The right to health in the Netherlands: a case study
(draft, April 2004)
Brigit Toebes1
In my presentation I will discuss a few issues relating to the right to health in the Netherlands.
I will map out some of the key issues surrounding compliance with the right to health by the
Netherlands authorities. While recognising that the right to health embraces not only access
to health care services but also a right to underlying preconditions for health, the focus of this
presentation will mainly be on access to health care services.
In addition, I will say something about the justiciability of the right to health in the Netherlands
and before international bodies. In other words, I will address the question of the extent to
which one can bring a claim before a Dutch court and before international bodies on the
basis of the right to health.
1.
Outline of the right to health in the Netherlands
As a framework for my presentation, I will use General Comment 14 of the UN Committee on
Economic, Social and Cultural Rights, which addresses the right to health in Article 12
ICESCR.2 I will in particular use the principles that are mentioned in paragraph 12 of the
General Comment: availability, accessibility, acceptability, and quality.
Before I start, I should say something in general about the Dutch health situation and its
system. Dutch health care expenditures are almost 9% of GDP. Life expectancy at birth is 76
for men and 81 for women. The child mortality rate is 5-6 per 1000 inhabitants.
As to the organisation of the health care system, there is a distinction between the National
Health Service3, which covers more than 60% of the population, and private insurance,
covering the remainder of the population.4
Availability.
According to the General Comment, availability requires that health facilities, goods and
services are available in sufficient quantity within the State party. The nature of the facilities,
goods and services will vary depending on numerous factors, including the State party’s
development level.
Given that the Netherlands is a highly developed country, one may expect to find sufficient
availability of good quality medical services there. And, indeed, generally speaking the Dutch
health care system fulfils this requirement, as preventive, primary, secundary and tertiary
health care facilities are most of the time available in sufficient quantity.
Author of ‘The right to health as a human right in international law’, Antwerp/Oxford: Intersentia/Hart,
1999, and a Legal Advisor at the Council of State of the Netherlands (b.toebes@raadvanstate.nl). The
Council of State provides the national government with independent advice on bills before they are
introduced in Parliament. The author wishes to thank Maria Green (Brandeis University, Boston,
United States) and Ms. J.H.B. van der Meer (Council of State, the Netherlands) for their comments
and advice.
2 http://www.unhchr.ch
3 This ‘ sickness fund’ is financed by a general fund that generates half its revenues from employees
and the other half from employers, retirement funds, and unemployment funds, thereby assisting with
health insurance for retirees and the unemployed. All sickness fund applicants must be accepted. See
http://www.sma.org/smj/96jun3.htm .
4 World Health Organization (WHO), at http://www.who.org.
1
Nevertheless, in terms of availability, there are certain shortfalls. For many treatments there
are long waiting lists. These waiting lists are caused by large shortfalls in personnel and a
lack of financial resources in combination with an increase in the demand for healthcare. This
increase is among other things the result of medical-technical advancements and the ageing
population.5 With the proportional increase of the ageing population, the government needs
to invest increasing amounts in health care services and nursing homes for the elderly. In
this respect, it should be noted that unlike many other countries, the Netherlands has no
culture of taking care of aged parents.
As for the waiting lists, their existence is as such acceptable, but only depending on the
required treatment. And in this respect, it must be said that waiting lists in the Netherlands
are sometimes unacceptably long. For example, there are huge shortfalls in appropriate care
for children with mental and behavioural disorders, which is a growing problem in the
Netherlands. Moreover, many elderly people spend a long time on waiting lists for a place in
a nursery home. And there are often long waiting lists for fertility treatment, but even for
necessary surgery.
On occasion, the length of the waiting list has led to a situation where people have died
because they could not get the treatment they needed on time.
As I mentioned earlier, the waiting lists are partly caused by shortfalls in personnel. There is
a particular shortage of general medical practitioners, GPs in short. Although in the
Netherlands everyone is supposed to have access to a GP, which is a worthwhile objective,
a fair amount of people are still without recourse to this type of general medical care. The
shortage is most visible in areas where it is less attractive for GPs to set up their practice.
The waiting lists reached a peak at the beginning of the new century. Since then, the
government and medical institutions have taken measures to reduce the waiting lists. More
funding has been made available and measures have been taken to make the system more
efficient.
As a result of the waiting lists, people are increasingly seeking medical care across the
border, especially in Germany and Belgium. Although this takes the pressure off, the
government fears that this practice will endanger the return on its investments in the national
health care sector. The Netherlands is, however, based on the principle of the free
movement of services within Europe, only allowed to protect its own health care sector to a
limited extent. There is an extensive body of case-law of the European Court of Justice in
Luxembourg prohibiting the Netherlands and other Member States from taking too many
protectionist measures. 6
Accessibility.
Health services have to be accessible to everyone within the jurisdiction of the State party.
According to the General Comment, accessibility contains four overlapping dimensions:
Non-discrimination
Non-discrimination requires that health facilities, goods and services must be equally
distributed and be within safe physical reach for all sections of the population, especially
vulnerable or marginalised groups. On occasion, extra protection and attention needs to be
given to vulnerable groups in the provision of health services.
Especially the following groups are vulnerable to exclusion from health care services:
immigrants, the elderly, women in certain cases, people with chronic diseases, including
HIV/AIDS, and people with physical or mental disorders.
5
6
NRC Handelsblad (Dutch newspaper), Health care: mission impossible?, 7 July 2002, p. 46.
ECJ cases Kohll: C-159/96, Decker: C-158/96, Müller-Fauré and Van Riet: C-385/99.
In the Netherlands, these groups generally speaking have sufficient access to health care
services. Earlier I mentioned the special problems faced by the elderly and children with
mental disorders, but these cannot be considered to be serious to the degree where they
amount to discrimination.
There is, however, one group in the Netherlands that is particularly susceptible to exclusion
from medical services and they are illegally residing immigrants. Due to the so-called
‘Matching Act’, only people with legal status are covered by the sickness fund. This means
that illegal aliens are excluded from access to the health care package provided under the
fund. In order to prevent inhumane situations from arising, the Matching Act provides that
people without legal status may claim subsidised medical help in cases of ‘medical
necessity’. This means that they have access to a limited health care package. What should
be provided under this package has been heavily debated in the Netherlands. As part of the
discussion, before the term ‘ medical necessity’ was introduced, the term ‘ emergency
medical care’ was applied, which is stricter than ‘ medical necessity’.
A practical implication of the system is that, in practice, people without legal status do not
have access to treatment for HIV/AIDS.
Physical accessibility
Physical or geographic accessibility means that health facilities, goods and services are
within safe physical reach for all sections of the population.
It is particularly important that primary health care services are available close to where
people live. I already mentioned the shortfall in GPs, in particular in disadvantaged areas,
and this may give rise to the added problem of insufficient physical accessibility. In order to
solve this problem, the government is experimenting with GP assistants and nurse
practitioners to take over certain medical acts. It is important in this context to monitor
whether such assistants have had the proper training to examine patients.
As regards the accessibility of secondary care facilities, the tendency to centralise hospitals
must be mentioned. Many large specialised hospitals have already been built, to the
detriment of smaller, more general and, more importantly, more local, hospitals. This may
eventually obstruct people’s access to medical care, in particular for the less mobile.
Economic accessibility (affordability)
Health facilities, goods and services must be affordable for all.
I have already mentioned that in the Netherlands, there is a division between the sickness
fund (covering 60 % of the population) and private insurance. Generally speaking, medical
services have so far been affordable to everyone. However, our current national health
system is rapidly becoming a very costly affair for many groups in society. This is caused in
part by two phenomena which I have already mentioned, namely the aging population and
medical-technical advancement. In order to deal with this problem, the government is taking
a number of steps, of which the following two are the most marked:
1. The gradual introduction of competition between insurance companies, which will
widen the customers’ range of choice and in the long run reduce prices. One possible
danger in this plan is, however, that only well-informed and emancipated customers
will be able to pick the health care package that is cheapest, but still adequately
suited to their needs.
2. The introduction of a new basic insurance scheme governing both the national health
insurance (sickness fund) and private insurance. Under the new system, each Dutch
person will receive the same basic insurance cover regardless of income.7 One
possible danger of this plan is that health care packages will be reduced to the extent
where they only cover the most basic of needs, while additional insurance will be too
expensive for most people to buy.
Information accessibility
Information accessibility includes a right to seek, receive and impart information and ideas.
This implies that patients have a right to be informed about their health status. It does not
mean, however, that personal health data need no longer be treated with confidentiality!
Information accessibility also implies that the government has an obligation to provide
adequate information concerning situations that may endanger people’s health, such as the
incidence of an infectious disease or the dangers that may be created by living next to a
pollutive factory.
Generally speaking, information accessibility is adequate in the Netherlands. Patients are
adequately informed of their health status and their confidentiality is safeguarded. The
government also makes general health information available in an adequate manner.
Acceptability
All health facilities, goods and services must be respectful of medical ethics and culturally
appropriate, i.e. respectful of the culture of individuals. They must also be designed to
respect confidentiality and improve the health status of those concerned.
In terms of acceptability, particular problems arise in the Netherlands concerning the medical
treatment of the immigrant population. First of all, they are often unable to express
themselves in Dutch. In addition, their health problems and medical needs are often different
from those of indigenous Dutch people. The cause of this could be their, often weaker, socioeconomic position, but hereditary8 and cultural aspects could also play a role. As for cultural
aspects, it is, for example, important to take into account that among female immigrants
there is an unwillingness or inability to talk openly about any reproductive health problems. In
that respect it is regrettable that a range of reproductive health centers, where anonymous
and free reproductive health services were provided, have recently been closed down.
Quality
Health facilities, goods and services must also be scientifically and medically appropriate and
of good quality: there must be skilled medical personnel, scientifically approved and
unexpired drugs and hospital equipment, safe and potable water, adequate sanitation, etc.
Here I would like to refer to the quality of blood products. In the Netherlands, the government
has statutory responsibility for the availability, quality and safety of blood products. Despite
safety requirements, the safety of these products cannot be guaranteed one hundred percent
in the Netherlands. Chronic users of blood and blood products, like haemophiliacs, run the
greatest risk of being contaminated.9 Hereafter I will discuss a case in which this actually
occurred.
2.
7
Justiciability of the right to health in the Netherlands and before international
bodies
Customers will as such have access to a basic health care package (GP, physiotherapy, hospital
care, obstetrics, dentistry, medicines and appliances). Anyone desiring additional insurance can
purchase supplementary cover.
8 For example, it has emerged that blacks have different skin problems and that Hindustanis more
often suffer from diabetes.
9 V.L. Derckx, ‘Een bloedserieus dilemma: optimale versus maximale veiligheid van de
bloedvoorziening’ [A bloody serious dilemma: optimal versus maximal safety of the provision of blood
products], Tijdschrift voor gezondheidsrecht, no. 8/2001, pp. 502-516, at p. 502.
The Netherlands is a party to the ICESCR and the ESC. In addition, the right to health is also
included in the Dutch constitution. Contrary to the international provisions, the constitutional
provision only establishes a very general obligation for the government to ‘take steps to
promote the health of the population’.10
The term justiciability refers to the question of whether one can rely on the right to health
before a court. In general, very few cases exist in which the Dutch courts have granted direct
effect to any economic, social or cultural right. As far as the right to health is concerned,
Dutch courts mostly consider it injusticiable because of its broad and programmatic
character. Here I will give three examples of exceptions to this general rule which may
provide an opening for the future.
The first case I would like to mention concerned the interpretation of the right to health in the
Dutch Constitution by the Dutch National Ombudsman. The case concerned a group of
people suffering from haemophilia who had been infected with HIV by HIV-contaminated
blood in the 1980s. The blood in question had been imported from the United States by
Dutch blood providers. Subsequently, even though the government as such had not been
responsible for providing the contaminated blood, the question arose if, and if so, to what
extent, the Dutch government should have protected these patients from becoming infected
with HIV in these circumstances. The National Ombudsman decided that the Dutch
government should have been more alert to the danger for haemophiliacs of HIV-infection
through blood transfusion. In other words, the State should have intervened and protected
these patients from infection by contaminated blood.11
Secondly, I would like to refer to a case involving certain provisions of two of the Conventions
of the International Labour Ogranisation. The ILO Conventions contain many specific healthrelated entitlements. In a case before the Dutch Central Appeals Court, the question arose
whether a patient should pay for maternity care after a hospital delivery. Reference was
made to two provisions in ILO Conventions102 and 103. The Court decided that the
provisions concerned were justiciable due to their ‘ imperative character’ and their ‘minimum
character’. 12
There are several examples in Dutch case-law which demonstrate that the ILO Conventions
can be quite compelling, even more so than the general human rights conventions. The
Dutch authorities are not always happy with this: in order to avoid certain obligations
resulting from the ILO Conventions, they have already denounced two or three of them.
Finally, it is to be ovserved that several health-related issues have been addressed within the
framework of civil and political rights, including the rights to life, privacy, family life, and the
right to a fair trial. As such, the scope of these civil and political rights is enlarged in order to
cover these health related issues, including access to health services, and protection from
environmental health threats. A number of interesting examples can be found in the case law
of the European Court of Human Rights (ECHR). An example is the case of López Ostra v.
Spain. Before the ECHR the nuisance caused by a waste treatment plant and its effects on
the health of one inhabitants of a nearby town was addressed. It was held that there had
been a violation of the right for respect for home and family life in Article 8 ECHR. The Court
ruled that the municipality of Lorca had failed to take steps to respect the applicant’s right to
10
Article 22-1 of the Dutch Constitution.
The National Ombudsman, petition of the Dutch Society of Haemophiliacs in Badhoevedorp who
lodged a complaint concerning the functioning of the Ministry of Wellfare, Public Health and Culture,
Public Report no. 95/271, 18 July 1995. See Toebes, op. cit. note 1, p. 204.
12 Central Appeals Court, 29 May 1996, NJB, 29 November 1996, No. 3, pp. 1826-1827. Social
Security (Minimum Standards) Convention, 1952, No.102. See Toebes, op. cit. note 1, p. 200.
11
respect for her home and family life under Article 8 ECHR. So the right to family life was
considered to embrace a right to protection from environmental health threats.13
13
López Ostra v. Spain, 9 December 1994, A.303C (1995).