Case Number

HCJ 3071/05

Date Decided

7-28-2008

Decision Type

Original

Document Type

Full Opinion

Abstract

This Petition challenges the exclusion of the medication “Erbitux” among the state provided health services, which are publically funded. The medication Erbitux is a new drug for the treatment of colon cancer.

The Supreme Court, sitting as a High Court of Justice, held as following:

It is doubtful whether the demand for public funding of new medications may find a hold in the hard core of the constitutional rights detailed in the Basic Law. Even under a broad interpretive approach with expand the constitutional scope of the right to dignity beyond the necessary minimum in the context of welfare and social security, it seems that only in extreme and unique circumstances there would be a constitutional duty for state authorities to fund a particular, specific drug. It seems that in this case, the Petitioners have not demonstrated a violation of a constitutional right.

The right to public health services stands independently as a constitutional right. The entirety of the arrangements established in the Patient’s Rights Act and the National Health Insurance Act lead to two primary conclusions: First, that the range of state provided health services does not aim to include the entirety of possible medical services, to the optimal extent and level to which the individual may require them. Second, in the current state of the law, or legal system recognized a constitutional right to public medical services at a greater extent from the minimal core of the basic health services necessary for humane existence of a society. At the core of the right are those health services, which the State must finance. At the outer layer are the remainder of the health services that are not included within the basic schedule of said services. The scope of the constitutional right to public health services beyond the basic schedule of services depends on the yearly Budget Act.

The Petition’s main arguments target the authority of the Schedule Committee and the way in which it applied its discretion when setting the contents of the schedule of health services within the existing budget. The role of the Schedule Committee is to advise the relevant bodies as to setting priorities between new medical technologies for the purpose of expanding the schedule. This task is difficult. Within this framework, the budgetary consideration is a legitimate and valid consideration for the Schedule Committee to consider. It is important to note that the Schedule Committee is a part of the public administration and in its operation it is bound by the rules of administrative law. In our case, no flaw has been found in the standards that guided the Schedule Committee in setting priorities between the new medical technologies.

We cannot even say that the Schedule Committee recommendations as to progressive allocation of the Erbitux drug are unreasonable to an extent that requires intervention. Nor does it constitute prohibited discrimination against other patients whom the drugs they require are included in the health services schedule. Under circumstances where public resources are not sufficient for all the needs and all those who require them, it is necessary to allocate resources according to priorities that by their very nature create differences between people and between groups. These differences do not constitute prohibited discrimination, as long as they are founded upon reasonable and legitimate considerations.

Keywords

Administrative Law -- Judicial review, Constitutional Law -- Affirmative Action, Constitutional Law -- Right to Health Care, Insurance

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