We all grew up with idiomatic expressions that warn that ‘we reap what we sow’ or remind that ‘we must lie in our beds, as we make them’. When applied to others we often endorse them, whilst on the receiving end of reproach we might disagree on their applicability. In any case, the idioms reflect a straightforward and intuitive view on justice. They entail that one must bear the consequences of one’s own deliberate actions. This same notion of justice finds its way into the realm of law as a Belgian example illustrates. In December 2015 the committee that advises on the reimbursement of pharmaceuticals to the National Institute for Health and Disability Insurance decided to link the reimbursement of a pharmaceutical for a lung disease to the lifestyle of afflicted patients. The right to reimbursement was made conditional on not smoking and thus made dependent on personal responsibility. Smoking is believed to have a detrimental effect on the course of the illness and to hinder the effectiveness of the pharmaceutical, which carries a hefty yearly price tag. Not only did this decision spark discussion in the media, it also led to official enquiries in the Belgian Parliament addressed to the Belgian Minister of Social Affairs and Health.1 The ethical sensitiveness of the matter is unsurprising,2 but the decision of the committee also raises interesting legal questions on access to healthcare, matters of equality and state interference in the private lives of citizens.
It is commonplace to encourage patients to alter their lifestyles in order to stimulate treatment. One can envision a doctor urging an obese patient, suffering from cardiovascular disease, to lose weight. Following the Belgian decision, personal responsibility exceeds encouragement and becomes a condition for the access to healthcare, before treatment has started. The level of care on which patients can rely depends on their chosen lifestyle. Only those that stray away from certain risks are guaranteed integral healthcare. A political value judgement of those risks is inevitable.3 Even with little imaginative power, the criterion of personal responsibility, therefore, instils fear of a moralising regime in an Orwellian future, wherein the state imposes a model lifestyle based on ‘healthism’,4 the assumption that a healthy lifestyle is the only correct way of living. Consequently, healthcare might become selective, elitist and even arbitrary. This begs the question whether such an evolution is desirable in social security schemes, which are fundamentally rooted in collective solidarity.
However, one must not become too fixated on that fear, lest running the risk of becoming bogged down in a one-sided vision on lifestyle differentiation in healthcare policy. Even though the individual freedom of the smoker is indeed restricted, justifications for state interference could exist. First, such a restriction may reflect a paternalistic concern for the individual well-being of the smoker.5 Second, state action may be motivated by the more general interest of society at large. The modern state has become a welfare state, which plays a key role in the equitable protection and promotion of the social and economic well-being of all its citizens.6 In times where demographic ageing and mass migration cause budgetary stringency, the welfare state is under strain.7 It is evident that states that strive to maximise social welfare wish to use scarce public resources as efficiently as possible. An argument for state interference is then the avoidance of the social costs that are associated with unhealthy lifestyles.8 On the one hand, denying an expensive treatment to a single individual who consciously harms him/herself can provide leeway to aid several others, perhaps less inclined to self-harm. On the other hand, it is financially sound policy to try and prevent expensive treatments by discouraging behaviour that causes their need. After all, an ounce of prevention is worth a pound of cure. In a more pragmatic sense one could also argue that society, through its parliamentary representatives, simply connects certain consequences to certain actions it deems undesirable, absent any concern for the individual health of the smoker or for the financial health of the state.
There is no escaping the fact that those motivations are politically coloured. Importantly, they expose a tension between individual and social well-being. The conflict between the interests of the individual smoker and the society at large is also clear in human rights treaties. Two fields of tension arise from those treaties and their interpretation by human rights courts. They hinge on the contrast between the fundamental rights of the smoker to health/healthcare, protection of property and protection of private life at one end and the obligation of states to provide healthcare to all citizens without discrimination on the other end. First, the individual interest of the smoker in self-determination stands at odds with the general interest of society in a financially healthy and balanced social security scheme.9 Second, the obligation of states to provide their citizens a healthy life clashes with the protection of smokers against unjustified state interference in their private lives.
This contribution inquires to what extent human right treaties form a constraint for states that wish to discourage the use of products that are lawful, yet potentially threatening to human health by making reimbursement of treatment in their national healthcare scheme conditional on the lifestyle of the citizen. Thus, the question that lies at its heart is the following:
To what extent do fundamental rights act as a constraint for states to employ lifestyle differentiation regarding access to their healthcare systems?
In answering that question, the contribution touches upon the related question of what the consequences are of lifestyle choices by individual citizens regarding the societal solidarity they may expect to retain. After all, delimiting the measures that states may possibly take concerning lifestyle differentiation in part answers that question. However, the perspective of the contribution is hinged on state measures.
The focus of the contribution lies on the European Convention for Human Rights (ECHR), which Belgium has signed and ratified. This convention is of interest because of the extensive scrutiny of its compliance by the European Court of Human Rights (ECtHR). The comprehensive and thorough jurisprudence of this court offers a valuable source of research. Moreover, the analysed principles are largely transposable to other legal systems because of the similarity of fundamental core rights,10 at least in the Western hemisphere.11
The first part outlines the right to health (care) of the smoker and the related obligations of states. This right to health (care) must be ensured without discrimination. A refusal of reimbursement of a pharmaceutical that is otherwise generally available to the public seems at first glance to be irreconcilable with that obligation as it differentiates the access to healthcare. However, a state can justify the difference in treatment if it pursues a legitimate aim. Moreover, the ECtHR tends to grant states a far-stretching margin of appreciation in socio-economic matters. The contribution investigates whether a difference in treatment between smokers and non-smokers is justified or discriminatory.
The second part delves into the right that lends itself particularly well as a shield against state interference; namely, the right to protection of private life. A more selective healthcare may constrict the freedom of each citizen to lead a fully autonomous life. An important consideration in this regard is how self-determination interferes with the obligations of states. Does perseverance in smoking behaviour equate to a waiver of the right to health (care)?
2. Discrimination and the right to health (care)
The right to health is a well-established right in treaties at all levels of the multi-levelled legal order, as is made clear by other contributions to this special issue. The right to healthcare is one of two pillars of that right. At its base stands the principle of equality.12 States should provide equal access to healthcare to all. However, the ECHR itself does not contain an explicit substantial right to health.13 Nevertheless, the ECtHR does not rule out state responsibility for healthcare.14 States do have an obligation to stimulate the health of their citizens.15 According to established case law of the ECtHR the ECHR does not only impose negative obligations on states to abstain from violating rights, it also obliges them positively to secure the effective enjoyment of fundamental rights.16 The ECtHR has found a ‘right’ to healthcare as a positive obligation under both the right to life and the right to respect for private life. This ‘right’ is also found as an implicit negative obligation under the prohibition of torture.17 Even though the ECtHR acknowledges that the right to health relates to Article 2 of the ECHR, it tends to judge the merits of cases under Articles 3 and/or 8.18 Furthermore, the right to reimbursement of a pharmaceutical is a financial, social benefit that could fall under the First Additional Protocol to the ECHR, which protects the right to property. The smoker who is denied healthcare can invoke those (implicit) rights to healthcare in conjunction with the explicit prohibition of discrimination that is found in the ECHR to contest the refusal of reimbursement of a pharmaceutical. Finally, the Twelfth Additional Protocol to the ECHR contains an autonomous prohibition of discrimination.
2.1. Implicit obligations
2.1.1. Right to life (Article 2 of the ECHR)
The first limb of Article 2 of the ECHR not only imposes on states the negative obligation to abstain from deliberate and unlawful killing, but also the positive obligation to undertake all necessary steps to safeguard the life of every individual in their jurisdiction.19 The ECtHR has underlined that it does not exclude the possibility that acts and omissions of the authorities in the context of public health policies may, in certain circumstances, engage the states’ responsibility under the substantive limb of Article 2.20 In its judgment Cyprus v Turkey it entertains the thought that Article 2 may impose an obligation to make available a certain standard of healthcare, but it does not examine this possibility further.21 However, the ECtHR rules in this case and others that states violate the right to life in any case if they refuse a person healthcare that they have undertaken to make available to the population generally.22 This reasoning reflects the importance of the principle of equality contained within the right to healthcare. As a result, this case law establishes a direct prohibition of discrimination within Article 2 of the ECHR, requiring any distinction to be justified. It is, however, not necessary that the right to health is breached for a violation of the prohibition of discrimination contained within Article 14.
Furthermore, in a number of cases the ECtHR has examined allegations of denial of access to medical treatment because of refusal by the state to fully cover the cost of a particular form of conventional treatment.23 So far, the court has not found a breach of Article 2 of the ECHR.24 In each case the court ruled that, given the need to balance the individual interest in an expensive treatment with the general interest, it could not be found that states in the particular circumstances of the case abused their margin of appreciation in allocating scarce public resources. That margin carries considerable weight as will emerge from the remainder of this contribution (see in particular sections 2.1.2, 2.1.4 and 2.3). Either the ECtHR considered that sufficient medical treatment and facilities had been provided to the applicants on an equal footing with other persons in a similar situation (see Nitecki and Gheorghe) or that the applicants had failed to adduce any evidence that their lives had been put at risk (see Pentiacova and others).
2.1.2. Right to respect for private life (Article 8 of the ECHR)
The right to protection of private life too has been invoked by ill or disabled persons in an attempt to enforce a healthcare claim.25 The ECtHR accepts that a positive obligation to provide medical care can be derived from the right to respect for one’s physical and mental integrity.26 Such an obligation arises when the refusal of claimed treatment or aid interferes with the individual’s right to personal development and his or her right to establish and maintain relations with other human beings and the outside world.27 That interference must go beyond nuisance to everyday life and attain a minimum level of severity.28 Also, the individual has to prove a direct and immediate link between the measures sought and his or her private life, demonstrating a special link with the needs of that particular life.29 In its case law the ECtHR so far has declared a case inadmissible in which a disabled individual sought a robotic arm to assist his mobility. The court considered that the provision of said arm fell in the margin of appreciation as the applicant had access to the general package of healthcare provided in the state.30 The court did, however, find that reducing the level of care given to a woman with limited mobility violated Article 8, but only for a limited period during which the UK did not comply with its own laws.31 Both cases differ insofar as the first applicant never enjoyed a particular form of medical assistance, whereas the second applicant complains not of a lack of action, but rather of the decision to reduce the care package that had until then been made available.
Thus, in the eyes of the ECtHR Article 8 of the ECHR is relevant to complaints about insufficient funding of treatment of persons who require healthcare in order to improve their quality of life.32 In the assessment of that funding the court seeks to balance the interests of society at large and the individual. In doing so it takes into account the wide margin of appreciation that states enjoy in the assessment of the priorities in the context of the allocation of limited state resources. The ECtHR acknowledges that the national authorities are in a better position to carry out this assessment than an international court, in view of their familiarity with the demands made on the healthcare system as well as with the funds available to meet those demands.33 This is part of the ‘fair balance’ test in which the court affords states a margin of appreciation in balancing the interests of private individuals with the competing general interest of society.34 The search for this balance is inherent to the whole of the ECHR.35
2.1.3. Prohibition of torture and inhuman treatment (Article 3 of the ECHR)
Article 3 of the ECHR dictates that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. As one of the fundamental values in democratic society, this prohibition is formulated in an absolute manner so that no restriction thereof is possible.36 The margin of appreciation of states is slim to non-existent. The refusal of or insufficient provision of medical treatment can be equated with inhuman treatment, in particular in the context of deprivation of liberty. The ECtHR has found that states failing to provide adequate healthcare to detainees breach Article 3 of the ECHR, if this results in sufficiently severe ill-treatment.37 After all, states have an increased duty of care regarding that category of citizens as they are responsible for the deprivation of their liberty, which hinders them to provide in their own (medical) needs.38
In a few cases the ECtHR has extended that duty of care to individuals outside the context of a detainment context.39 The court ruled that the expulsion of a patient suffering from AIDS to his country of origin would constitute inhuman treatment if there is a lack of adequate healthcare in that country to treat the disease.40 However, the circumstances of those cases are exceptional as the wronged individuals stand under a heightened form of control by the state.41 Therefore, the state remains directly responsible for those persons. Even though the personal scope of this case law is limited, it makes clear that an obligation to provide healthcare can arise if ‘human dignity’ is put in jeopardy.42
The obligation of states to safeguard that human dignity could open up perspectives for the individual who is denied healthcare. The argument that the refusal of reimbursement of a pharmaceutical constitutes inhuman treatment might just strike a chord with the ECtHR. In several decisions on admissibility the applicants argued that the social benefits they received were insufficient for their basic human needs.43 Interestingly, the ECtHR does not dismiss the applicability of Article 3 on their claimed state perpetuated destitution. Even though the ECHR does not guarantee as such socio-economic rights, including the right to free medical assistance, the court accepts that the living conditions of individuals could in principle amount to treatment contrary to Article 3 should they attain a minimum level of severity.44 The mentioned decisions, however, do not provide a guideline to determine when that level is attained.45 Necessarily, the benchmark is determined by the peculiar circumstances of the case. Anyhow, the minimum level of severity entails that there must be damage to the physical or mental health of the claimant or that the claimant faces a real and immediate risk either to his or her physical integrity or life.46 In the decision Budina v Russia the ECtHR referred mutatis mutandis to its judgment in Nitecki v Poland.47 In the latter case the court ruled, in light of Article 2 of the ECHR, that the fact that the claimant could only rely on reimbursement of 30% of the total cost of medical treatment did not run counter to the provisions of the convention.48 This case elucidates that it is not excluded that patients have to partly fund treatment themselves, provided that the funding of the remaining part by a state is not deficient to the extent that their health becomes damaged or their physical integrity or life becomes threatened.
2.1.4. Restrictive case law
The ECHR plays only a subsidiary role in guaranteeing fundamental rights at the national level.49 Therefore, the ‘margin of appreciation’ doctrine runs deep in the case law of the ECtHR.50 The ECtHR states that national authorities are better placed than an international court to evaluate local needs and conditions.51 In matters of general policy, on which opinions within a democratic society may reasonably differ, the role of the domestic policy-maker should be given special weight.52 The ECtHR merely ascertains whether states do not overstep their margin of appreciation. It functions as a supervisor to the national balancing of individual interests with the interests of society at large.53 The obligation to strike a fair balance must be interpreted in a way that does not impose an impossible or disproportionate burden on national states.54 Therefore, the margin of appreciation of states is even wider when they are faced with socio-economic challenges, because they are then tasked with assessing which priorities must be followed in allocating limited state resources.55 Thus, it comes as no surprise that the ECtHR rules that states are in a better position to balance all interests relating to their healthcare system.56 For that reason the ECtHR shows reluctance to recognise implicit obligations to provide healthcare in individual cases – notwithstanding systemic failure57 – safe for exceptional58 circumstances.59 The court has set a high bar for state action to attain a sufficient level of severity for it to generate implicit obligations.60 Seldom does a case reach that threshold.61 In a truer sense the ECtHR has not so much deduced positive socio-economic rights from the ECHR, rather it has laid out the outer boundaries of the margin of appreciation for states.62 Only when those boundaries are manifestly trespassed, does a positive obligation to healthcare arise. The hesitant attitude of the court is in line with earlier case law on socio-economic rights, certainly when implicit obligations can have far-reaching financial implications.63 It is of the opinion that the European Social Charter provides a more suitable and flexible protection of social rights.64
The wide margin of appreciation in healthcare policy is crucial in understanding whether lifestyle differentiation in healthcare is allowed under the ECHR. However, its nature is unpredictable, causing it to fall prey to criticism.65 The margin of appreciation is fundamentally dependent on the circumstances of the particular case and influenced by several factors.66 In section 2.3.2 the margin of appreciation is tied in with the prohibition of discrimination, which ensures equal access to healthcare. In the conclusion (section 4) a synthetic figure visualises what influences the margin.
2.2 Right to protection of property (Article 1, Additional Protocol I to the ECHR)
One of the foundations of the right to healthcare is the right to social and medical assistance. Accordingly, Article 1 of Additional Protocol (AP) I to the ECHR could limit a more selective healthcare policy. This article provides for the protection of property. If the reimbursement of pharmaceuticals is to be viewed as ‘property’, it falls under that article’s scope. The ECtHR stresses in its case law that the protection of property yields no right to acquire property. The ECHR in no way limits the freedom of states to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme.67 Once more, this is the consequence of the wide margin of appreciation granted to states in socio-economic matters.68 If, however, a state does decide to create such a scheme, it must do so in a manner which is compatible with Article 14 of the ECHR as the legislation enforcing that scheme must be regarded as generating a right to property that falls within the ambit of Article 1 of AP 1 to the ECHR.69 It is of no importance whether benefits are conditional or not on the prior payment of contributions. If an individual invokes Article 1 of AP 1 to the ECHR in conjunction with Article 14 of the ECHR to complain about a denial of a particular benefit on a discriminatory ground, the ECtHR tests whether, save for that condition of entitlement, the applicant would have had a right, enforceable under domestic law, to receive the benefit in question.70 Interestingly, the court considers the possibility of discrimination to be of great weight in the assessment of proportionality under Article 1 of AP 1 to the ECHR.71 Even though, once again, a wide margin of appreciation is afforded to states in this matter, the prohibition of discrimination acts as an ultimate boundary.72
It should be noted that a benefit does not constitute ‘property’ in the sense of Article 1 of AP 1 to the ECHR if the right to this benefit is conditional and the individual does not fulfil its conditions.73 Also, there is no state interference if the beneficiary no longer fulfils the conditions because of external circumstances.74 Once an individual has entered into and forms part of a social security system (even a compulsory one), it is not necessarily excluded that the system can be changed either as to the conditions of eligibility of payment or as to the quantum of the benefit.75 The ECtHR accepts that amendments to social security legislation may be adopted in response to societal changes and evolving views on the categories of persons who require assistance, as well as to the evolution of individual situations.76 However, in that case it is possible to speak of state interference as the change in the beneficiary’s situation is not brought about by external circumstances, but by changes in the law or its implementation.77 Therefore, states that suspend or diminish a benefit, must justify this interference under Article 1 of AP 1 to the ECHR.78 The justification should be lawful, should pursue a legitimate aim in the public interest and should be reasonably proportionate to the aim sought to be realised.79 Again, states that pursue the general interest must strike a fair balance with the interests of the individual. The requisite balance will not be found if the individuals concerned have to bear an excessive burden.80 This justification is intertwined with the justification of state interference in the private life of individuals. Thus, reference can be made to section 3.1.2.
2.3. Prohibition of discrimination
2.3.1. General principles
Article 14 of the ECHR determines that the enjoyment of the rights and freedoms set forth in the convention must be secured without discrimination. This is no autonomous prohibition of discrimination. Discrimination presents itself only in the enjoyment of one of the rights of the ECHR or its additional protocols.81 In contrast, the Twelfth Additional Protocol contains a similar82 prohibition of discrimination, which does not require recourse to a substantial convention right, but can be invoked against every difference in treatment under a national legal system.83 The ECtHR interprets the notion of discrimination in both articles identically.84
For a difference in treatment to amount to discrimination it is required that a person who claims discrimination finds him/herself in a sufficiently similar position as those who are treated in a more favourable manner.85 According to established case law a difference in treatment between persons in a similar or analogue situation is discriminatory if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim, or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.86
2.3.2. Margin of appreciation
States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment.87 Ad nauseam, this margin is usually wide when it comes to general measures of economic or social strategy so that the ECtHR will generally respect the legislature’s policy choice unless it is manifestly without reasonable foundation.88 The ECtHR accepts that the economic well-being of a state is in principle a legitimate aim for difference in treatment.89 However, criteria that favour persons with a certain health status may in no way appear arbitrary.90 Also, general economic measures must comply with the requirements of proportionality.91 In this regard the ECtHR emphasises its subsidiary role when reviewing legislative discretion. As an international forum, it cannot place its own views before that of the national authorities. The separation of powers prohibits the judicial branch from assessing whether other policy choices are more opportune, allowing only for a marginal review.92 Therefore, the availability of alternative options to the chosen legislative solution does not in itself render measures unjustified.93 Nevertheless, alternatives are not completely without importance as they can expose the unreasonableness of those measures.94 Also, the ECtHR does often search for less stringent available measures when comparing with other countries in the search of a European consensus (see further on).95
Mention must be made of dissenting opinions in the ECtHR concerning the wide margin of appreciation in socio-economic matters under Article 14 of the ECHR. In the case Stummer v Austria a majority ruled that a difference in treatment between detainees and non-detainees concerning the eligibility for pension benefits did not constitute discrimination.96 A number of judges disagreed with that conclusion and lamented the weight that the majority grants to the economic arguments of the Austrian government.97 Their criticism was that the importance attached to the margin of discretion in socio-economic matters is detrimental to fundamental rights. A more strident criticism can be found in Lopes de Sousa Fernades v Portugal. The dissenting opinion under this case, which concerned the ‘right to healthcare’ under Article 2, reproached the ECtHR for seemingly forgetting the principle of effectiveness (effet utile) of human rights protection, which limits the margin of appreciation of states. It noticed a lack of consistency in the context of socio-economic matters, where the ECtHR tackles certain problems head on, whilst evading others. Therefore, it urged the court to consistently resolve legal dilemmas both at the macro level, with respect to the allocation of scarce resources between health and other legitimate sectors within the state, and at the micro level, with respect to the realisation of the competing healthcare claims of individuals, on the basis of a pro persona approach to the right to healthcare.98 These dissenting voices call for the court to dare to pick up the gauntlet in socio-economic matters, rather than hiding behind the national margin of appreciation. It remains to be seen whether those dissenting opinions find their way into the majority view.
In any case, an interesting point of thought formulated by Newdick can be cited to counter the opposing views. He urges the provision of healthcare to be viewed as a system of institutional ethics that recognises the need for hard choices between competing demands and tries to respond to the difficulties of resource allocation in a fair, equal and consistent way.99 Thus, a distinction must be made between procedural and substantive rights, with emphasis on the former in resource allocation to ensure promoting equality between people, rather than the liberty of individuals. This coincides with the distinction that can be made in state obligations under, for example, the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 2 of the ICESCR allows for the progressive realisation of its rights, taking the limitations of the economic reality into account. The ICESCR acknowledges that the full realisation of all rights on short notice is impossible.100 This does not, however, mean that it contains no immediately binding obligations of result. One core obligation is the prohibition of discrimination. Thus, the equality between persons is the base line of the ICESCR, similar to Newdick’s view. In addition, states must strive to achieve the full realisation of the rights recognised, which means that in an ideal world resource allocation is no excuse to deny a person their rights. Therefore, ideally the abstract approach to healthcare policy makes way for a pro persona approach, advocated for by the dissenting judges in the aforementioned cases, in particular Lopes de Sousa Fernades v Portugal.
Besides this legal effet utile argument, it is interesting to consult other disciplines that reflect on the affordability of human rights. Economic theorists propose the thesis that their effective implementation fosters economic growth, so that they must be seen as a social investment rather than as an economic cost.101 Importantly, these theorists focus mainly on civil and political rights, which can be shown to have a positive effect on economic growth. A willingness of states to concede certain powers is a hallmark of stable regimes, which attract investors. One can expect however that socio-economic rights also positively affect growth, because they increase life expectancy and human capital and diminish economic inequality, which in turn feeds back into the stability of states. Nonetheless, empirical evidence is lacking.102
Apart from the context of socio-economic matters as such, the existence of European consensus is also relevant to the margin of appreciation, as it narrows the discretion of individual states.103 The Council of Europe actively encourages its Member States to take public measures against smoking.104 The European Union (to which 28 of the 47 Member States of the Council of Europe belong) too discourages smoking.105 Moreover, several of the Member States are party to the Framework Convention on Tobacco Control of the World Health Organization.106 This shows international support for the battle against the use of tobacco products, which the ECtHR will take into consideration. However, it should be noted that lifestyle differentiation in healthcare as such cannot rely upon the same obvious political like-mindedness. In the European Union, for example, social security is a competence that is not attributed to the European Union, but which remains a matter of national policy. It is up to the Member States to lay down the foundations of their social security schemes.107 A comparison with Belgium’s neighbouring states shows that only in Germany does the personal responsibility of individuals have a general influence on the benefits they may expect to receive in the context of a mandatory health insurance or legal basic health insurance. In The Netherlands, Luxemburg and France no similar general provision exists. German legislation unequivocally limits the principle of solidarity at the basis of its social security. The German state expects all insured individuals to take up their share.108 The Sozialgesetzbuch stipulates that health insurance funds may, to a certain extent, hold individuals responsible for harmful behaviour to themselves.109 It wishes to avoid abuse of the communal solidarity.110 If one consciously exposes oneself to certain explicitly enumerated activities, the result is that one takes part in a non-covered risk.111 The connection between solidarity and personal responsibility is not viewed as a blank cheque to leave individuals out in the cold, but, conversely, as an acknowledgment of personal autonomy and the right to self-determination.112 In a more general sense the Belgian Constitution stipulates that everyone has a right to certain socio-economic rights, such as a right to healthcare, in accordance with the related duties.113 The Constitutional Court acknowledged that the legislature may impose obligations in order to gain access to those rights,114 in order to achieve a dignified life for all citizens.115
2.3.3. Grounds of discrimination
The articles on discrimination list a few explicit grounds but are in no way exhaustive.116 Their wording speaks of grounds ‘such as’ and of the ground ‘other status’. Therefore, other discrimination grounds than the ‘traditional’ examples in the articles exist. The ECtHR does not convey a clear message regarding those possible grounds.117 Sometimes, it interprets ‘other status’ generously, at other times it applies a stricter view. In Kjeldsen, Busk Madsen and Pedersen v Denmark ‘other status’ is a broad notion that refers to each personal characteristic by which persons or groups of persons are distinguishable from each other.118 On the basis of that interpretation, non-traditional grounds such as ‘geographic location’,119 ‘professional status’,120 ‘ownership’121 and ‘health’122 have been recognised as possible grounds of discrimination. However, the ECtHR changed its tune in Springett and others v United Kingdom.123 In contrast to the principal grounds of discrimination, such as sex or race, the personal characteristic upon which the applicants relied is not innate. Moreover, it does not relate to a core personal belief or choice in a person’s life, in contrast to ‘religion’ or ‘political belief’. This strict interpretation narrows the notion of discrimination. Only the fundamental characteristics of a person are to be viewed as grounds of discrimination. Those are the traits that are either innate or that are so characteristic for human social life that they are inextricably intertwined with the identity of a person.124 A similar interpretation can be found in Peterka v Czech Republic, in which the ECtHR ruled that a ground of discrimination only falls under ‘other status’ if it is sufficiently analogue to the explicit grounds of discrimination, meaning it must be similarly innate or largely independent of personal choice.125 In more recent case law, the court reconnected with its broad interpretation. In Clift v United Kingdom the court considered both viewpoints, before preferring the broad interpretation.126 That trend is continuing in recent case law.127 Building on this interpretation, smoking behaviour constitutes a distinguishing characteristic, prone to be considered under the prohibition of discrimination.128 This reasoning can be extended to other grounds that form the basis of lifestyle differentiation.
Despite the foregoing, the strict interpretation of ‘other status’ is not without influence. The explicit grounds of discrimination represent traditional, ‘suspect’129 grounds.130 Those are historical grounds given shape by international jurisprudence and state practice, which require a heightened degree of attention for difference in treatment based on those grounds which is highly likely to be unjustified.131 A history of marginalisation and political and social exclusion of groups of the population casts its shadow upon them.132 When a difference in treatment on such a ground comes into play, the ECtHR plays closer attention to its justification. The court requires that its aim answers to particularly serious reasons.133 Thus, it limits the margin of appreciation, which it explicitly contrasts with the wide margin of appreciation in socio-economic matters.134 Moreover, the principle of proportionality does not merely require that the measure chosen is in general suited for realising the aim sought but it must also be shown that it was necessary in the particular circumstances.135 Therefore, the gravity of a personal characteristic influences the evaluation of the margin of appreciation.136 When a personal characteristic is more dependent of (subjective) personal will than of (objective) innate traits or traits that belong to the core of human personality, the margin of appreciation enlarges.137 Conversely, a difference in treatment based on the suspect grounds is almost inherently unjustified.138 It follows that a certain hierarchy is formed with stronger and weaker grounds of discrimination.139
In great part the grounds that form the basis of lifestyle differentiation rank low in that hierarchy. Smoking behaviour can serve as an example. A smoking habit requires a conscious decision to use tobacco products for the first time. In that regard it is certainly a weak ground of discrimination, independent of the circumstances of one’s birth and one’s social surroundings. However, the subsequent element of addiction makes it more difficult to assess how consciously a person chooses to continue smoking. The physical dependence on tobacco products catches many people in its web, who would rather quit smoking.140 In part this is explained by genetic predisposition, which is beyond one’s control.141 In that respect, smoking behaviour shows similarities with innate characteristics. This begs the question to what extent the ECtHR should take individual susceptibility into account to determine how fundamental a trait (e.g. being a smoker, being an amateur of extreme sports…) is as a building block in the formation of a person’s character. To what extent, for example, are skiers who break their leg on the slope themselves to be blamed for their personal inclination to seek thrills? The ECtHR’s case law suggests that such a pro persona approach is rejected, at least in healthcare policy (see also the dissenting opinion in Lopes de Sousa Fernades v Portugal, supra note 98). A reason why the margin of discretion is so wide in socio-economic matters is the challenge for states to balance the competing needs of one, two or a small group of individuals with the needs of others and the general collective (see e.g. Sentges). The ECtHR recognises the inherent difficulty of this task, therefore adopting a more abstract, general outlook on human rights protection. Its scrutiny shifts towards a marginal appreciation of state measures, so that it only steps in when those measures are manifestly in breach of the ECHR.
A related challenge is the question to what extent freedom of individual choice as such, which enables a person to act on his or her personal susceptibility to certain behaviour, is fundamental for a person to lead a worthwhile life. Hence, it is connected to the right to self-determination. Therefore, this question is picked up on in the next section.
3. Right to self-determination
3.1.1. Right to smoke
Many international human rights treaties contain a right to protection of private life, as does the ECHR in Article 8. This right presents itself as particularly suitable as a shield against mandatory conditions to healthcare because it prohibits unjustified interference by states in the private lives of their citizens. An inherent part of this right is the right to personal autonomy or self-determination. Article 8 of the ECHR does not mention this aspect explicitly.142 The ECtHR originally did not read a right to self-determination as such in the text of the article, yet acknowledged that it contained an important guiding principle for interpreting the rights of the convention.143 Gradually this view shifted towards an independent right.144 It encompasses the ability to conduct one’s life in a manner of one’s own choosing, including the opportunity to pursue activities perceived to be of a physically harmful or dangerous nature for the individual concerned.145 Article 8 of the ECHR protects the autonomy of each individual to choose a lifestyle of their liking, regardless of how much this deviates of any social conventions. To a certain extent the right to self-determination contains a ‘right to intoxication’.146 As evidenced by the many international treaties combatting substance abuse, however, this right is not absolute. State interference restraining the right to self-determination is possible within the limits of the ECHR.
3.1.2. Interference in smoking behaviour
States can interfere with the personal autonomy of their citizens and authoritatively constrain their behaviour. States are allowed to protect citizens against their own potentially harmful behaviour.147 For instance, the obligation to wear a motorcycle helmet does not infringe the freedom of religious expression,148 nor does the duty to wear a seatbelt violate the right to private life.149 Article 8(2) of the ECHR provides that such interference is allowed in the interest of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Limitations are justified if they are in accordance with the law and are necessary in a democratic society for the protection of one of the objectives set out above. The general interest and the rights of others limit the freedom of personal autonomy.150
Opposite the individual freedom of smokers stand the international obligations of states that require them to actively discourage smoking behaviour and promote good health in their citizens. Those positive obligations stand at odds with the negative obligation to refrain from interfering with the private life of citizens, without it being decidedly clear when one should take the upper hand. This is a challenge recognised by the ECtHR.151 The UN Committee on Economic, Social and Cultural Rights, which monitors the implementation of the ICESCR by its parties, too acknowledges that the lifestyle of citizens can have an important influence on personal health and substantially hamper states’ obligations. State parties can, therefore, not be held accountable for the personal behaviour of the citizen, so that the right to health must be interpreted as an obligation to provide equal access to healthcare (an obligation of means), rather than achieving good health in all citizens (an obligation of result).152
How is this tension to be resolved in the matter at hand? A first question to be answered is, whether lifestyle differentiation relates to one of the objectives set out in Article 8(2) of the ECHR. First, this limb mentions the ‘protection of health’. General smoking bans are permitted on the basis of the goal to attain the protection of health of non-smoking individuals whose health suffers from second-hand smoke. Indeed, the ECtHR has ruled that forced exposure to passive smoking can amount to inhuman and degrading treatment.153 However, smoking behaviour does not necessarily afflict others. Lifestyle differentiation can force smokers to alter their behaviour in the surroundings of their private sphere, where perhaps only their own health deteriorates. This begs the question whether the aim of protecting the individual’s own health too is included in said objective. In principle the ECtHR accepts that it does.154 Whether this acceptance can be extended to the context of smoking behaviour was the question at stake in a British case on the prohibition of the possession and use of tobacco products in a Scottish state owned psychiatric ward. The prohibition was contested on the basis of Articles 8 and 14 of the ECHR. The lower court ruled against the prohibition, arguing that even though Article 8 permits state interference, it is not a warrant for ‘lifestyle fascism’,155 the Court of Appeal considered the ban to serve a legitimate aim not only to protect the health of personnel, but also the health of the patients themselves.156 The ruling comes, however, with a caveat: the Court of Appeal indicated that it is not of the opinion that Article 8 of the ECHR applies because of the extraordinary circumstances of compulsory treatment and heightened state control, which inhibits the assimilation of a psychiatric ward with the freedom one enjoys in the comfort of one’s own home. Moreover, the ban also served to protect the health of state personnel, not only the patients. Nevertheless, the reasoning of the court is of interest. In particular, the court considered it would be surprising that those tasked with the management of health services would not be allowed to implement the smoke-free policies advocated by the government. A second objective that Article 8(2) of the ECHR mentions is the economic well-being of the state and the rights of others. In healthcare matters the ECtHR has accepted as a legitimate aim the economic well-being of the state and the interest of other care-users.157 The sustainability of provision of care to the community at large can trump personal interests, if a fair balance so requires.
Furthermore, states are granted a margin of appreciation to determine what is necessary in a democracy. Case law clarifies that the necessity implies a ‘pressing’ social need.158 States are free to determine what those needs are and how they meet them under the subsidiary supervision of the ECtHR.159 Their margin is not boundless, but depends on the importance of the right for the individual. The margin will tend to be narrower when a right is at stake that is crucial to the individual’s effective enjoyment of key rights.160 Only weighty reasons can justify interfering with a particularly important and intimate aspect of an individual’s identity.161 In absence of a European consensus the margin will be wider, particularly when a case is morally or ethically sensitive.162 One restriction to the margin of appreciation is that courts sceptically examine the ‘freedom of choice’ that is left to citizens by states to alter their behaviour, which may be an interference in disguise.163 This is of particular importance to lifestyle differentiation in healthcare. A state may not make the advantages an individual can freely choose or renounce dependent on the sacrifice of fundamental human rights. One fundamental human right may not be weighed against another. Choosing for a right to reimbursement of a pharmaceutical may require individuals to give up their right to self-determination. Whether such a consequence is justified under the ECHR is once again dependent on the length to which the ECtHR views the behaviour in question as a key aspect of an individual’s character.
A final remark in this respect is that social perception can weigh in on the discussion of how fundamental the right to choose certain behaviour is for an effective enjoyment of the rights protected by the ECHR.164 Changing societal views may lead to the margin of appreciation of states to widen or, conversely, narrow. This explains the ambivalent attitude to the right to intoxication, where certain substances such as hard drugs are fiercely cracked down upon, whilst other stimulating substances such as alcohol are leniently tolerated.165 For smoking behaviour, for example, it seems that the absolute freedom to smoke without consequences is on the decline. Even though the number of smokers in the world is still sizeable, the many public measures combatting smoking behaviour suggest that freedom is no longer as paramount as it once was. In light of social perception, a caveat should be kept in mind when it comes to lifestyle differentiation. In its general comment on the right to health, the UN Committee on Economic, Social and Cultural Rights explicitly states that healthcare should be accessible to all, especially the most vulnerable or marginalised sections of the population.166 Thus, selective conditions may not result in the healthcare system itself fostering marginalisation. In this regard reference can be made to the suspect grounds, which are born from a long history of marginalisation and political and social exclusion of certain groups of the population.167 Here too, however, it can be argued that the ‘strong’, innate suspect grounds should be distinguished from the ‘weak’ grounds, which are more influenced by personal choice.
3.2. Waiver of right to healthcare
The common law legal systems know the adage ‘volenti non fit iniuria’ in private law matters. This doctrine states that if one knowingly and voluntarily places oneself in a position where harm might result, one is not able to bring a claim for compensation of the damage that results from that position.168 In civil law legal systems contributory negligence by the victim results in the latter not being able to claim full compensation.169 Does a similar principle apply to the relationship between a state and its citizens if a citizen consciously exposes himself to harmful behaviour? In other words, can the state invoke the personal responsibility of the citizen to justify not fulfilling positive obligations to provide healthcare to the individual?
As discussed, the right to self-determination is not absolute since state interference is possible. That relative nature of the right suggests the individual itself can waive this right.170 It is certain that fundamental rights can be waived according to several courts, as ruled, for example, by the Court of Justice of the European Union171 concerning the Charter of Fundamental Rights of the European Union and by the ECtHR172 concerning the ECHR. However, their case law is mainly focused on the right to a fair trial, where a waiver of the rights of defence is possible.173 As regards other rights, case law is less perspicuous. Some rights are so fundamental to the democratic order that a waiver is excluded.174 It is unclear, however, which rights are susceptible to waiver.175 The current case law of the ECtHR provides no basis for deriving a general right to waiver.176 Therefore, for each right of the ECHR a separate analysis is required in order to conclude whether waiver is possible.
As the ECHR contains no right to healthcare by itself, a waiver of this ‘right’ must fall under one of the explicitly formulated rights. In this case such a waiver seems to be an expression of the right to self-determination. The personal behaviour of, for example, smokers, leads to them not (or no longer) fulfilling the conditions for reimbursement. An analysis of the waiver of the right to healthcare, is therefore an analysis under Article 8 of the ECHR.
As the positive obligations to healthcare of states was largely shaped by the obligation to provide for care of detainees, the case law concerning waiver of this positive obligation is coloured by this context. The ECtHR has ruled that the behaviour of a detainee is a relevant factor in the assessment of the obligation, provided that the health risk created predominantly arises from that behaviour.177 The use of contaminated needles178 or refusal of treatment,179 therefore, influences the margin of appreciation of states.180 In those circumstances detainees themselves create a situation of which they know it is hazardous, in contrast to the situation where they are unwillingly subjected to degrading and inhuman circumstances by the government.181 The consideration of the ECtHR limits the importance of the question whether waiver of rights by the individual is possible. It is dealt with under the doctrine of margin of appreciation.
The previous case law cannot be transposed as such to other contexts because of the peculiar situation of detainees. Nevertheless, outside prison walls the case Jehovah’s Witnesses v Russia sheds a light on possible waiver under Article 8 of the ECHR. According to the ruling in that case, states do not breach their positive obligations to provide care when they do not medically treat citizens who refuse such treatment.182 On the contrary, as long as the rights of third persons are not endangered, they violate the right to self-determination of those citizens should they force treatment upon them. In this case too the consideration by the ECtHR revolves around the margin of appreciation. Rather than a waiver of right, the court rules that the (harmful) behaviour of the individual is a factor in the balancing of interests that states must make whenever they limit the rights of Article 8.183 For lifestyle differentiation this means that as long as, for example, smokers do not endanger the rights of others (which is a reason to impose smoking bans in publicly accessible places), a state must take their wish to lead such a lifestyle into account.
4.1. In general
Everyone has a fundamental right to healthcare. This is no different for the smoker. Moreover, to its core belongs the principle of equality, which in principle inhibits lifestyle differentiation in access to healthcare. Therefore, a state that wishes to combat smoking behaviour through its healthcare system must justify a distinction with well-founded reasons. Although both the health of the individual and the financial health of the state are legitimate aims, states must strike a fair balance between the individual interest and the competing interest of society at large (see Figure 1). The ECtHR supervises that balancing act, which is a key part of the ECHR and underlies the tensions mentioned in the introductory paragraph. It grants a wide margin of appreciation to states when they are faced with socio-economic challenges, because they are then tasked with assessing which priorities must be followed in allocating limited resources. The ECtHR rules that states are in a better position to balance all interests relating to their healthcare system than an international court. Therefore, the ECtHR seems to adopt an abstract outlook on human rights protection in healthcare rather than a pro persona approach, although dissenting opinions can be heard, which urge the court to step up to the challenge in this difficult area of human rights protection. Accordingly, the court respects policy choices unless they are manifestly unreasonable or ostensibly unfounded. The following figure collects some of the explanatory factors for the wide margin of appreciation. It collects the different ‘rights’ that can be part of the equation in the balance between the individual freedom of citizens and the protection of the general interest by states.
An important restriction to the margin of appreciation is in place. State measures must be proportionate to the aim sought to be realised. The fulcrum in scrutinising that proportionality is the gravity to choose to participate in a certain lifestyle for the effective enjoyment of the rights guaranteed by the ECHR (see Figure 2). For example, the more fundamental the ECtHR deems the freedom to smoke for personal development, the weightier the reasons need to be which are necessary to distinguish smokers from non-smokers, to treat them differently in healthcare and to interfere in their personal life. Conversely, the standard to justify a differentiation becomes lighter when that trait is deemed more dependent on personal choice. This explanatory factor (the 5th in the list in Figure 1) can thus greatly widen or narrow the margin of appreciation.
4.2. Belgian measure put to the test
Now that the outlines of possible lifestyle differentiation are drawn in abstracto, the Belgian initiative can be assessed as a concrete example to complete this contribution. That initiative makes the reimbursement of a pharmaceutical (Ofev) used to treat a lung disease (idiopathic pulmonary fibrosis, IPF) conditional on not smoking for at least six months prior to and during treatment.
The previous sections have made clear that states are in principle allowed to rely on lifestyle differentiation if the general interest so requires. In healthcare matters the ECtHR has accepted as a legitimate aim the economic well-being of the state and the interests of other care-users. The ECtHR, adopting a subsidiary position, allows a wide margin of discretion to states to balance competing interests, particularly in socio-economic matters. This section, therefore, focusses more on the proportionality test, which acts as a failsafe in that balancing act. The scrutiny adopted by the ECtHR regarding that test will probably be less severe when it comes to smoking behaviour, as it is a weaker trait (thus, the fulcrum in Figure 2 is positioned to the left). Personal susceptibility, which can come into play regarding nicotine addiction, seems to be rejected by the court as only dissenting opinions advocate for a more pro persona approach.
Concerning the distinction itself, it is clear that smoking and non-smoking patients who suffer from the same disease find themselves in sufficiently similar situations, as both require the same pharmaceutical to combat the same symptoms. The distinction seems objective as it is based on a clear difference between both categories, namely the inhalation of tobacco products. It also seems pertinent as it is said that IPF is worsened by the inhalation of tobacco smoke. However, the Belgian initiative uses the presence of the chemical nicotine in the bloodstream as a yardstick to differentiate between both categories of patients. That presence is not an adequate means to make the distinction envisaged by the Belgian initiative. After all, the inhalation of tobacco products is not the only way in which nicotine can enter the bloodstream. Other possible sources can be the chewing or snuffing of tobacco, the use of electronic cigarettes and reliance on healthcare products used in nicotine replacement therapy, which aid in the cessation of smoking. Thus, ironically, the smoking patient who tries to quit his/her habit might still be barred from reimbursement as those later products release low and controlled quantities of nicotine, without the other harmful substances found in tobacco. Hence, the distinguishing criterion is not pertinent in this case, because it catches all tobacco products.
Concerning proportionality, the following three issues can be raised:
- The loss of reimbursement is absolute when nicotine is detected in the bloodstream. The smoking patient loses the whole benefit. This begs the question whether the smoking patient does not lose, at least de facto, his/her right to good health when confronted with a costly treatment of his/her disease, as is the case with the Belgian initiative. In the case of a highly disabling disease such as IPF, where it is difficult for the smoker to earn his/her own income, the loss of reimbursement can be the difference between being treated and not. Should the loss not be partial, rather than total? In this respect the judgment in Nitecki v Poland, discussed above, comes to mind. At least, it can be questioned whether the total loss should not be gradually incurred when the patient incrementally fails to meet certain ‘buffer’-measures. It is conceivable that a state mandates certain measures ranging from less to more intrusive, such as an obligation to undergo psychological addiction therapy or to switch to nicotine replacement therapy products, as conditions for full reimbursement. Those measures do not inexorably ‘punish’ the smoking patient as the current initiative does, but support the smoker in optimising his/her care. Importantly, the weakness of this argument lies in the marginal review on policy choices by the legislature granted to the judiciary branch, which prohibits it from assessing whether alternatives are more opportune. Only when the chosen measures are manifestly unreasonable in the light of other, equally valid, alternatives can the ECtHR take those alternatives into account.184
- A second issue is the blanket character of the Belgian initiative. The mere presence of nicotine in the bloodstream is enough for the revocation of the reimbursement. No distinction is made between different values of that chemical. Thus, chain-smokers and smokers who use tobacco products less frequently are treated identically. The Belgian initiative requires smoking patients to be smoke-free for at least six months. That period raises the question whether the smoker who consciously attempts to stop smoking, but relapses with a single cigarette in that period should be tarred with the same brush as the heavy smoker, considering the consequences.
- Finally the total loss of reimbursement might not be proportionate to the actual diminished efficacy of the pharmaceutical. A study found that the efficacy of the active substance of the pharmaceutical is independent of smoking status, when compared to the overall population.185 According to the American Food and Drug Administration (FDA) the exposure to the active substance is 21% lower in current smokers compared to ex- and never-smokers, which can in fact hinder the efficacy thereof.186 However, the FDA indicates that that effect is not sufficient to warrant a dose adjustment. Hence, if a smoking patient requires no greater amount of the pharmaceutical than a non-smoking patient yet has to pay more for it because he/she cannot rely on reimbursement, then the smoking patient bears a disproportionate financial burden. A counterargument which can be raised is that continued smoking perpetuates and worsens the disease itself, which in concrete cases might require more frequent dosages.
Ultimately, only the ECtHR can render a conclusive verdict on the Belgian initiative. The hypothetical position of the court can, however, be predicted cautiously on the basis of its jurisprudence. Because of the wide margin of discretion, here enlarged by the weakness of smoking behaviour as a fundamental characteristic, and the ECtHR’s reluctance to recognise a positive obligation to provide health care, national states stand in a strong position to differentiate on the basis of smoking behaviour. However, the blanket ban on the presence of nicotine in the bloodstream in combination with an absolute loss of reimbursement in the light of the actually diminished efficacy of the pharmaceutical raises issues of proportionality.