Case 2010-060

Six applicants brought forth a plea challenging the constitutionality of Article 50 of a 2008 law concerning diverse healthcare matters. The applicants sought to annul the modified “reference amounts” system introduced by Article 50. Three of the applicants, the Groupement des Unions professionelles belges de Médecins specialistes, the Association Belge des Syndicats Médicaux, and the Chambre Syndicale des Médecins de l’Agglomération bruxelloise, were associations with mandates to defend the interests of doctors. The other three applicants were doctors individually challenging the “reference amounts” provision. “Reference amounts” refers to the amount customarily expended by a hospital for a medical service. The disputed provision deemed that for services related to common, non-severe illnesses, a reference amount should be established corresponding to the average expenditure for such services in hospitals across Belgium. When expenditure on a service was found to be greater than the national average by at least 10%, the hospital was financially penalized.

The Court held that the applicants did not have standing to challenge the constitutionality of the disputed provision. The constitution, bolstered by a 1989 law concerning procedural aspects of the constitutional court, forced applicants seeking to annul a provisions to justify their interest. The Court held that the applicants had not sufficiently justified their interest in challenging the system of reference amounts.

The goal of the modified reference amounts system was to put an end to unjustified differences in spending practices across hospitals, and to introduce standard expenditures for medical and surgical services. When hospitals spent substantially more than the established standard, the hospital would be heavily financially penalized. The goal of such financial penalties was to exert pressure on hospitals to push their healthcare expenditures towards national averages, so that the government could gain greater control over finances in the healthcare sector.

The Court held that the professional practice of doctors was not affected by the provision. While doctors might face indirect financial consequences due to the provision, it is the hospitals themselves that are directly affected. The provision was targeted at inducing hospitals to change their practices, and any repercussions faced by individual doctors were merely incidental.

Additionally, the Court held that the disputed provision did not unduly infringe on the therapeutic liberty of doctors, and did not impact the quality of healthcare provided. The provision defined overspending on medical services with reference to the average expenditures for these services in hospitals across Belgium. By using this standard, the pressure placed on hospitals and doctors was merely to reduce spending to the amount deemed necessary across the country. This ensured that a sufficient quality of healthcare was still being provided. Therefore, the moral and professional obligations of doctors were not infringed upon.

“Bien que la disposition attaquée puisse avoir des répercussions financières indirectes sur la situation des requérants, il n'en demeure pas moins que ce sont les hôpitaux eux-mêmes qui sont directement atteints par cette disposition, et que des répercussions éventuelles sur les médecins à titre individuel ne sont ni déterminées ni déterminables sur la base de la seule disposition attaquée.”- (B.8.3.)

“Even though the contested provision may have direct financial implications on the applicants’ situation, the fact remains that the hospitals themselves are directly affected by the provision, and the potential impact on individual physicians is neither determined or determinable on the basis only of the contested provision.”- (B.8.3.)

“En prenant en compte un montant moyen des dépenses nationales, le législateur a préféré instaurer non pas un système a priori de forfait théorique, mais un système a posteriori de moyenne, qui tend ainsi à se rapprocher au maximum de la pratique, en se fondant sur les montants qui ont été réellement facturés aux patients; le montant de référence est ainsi considéré comme un indicateur des dépenses qui ont été réellement nécessaires au cours d’une année, pour le traitement de pathologies courantes.”- (B.9.2.)

“Taking into account the average national expenditure, the legislature preferred not an a priori system but an a posteriori system, which draws closer to the maximum expenditure, based on amounts that were actually charged to patients; the reference amount is thus considered an indicator of the expenses that were actually needed in a year, for the treatment of common diseases”- (B.9.2.)