Case 2009-165

The Flemish Community brought a claim against the Belgian state, challenging Article 21 of the 1967 Royal Decree (Article 21) concerning healthcare professionals. In assessing the matter, the State Board referred two interlocutory questions to the Constitutional Court. The first question was whether Article 21 unconstitutionally infringed on the jurisdiction of the Flemish Community by establishing the function of healthcare orderlies and conferring the power to determine their activities to the federal government. The second question was whether another provision within Article 21 infringed on the jurisdiction of the Flemish community by stating that no one could work as a healthcare orderly without first registering as one, the criteria of which registration were fixed by the federal government.

The Court held that the disputed provisions in Article 21 did not violate the Constitution. The Court determined that the case turned on how the practice of medicine was defined, and whether the work of orderlies constituted the practice of medicine. The Court recognized that the Flemish community had jurisdiction in matters of health education and preventive medicine, but this did not mean that the Flemish community had jurisdiction to regulate the practice of medicine. The 1980 institutional reforms stated that the regulation of medical and paramedical practice were under federal jurisdiction. While no definition of the practice of medicine was provided in the 1967 Royal Decree, the Court looked to a prior Constitutional Court judgment from 1998 that defined the practice of medicine as activities with the objective of reviewing health status, screening for diseases and deficiencies, and diagnosing or treating medical conditions. Federal jurisdiction was limited to acts that met this definition.

In terms of the first question posed to the Court, Article 21 described the function of an orderly as someone trained to assist in matters of care, health education and logistics. Orderlies would provide this assistance to nurses and carry out activities coordinated by nurses. Article 21 characterized the activities of nursing profession as observing, identifying and establishing the health state of patients, corresponding to the definition of medical practice as per the 1998 judgment. Because orderlies worked directly to assist nurses in such matters, the Court held that the elements of an orderly’s job description also constituted the practice of medicine. Regulating the activities of orderlies therefore fell within federal jurisdiction, and did not violate the Constitution.

In terms of the second question, the Court held that since determining the function and activities of orderlies was within federal jurisdiction, it was also within the powers of the Crown to set the terms of registration for orderlies, and determine the consequences of not being registered.

“Chacun des éléments pertinents de la description du contenu de la fonction d’aides oignant, à savoir prêter une assistance en matière de prestation de soins, en matière d’éducation sanitaire et de logistique, pourrait être lié concrètement …à une activité spécifique qui est effectivement en rapport avec l’exercice de l’art medical”- (B.8)

“Each of the relevant elements of the content description of function of an orderly, namely to provide assistance in the provision of care, health education and logistics, could be linked concretely...to a specific activity that is effectively connected with the practice of medicine”- (B.8)

“Etant donné que le législateur fédéral est compétent pour créer la fonction d’aides oignant et pour en déterminer les missions…il peut rendre l’enregistrement des aides-soignants obligatoire, habiliter le Roi à fixer les modalités de cet enregistrement et y attacher les conséquences qu’il estime nécessaires.”- (B.10)

“Given that the federal legislature has jurisdiction to create the function of orderlies and for determining their activities…it can make the registration of orderlies mandatory, empowering the Crown to set the terms of that registration and attaching the consequences it deems necessary.”- (B.10)