Nitecki v. Poland

Applicant Mr. Zdzislaw Nitecki was a Polish national diagnosed with amyotrophic lateral sclerosis (ALS), also known as Lou Gehrig’s disease, in 1976. In June 1999, he was prescribed the drug Rilutek to treat his ALS. He appealed to the Kujawsko-Pomorski Health Insurance Fund (“Fund”) to reimburse his out-of-pocket costs, noting that, as a pensioner, he could not afford his monthly prescription. His request was denied on the basis that the Fund made full or partial refunds based on registers published by the Ministry of Health and Social Security and that, according to the register, the patient contribution for Rilutec was 30%. The denial stated that the Fund had no “legal possibilities” of providing a refund beyond the existing 70% contribution.

Mr. Nitecki appealed the denial, reiterating that he could not afford the drug. His request was referred to the District Social Services, which rejected it in early August.

Over the next several weeks, MrNitecki received two letters from agencies outlining the rationale for the rejection. The Municipal Social Services office informed him that his total family income exceeded the thresholds set by Social Security Law Article 4(1), which did not take medical costs into consideration, and that the social services departments had limited resources. The letter also recommended that Mr. Nitecki seek a change in his degree of invalidity with the Social Security Board, which could result in an additional “nursing benefit.” The Ministry of Health and Social Services confirmed the correctness of the Fund’s decision and advised that efforts to decrease the patient contribution rate for Rilutek were ongoing but subject to available resources.

Mr. Nitecki’s invalidity status was increased from second to first degree in September 1999. He appealed to the Supreme Court but was informed that no appeal was available.

Mr. Nitecki filed a complaint with the European Court of Human Rights claiming that the denial of a refund for the full price of life-saving medicine violated Article 2 (right to life), Article 8 (right to respect for private and family life) and Article 8 (prohibition on discrimination) of the European Convention on Human Rights (“Convention”).

The Court unanimously declared the application inadmissible on all three claims.

The Court allowed that, in certain circumstances, health care policy decisions may implicate a State’s positive obligations under Article 2 of the Convention to safeguard the lives of its citizens. For example, past cases have found Article 2 obligations regarding hospital regulation requirements, the establishment of judicial systems to resolve medical malpractice claims, and the denial of health care to individuals when similar care is available to the general public.

In the present case, however, the Court emphasized that the applicant was not subjected to a different standard of care than the general public and that the State did refund the majority of the cost of the drug. The Court held that the State cannot be said to have violated Article 2 in these circumstances.

Having rejected the applicant’s claim under Article 2, the Court found no questions under Article 8 warranting examination.

Finally, the Court noted that Article 14 prohibits disparate treatment where there is no objective or reasonable justification for doing so. In the present case, where there is no evidence of arbitrary decision-making with regard to individual subsidies, the Court held that the State was justified in deciding the extent to which scarce financial resources would be allocated to public health subsidies.

“Bearing in mind the medical treatment and facilities provided to the applicant, including a refund of the greater part of the cost of the required drug, the Court considers that the respondent State cannot be said, in the special circumstances of the present case, to have failed to discharge its obligations under Article 2 by not paying the remaining 30% of the drug price.” Page 4.

“The Court recalls that Article 14 only prohibits differences in treatment which have no objective or reasonable justification. However, the Court finds such justification to exist in the present health care system which makes difficult choices as to the extent of public subsidy to ensure a fair distribution of scarce financial resources. There is no evidence of arbitrariness in the decisions which have been taken in the applicant’s case. Accordingly, this part of the application is manifestly within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.” Page 4.