HFHR to provide legal aid for patient with chronic pain

The HFHR has been dealing with a case of a woman suffering from chronic pain who was refused the reimbursement of costs of a medicine with dried cannabis. The woman’s condition causes acute pain in legs, which prevents her from performing activities of daily living and forces her to use crutches. The decision of the Minister of Health issued in this case has been opposed in a complaint submitted to a Provincial Administrative Court. At the request of the HFHR, Ms Paulina Kieszkowska-Knapik agreed to represent the woman pro bono.

Complaint

According to the complaint, the Minister of Health denied the patient’s request for the reimbursement of costs of a painkiller despite recommendations of her attending doctors. The Minister’s decision was challenged on the grounds of the absence of individualised approach to the patient’s case and ignoring the Minister’s own publicly declared position regarding the availability and purposefulness of marijuana treatment. The complaint argues that the Minister had approved the importation of the drug, thereby confirming that the medicine is necessary for the complainant. At the same time, the Minister refused to approve the drug’s reimbursement, which – given the patient’s financial situation – effectively deprives her of access to the medicine.

Individual Reimbursement Act versus constitutional standards

According to the complainant, the Minister’s decision should take into account constitutional guarantees, in light of which the efficacy of a given drug administered to a particular patient should be a decisive factor guiding the approval of an individual reimbursement.

It is also argued in the complaint that, given the patient’s financial situation, the refusal of reimbursement of the only drug that can effectively alleviate her suffering actually deprives her of her right to pain management. Such a decision is not only contrary to the constitutional reading of the Reimbursement Act but also violates the recently amended Patient Rights and Ombudsman for Patient Rights Act, which grants the right to receive pain management services to all patients.

Pain management as human right

The HFHR would like to reiterate that access to proper pain management schemes remains a key element in the state’s obligation to safeguard the fundamental rights and freedoms. The absence of an effective pain management scheme means that the state is unable to discharge its duty to ensure the right to health care. This may also constitute a violation of the prohibition of torture, inhuman and degrading treatment.

The problem of ineffective pain management featured in the February 2013 report of the UN Special Rapporteur on torture and other forms of cruel, inhuman, degrading treatment or punishment, which discussed, among other things, human rights violations in health care institutions. A denial of access to effective pain management was given as an example of such violations.