Information Note on the Court’s case-law 41

April 2002

Nitecki v. Poland (dec.) - 65653/01

Decision 21.3.2002 [Section I]

Article 2

Positive obligations

Refusal to refund the full cost of expensive medicine essential for treatment of applicant, suffering from a terminal illness and of modest means: inadmissible

The applicant, who suffers from sclerosis, was prescribed an expensive medicine as part of his t reatment for his terminal illness. The medicine was only refunded up to 70% of its cost by the Health Insurance Fund. The applicant asked the local Health Insurance Fund to reimburse the full cost, claiming that he did not have sufficient means to bear the remaining 30% of its price. The Fund refused, indicating that there was no legal possibility of refunding the full price of the medicine. The District Social Services rejected the applicant’s request for a full refund and the Ministry of Health and Social Security informed him that the medicine was refunded only up to 70% despite the high cost it represented for patients. The applicant’s degree of invalidity was increased from second to first degree. He lodged an appeal against the decision of the Ministry with the Supreme Court but was informed that no appeal was available against such decisions.

Inadmissible under Article 2: 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 this provision. The Court has held in previous cases involving allegations of malpractice that the State’s positive obligation under Article 2 to protect life includes the requirement for hospitals to have regulations for the protection of their patients’ lives and also the obligation to establish an effective judicial system for establishing the cause of a death which occurs in hospital and any liability on the part of the medical practitioners concerned. Furthermore, wit h 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 denial of health care which they have undertaken to make available to the population generally. In the present case, the applicant’s social security contributions made him eligible to benefit from the public health service. Like other entitled persons, he had access to a standard of health care offered by the public service. 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 respondent State could not b e said, in the special circumstances of the case, to have failed to discharge its obligations under Article 2 by not paying the remaining 30% of the cost of the medicine: manifestly ill-founded.

© Council of Europe/European Court of Human Rights This summ ary by the Registry does not bind the Court.

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