Case 180838

The national association for the ethics of liberal medicine (l’Association nationale pour l’éthique de la médecine libérale) requests the annulment of Articles 6, 11, 17, 19 and 20 of the Ordinance of 24 April 1996 on the medical control of health spending using an adjustment mechanism for medical expenses. Articles 17, 19 and 20 institute an objective estimate of changes in medical expenses, fixed annually by an annex set by the National Convention of Physicians. Spending above this fixed amount can lead to a retraction of payments to doctors working under the public health insurance contract. Article 6 mandates that the public health insurance system will undergo extensive restructuring over a 5-year “experimental” period. Article 11 stipulated that health insurance funding can be suspended by the medical control service for benefits that are not considered to be medically justified, as long as the insured is notified.

1. Is article 6 of the Ordinance of 24 April 1996 contrary to the constitutional principle of freedom of choice?

No. According to article 6 of the ordinance, experimental actions will be taken for five years with the aim of promoting new formulas of management of patients and organizing more rational access to the health care system as well as better coordination of this management. These actions will be taken with the permission of health insurance beneficiaries. These actions can include establishing procedures of care organized by general doctors charged with medical monitoring and with ensuring patient access to the healthcare system, as well as networks of experimental care permitting the global direction of patients with grave or chronic pathologies. Only assenting participants in the health insurance system are involved in these actions. Thus, the restrictions on patient choice created by the system do not violate the constitutional principle of freedom of choice of physicians by the patient.

2. Does article 11 of the Ordinance of 24 April 1996 violate the principle of equality?

No. Article 11 stipulated that health insurance funding can be suspended by the medical control service for benefits that are not considered to be medically justified, as long as the insured is notified. This article cannot be construed to violate the principle of equality simply because it may be applied in an unequal manner by medical control services.
3. Are Articles 17, 19 and 20 of the Ordinance of 24 April 1996 contrary to the principle of health protection guaranteed by paragraph 11 of the preamble to Constitution of 1946?

No. The policies set forth in article 17, 19 and 20 of the ordinance stipulate that when the amount of medical expenses has surpassed the provisionary amount, there will be a revocation of payments to public doctors – the total amount of which will be calculated as a function of fees collected and prescriptions filled. By virtue of Article 1 of the law of 30 December 1995 authorizing the government via article 38 of the Constitution, to reform social welfare, the government was authorized to take “all necessary measures…with the aim of improving by incentives and appropriate measures…the quality of care and the control of health spending.” The establishment of provisionary spending limits is related to the fulfillment of this objective. Thus, the ordinance is not in and of itself contrary to the principle of protection of health guaranteed by the Preamble to the Constitution f 1946. However, the principle of health protection does require that the spending limits are fixed at a level compatible with the coverage of the health needs of the population

4. Do Articles 17, 19 and 20 of the Ordinance of 24 April 1996 threaten the free exercise of the medical profession?

No. The ordinance also does not threaten the free exercise of the medical profession as it only applies to doctors that have chosen to practice within the public health system.