Victoria Yisraeli v. Health Basket Committee

Vicki Yisraeli was gradually going deaf, and was diagnosed as having hearing at a level 15% of that of a healthy person. She sought a cochlear implant procedure to save her hearing. However, to obtain one, she was required under the Second Supplement of the National Insurance Law, 1994 (the Law) to pay a participation rate of 70% of the cost of the procedure, with the remainder to be funded by the State. The health basket provided for under the Law funded the full cost of the procedure for children with bilateral deafness, but not for adults suffering from the same condition. As a single mother whose financial position barely enabled her to eke out a living for the members of her family, she lacked the financial means to pay this participation rate. Yisraeli challenged this provision of the Law, along with Petitioner 2-4, who were public petitioners.

The Petitioners filed a petition in the High Court of Justice against the Health Basket Expansion Committee, which was charged with determining the provision of health care services under the Law, several organs of the State, and Yisraeli’s health insurance fund. They requested that the Law be amended so that an adult suffering from bilateral deafness that could not be rectified by hearing aids would either be exempt from the participatory payment of 70% of the cost of the operation, or would pay a lower participation rate that would make the operation accessible to persons of low income. Alternatively, petitioners requested that the health basket be amended so that the Health Funds would be required to provide the operation free of charge or for a reduced payment for cases in which the sense of hearing served the deaf person’s right to a life of dignity. The petitioners grounded these claims on the right to basic health insurance in the Law (argued to be part of the Basic Law’s right to dignity), and the right to equality.

The Supreme Court, sitting as the High Court of Justice, dismissed the petition.

The Court found that there were no legal grounds for its intervention. It considered that it was indisputable that the Respondents had engaged in an orderly decision-making process, and that prioritization was essential in the circumstances of the health services basket, given the potentially unlimited claims on resources that could be made for health services. In light of these two facts, the Court could not find a defect in the Respondent's conduct that would allow them to compel the inclusion of the cochlear implant in the health basket.

These factors compelled the rejection of the claim of discrimination. The Court considered that the ability to take a broad perspective was part of the Basket Committee’s expertise, and that there was no basis for casting any aspersion on its work or its determination of priorities. On this point Justice Naor added that there was no basis for the court to rule that the petitioner should be given preference at the expense of others

The Court also addressed the proportionality of the compulsory participation rate of 70%, and examined whether 70% of the cost could properly be called 'participation'. It decided not to draw conclusions on this matter, because the participation rates were anchored in primary legislation, had been deliberated by the legislature, and had been common practice for years. The Court ruled that no foundation had been established for examining the petitions from a constitutional perspective.

However, although the Court ultimately dismissed the application, it called upon the Basket Committee to reexamine whether there were grounds for changing the participation rates for adult cochlear implants, having reference to the “proportionality” of the participation rate to the right to dignity in the Basic Law

"It is indisputable that, firstly, that we are concerned with an orderly decision-making process, and secondly, that prioritization is essential in the circumstances of the health services basket. The couch will always be too short for stretching out, and a handful will never satiate the lion. In a world in which medicine and technology are rapidly changing, often beyond recognition, but in which the costs of the technology and medications are high, there is no escaping the need to establish priorities. It is hard to say, even in painful cases such as this, that setting priorities constitutes  discrimination.  Indeed, the battle over dividing the limited pie is the reason for petitions that are filed in this Court, parallel to parliamentary and extra-parliamentary public struggles." Para. 26.

"While I have expressed my view that the high participation rate raises questions, the petitioners have not laid a  sufficient foundation for the constitutional review of this matter , and it would seem that this point is also clear to the attorney for the petitioners, who was somewhat ambivalent on this point. The strength of his claim, when viewed against the background of the data presented to us, and primarily the system of deliberations conducted by the Basket Committee, does not present a picture that would clearly support the quasi-constitutional claim of an absence of proportionality, given that the committee that deliberated the question was composed of a broad range of representatives of different disciplines." Para. 30.