Ombudsperson of the Republic of Macedonia to the Constitutional Court

The Ombudsperson of the Republic of Macedonia (the Ombudsperson) challenged a provision from the Law on Amending and Supplementing the Law on Health Insurance (the Law). The Law provided that insurees would have a right to basic health services from health facilities that had concluded a contract with the Health Insurance Fund (the Fund), but would have to bear their own expenses for health services in other facilities. The Ombudsperson argued that this provision was contrary to the rights to equality, social security, and health and health care under the Constitution, as well as the fundamental value of the rule of law.

The Court found that the challenged provision was unconstitutional.

It noted that the State had an obligation to provide conditions conducive to the realization of social rights, including the right to health. The Law on Health Insurance set up an intertwining set of rights and duties on insurers, insurees and health facilities to achieve this. However, by introducing this amendment through the Law, the State conditioned the provision of health care on whether or not a contract existed with the Fund, not by whether or not the insuree had paid funds toward those health services, or on whether they were entitled to that basic health package under the Law.

In the opinion of the Court, the provision brought into question the constitutional right to health care. An insuree was not involved in the contractual relationship between the Fund and the health facility, and was not able to bear the consequences of the Fund not concluding a contract with their health facility. The provision also prevented insurees from exercising their rights to freely choose their doctor and health facility, by making the choice of doctor dependent on the ability to pay, not on the trust, expertise, or competence of the health facility. This called into question the principle of equality before the law of all citizens.

As such, the Court concluded that the provision was inconsistent with the constitutional right and duty of citizens to preserve and improve their own health, as well as with the constitutional principles of the rule of law and equality before the law.

“In this sense, the responsibility of the Republic for the social security of citizens includes also the normative framing of a system for providing material resources needed to realize that right. According to this, the Republic should, among other things, determine conditions for realization of social rights, determine the sources of resources for providing this right, and create normative prepositions so that all citizens can exercise their right in equal conditions, within the normative acts.” Section 5.

“Furthermore, by analysing the contested provision it turns out that with it is anticipated that the Fund will provide basic health services, only for insurees who receive a health service in health care facilities which have concluded a contract with the Fund, and in the opposite case the insuree himself will bear the costs for using the basic health services determined in Article 9 of the Law. The Court decided that this represents conditioning of the right to health care only in the circumstance of whether a contract exits or not with a certain health care facility, instead of conditioning dependent on whether the health care facility provided a basic health service for which the insured has paid funds which are managed by the Fund.” Section 5.