The ruling by the Court of Administrative Justice (CAJ) earlier this month suspending the establishment of the Health Care Holding Company introduced significant changes to the legal framework for the protection of the right to health in Egypt, the Egyptian Initiative for Personal Rights (EIPR) said today. The EIPR also added that the Court's reasoning adds new grounds to the state’s obligations with regards to the provision of health services, and health insurance in particular. The consequences of this landmark decision are likely to affect the entirety of the government's health sector reform plans, the EIPR concluded.

On 4 September, the CAJ decided in favor of a lawsuit filed by the EIPR demanding the suspension of Prime Minister decree 637 issued in March 2007 which establishes a so-called Health Care Holding Company. The company, as decreed, would work in parallel with the publicly-owned Health Insurance Organization (HIO) while assuming control over the assets of the HIO hospitals and clinics. The HIO is currently the main health insurance provider in the country, covering approximately 52% of the Egyptian population. It offers a full package of services for those insured at service cost, which is considerably lower than the cost of services offered by private, non-HIO outlets.

According to the Prime Minister’s decree, the HIO would remain the body in charge of financing health services for the insured, while the holding company will procure the health services from the HIO hospitals and clinics, as well as non-HIO hospitals and clinics. It is by law, a for-profit company and would therefore offer services at a for-profit margin. It would also have the jurisdiction to sell the hospitals and clinics to private investors. The HIO hospitals and clinics have been constructed and continue to operate largely from the premiums of the beneficiaries and therefore do not belong to the government to dispose of them as it sees fit.

The lawsuit therefore called for the immediate suspension of the decree, and its eventual annulment. The lawsuit argued that the Prime Minister lacks the jurisdiction to issue such a decree restructuring the HIO without first deferring it to Parliament for its approval. The decree also contravenes the state’s obligation to uphold the right to health as dictated by the Egyptian Constitution, in addition to the International Covenant on Economic, Social and Cultural Rights and the African Charter on Human and People’s Rights-both of which have been ratified by the state and hence have become part of national law. The Court agreed with the arguments put forth by the defense briefs, and referred to the interpretation of the right to health in General Comment 14 issued by the Committee on Economic, Social and Cultural Rights and stipulating that health services must be made affordable and accessible to all, indiscriminately.

The court also went further by adding that “guaranteeing the right to health care is not merely a reiteration of a basic right, but it is also a guarantee for the achievement of development, and for establishing social justice.”

In dismissing the decree, the court found the Prime Minister’s decree to be an attempt to constrict the obligation placed upon the state to realize the right to health by offering health services via for-profit entities. The court warned against

“leaving health provision to the private sector without due regard to the reality of the economic situation of the citizen [in Egypt] and to the effect of that on the right to health. Allowing the private sector to monopolize, control and profit from the diseases of the insured, first by selling the assets [of the hospitals and clinics] at the cheapest price because they will be sold at book value and then by selling health services with a for-profit margin – even though it used to be offered at service cost by the HIO – will ultimately change health insurance from a social right, to a commercial project. This is of particular significance in the current circumstances, under which the issue of social solidarity and cohesiveness are a national demand in Egypt, a goal every citizen should be blessed with, and not something for the have-nots to be deprived of.”

Instead, the court reiterated the full scope of that obligation. It dismissed the government’s legal justifications for establishing the holding company and allowing it to provide health services instead of the HIO, arguing that: “It is the State’s constitutional obligation and it cannot rescind from it…using justifications such as improvement [of the HIO], a budget deficit or any other justification put forward by the administration to achieve goals that would diminish the meaning of that obligation.”

The court also reiterated an important principle, that “the right of the administration to undertake new administrative procedures whether via its own entities or via other entities, must at the start give due consideration to the regulations and rules organizing public ownership, as well as the right of the citizen to receive health services at a reasonable price.”

In an unprecedented move, the written decision also expanded the scope of the right to health to include a right to health insurance. It emphasized that: “Health insurance is one the main means for the realization of the right to health, and which is in turn a human right guaranteed by human rights law, both domestically and internationally. This is due to the interlink between the right to health and the right to life. The state’s provision of health care dictates that the state not expose the right to health to [commercial] investment, or monopoly or bargaining.”

The court went even further in enshrining the right to health by considering the rules regulating the national health insurance system in Egypt as being part of the regulations maintaining public order, which cannot be violated: “The regulations of the social health insurance system are vital. Due to their interlink with the public good and the vital interests of the society, as well as the role they play in protecting the weaker segments [of society] in order to maintain equal distribution, they therefore belong to the public order [regime]. This was confirmed by the Constitution, and dictated by the health insurance legislations, and the international covenants and agreements.”

In a clear message sent to both the executive and the legislature with regards to the plans being formulated to restructure the HIO, the court reiterated the following legal principle: “A right which is constitutionally protected cannot be amended by that lower than the Constitution, and only in a way which does not diminish from that right.” The decision also confirmed that legal texts cannot be created in a vacuum, nor can they mitigate from the social interest which they serve, and therefore “no legislation can affect the elements [of the HIO] nor change its nature, deprive it of its requisites, separate it into independent bodies, destroy its origins or inhibit it from carrying out the duties, without this being out of necessity for it to achieve its social goals.”

The decision also considered the monies of the HIO to be public monies which the state cannot dispense with and “which fall outside [commerical] interaction. The state should deal as a guardian and caretaker and not disposer and manipulator.”

The court also dismissed government statements and assurances that the HIO will remain intact, and that the current government has no plans to sell any of its units. The court responded by saying: “Matters of the administration cannot be regulated by intent…because the administrative intent is not that of the individual who is the source of the decision. This intention must be regulated by the laws and statutes that are issued.”

Finally, the court rejected the government’s argument that the defendants have no legal standing to file the lawsuit, since they will not be affected by the establishment of the holding company. The court found that all the defendants do indeed have legal standing, “since they are citizens to whom the state is obliged to offer the right to health care, whether they are currently insured under the existing system, or whether they hope to realize that right through the government’s plans and decisions with regards to the health insurance sector.”

The EIPR filed the lawsuit jointly with the Hisham Mubarak Law Center. A number of organizations have also supported the lawsuit, under the umbrella of the Committee to Defend the Right to Health. The Committee was established in May 2007, shortly after the Prime Minister’s decree was published in the Egyptian Gazette. The Committee consists of over 20 NGOs that came together in an effort to raise awareness about the dangers of the decree, and the government’s attempts to restructure the health sector in Egypt in a way that stands to benefit the private sector at the expense of the individual’s right to health.