Justice,equality and solidarity: The limits of the right to health care in israel

Medical Law Review

Volumn 16, Issue 2, 2008, Pages 225-260

  Gilbar, Roy ^b   Bar Mor, Hadara ^a  

^a NETANYA ACADEMIC COLLEGE   (Israel)

^b NONE

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; ETHICS; HEALTH CARE DELIVERY; HEALTH CARE ORGANIZATION; HEALTH CARE POLICY; HEALTH CARE QUALITY; HEALTH MAINTENANCE ORGANIZATION; HUMAN; ISRAEL; LEGAL ASPECT; PUBLIC HEALTH; SOCIAL JUSTICE; SOCIAL PSYCHOLOGY; SOCIOECONOMICS;

HEALTH CARE RATIONING; HEALTH MAINTENANCE ORGANIZATIONS; HEALTH POLICY; HEALTH SERVICES ACCESSIBILITY; HEALTHCARE DISPARITIES; HUMANS; ISRAEL; NATIONAL HEALTH PROGRAMS; QUALITY OF HEALTH CARE; SOCIAL JUSTICE; SOCIAL VALUES; VALUE OF LIFE;

EID: 47049105079     PISSN: 09670742     EISSN: 14643790     Source Type: Journal    
DOI: 10.1093/medlaw/fwn003     Document Type: Article

References (198)

1. For a review of this area, see T. Beauchamp and J. Childress, Principles of Biomedical Ethics, 5th edn. (OUP, 2001) at 225-282,
2. E. Jackson, Medical Law: Text, Cases and Materials (OUP, 2006) at 33-103
3. J.K. Mason and G. Laurie, Law and Medical Ethics, 7th edn. (OUP, 2006)
4. A. Culyer, 'Equity - Some Theory and Its Policy Implications' (2001) 27 Journal of Medical Ethics 275 states: 'There is disagreement about the meaning of equity among and between the general public, philosophers, political theorists and economics'.
5. See, for example, the debate between Harris and Salvulescu: J. Harris, 'What Is the Good of Health Care' (1996) 10 Bioethics 269
6. J. Salvulescu, 'Consequentialism, Reasons, Values and Justice' (1998) 12 (3) Bioethics 212
7. J. Harris, 'Justice and Equal Opportunities in Health Care' (1999) 13 Bioethics 393.
8. Jackson, op. cit., at 43.
9. Beauchamp and Childress, supra n. 1, at 245 argue that the mechanism of providing a decent minimum may offer 'a compromise among libertarians, utilitarians, communitarians, and egalitarians because it incorporates some moral premises that each theory stress'.
10. As will be specified below, Israeli labour tribunals have the authority to deal with these claims as they have a court status. Tribunals in Israel operate as any other court. There are some differences between courts and tribunals in Israel but they mainly relate to procedures and evidence. Hence, Israeli labour tribunals have the power to judicially review the authority's decisions regarding the provision of health care services according the administrative law rules.
11. See Mason and Laurie, supra n. 1, at 439.
12. Beauchamp and Childress, supra n. 1, at 245 argue that 'we do not now have - and are not likely to have - a single viable theory of social justice. Each theory has its attractive and unattractive features...'.
13. See Beauchamp and Childress, supra n. 1, at 230-239 for the different perceptions of justice in this context.
14. See also the debate between Harris and Savulescue, supra n. 1.
15. For a review of the contribution of economics to the debate about justice in health care see A. Culyer, 'Economics and Ethics in Health Care' (2001) 27 Journal of Medical Ethics 217.
16. Supra n. 1.
17. See Culyer, supra n. 6
18. Ibid.
19. R. Cookson and P. Dolan, 'Principles of Justice in Health Care Rationing' (2000) 26 Journal of Medical Ethics 323 identify three different perceptions of justice in health care: (a) a need-based approach, (b) a utilitarian approach and (c) an egalitarian approach.
20. N. Daniels, Just Health care (Cambridge University Press, 1985) at 57
21. Beauchamp and Childress, supra n. 1
22. I. Kennedy, Treat Me Right: Essays in Medical Law and Ethics (Clarendon Press, 1998) at 291.
23. J. Rawls, Theory of Justice (Harvard University Press, 1971).
24. Daniels, supra n. 11, at 57.
25. See Kennedy, supra n. 11. This view accords with Rawls's Difference Principle.
26. See Daniels, supra n. 11, at 74.
27. Ibid, at 79.
28. Cookson and Dolan, supra n. 10 argue that the criterion of normal functioning is unclear.
29. Jackson, supra n. 1, at 47.
30. Ibid.
31. R. Rhodes, 'Justice, Medicine and Medical Care' (2001) 1 AJOB 32.
32. See Culyer, supra n. 6.
33. Cookson and Dolan, supra n. 10.
34. Ibid.
35. H.V. McLachlen, 'Justice and the NHS: A Comment on Culyer' (2005) 31 Journal of Medical Ethics 379.
36. McLachlen relies on R. Dworkin, Sovereign Virtue: The Theory and Practice of Equality (Harvard University Press, 2002) at 1.
37. See Jackson, supra n. 1, at 66-68.
38. N. Daniels, 'Justice, Health, and Healthcare' (2001) 1 American Journal of Bioethics 2-14 and the discussion that follows in pp. 15-39.
39. E. Loewy, 'The Social Nexus of Healthcare' (2001) 1 American Journal of Bioethics 37.
40. Another disagreement at this point relates to the ability of public to contribute to the professional debate regarding the content of the basket. For two opposite views, see D. Torgerson and T. Gosden, 'Priority Setting in Health Care: Should We Ask the Tax Payer?' (2000) 320 BMJ 1679
41. R. Cookson and P. Dolan, 'Of Course We Should Ask the Tax-payer' (2000) 321 BMJ 954.
42. For the public debate in the UK on this issue, see R (on the application of Rogers) v. Swindon NHS Primary Care Trust and another [2006] EWCA Civ 392, (2006) 89 BMLR 211 (hereafter, Swindon).
43. One cycle of Herceptin costs twice the average monthly income in Israel.
44. In one of the most recent cases to reach the Supreme Court in Israel, a single-parent mother of four needed an expensive hearing aid she could not afford. The Supreme Court's decision to reject the applicant's petition did not attract media attention. See case no. 2974/06 Victoria Israeli v. Ministry of Health, judgment given on 11 June 2006.
45. The legal dispute in Israel over the scope of the budget allocated to the HMOs reached the Supreme Court a few times. See Case no. 2344/98 Maccabi Health Services v. The Minister of Finance, PD 55 (5) 729.
46. It is estimated that only 25% of colon cancer patients in Israel are eligible to receive this drug. Because Avastin was declared a drug which prolongs life, it was partially included in the basket.
47. E.g. Williams A, 'Intergenerational Equity: An Exploration of the 'Fair Innings' Arguments' (1997) 6 Health Economics 117
48. D. Hadorn, 'Setting Health Care Priorities in Oregon: Cost-effectiveness Meets the Rule of Rescue' (1991) 265 JAMA 2218
49. for a review, see also Cookson and Dolan, supra n. 10.
50. Sandel M, Liberalism and the Limits of Justice (Cambridge University Press, 1982)
51. Bell D, Communitarianism and Its Critics (Clarendon Press, 1993).
52. Since the establishment of Israel in 1948, and until the 1994 Act came into force, Israeli law did not impose a duty on the state to provide its residents with health care services. However, until 1994, some 95-96% of the population received a package of services similar in scope to the exiting package from public health organisations (HMOs) at a minimal cost. However, the HMOs could refuse a request to register and receive health care services. Today, under s.4(c) of the 1994 Act, this is prohibited and HMOs must register any resident who wishes to receive services from any one of them.
53. S.3 of the Act.
54. S.3(b) states: 'The state is responsible for funding the basket of health services with the resources detailed in section 13'.
55. Not all HMOs operate hospitals. The ones that do not, refer their insured patients to hospitals operated by the state.
56. S.6 of the Act states: 'Health services will be given according to the basket of health services in these areas:...'. S.7 of the Act states: 'In this Act, the basket of health care services [includes]- the details provided in section 7a and in the second and third appendixes of the health services which will be provided to the insured in all the areas mentioned in section 6 and in the first appendix subject to the provision in section 8'. S.8(a) states: 'The Minister of Health can make changes in the basket of health services detailed in the second and third appendixes as long as he does not remove items from the basket or increase its cost'. S.10 states: 'The HMO can offer its insured members schemes to receive health services not included in the basket of health services.... The scheme and any change in it require the approval of the Ministry of Health'.
57. See s.7 of the Act, Ibid.
58. See s.10 of the Act, supra n. 40. The insured's age determines the cost - the younger she/he is the less she/he pays for this insurance. This layer mainly gives patients the opportunity to consult with leading specialists three times a year and undergo surgical operations privately at minimal cost.
59. S.3(a) states: 'Every resident is entitled to health services according to the provisions of this Act...'. S.4(a) states: 'Every resident must register himself as a member in one of the HMOs according to his discretion and register his minor child'. S.4(b) of the Act states: 'a resident who is not registered in one of the HMOs will be seen as registered in a HMO determined by the Minister of Health...'.
60. S.3(a) of the Act, Ibid.
61. S.13 of the Act states: 'The financial resources of the health services provided according to this Act are: (1) Health insurance tax according to section 14...'. Section 14(b1) of the Act states: 'Every employer must transfer to the National Insurance Office the health insurance tax for each employee ... The employer will deduce this sum from the employee's salary'.
62. S.1 of the Act states: 'National health insurance according to this Act will be based on principles of justice, equality and mutual help'.
63. S.3(c) of the Act states: 'The HMO is responsible to supply all the health services funded according to this Act to its registered members'. S.3(d) states: 'The health services included in the basket of health services will be provided in Israel, according to professional medical judgment. They should be reasonable in quality, supplied in a reasonable time, and at a reasonable distance from the home of the insured. All this is subject to the financial resources available to the HMOs according to section 13 of this Act'. See s.7 of the Act, supra n. 40.
64. See s.3(d) of the Act, ibid.
65. S.3(e) of the Act states: 'Individual dignity, privacy and medical confidentiality will be protected when health care serviced are provided'.
66. See Daniels, supra n. 11.
67. A national committee was appointed by the Government in June 1988 to propose a reform in the national health care system, which was in 'severe crisis'. The committee was headed by Justice Shoshana Netanyahu, a Supreme Court judge at the time. In its report the committee stated: 'The principle of equality has various meanings and may be interpreted formally as providing equal and identical consideration to all, and not as it should be interpreted - as material equality... In the context of health care services, the reference is to material equality'. Report of the National Committee of Inquiry on the Function and Efficiency of the Health Care System in Israel (The State of Israel, 1990), 100 (hereafter: The Netanyahu Report) (Hebrew). This report formed the basis of the 1994 Act.
68. The Netanyahu Committee explicitly stated: 'The resources the system can allocate to its users, according to its overall budget, must be guaranteed to be divided fairly and justly. In this sense justice means inequality, by giving preference to weak parties, such as chronic patients, the elderly and the minorities in society'. Ibid.
69. The Netanyahu Report, supra n. 51, at p. 84 stated: 'Health care services are part and parcel of social security.... Social security should reflect the principle of mutual help. It is used as a means to implement a socio-economic policy which promotes a distribution in a just manner, of the national income, while expressing consideration for the weak who cannot be full participants in its creation. This was the method chosen by Israeli society before the establishment of the State of Israel...on the grounds of mutual help - payment according to financial ability and consumption according to needs'.
70. See, generally, D. Oyserman, 'The Lens Of Personhood: Viewing The Self And Others In A Multicultural Society' (1993) 65 Journal of Personality and Social Psychology 993
71. M. Gross, 'Treating Competent Patients by Force: The Limits and Lessons of Israel's Patient's Rights Act' (2005) 31 Journal of Medical Ethics 29, which highlights this aspect of Israeli society as reflected in various areas of medical law.
72. Another indication of this sense of collectivism is the Israeli Good Samaritan Act 1998 which imposes a general duty on every individual to help a person in immediate danger.
73. See ss.6 and 7 of the Act, supra n. 40. Its content is provided mainly in the second and third appendixes and in regulations which list the drugs and medications included in the basket.
74. As claims submitted by patients reflect, this limitation is problematic when the treating doctor believes that the drug can improve a patient's medical condition which is not specified in the basket.
75. The national expenditure on health as a percentage of GDP in Israel (9.1%) is similar to European countries (7-10%). United Nations, Human Development Report (2005), table 6, at 236-249.
76. In practice, old drugs are not excluded; the state increases the budget allocated to the basket thus enabling the committee members to include new drugs. Guy Seidman argues that because the government chronically under-funds this committee, the result is that the committee has adopted a policy guided by efficiency. The committee mostly approves life-saving and life-prolonging medications and treatments and not those which can improve the patient's quality of life. See G. Seidman, 'Regulating Life and Death: The Case of Israel's 'Health Basket' Committee' (2006) 23 J. Contemporary Health Law & Policy 9, para. 30.
77. Notably, the recommendation of the Health Basket Committee and the decisions taken by the Government accordingly were rarely subject to judicial review. In addition, the courts tend to reject claims which attempt to challenge the discretion of the Health Basket Committee arguing that the committee must set priorities according to the available budget. See, Case no. 4004/07 Tronishvilli v. Ministry of Health and the Health Basket Committee, Takdin, 2007 (3) 733.
78. This is reflected in the four-principle approach promoted by Beauchamp and Childress, supra n. 1.
79. For an ethical discussion about this dilemma, see M. Weinstein, 'Should Physicians be Gatekeepers of Medical Resources?' (2001) 27 Journal of Medical Ethics 268. The question of whether the doctor owes a legal duty to inform the patient about a service available in the private market is beyond the scope of this paper. It should be noted that, according to Israeli law, doctors owe a duty to inform patients that better alternatives exist in the private market at least when monitoring a pregnancy.
80. E.g., Case no. 5133/00 Ayas v. Clalit Health Services, Pada-OR 2003 (11) 348
81. Case no. 3101/98 Froym v. Kupat Holim Leumit, Takdin-Labour 2001 (2) 1.
82. For an ethical discussion in this context, see T. Rice, 'Individual Autonomy and State Involvement in Health Care' (2001) 27 Journal of Medical Ethics 240.
83. C. Shalev, Health and Human Rights in Israeli Law (Ramot, 2003) (Hebrew).
84. For other reviews of the legal position in Israel, see C. Shalev and D. Chinitz, 'Joe Public v. the General Public: The Role of the Courts in Israeli Health Care Policy' (2005) 33 Journal of Law, Medicine & Ethics 650
85. T. Horev and M.Y. Badad, 'Healthcare Reform Implementation: Stakeholders and Their Roles - the Israeli Experience' (2005) 71 Health Policy 1.
86. A comprehensive empirical study on Israeli case law regarding the 1994 Act was conducted by Tuvia Horev. Horev conducted his study from policy perspective and not from a legal one. His study covered patients' claims against HMOs till 31 December 2004. See T. Horev, The Involvement of the Judicial System in Designing Health Policy in Israel (Taub Centre for Social Policy in Israel, 2005) (Hebrew).
87. The Supreme Court in Israel stated in many cases that in principle they refrain from overriding the authority's decision. See Case no. 3472/92 Brand v. The Minister of Communication, PD 47 (3) 143 where the Supreme Court stated: 'Reasonableness dictates that when the authority determines the priorities under its responsibility, preference will be given to important areas over others. When this is the case, the court will not interfere and will not change the authority's judgement regarding the allocation of its financial resources'.
88. Case no. 5-7/97 Medzini v. Kopat Holim Clalit, PADA 33 193. In this case the national labour tribunal stated at para. 18: 'The National Health Insurance Act...aims to ensure the provision of health services to Israeli citizens... The framework of health insurance according to the Act does not aim to cover all the medical services a person needs but those services that the socioeconomical framework should and can supply'.
89. See also Case no. 7-4/97 Kupat Holim Clalit v. Carmel, PADA 33 431.
90. The databases are Nevo, Pador, Lawdata and Takdin. The search included cases that were cited in the cases that were found but did not come up in the initial search in the databases.
91. The search of cases was begun in March 2007 and ended on 1 April 2007.
92. S.54(b) of the Act states: 'The labour tribunal has the sole authority to deal with any claim, apart from a tortious claim, between the insured, the Ministry of Health, and the HMOs...'.
93. The Labour Tribunals Act 1969.
94. See Medzini, supra n. 68
95. the judge's statement is cited at n. 86. In Case no. 1091/00 Shitrit v. Kupat Holim Meuhedet, Pada 35 5 the national tribunal stated: 'the patient can file a claim against the HMO since its committee for exceptional cases decided to discuss his case and in fact discussed his case'. These committees for exceptional cases aim to help patients who need services not included in the basket. The committees help these patients due to their exceptional circumstances though legally they do not have to do that. See Shitrit, para. 29. For a detailed account, see part IV C (2).
96. See, e.g. Case no. 1472/01 Peretz v. Kupat Holim Clalit Judgment given on 12 November 2001.
97. The Ombudsman in the Ministry of Health reported that in several cases patients died before their dispute with the HMO was resolved. See E. Aharoni, 'One third of Israelis faced problems vis-à-vis the HMOs' Globes 28-29 May 2007 (Hebrew).
98. Case no. 1020/01 Macabbi Health Services v. Bram, Takdin-National 2003 (2) 1973, para. 14.
99. Ibid. In this context, President Adler stated: 'A temporary legal remedy can be given in cases where a lack of medical treatment endangers the insured's life or can cause significant harm to his health, for example when he needs an immediate treatment... In many cases, a treatment which does not save life does not require the provision of a temporary legal remedy'.
100. See also Case no. 6201/02Ben-Zvi v. Maccabi Health Services, judgment given on 3 December 2002 (RT), Case no. 1507/02 Maccabi Health Service v. Ben-Zvi, judgment given on 30 June 2003 (NT) (hereafter: Ben-Zvi).
101. See Appendix A for a translated version of the Data Analysis Sheet.
102. This can be observed when examining the decisions of the regional and national tribunals in a particular case. See Ben-Zvi, supra n. 76. In that case a breast cancer patient needed Herceptin. At the time this drug was given only as a second-line treatment and not as a first-line treatment. The patient did not receive a first-line treatment and therefore the HMO refused to provide Herceptin. Although the regional tribunal decided to give a temporary order instructing the HMO to provide the patient the drug she needed (arguing that it will prolong her life, improve her quality of life and protect her dignity), the national tribunal rejected her claim high-lighting the limited financial resources allocated to health services and the fact that the HMO's decision-making process was according to administrative law rules. In Ben-Zvi the judge in the regional tribunal stated at para 19: 'When considering the claimant's interests in prolonging her life, sustaining her quality of life, and in protecting her dignity...vis-à-vis the strict requirements of the National Health Insurance Order (Medications Included in the Basket of Health Services) 1995, we believe that the former supersedes the letter'. However, President Adler whose judgment was accepted by the majority of the judges in the national labour tribunal added: 'Sadly, the budgetary framework does not enable us to attend to all medical needs and the options open to the HMO and the doctors are limited'.
103. See Bram, supra n. 75.
104. President Adler stated at para. 14: 'Providing a temporary order is in place when a lack of medical treatment threatens the insured's life or may compromise substantially his health, for instance, when the insured needs immediate treatment. There is no room for a temporary order when the provision of treatment can wait to the end of the trial. In addition, in many cases, a medical treatment which does not aim to save lives does not require a provision of temporary order'. The decision in Bram influenced the regional tribunals: Of the 13 applications for a temporary order which were filed after Bram, 6 were partly or fully accepted by the tribunals, while 7 were rejected. All the applications were discussed in the regional tribunals and none reached the national tribunal. The national tribunal rejected decisions made by the regional tribunal to grant a temporary order when patients who suffer from Multiple Sclerosis (MS) asked for a drug which is not included in the basket. See, e.g. Case no. 1396/00 Clalit Health Serivces v. Yahel.
105. For the decision in the national tribunal, see Case no. 1267/01 Clalit Health Services v. Gil Eyal Dekel, PADA 37 97 and Case no. 5360/01 Gil Eyal Dekel v. Clalit Health Services, judgment given on 1 August 2002. In this case, the patient suffered from a terminal neuromuscular disease and needed a special device which can help him cough and breathe. This device could ease significantly the ability of the patient to cope with his condition, though it could not cure him. The HMO refused to provide this device to the patient, arguing it was not included in the basket. After a long battle the regional tribunal called upon the HMO to supply the device despite the fact that it is not included in the basket. The tribunal also asked the Ministry of Health to reconsider its position and to discuss the possibility of including this device in the basket of health services.
106. Case no. 7-5/97 Medzini v. Kupat Holim Clalit, PADA 33 193, para. 20.
107. Ibid, para. 19. This led the national tribunal to reject the patient's claim to receive additional number of physiotherapeutic treatments than provided in the health basket.
108. For example, in Case no. 4037/01 Tabaro v. Clalit Health Services, Takdin-Labour 2002 (2) 51, the tribunal held: '...the defendant has to take 4 considerations into account when making a decision in the patient's petition: The medical treatment is needed to save the patient's life; the patient's disease is rare; the requested drug is the sole treatment that can save the patient's life with no other alternatives; the budgetary consideration should have been balanced against medical judgment'. Since the HMO in that case did not consider these factors the tribunal held that the decision not to supply the drug should be rejected and that the HMO should provide it to the patient.
109. The cases are: Bram, supra n. 75
110. Ben-Zvi, supra n. 76
111. Case no. 7362/02 Exkalov v. Maccabi Health Services, judgment given on 21 October 2002 (RT)
112. Case no. 61/03 Exkalov v. Maccabi Health Services, judgment given on 18 June 2003 (NT)
113. Case no. 8619/02, 6043/02 Faybish v. Maccabi Health Services judgment given on 25 February 2003
114. Case no. 5425/04 Hevroni v. Clalit Health Services, judgment given on 26 July 2004.
115. The national tribunal in Exkalov and in Bram rejected the patients' claims while the regional tribunal in Ben-Zvi and in Faybish accepted the claims.
116. In Medzini, supra n. 68, the tribunal stated: 'The National Health Insurance Act 1994 is part of social security law in Israel... In addition,... the medical services the HMO has to provide are "the floor", and the HMO is entitled and authorised to provide additional health services to those specified in the Act... while taking into account its financial resources and the three principles cited in section 1 of the Act...'. These words were cited in many tribunals' decision that rejected patients' claims.
117. According to Israeli law, the courts will not interfere in the authority's decision if it was reasonable. The courts will interfere in decisions when they are utterly unreasonable, discriminatory, involve conflict of interest, or were not taken in good faith. See Brand, supra n. 67, at p. 152.
118. These committees were established according to the HMOs' self-regulation. See Shitrit, supra n. 73, at paras. 27-28.
119. In Shitrit, supra n. 73, Judge Arad at para. 29 held: 'The committee must discuss the insured's case according to the principles of administrative law and according to the principles of social security law...'.
120. See, in Israel, Case no. 6736/03 Ben-Zvi v. Maccabi Health Services, judgment given on 21 October 2003, para. 31
121. and in the UK see Swindon, supra n. 29.
122. See Ben-Zvi, ibid, at para. 12.
123. In Hecht v. Maccabi Health Services, judgment given on 24 April 2006 the tribunal stated: 'We thought that it might be appropriate to take into account the claimant's young age. But... the committee considers only medical criteria and this is reasonable, indiscriminatory and relevant'.
124. Ibid, at para. 16.
125. Ibid.
126. Case no. 8842/02, 6201/02 Ben-Zvi v. Maccabi Health Services judgment given on 3 December 2002. Judge Fogel stated at para. 11: 'the claimant is an exceptional case- chemotherapeutic treatment was not given to her, only hormonal treatment whose outcome was good for a whole year'. The claimant argued that she belongs to a small and exceptional group of breast cancer patients. This group reflects 3.75% of all breast cancer patients in Israel and therefore she should receive the requested drug.
127. Case no. 1267/01 Kupat Holim Clalit v. Gil Eyal Dekel, Pada (37) 97
128. Case no. 5360/01 Gil Eyal Dekel v. Kupat Holim Clalit, judgment given on 1 August 2002. Judge Flitmann stated in para. 7 (i): 'One cannot conclude based on the single occasion in which the HMO exceptionally deviated from its policy that the HMO breached its duty to act in indiscriminatory manner'.
129. In Case no. 1507/02 Maccabi Health Services v. Ben-Zvi, judgment given on 30 June 2003, one of the HMO's directors stated that the committee receives and discusses tens of requests every month.
130. In Hevroni, supra n. 84, the Tel Aviv regional labour court rejected the patient's claim to receive the medication known as Temodar for his brain cancer even though the medication was included in the basket as a secondline treatment.
131. The regional tribunal was aware of the decision given in Case no. 6637/ 03 Exkalov v. The National Labour Tribunal, judgment given on 1 January 2004 (SC), but determined that Exkalov was registered in a different HMO which had a different policy regarding this particular medication. The decision raises the question of whether patients' chances of recovering from a life-threatening disease depend on their membership in a particular HMO.
132. Another aspect which is not sufficiently discussed by the tribunals is the impact of their decisions to support patients' claim on the obligations of the HMOs to their insured members.
133. See Tabaro, supra n. 83
134. Case no. 14-339/99 Grundstein v. Clalit Health Services, Pada-Or 99 (7) 362
135. Faybish, supra n. 84.
136. Ibid.
137. Basic Law: Human Dignity and Liberty, s.2 and 4.
138. For example the judges in Case no. 1507/02 Maccabi Health Services v. Ben-Zvi, judgment given on 30 June 2003 were in dispute whether the HMO's committee for exceptional cases fulfilled its administrative law duties.
139. In dismissing the patient's appeal President Adler stated, at para. 16: 'In my view, we should not subject every medical decision to complicated and cumbersome process'. However, Judge Arad stated: 'I too am of the view that we should simplify the work of the committees... But, special strictness is required with regard to administrative law rules when a decision is made by a quasi-judicial body'. The reason for this position is explained in Shitrit, supra n. 73, at para 29 when Judge Arad stated: 'The committee is the last resort of weak patients who are outside the scope of the basket of services... [It is] for these people that the committee was established and its aims and objectives were determined; Its essence [is] to be the last lifeline for these patients. Hence the emphasis on human dignity and on the committee's attention when it discusses a patient's request'.
140. See Ben-Zvi, Ibid.
141. Ibid.
142. Case no. 571/89 Moskovitch v. The Council of Evaluators, PD 44 (2) 236, at 241 when Justice Or stated: 'Indeed, the rule is that the court should not replace the judgement of the person who was authorised to make a decision with that of the court'.
143. In Shitrit, supra n. 73, para. 38 it is stated: 'The general legal position is that the court does not prefer its discretion to the one given to the authority by law.
144. But, the tribunal will intervene when the authority did not act when it should have, or took into account faulty or irrelevant considerations when executing its power. Usually, the tribunal will not replace the authority's considerations and make a decision on its behalf but it will refer the matter back to the authority with guidance as to the relevant considerations which should be considered'. However, in two cases, the regional tribunal cancelled the HMO's decision and ordered the HMO to supply the requested drug. In one case the reason was that there was no extant body in the HMO to whom the tribunal could refer back the case. See Tabaro, supra n. 83.
145. See also Case no. 2039/05 Miller v. Kupat Holim Meuhedet, judgment given on 4 December 2005.
146. E.g. Ben-Zvi, supra n. 76
147. Case no. 16436/05 Miller v. Kupat Holim Meuhedet, judgment given on 28 September 2004.
148. E.g. Grundstein, supra n. 100.
149. E.g. Faybish, supra n. 84
150. Case no. 2332/04 Genosar v. Ministry of Health, judgment given on 22 August 2004.
151. E.g. Tabaro, supra n. 83
152. Case no. 422/03 Israeli v. Clalit Health Services, judgment given on 25 February 2003.
153. Case no. 22/99 Gil Isaac v. The Ministry of Health, Takdin-Labour 99 (4) 20.
154. The claimant in this case needed Herceptin as other treatments she received did not remove the danger to her life. The HMO's argument was that this drug could only prolong the patient's life a few months. In Hevroni, supra n. 84, the patient, who suffered from a brain tumour, needed the drug known as Temodar as a first line treatment. The claim was rejected.
155. In Hevroni, supra n. 84 for example, the court stated: 'According to the National Council for Oncology, which examined the issue in the end of 2003 it was shown that medically including Temodar as a first-line treatment for brain tumours is not essential. The Council's sub-committee's report indicates that the treatment outcomes when giving Temodar are similar to those when giving other drugs...'. 'In light of this...Temodar is given only as a second-line treatment for brain tumours'.
156. See Ben-Zvi, supra n. 103, per President Adler, at para. 15.
157. In Exkalov, supra n. 84 Judge Tenenbuam held at para. 6: 'There is no disagreement among the leading specialists that there is no proof that this drug [Temodar] is more effective for the patient's illness then the PCV drug'. In other claims, of patients who suffer from MS, the tribunal rejected the claims when there was a good alternative in the basket.
158. See: Case no. 8687/02 Lasri v. Clalit Health Services (RT),
159. Case no. 53/03 Lasri v. Clalit Health Services (NT).
160. For similar decisions regarding MS patients, see Case no. 700005/98 Ordentlich v. Clalit Health Services,
161. Case no. 9580/02 Dr Katz v. Clalit Health Services,
162. Case no. 5242/02 Goldenberg v. Clalit Health Services.
163. In many cases relating to cancer, a fine clinical line is drawn between saving life and prolonging life: Some medications save life in the short term but only prolong life in the long term.
164. See Faybish, supra n. 84.
165. See Grundstein, supra n. 100. The consultant in this case estimated that the required medication could prolong the patient's life by four months.
166. See Case no. 4565/04 Binyamini v. Clalit Health Services, judgment given on 2 January 2005 the patient's claim was rejected because the effectiveness of the requested treatment was in dispute. However, effectiveness may not be enough. A patient's claim for Avastin was rejected despite its effectiveness because the judge in the regional tribunal followed the Act and its regulations which did not include this drug in the basket.
167. See Case no. 1376/06 Heckman v. Maccabi Health Services, judgment given on 21 May 2006.
168. In Case no. 1224/06 Hecht v. Maccabi Health Services, judgment given on 24 April 2006 the regional tribunal rejected a claim to receive Erbitux (for colon cancer) based on limited resources.
169. See Faybish, supra n. 84
170. Exkalov, supra n. 84.
171. Fortunately, the Supreme Court in Case no. 6637/03 Exkalov v. The National Labour Tribunal, judgment given on 1 January 2004 ordered the HMO to provide the drug to the patient and referred the case back to the national tribunal to discuss the contention that the patient was subject to discrimination by the HMO.
172. The national tribunal in another decision, Case no. 61/03 Exkalov v. Maccabi Health services, judgment given on 9 March 2005 held that the patient was not subject to discrimination. Although other patients received the drug as a first-line treatment till May 2002, the HMO changed its policy. According to the national tribunal since the HMO
173. See Case no. 6637/03 Exkalov v. The National Labour Tribunal judgment given on 5 April 2006.
174. Although see Tabaro, supra n. 83
175. and Israeli, supra n. 111.
176. See, e.g. Case no. 5360/01 Gil Eyal Dekel v. Clalit Health Service, judgment given on 19 August 2001. The national tribunal has not yet expressed its view on the issue.
177. Ibid.
178. Of the 39 cases that were randomly examined on this point, only in five (13%) cases was this justification argued in court. Yet, it should be noted that the aim of the committees for exceptional cases is to help patients beyond the letter of the law. See Shitrit, supra n. 73, para. 29.
179. The rule of rescue in the context means that 'society has a duty to do everything possible to rescue all those facing immediate threats to life and/or health'. See Cookson and Dolan, supra n. 10.
180. See Shalev, supra n. 64.
181. See Horev, supra n. 66, at p. 40.
182. In addition, when rejecting a claim, the tribunal may highlight the social security policy but also reject the patient's contention that the HMO's decision-making process was faulty.
183. See supra n. 34.
184. Among the 40 cases which were examined randomly on this point only in 4 (10%) the tribunals based their decisions on a single moral justification.
185. Beauchamp and Childress, supra n. 1.
186. See, e.g. Case no. 5133/00 Ayas v. Clalit Health Services Pada-OR 2003 (11) 348
187. Case no. 3101/98 Froym v. Kupat Holom Leumit, Takdin-Labour 2001 (2) 1.
188. The Pharmacists' Regulations 1986, s.29.
189. Case no. 1396/00 Clalit Health Services v. Anat Yahel, judgment given on 20 June 2003 (NT).
190. See s.3 (d) of the Act.
191. The Supreme Court acknowledged in Case no. 6881/95 Sahar v. Elhadad, PD 51 (2) 724, at para. 19 that: 'The existence of the health care system depends on its financial balance, and the current financial resources cannot cover all the existing medical services...'. These words were cited in many cases supporting and rejecting patients' claims.
192. Compare the decisions in R v. Central Birmingham Health Authority, ex parte Walker (1987) 3 BMLR 32
193. R v. Central Birmingham Health Authority ex parte Collier Unreported, 6 January 1988
194. R v. Cambridge Health Authority, ex p B [1995] 1 WLR 898, [1995] 2 All ER 129
195. and the more recent decisions in R v. North Derbyshire HA, ex Parte Fisher (1997) 38 BMLR 76 (QBD),
196. R v. North West Lancashire HA, ex Parte A [2000] 1 WLR 977,
197. and R v. North East Devon Health Authority, ex parte Coughlan [2000] 3 All ER 850, 51 BMLR 1, [2000] 2 WLR 622; [2001] QB 213.
198. Newdick C, Who Should We Treat? Rights, Rationing and Resources in the NHS, 2nd edn. (OUP, 2005). The authors thank the anonymous reviewer for this contribution.