Case 2004-504

In this case a number of petitioners challenged the constitutional validity of an act reforming the public health insurance system. The impugned provisions were:

• Article 3 of the Act inserted articles which provide for establishment provides for the establishment of a system to promote coordination, quality and continuity of care and will allow for monitoring procedures so that each practitioner will record the elements necessary for diagnostic and therapeutic care coordination of the patient.
• Articles 7 and 8 provide that a person over sixteen years has the right to choice of doctor under their insurance scheme and for a minor the choice can be made by at least one parent or holder of parental authority. The provision also provides that where a policy holder does not choose a physician, consults a physician other than their nominated physician or a specialist, certain additional fees may be payable.
• Article 20 provides that the insured will bay a certain flat fee for certain procedures covered by Medicare. Minors, beneficiaries of universal health coverage and pregnant women receiving maternity insurance are exempted from this participation fees.
• Article 23 inserts a provision allowing the director of a local insurance agency to impose a financial penalty against professionals, policy holders, employers or institutions who do not comply with the provisions of the Code.
• A number of other articles were challenged on non-health rights related grounds.

1. Does Article 3 the law violate the right to a private life implied under the freedom proclaimed in Article 2 of the Bill of Rights of 1789?

No. The purposes of the challenged provisions are first to improve the quality of care and second to reduce the financial imbalance currently existing in health insurance.

While it is necessary to be especially vigilant in collecting and processing data of a medical nature, balance must be struck between the right to respect of private life and the constitutional requirements that attach to the protection of health. The protection of health necessarily involves the coordination of care and prevention of unnecessary or dangerous prescriptions as well as the financial concerns of social security. How this balance should be struck is a matter for the legislature and the court should not interfere unless it is clearly unbalanced.

Under he new Article L. 161-36-1 of the Code of Social Security, the medical record will be developed respecting medical confidentiality and the will not be able to be accessed without the consent of the person concerned. Illegal access to records will be punishable both in new offences created in the Penal Code and also under existing laws which relate to violations of human rights resulting form files or data processing. This creates an adequate balance between the competing rights and therefore the court will not interfere with the legislature.

2. Do Articles 7 and 8 violate the patient’s right to free choice of doctor?

No. The contested provisions do not preclude free choice because the insured can change the doctor at any point in time.
3. Do Articles 7 and 8 violate the principle of equality?

No. The obligation to appoint a doctor is incumbent on all policyholders and therefore no breach of equality can be alleged.

4. Do Articles 7 and 8 violate the right to a level of social protection under Paragraph 11 of the Preamble to the constitution by levying additional fees?

No.  Provided that the amount of the increased fees should be set at a level that does not call into question the requirements of paragraph 11 of the Preamble to the Constitution. The Social Security Code also requires physicians to observe the strictest economy consistent with good quality, safe and effective care.

5. Does Article 20 violate the principle of equality?

No. Provided that the amount of this participation fee is set at a level which does not call into question the right to social protection under paragraph 11 of the Preamble of the Constitution, it does not violate the principle of equality. Article 34 of the Constitution provides that special social security arrangements may be made for special cases.

6. Does Article 23 violate the rights to defense and equality before the law, safeguarded under Article 8 of the 1789 Declaration and Article 34 of the Constitution?

No. Although health is guaranteed in the Preamble to the Constitution, this does not excuse fraud or non-compliance with the code of social security. However, it follows from Article 8 of the 1789 Declaration that these penalties may only be imposed if they meet the principles of legality for crimes and punishment and also of non-retroactivity. The penalty will be imposed only after the person has been given an opportunity to give oral or written submissions and will have a further right of appeal of any decision to a tribunal and therefore the right to a defence is respected.