The Right to Health: What Would It Mean in the Future?

Dr. Andraž Teršek is a Professor of Constitutional Law, Theory and Practice of Social State, Law and Ethics in Education and Media Law

I am willing to die for another ’is a moral statement. ‘He should be willing to die for me’ is clearly not… The willingness to sacrifice for others imposes on me a responsibility that is moral precisely because of my consent that the command to sacrifice concerns only me. Being a moral person means that I am the guardian of my brother. But it also means that I am the guardian of my brother, whether or not my brother views his fraternal duties in the same way as I do; and that I am the guardian of my brother, no matter what my brothers, real or imagined, do or can do… ‘I am for the Other’ means to surrender to the Other as a hostage. I take responsibility for it… My responsibility is unconditional

 (Zygmund Bauman: Postmoderna etika (“Postmodern Ethics”), Znanstvena založba Filozofske fakultete, Ljubljana 2016).

I remember a monologue of a good actor in a perfectly played side role of an average Hollywood movie. He played a successful surgeon. When addressing one of his patients he expressed a thought on his Devine status: “You ask me if I consider myself a god? No, when I enter the operating room, I don’t consider myself a god. Not even when I’m saving your life. (leans forward with his body, looks penetratingly into his interlocutor’s eyes – op. cit.) I AM GOD! And I AM YOUR GOD!” His interlocutor did not object to him in the film. I wouldn’t either. I admit it. And I didn’t object when a heart surgeon saved my father’s life.

Anyway. The right to health is one of the most important fundamental human rights. Public healthcare system is the most important institution in any society and in any time. It must be considered as absolute priority: contemporarily and in the future. All forces possible and available must be invested in the quality and effectiveness of the healthcare system. Including financing, human resources, employment opportunities, speed of action (shortening the queues) and, last but not least, wage policy. On the other side of the same coin, ethical, deontological and legal duty to provide the patients best medical assistance possible, best and sincere advice, given politely, gently and respectful, the proper protection of the rights of patients, including the right to “informed consent,” must be internalized by the representatives of this most important, precious and indispensable profession. If these presuppositions for healthy, quality, dignified and free life of the people, each individual, regardless of its social status and the amount of financial resources for subsistence, are realized only then can we claim to be living in modern, highly civilized, humane and culturally advanced society. Since the cultural development and technological progress are two very different things.

At this point, I will not go into detail in the analysis of cases concerning the relationship between the individual and the state when it comes to the issue of health and the systemic regulation of institutional healthcare. For example, health insurance, waiting times for doctor’s appointments, or the length of queues of people waiting in front of a doctor’s office, or the problem of public medical concessions and doctors-concessionaires who prefer to give medical assistance to their patients in their own, private clinics rather than in public ones. I will not go into a critical assessment of the unavailability of otherwise available and tested medicines, which are inaccessible in a certain EU Member State, including Slovenia, and cannot be obtained because a certain national agency has not yet officially classified and approved a certain medicine, even though legalized and reachable elsewhere, abroad. And proved to be efficient. But I will admit it makes me nervous, angry and sad at the same time to see all of these people, to whom the public health system of the country of which they are citizens cannot offer adequate medical care, forced to go abroad for medical help at their own expense. For example, in the US. It is astonishing and sad to observe how, in such cases, the public, with the help of the media, raises money to pay a certain person who has access to appropriate treatment abroad expenses for medical treatment. With money collected by people, fellow citizens, not with money from the budget, with money from the money fund of the public health system and health insurance within the domestic public health system.
I will not go into detail that the National Medical Chamber is not an objective, impartial and effective body for the protection of patients’ rights when they suffer damage to health due to a professional error of a doctor (subjective liability) or because the error occurred without subjective responsibilities of the doctor (objective responsibility). In Slovenia, the medical profession still does not and refuse to understand the differences between these two types of responsibility. At the same time, the state does not understand – because it does not want to understand – that it is objectively responsible for the damage caused to the patient’s health during the medical procedure, even though the doctor who performed the procedure is not subjectively guilty and responsible for negligence or wrong decision.

A perfect example describing this problem is a controversy regarding the compulsory vaccination. Slovenian Constitutional Court has already decided, in late 2004, people and parents who refuse to be vaccinated themselves or refuse their children to be vaccinated must be legally assured professional, effective, objective and impartially procedures to, first, argue against the vaccination and, second, effective, objective and impartially legal procedures to claim monetary (pecunilar) compensation for health damages caused by side effect of vaccines. State administration and its legal policies still refuse to fulfill the request of the Constitutional Court. Instead, people and especially parents who refuse their children to be vaccinated are labeled as negligent, crazy, mad, irresponsible, frequently addressed with harsh, vulgar, obscene and insulting language, even penalized. There are too many cases when parents ask legitimate questions concerning vaccines and demand precise answers or additional analysis but instead to be heard and answered too many doctors lodge a complaint against these parents with Social Work Centers or Social Services in hospitals, citing a “suspicion that they are neglecting the child.” This is not only Slovenian problem. This problem is becoming more and more obvious in EU Member States. Governments have increased and are still increasing the number of vaccines, without any kind of legal obstacle. In the same time the number of people refusing the vaccines has also increased, in a short time and extensively.

I have already written about some of these issues (problems!) In Slovenia and on some European webpages. I have also addressed the problem of stigmatizing people who (and only because) legitimately ask medical questions. Or about the legal unsustainability of discrimination, stigmatization and social isolation of those parents who in good faith ask legitimate questions regarding vaccines and express doubt on their necessity and effectiveness.

The Slovenian Ministry of Health has recently included a provision in the proposal of the Health Insurance and Health Care Act that excludes the right to general, available and unpaid health care assistance for those who refuse compulsory vaccination. In such cases, the health insurance of such persons would not cover the costs of health care and assistance if the doctors assess that the health problem is a consequence of the lack of compulsory vaccination.

The story goes even further. Some part of the daily politics suggests that children who were not vaccinated because their parents decided not to vaccinate them be forbidden to attend kindergartens and schools. Even most of the parents, according to the media and discussions on the internet forums, support this idea. Some of them even demand it to be written in statutes. This would be really obvious discrimination, not just stigmatization.
I claim all these ideas and legal propositions to be unconstitutional. If described by law they would be legally unacceptable intrusion into the physical and mental integrity of an individual and encroachment of the right to privacy and liberty interest.

At this point it is worth mentioning ECtHR is supposed to decide on the same issue very soon since the Grand Chamber will pass the final judgement in the case of VAVŘIČKA AND OTHERS v. CZECH REPUBLIC. The judgement will have a direct and binding effect to all of the EU and Council of Europe Member States.

I am not writing all this in vain, without a red thread. The current story of the COVID-19, Coronavirus pandemic 2020, may be a revolutionary and historically unprecedented turning point. Political and social shift. For the better or worse? We will see and experience what it really is about. Soon. And I worry we won’t like it.

People are scared, justifiably afraid. More and more each day. It is an obvious fact. But not only because of the fear that has accumulated in people during the official pandemic and emergency measures that limited people’s daily lives (including in Slovenia) to quarantine.

I mean fear for some other reason. After the end of the CIVID-19 Coronavirus pandemic, the world is different than it was before. This is already obvious. A vaccine is expected. Part of the public expects him excitedly, in terms of joy, in terms of salvation, calming fear. Part of the public is afraid of it, and the expectation of the vaccine fills an important part of the public with additional fear. The problem I address in this essay will escalate. I’m sure of that.

At the same time, governments in EU countries are either announcing or already introducing legalized, statutory controls on the privacy and freedom of movement of individuals. Via mobile applications. It is predicted and expected to classify people into different “groups” according to the estimated “risk level” of the individual: by reference to each individual’s previous illness or chronic- illness or a previous positive COVID-19 test. This is very likely to be followed by changes in insurance premiums, an increase in health insurance costs and the prices of health services that will not be included in general health insurance under public health. In other words, there will be more medical procedures that will have to be paid for. The problem will be a big one, no doubt about it. The Welfare State as we know it in Europe has been falling apart for years. And it could happen that it will collapse. Of course: with the greatest harm to those who already live on the social fringe of society or below it.

Europe and the EU Member States will face new challenges and problems after the pandemic. Especially if it was only its first wave. And it may happen that we will have to “fight” again for the already acquired rights and freedoms that we have taken for granted in Europe for the last years or the last two decades. Above all, the right to privacy, to freedom of movement, to dignity, to the protection of health within the public health system and to protection against living in social (material) deprivation. Hard, unpredictable, annoying and changeable times are coming.
 

***

Dr. Andraž Teršek is a Professor of Constitutional Law, Theory and Practice of Social State, Law and Ethics in Education and Media Law. Affiliation: Faculty of Education & Faculty of Humanities, University of Primorska and European Faculty of Law, New University