Edward Wiater v. Poland

The applicant was a polish national who had been suffering from narcolepsy (chronic sleep disorder) since 1977 followed by diabetes and hypertension in 1989, sleep apnoea in 1996 and epilepsy 1998. In 1998, he was advised by his psychiatrist to take the drug Vigil (Modafinil) as it could make his condition better than existing drugs. Vigil (Modafinil) wasn’t on the list of refunded drugs by the Ministry of Health and the applicant had to buy it out of pocket. In 2003, the applicant was hospitalized and diagnosed with narcolepsy where it was indicated that Vigil (Modafinil) was the basic drug for the condition. He underwent bypass surgery in 2006 and was hospitalized for pneumonia in 2009.

In 2003, the applicant requested the district branch of National Health Fund (“the branch NHF”) to be refunded for the costs of the drug stating that he couldn’t afford to buy the drug as it didn’t have a generic version. The branch NHF responded that the drug wasn’t refundable as it wasn’t on the list of refundable drugs and that the applicant could use social services. The applicant sued the branch NIH in 2004 to be reimbursed for the costs of the drug and the court ordered an expert opinion on whether the drug was a life saving drug for the applicant’s condition. The expert’s opinion concluded that the drug Vigil (Modafinil) was a life saving drug for the applicant’s diseases. The Labour and Social Security Section of the District Court to which the case was transmitted again remanded the case to the branch NHF stating that the latter hadn’t passed an administrative decision on the case and thus it didn’t have the jurisdiction to decide on it. The branch NHF responded to the applicant’s reimbursement request stating that Vigil (Modafinil) was neither in the Ministry’s list of refundable drugs nor was in the special list of serious diseases for which refund would be effected. The president of the NHF upheld the branch NHF ‘s decision on appeal stating that the Ministry and not the NHF was the body mandated with making a list of drugs that were refundable under the Health Care Services Financed from Public Funds Act (the Act) and NHF would refund the cost of drugs only when it entered in to agreements with the facilities providing the health service.

The applicant appealed to the Regional Administrative Court alleging that the decision amounted to a violation of the rights to equality, equal access to health services and life under the Poland Constitution. He stated that he couldn’t afford the payment he made to be treated for his disease and what he was paying for the continued treatment monthly. The Administrative court rendered the decision void on the ground that the NHF didn’t have the power to decide on the matter and that an individual patient couldn’t claim to be reimbursed for the costs of drugs under the Act as this was within the discretion of the facilities providing the service. The applicant didn’t appeal to the Supreme Administrative Court. The applicant again requested the President of the NHF for reimbursement who decided that the NHF had no power to decide on the matter pursuant to the decision of the Regional Administrative Court. The applicant’s complaint to the Constitutional Court was also dismissed.

The applicant lodged his complaint to the European Court of Human Rights (the ECHR) alleging that the authorities violated his right to life protected under Article 2 of the European Convention on Human Rights in their failure to refund the costs for his health service knowing that the diseases he had put his life in danger.

The ECHR reiterated that the Convention hadn't provided for a right to free health services and that national authorities were in the position to decide on the allocation of limited public resources, such as those in the health service, depending on the context of the state concerned. The ECHR noted that the applicant had been provided with the standard medical care from the Public Health Service for many years and hadn't been refused the assistance his health had required. The ECHR further noted the fact that Vigil (Modafinil) was non-refundable couldn't amount to a breach by the authorities of the right to life of the applicant.

The ECHR further noted that Vigil (Modafinil) was not on the Ministry's list of drugs that were provided free of charge and a patient had to pay the cost himself, and that the applicant was informed of this fact. It also noted that it was not possible for an individual patient to demand a refund from the NHF and the facility that provided the treatment to the applicant hadn't entered in to an agreement with the NHF to have the drug's cost refunded by the NHF. The ECHR held that the applicant hadn't been denied access to health service that  was made available to the whole population in Poland and rejected his claim as manifestly ill-founded under Article 35 (3)(a) and (4) of the Convention.

"The Court has accepted that it cannot be excluded that the acts and omissions of the authorities in the field of health care policy may in certain circumstances engage their responsibility under the positive limb of Article 2. However, where a Contracting State has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients it cannot accept that matters such as error of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient are sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life." [Para. 34 ]

"with respect to the scope of the State’s positive obligations in the provision of health care, the Court has stated that an issue may arise under Article 2 where it is shown that the authorities of a Contracting State put an individual’s life at risk through the denial of health care which they have undertaken to make available to the population generally." [Para. 35]

"....while it was clearly desirable that everyone should have access to a full range of medical treatment, including life-saving medical procedures and drugs, lack of resources meant that there were, unfortunately, many individuals in the Contracting States who did not enjoy them, especially in cases of permanent and expensive treatment." [Para. 36]