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jectivity of a citizen, employee or resident" [own translation]. Worth mentioning is the position of the Constitutional Tribunal expressed in the judgement of 27th May 2003 (case no. K 11/03), whereby "the Constitution creates premises for the functioning of a civil society, in which citizens gathered in diverse formal structures (political parties, associations, community organizations, founda-
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tions) accomplish their objectives, thus influencing public issues" [own translation] .
III. To conclude, valid appears to be the thesis that the concept of a nongovernmental organization does have its constitutional dimension. This is not hampered by the fact that the currently applicable Constitution does not operate with the term itself. Such constitutional dimension may be approached in various manners, depending on the adopted model of relations between the idea of a non-governmental organization and that of a community organization. Nevertheless, it proves justified to assume that the constitutional provisions do shape the understanding of the concept of NGO, but not in a way which would allow adopting a uniform definition applicable throughout the entire Polish legal system. The legislators have been offered a freedom to define the idea in diverse manners in individual statutes, and they certainly use that freedom.
THE CONSTITUTIONAL RIGHT TO HEALTH PROTECTION КОНСТИТУЦИОННОЕ ПРАВО НА ОХРАНУ ЗДОРОВЬЯ
Stych Marek, PhD,
Стых Марек, канд.юр.наук, директор
Institute of Administration, Jan Dlugosz University in Czestochowa, Poland
Abstract
The article discusses health protection issues, in particular the right to health protection. The analysis of the issue will be based on Article 68 of the Constitution of Poland. If one considers privatisation of healthcare centres and hospitals, the topic is important especially to the citizens. It must be borne in mind that the health safety of individuals should always be treated as priority. The right to health protection has been included among the fundamental rights. The aspects covered in the paper include the legal basis and subjective scope of health protection.
Keywords: Health protection, public health, health Center
32 Vide: L. Garlicki, Polskie prawo konstytucyjne. Zarys wykladu, op. cit., p. 64; W. Sokolewicz, Artykul 12, in: L. Garlicki (ed.), Konstytucja Rzeczypospolitej Polskiej. Komentarz, tom V, Warsaw 2007, p. 10 et seq.; M. Jablonski, Spoleczenstwo obywatelskie - dylematy konstytucyjnoprawne, in: J. Blicharz, J. Boc (eds.), Prawna dzialalnosc instytucji spoleczenstwa obywatelskiego, Wroclaw 2009, p. 23 et seq.; A. Lawniczak, Spoleczenstwo obywatelskie - kilka uwag teoretycznych i konstytucyjnoprawnych, in: J. Blicharz, J. Boc (eds.), Prawna dzialalnosc instytucji spoleczenstwa obywatelskiego, Wroclaw 2009, p. 33 et seq.
33 www.otk.trybunal.gov.pl/orzeczenia/otk.htm (29-10-2015) - Judgment of the Constitutional Tribunal of 27th May 2003, case no. K 11/03.
Legal basis
Having analysed the above constitutional regulation34 one may draw a conclusion that human health protection should be now considered one of fundamental
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human rights . On the other hand, however, it is undoubtedly the obligation of public authorities. It is aptly treated as one of "Fundamental Rights" that derives from the innate and inalienable human dignity. It is reflected in constitutional provisions, which means that it is regulated by the most important act.
In Poland, health protection could be found in constitutional regulations as early as in the interwar period. For the first time it was stipulated by the March Constitution of 17 March 192136. Pursuant to Article 102, the state was to guarantee each citizen the right to state protection of their work, and in case of unemployment, illness, accident and disability the right to social insurance regulated by means of statutory provisions. Considering the issue from the international law point of view, one should take into account the Constitution of the
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World Health Organization which stipulates that the highest possible health standard is one of the fundamental rights of each human being, regardless of their race, religion, political convictions, economic and social conditions. Another international law act that provides broad regulation of health protection issues is The International Covenant on Economic, Social and Cultural Rights
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(ICESCR) . Pursuant to Article 12 of the Covenant, the states parties recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. This regulation imposes specific obligations on the
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states, which aims at the implementation of the discussed right . The question arises what actions should be taken by state organs.
The exemplary tasks of state organs include actions that aim at ensuring proper child development, preventing epidemics, preventing occupational and other diseases, and their treatment and control. The above includes also creating favourable conditions which guarantee each individual aid and healthcare in case of illness. Similar regulations can be found in the European Social Char-ter40. In part I Paragraph 11, the Charter stipulates that everyone has the right to benefit from any measures enabling him to enjoy the highest possible standard of health attainable41.
The constitutional regulation mentioned at the beginning of the paper can be regarded, to some extent, as the implementation of international law provisions.
34 Judgement of the Supreme Court of Poland - Civil Chamber of 15 December 2004 IV CK 361/04 - [Constitutional right to health protection and health services limits], Legalis
35 M. Perkowski, Ochrona zdrowia w prawie Unii Europejskiej, Administracja Publiczna Bialystok 2006, no 1, p. 186-238
36 Journal of Laws no 44, item 267, as amended
37 The Constitution of the World Health Organization, The settlement made by the governments represented at International Health Conference, and Protocol concerning International Office of Public Hygiene signed in New York on 22 July 1946 (J. of L. from 1948, no 61, item 477, as amended).
38 International Covenant on Economic, Social and Cultural Rights (ICESCR), opened for signature in New York on 19 December 1966 (J. of L. from 1977, no 38, item 169).
39 R. Bugaj, Ochrona zdrowia - niepowodzenie reformy, Polityka Spoleczna 2003, no 9, p. 1-7
40 European Social Charter, prepared in Turin on 18 October 1961 (J. of L. from 1999 no 8, item 67, as amended)
41 More in: E. Nojszewska, System ochrony zdrowia w Polsce, Wolters Kluwer, Warsaw 2011
Subjective scope
At this stage, one should decide what is meant by subjective scope. It should be understood as a group of entities (natural persons) to whom the examined regulation is addressed.
Another question concerns the entities enumerated in Article 68 of the Consti-
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tution . The linguistic interpretation allows one to list several categories of entities:
- Paragraph 1 of the analysed regulation concerns "everyone" - a citizen, a foreigner and a stateless person,
- Paragraph 2 specifies the subjective scope by introducing the term "citizens of the Republic of Poland",
- Paragraph 3 refers to specified groups of individuals: children, pregnant women43, the disabled44, and elderly people;
- Paragraphs 3-5 refer to "public authorities" understood as government and local government administration organs45. The constitutional regulation imposes on those entities public obligations related to health protection.
Having summed up the above deliberation, it can be said that the broadest group of entities can be found in Paragraph 1 which stipulates that "everyone has the right to health protection". Delving deeper into Article 68, it must be noted that its provisions derive from other constitutional regulations46:
- Article 38 of the Constitution of Poland, which guarantees each human protection of their lives,
- Article 30 of the Constitution of Poland, which stipulates that the human dignity is the source of human rights and liberties, including the right to health protection.
It seems reasonable to assume that health protection is strictly connected with the broader notion of life protection, whereas the right to live stems from the
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human dignity . Those rights belonging to natural persons are of the highest value. For this reason, the constitutional legislator orders to protect them, regardless of who exactly they refer to. As a result of the provisions of Article 68 of the Constitution, it is absolutely forbidden to restrict health protection due to factors such as origin, health status, age, etc. In the democratic state of law, health protection should not depend on the above factors for it would lead to discrimination. The phrase "everyone has the right" encompasses all humans, regardless of their citizenship and nationality.
If there are to be any restrictions as regards the access to healthcare services, the state authorities should comply with the requirements stipulated by
42 A. Surówka, Ochrona zdrowia w systemie praw i wolnosci, Jurysta, 2005, no 8, p. 6-13
43 M. Frqczek, Ochrona zdrowia pracownic w ciqzy, Sluzba Pracownicza 2003, no 11, p. 9-11
44 Judgement of Appeal Court in Krakow - I Civil Division of 3 April 2014, I Aca 155/14 - [Protection of mental health as a personality right], Legalis
45 J. Leowski, Rola i miejsce panstwa w systemie ochrony zdrowia, Prawo i Medycyna 2000, no 6/7, p. 21-30
46 M. Zelichowski, Pacjent tez czlowiek. Prawo do ochrony zycia i do ochrony zdrowia, Rzeczpospolita 1999, no 52
47 J. Jonczyk, Zasady i modele ochrony zdrowia, Panstwo i Prawo 2010, no 8, p. 3-17
Article 68 of the Constitution:
- health protection should be actual rather than formal,
- access to services financed by the state must be equal for all citizens, regardless of their economic position,
- the range of publicly financed services citizens are entitled to must be stipulated by statutory provisions.
Objective scope
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What needs to be discussed next are the matters , rights, and duties stipulated by Article 68 of the Constitution. First of all, the Constitution of Poland and other statutory provisions do not provide the notion of "health protection". It is therefore justifiable to approach that term in a broad sense49. It encompasses health services such as treatment and rehabilitation, promotion of healthy lifestyle, promotion of physical culture, and preventing and combating infectious diseases. The regulation guarantees every citizen access to publicly financed healthcare services. Furthermore, it ensures equal treatment of all individuals regardless of their economic position. That constitutional solution derives from the principle of social solidarity50, which means that risk factors such as age, health status, sex, etc. are distributed among all the insured. At the same time, services intended for persons having financial difficulties are financed from the state budget51. It stems from the fact that the amount and quality of those services as well as the participation rate of a given person do not influence the financing of health insurance system. Another issue stipulated by the discussed regulation is the obligation of competent public administration organs to combat epidemic diseases (Art. 68 Par. 4). It means that the constitutional legislator considers such diseases particularly dangerous, which entails full public financing. That group of actions taken by public bodies has been specified by statutory provisions, that is the Act of 5 December 2008 on preventing and combating conta-
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gion and contagious diseases among humans . The statutory provisions have been developed and specified by secondary legislation such as e.g. the Regulation of the Minister of Health of 6 April 2009 on preventative measures against
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meningococcal disease , and the Regulation of the Minister of Health of 18 August 2011 on compulsory vaccination54.
Conclusions
The analysis of the constitutional regulation provided in Article 68 leads to a
48 Judgement of the Supreme Administrative Court of 6 October 2010, II OSK 1453/10 - [Privatization of public tasks as regards health protection], Legalis
49 See: M. Izycka-Rqczka, Program Narodowej Ochrony Zdrowia, Przeglqd Ubezpieczeniowy 2002, no 4, p. 25-29
50 Judgement of Appeal Court in Lodz - I Civil Division of 16 September 2014, I Aca 335/14 - [Obligation imposed on National Health Fund to cover the costs of health services provided under statutory compulsion], Legalis
51 See: J. Suchecka (ed.), Finansowanie ochrony zdrowia. Wybrane zagadnienia, Wolters Kluwer, Warsaw 2011
52 Uniform text, J. of L. from 2013, item 947, as amended
53 J.of L. no56, item 465
54 J. of L. no 182, item 1086, as amended
conclusion that the constitutional legislator approaches the right to health protection in a broad sense. It does not encompass only creating conditions to provide common publicly financed health services. As a result, it should contribute to harmonious development of the human in natural environment conditions. That objective is also met through imposing an obligation on public authorities to take actions designed to eliminate the most dangerous diseases, especially the epidemic ones. The regulation pays particular attention to certain natural persons who, according to the legislator, require additional care and protection. As the most important act in Poland, the Constitution of Poland sets framework for further regulation, and is characterised by a certain degree of generality. Hence it has to be specified by acts of lower rank which stipulate the conditions and principles of the implementation of a subjective right such as the right to health protection. It must be borne in mind, however, that constitutional regulations serve as certain guidelines and a basis for statutory regulations. The legislator cannot distort constitutional ideas. He is obliged to implement them entirely and ensure the respect of fundamental human welfare such as life and health.
The list of references
1. Bugaj R., Ochrona zdrowia - niepowodzenie reformy, Polityka Spoleczna 2003, no 9
2. Fr^czek M., Ochrona zdrowia pracownic w ci^zy, Sluzba Pracownicza 2003, no 11
3. Izycka-R^czka M., Program Narodowej Ochrony Zdrowia, Przegl^d Ubezpieczeniowy 2002, no 4
4. Jonczyk J., Zasady i modele ochrony zdrowia, Panstwo i Prawo 2010, no 8
5. Leowski J., Rola i miejsce panstwa w systemie ochrony zdrowia, Prawo i Medycyna 2000, no 6/7
6. Nojszewska E., System ochrony zdrowia w Polsce, Wolters Kluwer, Warsaw 2011
7. Perkowski M., Ochrona zdrowia w prawie Unii Europejskiej, Administracja Publiczna Bialystok 2006, no 1
8. Suchecka J. (ed.), Finansowanie ochrony zdrowia. Wybrane zagadnienia, Wolters Kluwer, Warsaw 2011
9. Surowka A., Ochrona zdrowia w systemie praw i wolnosci, Jurysta, 2005, no 8
10. Zelichowski M., Pacjent tez czlowiek. Prawo do ochrony zycia i do ochrony zdrowia, Rzeczpospolita 1999, no 52
