The right to health and the privatization of national health systems: A case study of the Netherlands

Health and Human Rights

Volumn 9, Issue 1, 2006, Pages 103-128

  Toebes, Brigit ^a  

^a UNIVERSITY OF ABERDEEN   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

HEALTH POLICY; HEALTH SERVICES; HUMAN IMMUNODEFICIENCY VIRUS; HUMAN RIGHTS; INTERNATIONAL LAW; PRIVATIZATION;

ARMENIA; ASIA; BENELUX; EURASIA; EUROPE; NETHERLANDS; WEST ASIA; WESTERN EUROPE;

ARTICLE; HEALTH CARE DELIVERY; HEALTH SERVICES RESEARCH; HUMAN RIGHTS; NETHERLANDS; ORGANIZATION AND MANAGEMENT; PUBLIC HEALTH;

HEALTH SERVICES ACCESSIBILITY; HUMAN RIGHTS; NATIONAL HEALTH PROGRAMS; NETHERLANDS; ORGANIZATIONAL CASE STUDIES; PRIVATIZATION;

EID: 33750257096     PISSN: 10790969     EISSN: None     Source Type: Journal    
DOI: 10.2307/4065392     Document Type: Review

References (114)

1. International Covenant on Economic, Social and Cultural Rights (ICESCR), G.A. Res. 2200 (XXI), UN GAOR, 21st Sess., Supp. No. 16, at 49, UN Doc. A/6316 (1966), Article 12. Other important provisions are the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), G.A. Res. 34/180, UN GAOR, 34th Sess., Supp. No. 46, at 193, UN Doc. A/ 34/46 (1979), Article 12, and the Convention on the Rights of the Child (CRC), G.A. Res. 44/25, UN GAOR, 44th Sess., Supp. No. 49, at 166, UN Doc. A/44/25 (1989), Article 24. At the regional level, there is the European Social Charter (ESC, Council of Europe), Article 11, African Charter on Human and Peoples' Rights (Organisation of African Unity), Article 16, American Declaration on the Rights and Duties of Man, Article XI, and Protocol of San Salvador (Organization of American States), Article 10.
2. Committee on Economic, Social and Cultural Rights, General Comment No. 14 on The Right to the Highest Attainable Standard of Health, UN Doc. E/C.12/2000/4 (2000). Available at http://www.unhchr.ch.
3. Ibid.: paras. 8 and 11.
4. On the privatization of water services, see D. M. Chirwa, "Privatisation of Water in Southern Africa: A Human Rights Perspective," African Human Rights Law Journal 4/2 (2004): pp. 218-41.
5. See also S. Flynn and D. M. Chirwa, "The Constitutional Implications of Commercialising Water in South Africa," in D. A. McDonald and G. Ruiters (eds), The Age of Commodity: Water Privatisation in Southern Africa (London: Earthscan, 2005): pp. 59-76.
6. More generally, see K. de Feyter and F. G_comez Isa (eds), Privatisation and Human Rights (Antwerp/Oxford: Intersentia, 2005);
7. L. Lamarche, "Social Protection is a Matter of Human Rights: Exploring the ICESCR Right to Social Security in the Context of Globalisation," in Privatisation and Human Rights (see above in this note): pp. 129-75;
8. and A. Kok, "Privatisation and the Right to Access to Water," in Privatisation and Human Rights: pp. 259-89.
9. Non-discrimination: health services must be accessible to all, especially to the most vulnerable and marginalized groups in society; physical accessibility requires that health services must be within safe physical reach for all sections of the population; economic accessibility requires that health services be affordable to all. General Comment 14 (see note 2): para. 12.
10. See note 2: paras. 11 and 12.
11. See note 2.
12. Constitution of the Netherlands, Article 93. Available at http://en.wikipedia.org/wiki/Constitution_of_the_Netherlands#Provisions.
13. As to the modalities of implementation of international law, see A. Cassese, International Law, 2nd Edition (Oxford: Oxford University Press, 2004): pp. 220-1.
14. Constitution of the Netherlands (see note 8); Article 22, para. 1.
15. See also B. C. A. Toebes, The Right to Health As a Human Right in International Law (Antwerp/Oxford: Intersentia/HART, 1999): p. 103.
16. Constitution of the Netherlands (see note 8), Article 120;
17. Toebes (see note 9): p. 201.
18. Toebes (see note 9): p. 198.
19. See, for example, explanatory document to the Health Insurance Act (see note 38): pp. 2, 7, and 8.
20. de Feyter and Gómez Isa (see note 4): p. 1.
21. M. Mackintosh and M. Koivusalo, "Health Systems and Commercialization: In Search of Good Sense," in M. Mackintosh and M. Koivusalo, Commercialisation of Health Care: Global and Local Dynamics and Policy Responses (Hampshire, UK: Palgrave, 2005): p. 4.
22. C. Graham, "Human Rights and the Privatisation of Public Utilities and Essential Services," in de Feyter and Gómez Isa, Privatisation and Human Rights (see note 4): p. 35.
23. "Contracting out" is a practice that is currently being introduced in the UK. For a critical assessment of this development, see "Plans to Hand Over NHS Staff and Buildings to Private Sector," The Guardian (September 22, 2005). Available at http://www.guardian.co.uk.
24. de Feyter and Gómez Isa. (see note 4): pp. 1-7;
25. and Graham (see note 15): pp. 33-56.
26. Ibid.
27. Albert Weale, "Ethical Issues in Social Insurance for Health," in T. Sorell, Health Care: Ethics and Insurance (London/New York: Routledge, 1998): p. 138.
28. Chaoulli v. Quebec (2005) 1 S.C.R. 791, paras. 124 and 158. Available at http://www.lexum.unmontreal.ca.
29. C. Kraus, "In Blow to Canada's Health System, Quebec Law Is Voided," New York Times (June 10, 2005).
30. For a critical account of the privatization of the British NHS, see A. M. Pollock, NHS plc, The Privatisation of Our Health Care (London/New York: Verso, 2004).
31. Other examples: Australia and New Zealand have differing degrees of decentralization and privatization of provision. In Sweden, there is a move toward the privatization of public providers. See European Observatory on Health Care Systems, Health Care Systems in Eight Countries: Trends and Challenges (London: London School of Economics and Political Science, April 2002): pp. 12 and 107.
32. Mackintosh and Koivusalo (see note 14): p. 8.
33. Ibid.: p. 14.
34. See also N. Johnson, "Introduction," in Private Markets in Health and Welfare (Oxford: Berg Publishers Limited, 1995): p. 11. Johnson suggests that markets in health and welfare may create greater inequality.
35. Mackintosh and Koivusalo (see note 14): p. 15.
36. Ibid.: p. 5.
37. See also N. Daniels et al., Benchmarks of Fairness for Health Care Reform (New York/Oxford: Oxford University Press, 1996). For example, see Chapter 3, where a number of "benchmarks of fairness" are suggested for the introduction of health care reform, including universal access, equitable financing, value for money, and accountability.
38. General Comment 14 (see note 2): paras. 12 and 35.
39. General Comment 14 (see note 2): para. 24.
40. Committee on the Elimination of all Forms of Discrimination Against Women, General Recommendation No. 24, Women and Health (Article 12), 20th Sess. (1999). Available at http://www.unhchr.ch.
41. M. Nowak, Introduction to the Human Rights Regime (Leiden/Boston: Brill Academic Publishers, 2003): pp. 51-3.
42. For example, there is a basis for this responsibility in the Universal Declaration of Human Rights, which in Article 29 recognizes that the Declaration is a common standard for "every organ in society." However, it is not clear whether this provision is part of customary international law. See, for example, W. J. M. van Genugten, "The Status of Transnational Corporations in International Public Law," in Human Rights and the Oil Industry (Antwerpen/Groningen/Oxford: Intersentia, 2000): p. 78.
43. See the website of the Dutch Ministry of Health, Welfare, and Sport at http://www.minvws.nl/en/themes/health-insurance-system/default.asp.
44. The Ziekenfonds is an insurance system that is not-for-profit, mutual, income-level-related, and compulsory in character. It 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. For more information about the Dutch health system, see the World Health Organization website at http://www.who.org, and the Dutch Ministry of Health, Welfare, and Sport at http://www.minvws.nl.
45. See, for example, the explanatory report to the draft Health Insurance Act (see note 38): p. 2.
46. An additional factor that is thought to cause long waiting lists is the government-imposed budget limitations on hospitals, which create artificial maximum treatment capacities.
47. RIVM (Dutch Institute for Health and Environment). Available at http://www.rivm.nl/vtv/object_map/o661n21999.html.
48. RIVM. Available at http://www.rivm.nl/vtv/object_map/ol054n22026.html.
49. RIVM. Available at www.rivm.nl/vtv/object_class/ atl_wchtziekenhuiszorg.html.
50. "Borst: doden door wachtlijsten" [Deaths Caused by Waiting Lists], NRC Handelsblad (Dutch newspaper) (June 13, 2002). Available at http://www.wachtlijsthulp.nl/nieuws/nieuws27.htm.
51. Netherlands Government, explanatory document to the Draft Health Insurance Act, Tweede Kamer, 2003-2004, 29763, No. 3. Available at http://www.overheid.nl. The Health Insurance Act has been accepted by the Dutch Parliament (Second Chamber) as well as by the Dutch Senate (First Chamber) and became law on January 1, 2006.
52. European Court of Justices cases Kohll: C-158/96, Decker: C-120/95, Müller-Fauré and Van Riet: C-385/99. Available at http://curia.europa.eu/en/content/juris/index.htm.
53. Ibid.
54. "Maak het vak van huisarts snel aantrekkelijker" [Make Being a GP More Attractive], NRC Handelsblad (Dutch newspaper) (January 29, 2004). Available at http://www.nrc.nl.
55. RIVM, "Preventie Gericht op Allochtonen" [Prevention Focused on Immigrants] (undated). Available at www.rivm.nl. For example, this study shows tha the prevalence of diabetes is higher among Turks, Moroccans, and the Suriname population than among the indigenous population.
56. For women aged 15-19 in Holland, the number of teenage pregnancies has increased from 10 per 1,000 in 1992 to 16.2 in 2001 and 2002. Women from Suriname, Turkey, Morocco, and especially the Dutch Caribbean, including those born in Holland, have far more abortions than "ethnic" Dutch women - some 60% of the total. BBC News, "Dutch Abandon Free Contraceptives for All" (January 15, 2004). Available at http://news.bbc.co.uk/2/hi/health/3398769.stm.
57. Ibid.
58. "Kamer eist actie tegen fusiegolf in de zorg" [Parliament Demands Action Against Increased Merging of Hospitals], NRC Handelsblad (Dutch newspaper) (October 3, 2002). Available at http://www.nrc.nl.
59. See also the website of the Dutch Ministry of Health, Welfare, and Sport. Available at http://www.minvws.nl/en/themes/ health-insurance-system/default.asp.
60. Partly, this is implemented by the Wet herziening overeenkomstenstelsel zorg [Act Revising the Contractual System in the Dutch Health Care System], Kamerstukken II 2002/2003, 28 994. Available at http://www.st-ab.nl/1-05027ks03.htm.
61. For some general information, see the website of the Dutch Ministry of Health, Welfare, and Sport (see note 46).
62. Health Insurance Act ('Zorgverzekeringswet'), Tweede Kamer, 2004/2005, 30 124, A. The Health Insurance Act has been accepted by the Dutch Parliament (Second Chamber) as well as by the Dutch Senate (First Chamber) and became law on January 1, 2006. Available at the general government website at http://www.overheid.nl,
63. and at the website of the Ministry of Health, Welfare, and Sport at http://www.minvws.nl/dossiers/zorgverzekering/wetsteksten/.
64. The explanatory document to this Act can be accessed through the website of the Dutch Ministry of Health, Welfare, and Sport at http://www.minvws.nl/images/ zorgverzekeringswet%20toelichting%20plus%artikelsgewijze%toelichting.
65. Health Insurance Act (see note 48): Article 10.
66. About financing health care systems, the following can be noted. In the developed world, there are three main models of health-care finance. In many countries, like the Netherlands, funding comes mainly from compulsory social-insurance contributions paid by workers and their employers (the Bismarkian system). In several countries, general taxation is the principal source of revenue, as in Britain, Canada, and Sweden (the Beveridgean system). Finally, the US is unusual in that private funding accounts for a much bigger share of health-care spending because most workers and their families are insured privately through their employers. "Searching for a Miracle Solution," The Economist (August 20, 2005): p. 21.
67. See Article 3 of the Health Insurance Act (see note 48), regarding the so-called acceptatieplicht - the duty to accept every applicant,
68. Health Insurance Act (see note 48): Article 32.
69. L. Gostin and J. Mann, "Towards the Development of Human Rights Impact Assessment for the Formulation and Evaluation of Public Health Policies," Health and Human Rights 1/1 (1994): pp. 59-80.
70. For Health Impact Assessment more generally, see the WHO guidelines available at http://www.who.int/hia/en/.
71. According to Hunt, privatization "should be preceded by an independent, objective and publicly available assessment of the impact on the respective right." P. Hunt, "The International Human Rights Treaty Obligations of State Parties in the Context of Service Provision," in Day of General Discussion: The Private Sector as Service Provider and Its Role in Implementing Child Rights, UN Doc. No. CRC/C/121, 31st Session (September 20, 2002): pp. 4-5.
72. See also F. Gómez Isa, "Globalisation, Privatisation and Human Rights," in de Feyter and Gómez Isa (see note 4): p. 18.
73. See note 38. A great number of public bodies were consulted regarding the right to participation before the introduction of the new Dutch Health Insurance Act. Explanatory document to the Health Insurance Act, pp. 17-9.
74. Another issue at stake was whether contributions by the government to equalize the risk constitute unjustified "state aid" under European law. Recently, the European Commission declared that these measures are justified.
75. First Council Directive 73/239/EEC (July 24, 1973) on the coordination of laws, regulations, and administrative provisions relating to the taking up and pursuit of the business of direct insurance other than life assurance, Official Journal, L 228 (August 16, 1973): pp. 3-19;
76. Second Council Directive 88/357/EEC (June 22, 1988) on the coordination of laws, regulations, and administrative provisions relating to direct insurance other than life assurance and laying down provisions to facilitate the effective exercise of freedom to provide services and amending Directive 73/239/EEC, Official Journal, L 172 (April 7, 1988): pp. 1-14;
77. Council Directive 92/49/EEC (June 18, 1992) on the coordination of laws, regulations, and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239/EEC and 88/357/EEC (third non-life insurance Directive), Official Journal, L 228, (November 8, 1992): pp. 0001-23. Available at http://www.europa.eu.int/ eur-lex.
78. Third non-life insurance directive (see note 57): Article 54, para. 1.
79. For example, Interdepartementale Commissie Europees Recht, Advies Inzake Europeesrechtelijke Aspecten van een Stelsel van Ziektekostenverzekeringen [Advice Concerning European Legal Aspects of a Health Insurance System] (April 3, 2001)
80. and de Landsadvocaat, Een Nieuw Stelsel van Zorgverzekering [A New Health Insurance System] (December 4, 2002).
81. Letter from European Commission Member Frits Bolkestein, November 25, 2003, CAB/PvB/D(03)0848 (not available online; a reference can be found in the explanatory document to the Dutch Health Insurance Act, see note 38).
82. "DBCs" (diagnosebehandelcombinaties) [Combinations of Diagnosis and Treatment]. On this issue, see H. F. Aarts, "Ambtenaar bedenkt DFC" [Civil Servant Invents DBC], in NRC Handelsblad (Dutch newspaper) (September 26, 2005). Available at http://www.nrc.nl.
83. "A and E Services at Risk from NHS Changes," The Guardian (October 11, 2005). Available at http://www.guardian.co.uk.
84. "Oppositie Blijft Bezorgd over Onverzekerden [Opposition Remains Concerned about the Situation of the Uninsured], NRC Handelsblad (Dutch newspaper) (December 14, 2005). Available at http://www.nrc.nl.
85. See also note 47.
86. The Netherlands Council of State advice to the draft Health Insurance Act, Tweede Kamer, 2003-2004, 29763, No. 4: p. 14. Available at http://www.overheid.nl.
87. The Netherlands Council of State (see note 64): p. 13.
88. On information accessibility see General Comment 14 (see note 2): para. 12.
89. Ibid.
90. Also, see Article 4, para. 3 of Convention 102 of the International Labour Organisation (ILO) to which the Netherlands is a party. Available at http://www.ilo.org. This convention, which is applicable to female employees and/or a part of the female population, stipulates that women should have the freedom to choose a reproductive health care provider of their choice.
91. The Netherlands Council of State (see note 64): p. 15.
92. General Comment 14 (see note 2): para. 12, on acceptability.
93. "As doctors, we see the cancer that eats away the NHS," The Guardian (June 27, 2005). Available at http://www.guardian.co.uk.
94. Report of a meeting of the NJCM, the Dutch branch of the International Commission of Jurists, on the Health Insurance Act, in NJCM-Bulletin, 30/ 3 (2005): p. 371.
95. General Comment 14 (see note 2): paras. 43-44.
96. WHO, Primary Health Care, Report of the International Conference on Primary Health Care (Alma-Ata, USSR: September 6-12, 1978);
97. Health for All Series No. 1 (Geneva/New York: WHO, 1987): Chapter 3, para. 50.
98. For example, one of the core obligations is "access to health facilities, goods, and services on a non-discriminatory basis, especially for vulnerable or marginalized groups." General Comment 14 (see note 2): para. 43(a).
99. See, inter alia, P. Hunt, Interim Report of the Special Rapporteur on the right of everyone to enjoy the highest attainable standard of physical and mental health, UN Doc. A/58/427 (2003), Agenda Item 117(c). Available at http://www.unhchr.ch.
100. A related approach concerns the reasonableness approach, which has been applied in contexts of prioritizing and rationing by South African and UK courts, among others. For an assessment of this approach, see D. Bilchnitz, "Placing Basic Needs at the Center of Socio-Economic Rights Jurisprudence," in Socio-Economic Rights Project, Western Cape University, 4/1 (2003). Available at http://www.communitylawcentre.org.za/ser/esr2003/2003mar_basic.php.
101. ILO Convention 103, Medical Care and Sickness Benefits Convention (1969). Available at http://www.ilo.org.
102. ILO Convention 102, Social Security (Minimum Standards) Convention (1952); ILO Convention 103, Maternity Protection Convention (revised) (applicable to employed women) (1952); and ILO Convention 121, Employment Injury Benefits Convention (applicable to the employed) (1964). Available at http://www.ilo.org. Also important and related to these conventions is a convention of the Council of Europe, the European Code of Social Security, and the Protocol to the European Code of Social Security (1964).
103. ILO Convention 102, Article 49; ILO Convention 103, Article 4. Available at http://www.ilo.org.
104. ILO Convention 102, Articles 10(1)(b) and 49(2); Central Appeals Court of the Netherlands, May 29, 1996: NJB [Nederlands Juristenblad], 3 (November 29, 1996): pp. 1826-27;
105. AB [Administratiefrechtelijke Beslissingen], No. 501, (1996): note P. Hazewindus;
106. RSV [Rechtspraak Sociale Verzekeringen] 9 (1997): note F. Vlemminx.
107. Nemesis, 631, (1996): note M. Driessen.
108. ILO Convention 118, Equality of Treatment (Social Security) Convention, 1962, denounced December 25, 2005;
109. (The Hague: Staatsblad van het Koninkrijk der Nederlanden, 2004): p. 715. Available at http://www.overheid.nl. This treaty, which grants a right to receive social benefits abroad, was denounced in order to allow the introduction of a new law limiting the export of social benefits.
110. General Comment 14 (see note 2): para 33.
111. de Feyter and Gómez Isa (see note 4): p. 3.
112. Committee on the Rights of the Child, Day of General Discussion, The Private Sector as Service Provider and Its Role in Implementing Child Rights, UN Doc. CRC/C/121, 31st Session (September 20, 2002), Recommendation No. 8. See also note 39.
113. Explanatory report to the draft Health Insurance Act, Tweede Kamer (see note 38): p. 45.
114. The so-called acceptatieplicht, Health Insurance Act (see note 48): Article 3.