Refusal to reimburse an insured person’s treatment abroad on the grounds that the insured person had refused treatment that was available in the country of residence but not in accordance with his or her religious practices creates a difference in treatment indirectly based on religion. Such a refusal may, however, be compatible with EU law if it is “objectively justified by a legitimate aim relating to the maintenance of healthcare capacity or medical competence”, the EU Court of Justice ruled on Thursday 29 October in the A/Veselības ministrija judgment (case C-243/19).
The case involves Jehovah’s Witnesses in Latvia. The applicant’s son was to undergo an open-heart operation available in Latvia, which could not be performed there without a blood transfusion.
The applicant refused that treatment on the ground that he was a Jehovah’s Witness and applied to the National Health Service for authorisation to allow his son to benefit from scheduled health care in Poland, where the operation could be carried out without a blood transfusion. However, his request, submitted on the basis of Regulation 883/2004 on scheduled treatment abroad, was denied.
The applicant lost several appeals before the Latvian Supreme Court considered whether the Latvian health services could indeed refuse to issue the form permitting such treatment on the basis of exclusively medical criteria or whether they were also required to take into account the applicant’s religious beliefs in the main proceedings.
It referred two questions to the Court of Justice for a preliminary ruling on the conditions for authorising a prior request for treatment abroad, to which the Court replied on 29 October.
In its judgment, the Court gives a twofold answer, based firstly on the Regulation on the coordination of social security schemes (883/2004) and on the Directive on cross-border healthcare (Directive 2011/24).
It states, first of all, that the regulation cited does not preclude the insured person’s State of residence from refusing to grant prior authorisation in the case where hospital treatment whose medical effectiveness is beyond doubt is available, but the religious beliefs of that insured person are opposed to the method of treatment used.
In that regard, the Court finds that such a refusal does indeed introduce a difference in treatment between insured persons indirectly based on religion or religious beliefs, but it considers that such a refusal is justified if it is based on an objective and reasonable criterion and is proportionate to the aim pursued. The Court found that this was so in this case.
The Regulation provides that additional costs may be incurred by the State of affiliation if care abroad is more expensive than on its territory. In this case, if the competent institution were obliged to take account of the insured person’s religious beliefs, such additional costs could, in view of their unpredictability and potential magnitude, entail a risk to the health insurance system.
However, under Directive 2011/24, the objective of protecting the financial stability of the social security system cannot be invoked. Indeed, the system of reimbursement provided for by the Directive is calculated on the basis of the tariffs applicable to healthcare in the Member State of affiliation and, on the other hand, does not exceed the actual costs of the healthcare received when the cost of the care provided in the host Member State is lower than the cost of the care provided in the Member State of affiliation. This double limit cannot therefore lead to additional costs.
The refusal to grant prior authorisation under the Directive also introduces a difference in treatment indirectly based on religion. In order to determine whether such a refusal is proportionate, the court which referred the case must examine whether taking into account the religious beliefs of patients may entail a risk for the planning of hospital treatment in the State of affiliation.
Finally, the Court considers that it is for the court which referred the case to determine whether the applicant could have applied for prior authorisation under the directive and whether a subsequent application for reimbursement may be envisaged. Link to the judgment: https://bit.ly/3efHY8Q (Original version in French by Solenn Paulic)