What does a right to health mean?

We keep hearing that health is a human right. That is true in many respects at least. In fact, the ‘right to health care’ is enshrined in many international treaties to which Austria is a signatory (see e.g. UNO Fact Sheet on the Right to Health). However, this right is almost always subject to the availability of resources, and the enforcement of international obligations by individuals is often not possible or at least very difficult.

You will not find an explicit ‘right to health care’ in our Federal Constitution. Nevertheless, the constitution contains provisions that indirectly guarantee access to health care. As in almost all European constitutions, some minimum guarantees can be derived from these provisions: a right to care in the event of medical emergencies, sufficient monitoring of health care providers by the state and, very importantly as a result of the so-called principle of equality, a requirement for the distribution of state resources in the health care system according to objective criteria or, in other words, in a fair manner. In particular, a distribution according to purely medical criteria, such as the urgency of the required treatment, is considered objective.

No claim to the world's best care

What is really decisive for the individual, however, are the legal requirements ‘below’ the constitution, especially those in social (security) law. Austrian law goes well beyond the constitutional minimum requirements – almost all people living in this country are entitled to health care that is "sufficient, appropriate and not excessive". As courts have already made clear, this does not imply a claim to the best care in the world, but to care that is appropriate for a health care system such as the Austrian system according to the state of the art.

A concrete example: Suppose there is a new procedure for heart surgeries available in an American clinic, one that poses fewer risks than the typical surgeries offered in Austria. As heart surgeries in Austria are more than adequate, if you want to use the other method, you will have to pay for it yourself. That actually sounds fair. But why do many people in Austria still feel that access to health care in Austria is not that easy in reality? Because despite these legal requirements, there are indeed obstacles.

Everyday obstacles in the Austrian health care system

Many people have found that you often get a doctor's appointment quicker if you pay the bill yourself and then have part of it reimbursed (elective doctor's surgery) instead of waiting for the next available appointment at the ‘no-cost’ practice that has a health insurance fund contract. The scenario that some adolescents with the genetic disease SMA (spinal muscular atrophy) faced a few years ago was much more threatening: While other SMA patients of the same age received very expensive gene therapy in some federal states, the hospital association in these patients' own federal state refused to cover their treatment costs due to the lack of medical prospects of success. They had to file a complaint with the Supreme Court, which ultimately recognised that they were entitled to this treatment. In the course of the last health care reform, an attempt was made to find a standardised solution throughout Austria for such disparities with regard to medication: the Bewertungsboard (evaluation board). It should make proposals for the standardised use of expensive medication. Whether this will work still remains to be seen.

In short, we also experience shortages in the Austrian health care system. How can we legally address this lack of resources?

Possible solutions: What can we do legally?

The publicly funded sector (doctors that have a contract with a social health insurance fund, large hospitals) must become more attractive for medical staff, which would also reduce waiting times there – many people working in these institutions currently complain that they have too little time for individual patients due to large patient numbers and red tape. The idea of compulsory duty for doctors will not help us achieve this goal, nor is it feasible in compliance with the constitution. Compulsory duty can only be implemented within very narrow limits, and certainly not comprehensively for an entire profession. Scholarship models, such as those established in recent months, may help to a certain extent, but ultimately, we will have to invest money. The shortage of specialised staff is not limited to the health care sector, but it is particularly painful there.

But where should the money come from? One possibility would be a structural reform. Our constitution stipulates that a large number of stakeholders can, and must, have a say in the health care system. Coordination between the federal government, federal states and social insurance funds is expensive and often slow. When Vienna announces that it wants to treat fewer patients from the federal state Burgenland in the interests of Viennese patients, and Burgenland counters that Vienna has committed to this in the fiscal equalisation scheme, Vienna's wish is understandable, but Burgenland is ‘right’. Problems at the interface between hospitals and practices are often related to funding. Too much regional power is not good for the health care system – health should not be a political bargaining chip in federalism. Either such a reform will come one day, or the quality of the health care system will continue to deteriorate – at the moment it looks like the latter.

Financing and structural reform of the health care system

And if we still lack the money? Then the constitution does not prohibit restrictions and limitations on benefits (what politicians would never call ‘rationing’), provided that they are based on objective criteria, i.e. particularly medical criteria, as mentioned above. Even a fundamental right to health is subject to the available resources. However, what must not happen is ‘silent’ rationing, even though this is already taking place to some extent today (waiting times, different treatments depending on the facility). This is the wrong way to go both legally and ethically. Such tough decisions must be made openly, must be verifiable from a legal perspective and follow a political discussion in front of the voters – who are, after all, also potential patients. The field of medical ethics can offer many proposals for dealing with scarcity in health care which are permissible under the constitution, but it will take a lot of political courage to address this issue.

This article was also published on derStandard.at as part of the semester question cooperation with DerStandard.