1. Introduction

The 'right to health' (RtH) was first formulated by the World Health Organisation in 1946 as the right 'of every human being without distinction' to the 'highest attainable standard of health' (WHO 1946:1). In this essay I assess France's interpretation of the RtH. I argue that the French RtH is a right to the protection of health (RtPH) which imposes a particularly strong obligation on the state and yet acknowledges the latter's resource constraints. As such, it is interpreted as a right to the social insurance system. In practice, the RtPH is well fulfilled by French institutions. However, resource constraints are not respected due to inefficiencies in resource allocation. Firstly, I outline my evaluation framework, in other words what I believe to be a good interpretation of the RtH. Secondly, I analyse the RtH as it is formulated in French law. Finally, I assess French institutions' interpretation of the RtPH in light of the criteria outlined in section two, and suggest that they revise their current interpretation of the RtPH.

2. Evaluation framework: a good understanding of the right to health

Unlike the WHO, I take the RtH to be an obligation for the state to (1) respect and fulfil its citizens negative[1] and positive[2] rights to health whilst (2) acknowledging resource constraints (the state's limited available resources). This necessarily entails that (3) priorities must be set and that the RtH is not about 'securing every individual's access to healthcare regardless of the cost' (Rumbold et al. 2017). Such a conception of the RtH avoids the common pitfalls of a simplistic and thus overly permissive RtH. Indeed, where the RtH is said to apply equally to all citizens regardless of personal situation and without further specification, it can be instrumentalised by the wealthy to further their interests (through the legal system for example) to the detriment of the poor (Easterly 2009). Excessive health litigation, as observed in Brazil (Ferraz 2011), has adverse effects on governments' ability to finance the provision of healthcare for the wider population.

Thus, 'fair priority-setting is essential to the realisation of the RtH' (Rumbold et al. 2017: 712). Resources must be allocated with the aim of maximising total health gains (max $/QALY[3]) whilst prioritising the worse off and protecting citizens from financial risk. These priorities involve careful trade-offs, and as a result related decision-making must be transparent and conducive to accountability. This is Rumbold et al.'s (2017) criteria for priority-setting, against which I assess the French interpretation of the RtH.

3. The right to health in French law

The preamble of the Constitution of the Fourth Republic of 1946, paragraph 11, states that 'the nation guarantees to all (...) the protection of health, material security, rest, and leisure'. Unlike other national constitutions, there is no mention of a right to health but rather an allusion to a right to the protection of health. The State Council emphasises this distinction: 'if the protection of public health constitutes a constitutional principle, it does not result (...) that the right to health is one of the fundamental freedoms to which article L.521-2 of the Code of Administrative Justice applies' (Conseil d'Etat 2005). Article L.521-2 stipulates that 'a judge may order any measure necessary to safeguard a fundamental freedom which a person or private body is alleged to have violated'. In other words, from the legal perspective, there are little to no avenues of litigation against the state on the grounds of the RtH. Further, the Constitutional Council (the highest constitutional authority in France) recognises that the protection of health must be conciliated with other constitutional objectives, most notably the 'financial stability of the social security system' (Conseil Constitutionnel 2002). Judges have followed the Council in its collective interpretation of paragraph 11 of the Constitution and prioritised the interests of public health over individual rights (Gründler 2010).

Nonetheless, the formulation of the RtH in the Constitution recognises that the protection of health is a strong obligation of the state with the expression 'the nation guarantees', and the protection of health is explicitly enshrined as a right in the public health code, article L.1110-1: 'the fundamental right to the protection of health must be fulfilled by any and all means available for all people.' Thus, I argue that the French RtH is a right to the protection of health (thereafter RtPH), conceived both as an individual right and a collective right, where the collective right supersedes the individual right. Given the strong positive obligations of the state towards its citizens, and the French socialist tradition, the RtPH is interpreted in practice as a right to the social insurance system, la Sécurité Sociale, which was born in 1945 and includes l'Assurance Maladie, France's universal statutory health insurance system (Byk 2001; Girer 2016). In the 2004 Health Insurance Act, the French state 'affirms its attachment to the universal, mandatory, and solidary nature of the provision of healthcare covered by the social security system'[4]. Thus, the French RtPH has resource constraints built into it and yet recognises the strong obligation of the state towards the protection of citizens' health, conciliating objectives (1) and (2) outlined in section two. I now turn to the evaluation of how the RtPH is fulfilled in practice.

4. French institutions' interpretation of the right to the protection of health

The French state is strongly involved in the provision of healthcare and the system itself is based on social insurance. Over three quarters of total health expenditure is publicly funded through l'Assurance Maladie which is financed primarily by payroll taxes on employee and employers (Durand-Zaleski 2020). French households' spending on healthcare is one of the lowest in the OECD (7% compared to the 20% OECD average), and medical expenses constitute only 1.4% of final household consumption, less than half the OECD average (OECD 2017). Further, any person working or residing in France is covered by l'Assurance Maladie, resulting in 99.9% population coverage (OECD 2021). The poorest benefit from several state-run programmes which cover the entirety of their healthcare costs. Thus, French institutions' understanding of the RtPH is a good one, involving equal access to healthcare, a generous coverage of healthcare expenses, priority to the worse-off, and fair contributions to the costs of the system, resulting in a highly solidary and redistributive system and fulfilling objective (1).

However, there exists no formal mechanism of resource allocation for the overall healthcare system akin to the UK's priority-setting principles for the NHS, because l'Assurance Maladie retrospectively reimburses care (Cheuvrel 2015). Since 1996, the latter's annual expenditure is set by Parliament and controlled by a national objective for health insurance expenditure (known as ONDAM). The allocation of resources to l'Assurance Maladie is not evaluated on the basis of set criteria, but rather on the expected cost of reimbursing households' and healthcare providers for expenses incurred. Thus, the ONDAM proposed to Parliament for year N is constructed from a forecast of national health insurance expenditure for year N-1, applying to this basis an expected growth rate, which is usually around 4%[5].

Nonetheless, priority-setting does occur with regards to the reimbursement rate of medication and procedures, which is set by the Haute Autorité de Santé (HAS) an independent scientific body which communicates its criteria and decisions transparently. The reimbursement rate is determined by the SMR (Service Médical Rendu), which measures the 'medical added-value' of a medication or procedure. To measure the SMR, the HAS considers five criteria: the medication's effectiveness, existing alternatives available on the market, the seriousness of the medical condition to which the medication is applicable, the preventative nature of the medication, and public health interests (HAS 2020:13). The SMR is then qualified as either major (I), important (II), moderate (III), minor (IV) or inexistant (V). From this, four reimbursement rates apply.

Medication reimbursement rate

SMR assessment

Reimbursement rate (%)

Irreplaceable medication for serious medical conditions

100%

SMR I, II (major and important)

65%

SMR III (moderate)

30%

SMR IV (minor)

15%

Source: HAS 2020

Priority-setting at the level of national health insurance coverage thus partially fulfils Rumbold et al.'s (2017) criteria (objective 3), in that it protects citizens from financial risk, is conducive to accountability and hints at (but does not explicitly seek) the maximisation of total health benefit. However, the state's resource constraints are not respected (objective 2), indicating that France's existing priority-setting system insufficiently addresses the tension between fulfilling the RtPH and the state's financial limitations. Indeed, total healthcare expenditure increased 9.5% year on year in 2020 due to the pandemic, a far cry from the 2.3% maximum increase set by Parliament for the 2020 ONDAM[6]. Although ONDAM was generally respected throughout the 2010s, France's over-arching social insurance system (la Sécurite Sociale) has amassed a massive deficit, estimated at 33.5 billion euros in 2021[7]. Such a deficit threatens the sustainability of the healthcare system and the state's ability to guarantee the RtPH of future generations.

Hence, I argue that French institutions should interpret the RtPH literally, in other words ensure that resource constraints are respected by reviewing the criteria which determines the reimbursement rate of medications and procedures. There is insufficient emphasis on cost-effectiveness (max $/QALY), the first criteria outlined by Rumbold et al. (2017). For example, HAS should prioritise the reimbursement of 'generic medication', which is the cheaper and equally effective substitute to more expensive alternatives (Or et al. 2021). France prescribes 25% more antibiotics than the OECD average, and the volume of medication prescribed per year per patient is one of the highest in the OECD (OECD 2021). Thus, 18% of total statutory health insurance expenses are related to medication (Assurance Maladie 2021). Reviewing reimbursement criteria to prioritise total health gains would help boost the efficiency of resource allocation.

France should also look towards allocating resources directly (separately from ONDAM) to address geographical disparities in the access to health and structural problems within its healthcare system. Firstly, France suffers from a 'désert médical' (medical desert): rural areas lack GPs, specialists, and medical infrastructure, complicating millions of people's access to healthcare (Girer 2016). Further, there is a serious lack of investment in preventative healthcare (Or et al. 2021). Whilst OECD countries spend on average 3% of GDP on prevention, France spends less than 2% (OECD 2017). This has repercussions on lifestyle: one quarter of adults smoke daily, compared to the 17% OECD average (OECD 2021). Thus, the allocation of resources is based primarily on volume of care rather than efficiency objectives, which is why priorities must be oriented to a greater extent towards maximising the total health benefit.

5. Conclusion

In light of the evaluation framework outlined in section two, France's formulation of the RtH as a right to the protection of health, or RtPH, is good. In practice, the French healthcare system provides high quality care, which is accessible to all, the system is highly redistributive and solidary, and citizens are largely protected from financial hardship linked to medical expenses, fulfilling objective (1). However, French institutions must aim towards a more literal interpretation of the RtPH in order to successfully balance the state's resource constraints, objective (2). Priority setting in the allocation of resources to the healthcare system must undergo reform in order to conciliate objectives (1) and (2) which are embedded in France's own RtPH. In particular, the trade-off between maximising total health gains and protecting the worse-off must be better managed. With regards to priority-setting for national health insurance coverage, further emphasis should be placed on seeking the maximum health benefit for the collective. Resources must also be directly allocated to regions suffering from 'medical deserts' as well as to prevention. These reforms are essential to fulfilling future generations' RtPH, a vital consideration.

Notes

[1] Rights that oblige inaction from the state (rights not to be harmed)

[2] Rights that oblige action from the state (rights to socioeconomic conditions adequate for health, access to healthcare, participation in health-related decision making)

[3] Quality-Adjusted-Life-Year (1 QALY = one year in full health, or its equivalent).

[4] Law n° 2004-810, Article L.111-2-1.

[5] Sénat. Sur l'ONDAM. 15 May 2022, https://www.senat.fr/rap/r19-040/r19-0404.html

[6] PLFSS, 2020 (Law on the financing of the social security system for 2020)

[7] Law n° 2021-1754, article 9

Acknowledgements

I would like to thank Professor Alex Voorhoeve and Paloma Morales for their valuable feedback on this essay. I am also deeply thankful to my PPE peers for fostering such an incredible learning environment over the past four years.

References

Assurance Maladie. 2021. Garantir l'accès universel aux droits et permettre l'accès aux soins. URL: https://assurance-maladie.ameli.fr/qui-sommes-nous/action/acces-soins/acces-soins [accessed 25 May 2022]

Byk, C. 2001. La place du droit à; la protection de la santé au regard du droit constitutionnel français. Revue générale de droit 31(2): 327-352.

Chevreul, K. et al. 2015. France: Health system review. Health Systems in Transition 17(3): 1-218.

Conseil Constitutionnel Français. 1946. Préambule de la Constitution du 27 octobre 1946. URL: https://www.conseil-constitutionnel.fr_preambule_constitution_1946.pdf [accessed 3 November 2021]

Durand-Zaleski, I. 2020. International health care system profile: France. The Commonwealth Fund. URL: https://www.commonwealthfund.org/international-health-policy-center [accessed 3 November 2021]

Easterly, W. 2009. Human rights are the wrong basis for healthcare. Financial Times. URL: https://www.ft.com/content/89bbbda2-b763-11de-9812-00144feab49a [accessed 3 November 2021]

Ferraz, O. 2011. Chapter 4 - Health inequalities, rights, and courts: the social impact of the judicialization of health. Litigating Health Rights: Can Courts Bring More Justice to Health? ed. by Gloppen, S. and Yamin, A. Cambridge, MA: Human Rights Program, Harvard Law School.

Girer, M. 2016. Le droit à; la protection de la santé dans l'alinéa 11 du Préambule de 1946 : les impacts en terme de solidarité. Médecine & Droit 147-153.

Gründler, T. 2010. Le juge et le droit à; la protection de la santé. Revue de droit sanitaire et social 835-846.

Haute Autorité de Santé. 2020. Doctrine de la Commission de la Transparence. Principes d'évaluation de la CT relatifs aux médicaments en vue de leur accès au remboursement. URL : https://www.has-sante.fr/upload/docs/application/pdf/2021-03/doctrine_ct.pdf [accessed 1 May 2022]

Nezosi, G. 2021. La Protection Sociale. La Documentation Française.

Rumbold, B. et al. 2017. Universal health coverage, priority setting, and the human right to health. Lancet 390.10095: 712- 14 10.1016/s0140-6736(17)30931-5.

OECD. 2017. Health at a glance 2017: OECD Indicators, OECD Publishing, Paris. URL: https://doi.org/10.1787/health_glance-2017-en [accessed 1 May 2022]

OECD. 2021. Health at a glance 2021: OECD Indicators, OECD Publishing, Paris. URL: https://doi.org/10.1787/ae3016b9-en [accessed 1 May 2022]

Or, Z. and Gandré, C. 2021. Sustainability and resilience in the French health system. Institut de recherche et de documentation en économie de la santé (Irdes), London School of Economics. URL:https://www3.weforum.org/docs/WEF_PHSSR_France_Report.pdf [accessed 15 May 2022]

Voorhoeve, A. et al. 2016. Three case studies in making fair choices on the path to universal health coverage. Health and Human Rights Journal 18(1): 11-22.

World Health Organisation. 1946. Constitution of the World Health Organisation. World Health Organisation. URL: https://apps.who.int/gb/bd/PDF/bd47/EN/constitution-en.pdf [accessed 3 November 2021]

Legal citations:

Code de la justice administrative, Article 521-2. 1er Janvier 2001. URL : https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000006449327/

Code de la santé publique, Article L.1110-1. Modifié 21 février 2022. URL : https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000006685741

Conseil Constitutionnel, Décision n 2002-463 DC du 12 Décembre 2002. URL : https://www.conseil-constitutionnel.fr/decision/2002/2002463DC.htm

Conseil d'Etat, Juge des référés, 8 septembre 2005, 284803, publié au recueil Lebon. URL : https://www.legifrance.gouv.fr/ceta/id/CETATEXT000008237207/

Loi n° 2004-810 du 13 août 2004 relative à; l'assurance maladie, Article L. 111-2-1 CSS. Août 2004. URL : https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000000625158/

Loi n° 2021-1754 du 23 décembre 2021 de financement de la sécurité sociale pour 2022. Décembre 2021. URL : https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000044553428

Préambule de la Constitution du 27 octobre 1946, alinéa 11 (1946). URL: https://www.conseil-constitutionnel.fr/le-bloc-de-constitutionnalite/preambule-de-la-constitution-du-27-octobre-1946

Projet de loi de financement de la sécurité sociale 2020. 24 Décembre 2019. URL : https://www.legifrance.gouv.fr/loda/id/JORFTEXT000039675317/

Projet de loi de financement de la sécurité sociale 2022. 24 Septembre 2021. URL : https://solidarites-sante.gouv.fr/IMG/pdf/dp-plfss-2022-24-09-2021.pdf