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Supreme Administrative Court rules on reimbursement of drug for patient with chronic pain

The Supreme Administrative Court has set aside a judgment of a Provincial Administrative Court and the decision of the Minister of Health that refused to reimburse costs of a medicine with dried cannabis taken by a woman suffering from chronic pain. The woman’s condition causes acute pain in legs, which prevents her from performing activities of daily living and forces her to use crutches.

Following the exhaustion of ordinary judicial remedies against a negative administrative decision, a complaint in cassation was submitted to the Supreme Administrative Court. At the request of the HFHR, Ms Paulina Kieszkowska-Knapik agreed to represent the woman pro bono.

No reimbursement

In September 2017 the complainant submitted a motion for a judicial review to a Provincial Administrative Court, arguing the Minister of Health had denied her request for the reimbursement of costs of a painkiller despite recommendations of her attending doctors. The Minister approved the importation of the drug, thereby confirming that the medicine is necessary for the complainant, but refused to approve the drug’s reimbursement, which – given the patient’s financial situation – effectively deprived her of access to the medicine. The monthly cost of treatment with the drug can be as high as PLN 500.

In December 2017, PAC dismissed the motion, holding that the administrative body should ensure that reimbursement is available for those medicinal products that are the most effective, compared to other products used in the treatment of a given condition. PAC also argued that there was no sufficient scientific evidence that the drug in question is more efficient than other treatments designated by the Minister.

Complaint in cassation

The complaint in cassation submitted to SAC alleged that the PAC had not reviewed the Minister decision’s lawfulness, and in particular its constitutionality. Another point raised in the complaint was the lower court’s failure to take into account the fact that the Minister’s decision had been based solely on opinions concerning the risk of marijuana addiction rather than an individual assessment of the patient’s situation and medical condition. Furthermore, it was alleged that the Minister had disregarded the research of the complainant’s attending physician, who examined the efficacy and safety of long-term administration of opioids in the patient’s case.

Judgment of Supreme Administrative Court

In the verbal summary of the judgment’s holding, SAC stated that evidence had not been exhaustively examined in the case. At the same time, the Court acknowledged that neither party to the dispute had provided convincing evidence in support of their case. SAC reminded that the requirements of reimbursement of drugs did not have to be satisfied cumulatively, upholding the present line of reasoning of administrative courts. The Court also stressed that drug reimbursement decisions are discretionary in nature, which means that reviews of such decision must take into account the interests of the public.

Pain management as human right

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.

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 system means that the state has failed to perform its constitutional duty to provide 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 healthcare institutions. A denial of access to effective pain management was given as an example of such violations.

The Special Rapporteur emphasised that effective pain management is systemically hindered by overly restrictive drug control regulations or misinterpretation of otherwise appropriate regulations; lack of prioritization of palliative care and pain management, ingrained prejudices about using strong drugs and the absence of pain management policies or guidelines for practitioners.

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