Summary Notities health law

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Summary - Notities health law

  • 1 Sources of health law and the boundaries of the discipline

  • What is health?
    It is related to illnesses and diseases.
    • health depends on the country and timeframe 
    • access to health will be different in the MS
  • 1.1 What do we mean by health?

  • What do we mean by health in the broach approach?
    The social model = a state of complete physical, mental and social well-being
  • What do we mean by health in the strict approach?
    The engineering model: the repair of the defective human machine
    • risk of sensitive of controversial classification
    • healthy depends on the chosen norm
  • 1.2 Evolution of law's engagement with health: some reasons

  • Which 3 stages can we see in the evolution in the laws engagement with health?
    1. Law as a means to protect the collective public interest
    2. Legal regulation of disease and health promotion
    3. Health professional regulation
  • What specific legislation addressing health do we see today? Explain.
    In BE we have a lot of liberal law
    • changing opinions in society about abortion, euthanasia 
    • ethical controversies have also multiplied 
    • rapid development of clinical practice and new technologies
    • relationship between
      • biomedical ethics
      • health law
  • What is the consequence of the increased number of legislation?
    • The volume of litigation has increased significantly (malpractice litigation)
    • Academic literature on health law
  • 1.3 Health law in a multi-layered legal order

  • What does a multi-layer legal order mean?
    That the sources of law can no longer be found in one national MS. 
    • there are now different actors on every level
  • What is an example of a multi-layered legal order?
    A federal state structure (BE):
    • it depends on competence
    • dispute? Constitutional court!
  • What is another example of a multi-layered legal order?
    Supra-national developments
    • EU law: law coming from outside the MS
  • What is the difference between supranational law and European law?
    European law: law agreed upon by the different MS
    Supranational law: national MS decide to shift competences to that level
  • What is the Solange doctrine?
    It deals with the supremacy of EU law over national law. Several courts did not accept for example Germany "as long as the EU does not provide the same fundamental rights as we do, then we will apply our own" = zo lange doctrine
  • Is the EU a constitutionalized legal order? Why?
    We find the same things (fundamental rights, competences of powers, ..) in the treaty's as we do in constitutions of states.
    • it fulfills the same role as the constitution does in MS
  • What is the difference between a directive and a regulation?
    Regulation: directly applicable
    Directive: not directly applicable
  • What are the sources of the EU as a legal order?
    Primary law: founding treaties
    Secondary law: binding legal measures such as regulations, directives and decisions and non binding law
  • 1.4 Components of health law

  • Why is there a movement from medical law to health law?
    • Law's engagement can no longer only be seen in terms of interface between doctors and their legal obligations
    • Health care products and services can be accessed directly 
    • Medical law: focus on doctor as a gatekeeper
  • 1.4.1 Liability of health care professionals

  • There is a medical malpractice crisis due to an increased number of legal processes, why?
    There is an increased awareness and less acceptance of mistake
    • patients face a heavy burden of proof
    • expensive and time-consuming procedure
    • risk of defensive medicine
    • insurance has become far more expensive for society


    Several states introduced alternative compensation schemes
    • BE: medical accident funds: compensate during the proceedings
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What are the findings of the court? On which basis?
Art. 20(2) Regulation 883/2004
  • authorization cannot be refused when it is bc of a lack of supplies that the treatment cannot be provided in good time
    • if the treatment is in the basket
    • if the competent state cannot provide equal treatment in a good time (directive art. 8)
They should look at all the hospitals in Romania 
  • can there be an equal treatment provided?
What are the facts of the Elena petru case?
A romanian national with heart problem needs an open heart surgery
  • Romania health service refused her application to have the surgery performed in Germany
  • she went
  • she is asking reimbursement
What is the topic(q) of the Elena Petru case
Are patients entitled to reimbursement of the costs of more qualitative treatment?
What are the main key decisions in this case?
The tariffs of the state of treatment apply
  • the main reason was not health care but crossing borders, free movement
  • ratio: not to be discouraged to cross border
  • they have already cross borders
  • there is no obligation of the competent MS to cover the difference 
    • situation of applying free movement rules
    • when there is more reimbursement in the competent state then there is in the MS of treatment
    • = reimburse according to tariffs of treatment
What is the topic of the Commission v Spain case?
Unplanned hospital care abroad
What were the findings of the CJEU in the elchinov case?
A MS cannot exclude in all cases reimbursement if PA lacks
  • restrictions are only justified if they satisfy the requirement of proportionality
  • if after assessment all other conditions for reimbursement are met, the fact that the patient was prevented from applying to PA, is not justified
What are the facts of the Elchinov case?
Bulgaria refused to reimburse the cost of hospital treatment in Germany
  • Mr elchinov couldn't ask PA beforehand due to his urgent medical condition
What is the topic of the Elchinov case?
Scope of art. 22 Regulation 1408/71
What did the CJEU decide in the Commission v France case?
That the requirement of PA for medical services including the use of major medical equipment can be justified
  • distinction between intra and extramural care is not absolute
  • PA can be a restriction bc of the financial balance
What is the topic in the Commission v France case?
Major medical equipment