legem) in the exercise of that competence. To put it simply, if it is to be under Law X, this rule does not make it Y, but it is to be X1, X2, X3. The legislator's will to regulate above the legal standard must be evident from the authorisation provision. However, even in such a case, the substatutory legislation may not interfere with matters reserved for regulation only by law (so-called "reservation of the law ') [cf. the finding of 18 August 2004 sp. zn. Pl. ÚS 7 / 03 (N 113 / 34 CollNU 165; 512 / 2004 Coll.], the finding of 22 October 2013 sp. zn. Pl. ÚS 19 / 13 (396 / 2013 Sb.)].
Legal authorisation under Section 33 (2) of the Public Health Insurance Act
17. The opening sentence of the contested decree shows that it was issued on the basis of Section 33 (2) of the Public Health Insurance Act, which empowers the Ministry of Health to establish an indication list for spa rehabilitation care, i.e. diseases for which spa rehabilitation treatment can be provided, indications assumptions, professional criteria for providing comprehensive or contributory spa rehabilitation care for individual diseases, duration of treatment stay and indicative focus of spa sites.
18. The purpose of the indicative list is to define in detail the conditions under which and to what extent spa rehabilitation care is a public health care service [Paragraph 13 (2) (a) of the Public Health Insurance Act]. This is a supplement to the (framework) legal arrangements contained in Section 33 of the Public Health Insurance Act, according to which paragraph 1 of which the care is paid by the service in case it is provided as a necessary part of the treatment process and the provision is recommended by the treating physician of the patient and confirmed by the medical examiner of the relevant health insurance company.
19. According to Section 33 (3) of the Act on Public Health Insurance, spa rehabilitation care is provided and paid as a complex or contributory. Comprehensive spa rehabilitation care is defined in paragraph 4 as a follow-up to bed care or specialised outpatient health care, focusing on treatment, prevention of disability and inadequacy, or minimising disability. It is fully paid by the health insurance company. At the time of its entry, the insured person shall, on the basis of a proposal from the doctor of the registering provider or at the hospital of the nursing doctor, call the spa care facility according to the order of urgency. In the first order of urgency, the insured person shall be called for admission no later than one month after the date of issue of the proposal, or by agreement of the nursing, revision and spa doctor, he shall be transferred to the health facility of the spa rehabilitation provider directly from the health facility of the bed care provider. In the second order of urgency, the patient is called up no later than three months, children and youth within six months of the date of issue of the proposal. Rehabilitation health care is defined in paragraph 5, according to which it is provided mainly to chronic-disease insured persons, unless the conditions set out in paragraph 4 are met, i.e. for the provision of comprehensive rehabilitation treatment. In the case of this benefit spa rehabilitation care, only examination and treatment of the insured person is covered by public health insurance, but not by other costs, i.e. accommodation and catering of the patient in the spa facility. It may be provided once every two years, unless the revised physician decides otherwise. Children and adolescents under 18 years of age shall be provided spa rehabilitation care in accordance with paragraph 4 unless it is provided at the request of the parents in accordance with paragraph 5. For occupational diseases and other damage to health from work, such care shall be provided in accordance with paragraph 4 if it has been recommended or confirmed by the competent professional for occupational diseases.
20. In order to assess whether the contested decree has not withdrawn from the scope of the legal authorisation, it is desirable to summarise its content without citing the full text of the contested order. The indication list for spa rehabilitation treatment, contained in the Annex thereto, shall consist of the general part (Part I of the Annex) and two separate indicative lists, the first concerning adult care (Part II of the Annex) and the second childcare and puppy care (Part III of the Annex). Both are divided into eleven indication groups and those into indication sub-groups, which in fact form a closed list of diseases (e.g. cancer group contains a cancer subgroup; The group of circulatory diseases in turn consists of several subgroups, including symptomatic ischemic heart disease or post-myocardial infarction). This provides a list of the diseases for which patients can be treated with spa rehabilitation care from public health insurance.
21. The contested decree distinguishes between primary and repeated treatment. Although these concepts are no longer defined, it can be concluded from the way they are used that their purpose is to differentiate between the first and any other treatment stays at the same indication, in order to determine the different conditions under which such stays will be covered. The patient should be admitted to a primary treatment stay within a period of time which typically depends on the diagnosis, completion or cessation of treatment in a medical institution. In the event of a repeated treatment stay, it is necessary that the arrival takes place within a specified period of time after the completion of the primary or repeated spa stay. For the sake of completeness, it should be added that in some cases this period is not set, which means that the list of indications makes the treatment stay conditional only on the duration of the indication.
22. The basic and repeated treatment stay can take the form of a comprehensive spa rehabilitation care (in the contested decree referred to as K) or a contributory spa rehabilitation care (in the contested decree referred to as P). The contested Decree provides in its general provisions (Part I of Annex 2) that the duration of the primary treatment stay is 21 days for adults and 28 days for children and adolescents, provided that the spa rehabilitation care is provided as a comprehensive indication, the health care professional of the care provider may propose an extension for the indications indicated in the indication list according to the particular condition of the insured person. The extension and its duration shall be subject to the approval of the medical examiner of the relevant health insurance undertaking. The length of the repeated treatment stay in the form of comprehensive spa rehabilitation care is determined in the same way as in the case of a primary treatment stay, including the possibility of extension (Part I of Annex 3). However, if a repeated treatment stay is in the form of a contributory spa rehabilitation care, its duration is determined according to the design of the doctor who recommends care for 14 or 21 days. If provided for a period of 14 days, the head doctor of the health care facility of the health care provider may propose an extension to 21 days according to the specific condition of the insured person. This extension shall be subject to the approval of the medical examiner of the relevant health insurance undertaking.
23. It follows that the indication list for each indication sub-group determines whether the basic or repeated medical stay of the insured person will be covered by public health insurance to the extent of comprehensive or contributory spa rehabilitation care (i.e. whether the stay will be covered as a whole, or only by examination and treatment), when that stay must be completed, what its duration should be and whether it may be extended. However, this does not exhaust the legislation contained in it. As a further condition on which the payment of spa rehabilitation care from public health insurance depends on the fulfilment, the contested decree, in relation to individual indication groups or sub-groups, sets out what examination is to be taken to prevent the issue of a proposal for a treatment stay, as well as other technical criteria for the provision of spa rehabilitation care (specialisation of the nursing doctor who recommends care, and provision of health care in the health facility of the spa rehabilitation care provider). These are also defined negatively by means of contraindications, patient states or other circumstances that exclude the effective provision of appropriate care (their general definition is contained in Part I, point 7). For each indication group, the indication list sets out the natural medical resources and determines the appropriate spa location. Finally, the contested decree also regulates the elements of the proposal for spa rehabilitation care (Part I, point 6 of the indicative list), which relates precisely to the fact that the scope of the data contained therein depends on the conditions laid down in the indicative list.
24. On the basis of the above findings, the Constitutional Court concludes that the contested order was issued on the basis and within the limits of the legal authorisation contained in Section 33 (2) of the Public Health Insurance Act. It is clear that the establishment of a list of diseases for which the provided spa rehabilitation care is covered by public health insurance, including other conditions which must be fulfilled for entitlement to such reimbursement and its scope falls within the content of the indicative list for spa rehabilitation care, or under the individual items which are explicitly mentioned in the relevant authorisation provision. This was not disputed by the appellant either. However, that conclusion does not mean that the contested order was issued in accordance with Article 79 (3) of the Constitution. It is also necessary to consider as the limits laid down by the law any reservation of the law arising directly from the constitutional order which prevents certain legal relations from being subject to statutory rules.
Reservation of the Law pursuant to Article 31 of the Charter
25. According to the second sentence of Article 31 of the Charter, citizens are entitled, under public insurance, to free health care and to medical supplies under the conditions laid down by law. It is a fundamental right which has the character of social rights, which means that the purpose of its constitutional establishment is not to define an area of individual freedom in which public authority is not entitled to intervene, but rather to guarantee that the State will act actively in certain cases to ensure the conditions for its decent life and equality of chances. The formally guaranteed social rights are not directly related to individuals. Their content is the obligation of the State to adjust, at the level of sub-constitutional law, effective means to achieve a specific purpose, which constitutes the substance and meaning (or essential content) of social law, and subsequently to implement it through its institutions. It is a sub-constitutional legislation that actually answers the question of what and under what conditions an individual can claim on the basis of this fundamental right, i.e. what are the limits of this fundamental right. This conclusion is also in line with the wording of Article 41 (1) of the Charter, according to which certain fundamental rights contained in the title of the fourth Charter (i.e. economic, social and cultural rights), between them and the rights referred to in Article 31 thereof, may be invoked only within the limits of the laws implementing those provisions. Another solution would not even be possible in view of their general nature.
26. It follows from the provisions of Article 4 (2) of the Charter that, under the conditions laid down in the Charter, the limits of fundamental rights and freedoms may be governed by law only. The purpose of the legislator's exclusive mandate thus formulated is to prevent executive powers from "implementing their own ideas of how and how much fundamental rights can be reduced. By granting this authorisation to a democratically legitimate parliament, it is to be ensured that the restriction of fundamental rights will take place only after the democratic parliamentary discourse, and in addition it will obtain a restriction on fundamental rights and subsequent democratic feedback" (Wagner, E., Šiměl, V., Langášek, T., Pospíšil, I. et al., Charter of Fundamental Rights and Freedoms. Comment. Praha: Wolters Kluwer ČR, a. s., 2012, p. 128). Even in the case of social rights, it is the legislator that is called upon to determine what an individual can do on their basis. However, his discretion in this regard is not impeccable, as its limits result from the very constitutional definition of social rights, which are defined by their substance and meaning, which must be investigated by law (Article 4 (4) of the Charter). The law must not deny or purge this right. Any interference with the very essence of social law must be sustained in terms of the principle of proportionality.
27. Reservation of the Law pursuant to Article 4 (2) The Charter does not preclude the statutory definition of social law within which an individual may seek it from being further regulated by a statutory law pursuant to Article 78 of the Constitution or by statutory authority pursuant to Article 79 (3) of the Constitution. In this way, however, it cannot be narrowed or extended by the legal regulation of the content resulting therefrom. The Constitutional Court, in its finding of 16 October 2001 sp. zn. The opposite conclusion, which would require the imposition of any obligation directly and exclusively by law, would obviously lead to absurd consequences, namely to deny the meaning of secondary (and, in some cases, primary) standards, since the definition of certain rights and obligations of the addressees of the standard is a conceptual part of each legal standard. 'What is understood by these essential features is, like the degree of admissibility of such a provision, depends on the nature of the obligation in question or the corresponding right. In addition, in some cases, for the determination of the limits of the fundamental law, the legislator has provided for a special reservation of the law, which either has tightened up the general rules for the regulation of the limits of fundamental rights by means of a statutory law, or even ruled out such an amendment [cf. e.g. the finding of 23 July 2013 sp. zn.
28. By virtue of the constitutionally guaranteed right to free health care, it is the duty of the State to establish a public health insurance system and to ensure that citizens have a fair, i.e. even possible inequalities excluding access to health care of adequate quality [cf. Resolution of 5 May 1999 sp. zn. ÚS 23 / 98 (U 33 / 14 SbNU 319)]. On the basis of this scheme, all insured persons should be entitled to treatments and treatments which meet objectively identified needs and requirements of the appropriate level and medical ethics [cf. the finding of 4 June 2003 sp. zn. Pl. ÚS 14 / 02 (N 82 / 30 SbNU 263; 207 / 2003 Coll.), the finding of sp. zn. Pl. ÚS 19 / 13, paragraph 52].
29. The second sentence of Article 31 of the Charter of the Law provides for the setting of conditions which define the content of the right to free health care under public insurance, which makes it impossible for the legislature to authorise the authority of authority responsible for the issue of a statutory law of less legal force than the law. As the Constitutional Court has repeatedly pointed out in the past, these conditions also include the scope of the healthcare to which the right is conferred and the method of providing [cf. the finding of 10 July 1996 sp. zn.
30. Spa rehab care is one form of healthcare [§ 13 (2) (a) of the Public Health Insurance Act] and therefore the right to provide it falls within the second sentence of Article 31 of the Charter. Therefore, even in its case, the answer to the question whether a citizen is entitled to receive it free of charge on the basis of public health insurance or whether he has to pay for it himself should be given directly by implementing law once the relevant facts (in particular the health status of the insured person) have been established. Under Act No. 48 / 1997 Coll., on Public Health Insurance, and amending and supplementing certain related laws, as amended, this care can be considered to be a paid service if:
- corresponds to the health status of the insured person and to the purpose to be achieved by providing him, i.e. to treat him, to prevent disability and inadequacy or to minimise the extent of invalidity, and is sufficiently safe for the insured person [§ 13 (1) (a), § 33 (4)],
- is consistent with the current available knowledge of medical science [Paragraph 13 (1) (b)],
- there is evidence of its effectiveness for the purpose of providing it [Paragraph 13 (1) (c)]
- and is an essential part of the treatment process (Section 33 (1)),
These are all conditions, the assessment of which depends on the expert medical assessment and which, from a practical point of view, require further clarification. The reservation of a law pursuant to Article 31 of the Charter does not, of course, preclude, for this very purpose, the substatutory legislation from further specifying situations where those conditions may be considered to be met, thereby enabling the parties to the related legal relations, namely patients, spa facilities and health insurance companies, to obtain greater legal certainty as to the scope of free of charge of spa rehabilitation care. However, Article 33 (2) of the Public Health Insurance Act goes further in some ways and authorises the Ministry of Health to lay down further conditions under the statutory legislation for the implementation of the constitutional guaranteed social law in question, which further narrows this scope compared to the statutory regulation. As a result, not only the conditions laid down by law, but also those laid down by the Decree, albeit under and within the limits of legal authorisation, must be met to ensure that spa rehabilitation care is covered by public health insurance.
31. The latter group of conditions clearly includes the limitation of the duration of the treatment stay and the possibility of its extension or recurrence, as well as the limitation of the period of time when the patient must take up this stay or when the possible restay must take place. These restrictions are adjusted separately for each indication subgroup and as a result, the treatment stay is not covered by a public health insurance undertaking to the extent that it exceeds those parameters. Unless otherwise provided for in the Decree, spa rehabilitation care may not be provided free of charge beyond this scope, regardless of the opinion of the nursing or revision doctor, whether the general legal conditions laid down in Sections 13 (1) and 33 (1) of Act No. 48 / 1997 Coll., on Public Health Insurance and on the amendment and addition of certain related laws, as amended. The same result also results in the absence of a primary or recurrent treatment stay within the prescribed period.
32. The time limits mentioned above clearly cannot be considered merely to specify the conditions contained in Sections 13 (1) and 33 (1) of Act No. 48 / 1997 Coll., as amended, which must be fulfilled if health care is to be provided free of charge on the basis of public health insurance and which are of the nature of purely professional criteria which are called by the treating doctor, or also of the medical examiner. Their purpose is to achieve such a regulation of the provision of such care, which will allow a balance between the requirements for treatment effectiveness, namely that a paid stay in a spa facility actually fulfils its intended treatment function and its effectiveness and economic capacity, taking into account other available treatment options and the overall amount of funding in health care. The Constitutional Court stresses that the interest in finding this balance is fully legitimate. However, achieving it requires measuring not only medical but also economic aspects, which must be recognised as political decision making, in which the effectiveness of individual options to choose one of them is assessed. These are, therefore, different limits to the right to free health care based on public health insurance (more specifically, the limits set for purposes other than those resulting from the above provisions of Act No. 48 / 1997 Coll., as amended. They can therefore be determined in accordance with the law provided for in Article 31 of the Charter only by decision of the Parliament of the Czech Republic, which does not respect the contested decree.
33. The fact that the Ministry of Health, when determining the length of the treatment stay and the possibility of its embarkation, took the political decision in question on the extent of the free provision of spa care, can be illustrated by the fact that the adoption of the contested decree was significantly reduced from 28 to 21 days without any change in the legal regulation. At the time of the decision of the Constitutional Court in the present case, the Ministry, in turn, considered returning to the original length of the spa stay, stating as one of the publicly presented reasons that the spa is an important regional employer and leaving the state under the contested decree would escalate the increase in unemployment (Prime Minister Sobotka's government would take measures to save the Czech spa, the Government's press release of 21 February 2014, published at www.vlada.cz). The announced change in the conditions for the payment of spa rehabilitation care should therefore take into account the purposes of which, by means of the sublegal standard, Act No. 48 / 1997 Coll., on Public Health Insurance and on the amendment and addition of certain related laws, as amended, does not foresee at all.
34. For these reasons, the Constitutional Court has concluded that the contested Decree lays down, beyond the scope of the law, the limits to which the basic right to free health care can be claimed on the basis of public insurance, which in consequence contravenes the subject-matter of the Act under Article 31 of the Charter and the authorisation under Article 79 (3) of the Constitution. In addition, it is necessary to refer to the entire wording of the decree, since the parts to which it relates cannot be separated from the other parts of the decree without the Constitutional Court changing the conditions for the exercise of the right to free healthcare.
35. In addition to the merits of the proposal, the Constitutional Court also found the ground for delaying the enforceability of its finding. In the event of the immediate repeal of the contested decree, the economic instruments contained therein would cease to exist to regulate the provision of spa rehabilitation care, which could be reflected in the associated requirements for public health insurance funds and, in extreme cases, lead to destabilisation of this healthcare sector. At the same time, the level of legal certainty would significantly decrease as regards the extent to which the provision of such care is covered by public health insurance. In view of the fact that the legislature, in § 33 (2) of the Public Health Insurance Act, clearly expressed the will for such further regulation to exist, the Constitutional Court considers it desirable to provide it with adequate space for its reregulation. The postponement of enforceability by 31 December 2014 may be considered sufficient to enable Parliament to respond to the legal conclusions set out in this finding and, where appropriate, to discuss within standard time limits a draft law which would establish an adequate legal basis for the limits of the fundamental right laid down by the contested decree, if deemed appropriate by them, in accordance with Article 31 of the Charter. This conclusion also applies, of course, to any other restrictions on the scope of the free provision of spa rehabilitation care, which would exclude its reimbursement from public health insurance despite the fact that, according to the medical assessment, the general legal conditions of § 13 (1) and § 33 (1) of Act No. 48 / 1997 Coll., as amended, would be fulfilled. If the legislator were to conclude on the need for a redefinition of the mandate under Section 33 (2) of the Public Health Insurance Act, it would be desirable to request, if not submitted with the draft law, a draft implementing regulation (Section 86 (4) of Act No. 90 / 1995 Coll., on the Rules of Procedure of the Chamber of Deputies) to prevent any non-compliance with Article 31 of the Charter.
36. The postponement of enforceability cannot be interpreted as meaning that, for the duration of the order under appeal, there is no failure to comply with the constitutional order; However, this does not affect its continued application, since its exclusion would, in view of the State's obligation to fulfil the purpose of the basic right to free healthcare under Article 31 of the Charter, lead to a situation which, in its entirety, would be less favourable to patients than under current legislation. The Constitutional Court is aware that this finding does not in any way affect the validity of the empowerment provision of Section 33 (2) of the Public Health Insurance Act, and therefore it cannot be ruled out that the Decree of the Ministry of Health will change or replace the contested decree before the date of enforcement of that finding. In the end, there may be substantial and legitimate reasons. However, if such a move were to take place, it cannot be assumed that the Constitutional Court would decide, in a possible new procedure, to defer enforceability automatically in the same way. In particular, it would not have to do so in a situation where the new Decree sets the limits of that fundamental law more strictly than the one before it.
37. Since, as a result of the postponement of the enforceability of this finding, the contested decree remains effective for a transitional period, the Constitutional Court also took the view that the appellants' further objections were against its content. In fact, any finding of another derogatory ground could, depending on its nature, result in the suspension of the enforceability of certain parts of the contested order not being applied [cf. Case C-53 / 10 [2011 sp. zn.
Objection of non-compliance Article 2 (2) of the contested order with the prohibition of retroactivity and the protection of legitimate expectations
38. The appellant seeks the annulment of the transitional provision of Paragraph 2 (2) of the contested order as it considers it contrary to the prohibition of retroactivity and the protection of legitimate expectations. This provision shall read as follows:
"The last medical stay of the insured person under the current legislation between 1 October 2009 and the date of entry into force of this Decree shall be considered as a basic medical stay under this Decree. A further treatment stay corresponding to the indication on the basis of which the treatment stay was effected in accordance with the first sentence shall be deemed to be repeated in accordance with this Decree. '
39. The provision in question sets out the rules for the classification of a medical stay which took place on the basis of a proposal issued for the effectiveness of the previous Decree No. 58 / 1997 Coll., as a primary or repeated medical stay within the meaning of points 2 and 3 of Part I of the Annex to the contested Decree. This classification, which was not known to the previous Decree, is desirable (or even necessary) in relation to stays already effected, as it allows for a period of time for re-entry from the last medical stay on the same indication, regardless of whether it was carried out under the previous or contested decree. Therefore, there cannot be a situation where such a stay is not taken into account, which typically depends on the diagnosis, completion or termination of the treatment in the health care establishment for a large number of insured persons who have entered the treatment in the past. It can therefore be agreed with the argument of the Ministry of Health that the absence of the transitional provision in question would in many cases make it difficult or even impossible for patients to have access to spa rehabilitation care.
40. The prohibition of retroactivity (retroactive) of legal standards as well as the principle of legal certainty are a conceptual part of the rule of law under Article 1 (1) of the Constitution [cf. the finding of 8 June 1995 sp. zn. IV. ÚS 215 / 94 (N 30 / 3 of the SbNU 227), the finding of the Constitutional Court of the Czech and Slovak Federal Republic of 10 December 1992 sp. zn. Pl. ÚS 78 / 92 (Found No 15, Collection of Resolutions and Finals of the Constitutional Court of ČSFR, Prague: Linde Praha, a. p., 2011, p. 92)]. In its previous decisions, the Constitutional Court defined the difference between the concepts of genuine and unfair retroactivity and, in general, defined the conditions under which the retroactivity of a particular legal standard can be considered admissible. In the case of genuine retroactivity, the rule of law gives rise to legal relations before its effect under the conditions which it has already provided for, or provides for a change in legal relations under the old legislation, even before the new legislation is effective. On the contrary, false retroactivity assumes that the new law does not create legal consequences for the past, but in the past it legally qualifies as a condition for future legal consequences or modifies legal consequences based on earlier rules [to define these concepts in particular the finding of 4 February 1997 sp. zn. Pl. ÚS 21 / 96 (N 13 / 7 SbNU 87; 63 / 1997 Sb.), the finding of 12 March 2002 sp. zn. Pl. ÚS 33 / 01 (N 28 / 25 SbNU 215; 145 / 2002 Sb.) or the finding of 19 April 2011 sp. General section. Praha: Výhrd, 1925, p. 72-79, Procházka, A. Basics of the Intertemporal Law with regard to § 5 of the Circuit. Brno: Barvič & Novotný, 1928, p. 70].
41. The Constitutional Court notes that Paragraph 2 (2) of the contested Decree does not constitute or alter, with retroactive effect, the legal relations arising in the past in connection with the provision of spa rehabilitation care. The legal fiction that a previous treatment stay is considered to be basic or recurrent within the meaning of the new law is of legal importance only in the future, in order to assess the right to free provision of such care on the basis of a proposal issued as effective by the contested decree. For this reason, the provision in question is clearly not a genuine retroactivity.
42. As regards retroactivity, it should be noted that the transitional provision of Paragraph 2 (2) of the contested Decree does not in any way define the scope of spa rehabilitation care to which insured persons are newly entitled, which means that there could not be any change in the related legal relationships on the basis of it. Therefore, if the effects of false retroactivity are to be considered, they cannot be linked to this provision, but to the new indication list as a whole, or to the individual items listed therein, which have led to a change (or narrowing) in the extent of the covered care in the case of a number of indications. However, even in its case, the appellant's objection could not be considered justified.
43. Contrary to the true retroactivity, which is fundamentally inadmissible, [cf. sp. zn. Pl. ÚS 21 / 96, the finding of 13 March 2001 sp. zn. Pl. ÚS 51 / 2000 (N 42 / 21 SbNU 369; 128 / 2001 Sb.), the finding of 6 February 2007 sp. zn. Its compliance with the principle of the protection of trust in the law is always provided that it is appropriate and necessary to achieve the objective pursued by law and, in the overall assessment of the "disappointed 'trust and the importance and urgency of the reasons for the legal change, the limits of capacity will be maintained (cf. the decision of the Federal Constitutional Court of 7 July 2010 sp. zn. 2 BvL 14 / 02, paragraph 58). In the view of the Constitutional Court, these conditions are undoubtedly met even in the case of the contested decree. The right to provide spa rehabilitation care to insured persons results from their compulsory participation in public health insurance and, to the extent possible, depends on the applicable legislation. Therefore, individual insured persons had to be aware that in the future, the relevant legislator (whether the legislator or the Ministry) may have changed it, as a result of which they could neither have legitimate expectations of the duration of the right in question unchanged nor of confidence in maintaining the existing legislation.
Objection of undue interference in the substance of the rights referred to in Articles 31 and 26 (1) of the Charter
44. The appellant's other objections can be summed up briefly in the sense that the significant limitation of the covered spa rehabilitation care, which took place on the basis of the contested decree, affects, from an economic point of view, the spa care providers (or even existently), and thus the possibility of implementing the right to free healthcare. For this reason, the essential content of the fundamental rights under Articles 26 and 31 of the Charter should have been affected in an inadmissible manner.
45. The Constitutional Court notes, first of all, that the contested decree brought in many ways a reduction in the scope of spa rehabilitation care, which is covered by public health insurance, compared with the previous Decree No. 58 / 1997 Coll. in many ways. In particular, the reduction of the basic length of the spa stay from 28 to 21 days, as well as the limitation of the time intervals within which a repeated spa stay can take place, can be described as a fundamental change. Nevertheless, it should be pointed out that those changes in themselves do not constitute a discrepancy with the right to free healthcare within the meaning of Article 31 of the Charter or the right to business under Article 26 of the Charter. These rights can only be invoked within the limits of the laws which implement them, with the legislator relatively wide available to them for a specific definition of the content and manner of implementation, including the possibility of their amendment (cf.
46. In the context of the assessment of whether those rights have been infringed, the Constitutional Court normally applies the so-called "sensitivity test '[to this test in relation to the finding of 5 October 2006 sp. zn. However, he did not find the reasons for such a statement in the present case, since the reduction in the scope of the spa rehabilitation care, which is paid for by public health insurance, does not make it impossible for the spa care business to be provided, nor does it make access to it accessible to patients. The fact that this change has manifested itself in relation to individual spa facilities at different levels does not alter that conclusion. No specific claim justifying the opposite conclusion was made either by the applicant. At the same time, the contested decree pursued the objective of reassessing the scope of free-of-charge spa rehabilitation care in the light of current medical knowledge and procedures and the more efficient use of health insurance funds, which cannot be considered illegitimate from the point of view of those fundamental rights (although such a reassessment cannot take place in the form of a substatutory law without the creation of legal conditions), and, since the regulation contained therein cannot be considered unreasonable, it also succeeded in a third and fourth step of the proportionality test.
47. Under its discretion, the legislator is entitled to extend or reduce the extent to which citizens are entitled to free health care under public insurance within the meaning of Article 31 of the Charter, including spa care (cf. sp. zn. Pl. ÚS 14 / 02), and may also change the conditions for the provision of such care, which is undoubtedly the result of the limitation of the scope of the paid spa care. Those rights cannot therefore be interpreted as providing guarantees for the maintenance of the spa facilities network in its current form and that, over time, the replacement of spa care by other professional methods which prove to be more effective in terms of the desired effects. It remains to be added that the existence of reasons for such a change, as well as for greater support for spa facilities, which may include, for example, the tradition of spa, tourism development or employment in the region concerned, is a political question, which is primarily the responsibility of the Parliament of the Czech Republic and the Government, and not the Constitutional Court, which is not entitled to review their decisions from these points.
Conclusion
48. Finally, the Constitutional Court notes that the examination carried out by it of the content of the contested order, in addition to the question of its possible retroactive effects (Article 1 (1) of the Constitution), has been limited to assessing its compliance with the fundamental rights under Articles 26 and 31 of the Charter, and that this is exclusively from the point of view of the appellant of the general objection. Therefore, the above conclusions cannot be interpreted as excluding in the future the possibility of a successful application of any other objections which would justify its contradiction with the latter provisions.
49. Since the contested order was issued in breach of Article 79 (3) of the Constitution and Article 31 of the Charter, the Constitutional Court complied with the application under Paragraph 70 (1) of the Law on the Constitutional Court and decided that that order would be annulled by 31 December 2014.
President of the Constitutional Court:
JUDr. Rychetský v. r.
Different opinions under Section 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, were taken by the Judges Stanislav Balík, Vladimir Krók and Michaela Židlická for a decision to be taken by the Judges and Judge Jan Filip for his reasons.
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Regulation Information
| Citation | The Constitutional Court found No 77 / 2014 Coll., on the application for annulment of Decree No. 267 / 2012 Coll., on the establishment of the Indicative List for Spa Treatment of Rehabilitation Care for Adults, Children and Adolescents |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 25.04.2014 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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