From the court's archivePetition to the High Court of Justice

גילה לוזון נ' ממשלת ישראל

HCJ 3071/05 was decided on 28 July 2008.

The court's decision, in its own words.

On the internal constitutional level, the constitutions of many states, including Canada and the U.S.A, do not confer explicit constitutional status upon the right to health. The constitutional law of these states protects only limited aspects of this right. On the other hand, s. 27 of the South African Constitution confers explicit constitutional status upon the right of access to medical treatment. However, the South African Constitution adds that the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of each of these rights (for the text of the South African Constitution, see

The ruling came on 28 July 2008.

Court: The Supreme Court
Case: HCJ 3071/05
Opened: 2005
Decided: 28 July 2008
Length: 49 pages

This is how to cite the ruling.

בג"ץ 3071/05 גילה לוזון נ' ממשלת ישראל (28.7.2008)

The full text of the ruling, in the Hebrew the court gave it in.

פסק-דין

HCJ 3071/05

1.Gila Louzon

2.Adolf Edri

3."Last Border" Amuta for Cancer Patients

1.Government of Israel

2.Minister of Health

3.Minister of Finance

4.Committee for Expanding the Medicinal Services Basket appointed by the Council for National Health Insurance

HCJ 3938/05

1.Yaakov Bar-On

2.Uriel Gilon

3.Zion Halifi

4.Eliyahu Yitah

5.Emile Huri

6.Keren David

7.Asher Miara

8.Shlomo Ginosar

1.Ministry of Health

2.Minister of Health

3.Ministry of Finance

4.Minister of Finance

HCJ 4013/05

1.Yaakov Sheiber

2.Haim Edelstein

3.Shlomi Segal

4.Hayat Yosepov

1.State of Israel

2.Minister of Health

3.Minister of Finance

4.Industry and Trade Minister

5.Supervisor of Prices and the Committee under the Price Supervision Law

6.Committee for Expanding the Medicinal Services Basket appointed by the Council for National Health Insurance

7.General Health services

8.Macabbi Health services

9.Meuchedet Health Fund

10.Leumit Health Fund

The Supreme Court sitting as the High Court of Justice

(8 August 2005)

Before President D. Beinisch and Justices A. Grunis, M. Naor

Petition to the Supreme Court sitting as the High Court of Justice

Legislation Cited

Patient's Rights Law, 5756-1996, s. 3.

Do Not Stand on Your Neighbor's Blood Law, 5758-1998

National Health Insurance Law, 5755-1995

Value Added Tax Law, 5736-1976

Israel Supreme Court cases cited:

[1] HCJ 6055/95 Tzemach v. Minister of Defense [1999] IsrSC 53(5) 241.

[2] HCJ 4128/02 Man, Nature and Law - Israeli Society for the Protection of the Environment v. Prime Minister of Israel [2004] IsrSC 58(3) 503.

[3] HCJ 494/03 Physicians for Human Rights v. Minister of Finance [2004] IsrSC 59(3) 322.

[4] LCA 4905/08 Gamzo v. Isaiah [2001] IsrSC 58(3) 360.

[5] HCJ 5578/02 Manor v. Minister of Finance [2004] IsrSC 59(1) 729.

[6] HCJ 2557/05 Mateh Harov v. Israel Police (2006) (unreported).

[7] HCJ 4769/95 Menahem v. Minister of Transport [2002] IsrSC 57(1) 235.

[8] HCJ 366/03 Commitment to Peace and Social Justice Amuta v. Minister of the Interior (2005) (unreported).

[9] HCJ 2599/00 Yated Association of Children with Down Syndrome v. Ministry of Education [1999] IsrSC 56(5) 834.

[10] HCJ 7351/03 Rishon Le-Zion Municipal Parents Committee v. Minister of Education, Culture and Sport (2005) (unreported).

[11] CA 5557/95 Sahar Insurance Company Ltd. v. Alharar [1997] IsrSC 51(2) 724.

[12] HCJ 2344/98 Macabbi Health Services v. Minister of Finance [2000] IsrSC 54(5) 729.

[13] HCJ 9163/01 General Health Services v. Minister of Finance [(2002] IsrSC 55(5) 521.

[14] HCJ 1554/95 Supporters of Gilat Amuta v. Minister of Education, Culture and Sport [1996] IsrSC 50(3) 2.

[15] HCJ 2725/92 General Health Services v. State of Israel [2004] IsrSC 59(1) 781.

[16] HCJ 1829/02 General Health Services v. Minister of Health [2003] IsrSC 58(1) 406.

[17] HCJ 7365/95 Bolous Brothers – Marble and Granite Production Ltd v. Investments Centre [1996] IsrSC 50(2) 89.

[18] HCJ 3472/92 Brand v. Minister of Communications [1993] IsrSC 47(3) 143.

[19] HCJ 3627/92 Israel Fruit Growers Organization Ltd. v. Government of Israel [1993] IsrSC 47(3)

387.[20] HCJ 2453/06 Israeli Medical Association v. Attorney General (2006) (not yet reported).

[21] HCJ 4004/07 Turonshvili v. Ministry of Health (2007) (not yet reported).

[23] HCJ 4613/03 Shaham v. Ministry of Health [2004] IsrSC 56(6) 385.

[24] HCJ 1113/99 Adallah v. Minister for Religious Affairs (2000) (unreported).

[25] HCJ 2974/06 Israeli v. Committee for Expanding the Health Services Basket (2006) (not yet reported).

[26] HCJ 3997/01 Neopharm Ltd. v. Minister of Finance (2001) (unreported).

[27] HCJ 7721/96 Israeli Insurance Assessors Association v. Inspector of Insurance] 2001] IsrSC 55(3) 625.

[28] HCJ 82/02 Kaplan v. State of Israel, Ministry of Finance, Customs Division [2004] IsrSC 58(5) 901.

[29] CA 8797 Anderman v.Objection Committee of District Committee under the Planning and Construction Law, 5725-1965, Haifa [2001] IsrSC 56(2) 466.

[30] HCJ 10/00 Raanana Municipality v. Inspector of Transport, Tel-Aviv and Central Districts [2001] IsrSC 56(1) 739.

[31] CCT 8/02 Minister of Health v. Treatment Action Campaign [2002] (10) BCLR 1033.

[32] CCT 32/97 Soobramoney v. Minister of Health [1997] (12) BCLR 1696.

JUDGMENT

President D. Beinisch

The petitioners in these three petitions suffer from various forms of cancer. The petitioners’ doctors referred them for medicinal treatment, and when these petitions were filed, the petitioners’ required medications were not included in the basket of health services that receives public funding under the provisions of the National Health Insurance Law, 5754-1994 (hereinafter: “National Health Insurance Law” or "the Law"). The petitioners had difficulty in purchasing the medications independently, and this was the basis for their petition to this Court requesting that we instruct the respondents to include their medications in the publicly-funded health services basket (hereinafter: “the basket” or "the health services basket"). The petitioners argue that the decision to omit these medications from the health services basket approved for 2005 violated their constitutional rights, it was unreasonable, and it discriminated against them adversely vis- à -vis other patients whose required medications were included in the basket.

As will be clarified below, Government Decision no. 406 concerning a budgetary supplement to the health services basket was adopted on 27 August 2006. Following the budgetary supplement, the medications constituting the subject of the petitions in HCJ 3071/05 (hereinafter: HCJ Louzon) and HCJ 3938/05 (hereinafter: HCJ Bar-On) were included in the basket. On the other hand, the medication discussed in petition HCJ 4013/03 (hereinafter: HCJ Sheiber) was not included in the basket, and remains for our consideration.

The factual background preceding the filing of the petitions

1.The health services basket as defined in s. 7 of the National Health Insurance Law includes the health services that all Israeli residents insured under the Law are entitled to receive from the sick funds, by means of funding sources that are the responsibility of the State. Below we will discuss the arrangements prescribed by the National Health Insurance Law and the means for determining the contents of the health services basket. At this stage we note that in 2005, when the current petitions were filed, the Ministry of Health had received requests for the addition of about 400 new medicines and technologies to the health services basket. These requests, together with the professional literature and the processed data pertaining to each request, were submitted to the Public Committee for the Expansion of the Health Services Basket (hereinafter: the Committee.) The Committee held a number of meetings, following which it prioritized the medications in an order that was influenced, inter alia, by the Committee’s assessment of the urgency of the various medications.

The Committee’s recommendations were presented to the Government on 21 March 2005 in the framework of a debate on the budget for the addition of new technologies to the health services basket. On 13 April 2005 the Government passed a decision approving the addition to the basket of the medications and technologies listed in a table appended to its decision. This decision also determined that “…the cost of the 2005 health services basket will express the addition of technologies at an annual cost of NIS 350 million in accordance with the prices of the average health cost index of 2004….” The budgetary supplement made possible the addition to the health services basket of some of the medications recommended by the Committee. Nevertheless, certain medications for various forms of cancer were excluded from the health services basket, not having been accorded sufficient priority by the Committee. This was the background to the filing of the three petitions to this Court.

The course of events in the three petitions

2.The petition in HCJ Louzon was filed by patients suffering from cancer of the colon, and by an amuta [non-profit organization] established for the purpose of helping them. According to the petition, doctors who treated the petitioners had referred them for treatment with Avastin, but as this medication was not included in the health services basket, the petitioners were forced to purchase it independently. The medication was particularly expensive, and the petitioners were unable to continue financing it. They therefore petitioned this Court, requesting it to instruct the respondents to include Avastin in the health services basket, in the category of treatment for colon cancer.

The petition in HCJ Bar-On was filed by several petitioners suffering from prostate cancer that had progressed to the metastatic stage, which is resistant to hormonal treatment. Their doctors recommended Taxotere; this medication, too, was excluded from the 2005 health services basket. Against this background, the petition was filed asking the Court instruct the respondents to include Taxotere in the requested category, along with other remedies.

The four petitioners in HCJ Sheiber were suffering from colon cancer and needed Erbitux, a medication which was similarly excluded from the health services basket of 2005. Owing to the high cost of the medication, this Court was requested to order that Erbitux be included in the health services basket in the category of treatment for colon cancer; the petitioners also sought additional remedies, which we will discuss below.

3.Soon after the petitions were filed, they were scheduled for an early hearing. On 4 April 2005 the petition in HCJ Louzon was heard by President A. Barak and Justices A. Procaccia and M. Naor. That session concluded with the Court deciding to grant the order nisi sought in the petition. On 24 May 2005 the petitions in HCJ Bar-On and HCJ Sheiber were heard by Justices E. Rivlin, E. Rubinstein and S. Joubran, and at the end of the hearing the Court decided to grant the request of the petitioners in HCJ Bar-On to file an amended petition. The Court further decided to grant an order nisi regarding some of the remedies sought in HCJ Sheiber.

After the amended petition was filed and responded to in HCJ Bar-On, and after the filing of responding depositions in the other petitions, all three petitions were scheduled for hearing on 8 August 2005 before this panel (President D. Beinisch, Justices A. Grunis and M. Naor). At that time, the issue of funding the basket surfaced on the public agenda, and a public campaign was waged to increase the budget so as to enable the inclusion of new technologies in the basket. We deemed it appropriate to defer our judgment, pending the possibility of the petitions being resolved without the need for this Court’s intervention.

Indeed, in the State's update to this Court, it stated that on 9 April 2006 the Israeli Government decided to expand the health services basket by including new technologies, thus adding the sum of NIS 165 million to the 2006 basket. At this stage it became clear that the medications forming the subject of these petitions were not included in the budgetary supplement decided upon by the Government. A second update submitted by the State a few months later stated that the Government had decided upon an additional expansion of the health services basket by including new technologies to the 2007 budget, at an annual yearly cost of NIS 237.28 million, which would be brought forward to the 2006 budget (Government decision No. 406). As a result of this decision, as of 20 September 2006, Avestin was added to the category of first-line treatment for metastatic colon cancer which was the subject of the first petition in HCJ Louzon. In addition, the Taxotere medication was also labeled as a first-line treatment of metastatic prostate cancer which was resistant to hormonal treatment – the subject of the HCJ Bar-On.

As noted earlier, the Erbitux medication constituting the subject of the Sheiber petition was not ranked highly enough by the Committee, and even after the budgetary supplement for the year 2006, it was excluded from the health services basket. The Government subsequently decided to increase the budgetary funding for the 2008 health services basket: initially a supplement of NIS 380 million was approved and finally an overall sum of NIS 450 million was approved. Even after the budgetary supplement, however, the Erbitux medication in the category of colon cancer remained outside the basket.

HCJ Bar-On and HCJ Louzon

4.As mentioned, following the budgetary supplement that expanded the 2006 health services basket, Avestin and Taxotere were added to the requested categories in the 2006 health services basket. This meant that a practical solution was found for the main remedy requested in HCJ Louzon and HCJ Bar-On, even though unfortunately, this was only after most of the petitioners had already passed away.

On 27 September 2006, counsel for the petitioners in HCJ Bar-On, Adv. Sigal Zeft, informed us that since Taxotere had been included in the health services basket, the petitioners were waiving further hearing of their petition. As for HCJ Louzon, counsel for the petitioners, Advs. Orna Lin and Michal Stein, informed us on 3 October 2006 that despite the inclusion of Avestin in the category of metastatic colon cancer in the 2006 health services basket, they still felt their petition should be heard. In their view, the inclusion of Avestin in the health services basket did not obviate the fundamental arguments raised in the petition against the Committee's mode of operation and the manner in which it exercised its discretion, and a decision should be made on these arguments. Regarding this assertion, it must be said that in general, this Court will not rule on a petition that previously related to an actual issue but has, in the circumstances, become superfluous. The High Court of Justice has already ruled that “…if the case constituting the subject of a petition is resolved, by itself or by judicial decision, the Court will no longer be prepared to consider the legal question it raises” (HCJ 6055/95 Tzemach v. Minister of Defense [1], per Justice I. Zamir, at para. 3). It is not disputed that as of 2006, there has been a solution for the remedy sought in HCJ Louzon regarding the inclusion of Avestin in the health services basket. This being the case, we see no need to rule on the series of questions raised in that petition. All the same, it is noteworthy that some of the questions raised by counsel for the petitioners in HCJ Louzon concerning the violation of the petitioners’ constitutional rights and concerning the manner in which the Committee exercised its discretion were also raised by the petitioners in HCJ Sheiber. These issues will be discussed below.

Therefore, and in view of the inclusion of Avestin and Taxotere in the requested categories of the 2006 health services basket, the order nisi granted in the Louzon case will be cancelled and the petitions in HCJ Louzon and HCJ Bar-On will be withdrawn with no order for costs. The petition in HCJ Sheiber therefore remains for our decision.

HCJ Sheiber – the pleadings of the parties

5.Two main remedies were requested by counsel for the petitioners, Adv. David Sasson, in HCJ Sheiber. First, this Court was requested to order the addition of Erbitux, in the category for treatment of colon cancer, to the list of approved medications in the health services basket. Secondly, the petitioners requested an order that action be taken in one or more of the ways specified in the petition, with the aim of reducing the price that cancer patients are required to pay for medications not included in the health services basket.

In their petition, the petitioners raised several main arguments. First, it was argued that the right to health is part of the right to life and bodily integrity, and the right to human dignity, which are anchored in Basic Law: Human Dignity and Liberty (hereinafter: "the Basic Law"). The claim is that the non-inclusion of the Erbitux medication unlawfully violated the petitioners’ constitutional rights, contrary to the conditions of the reservations clause. Secondly, the petitioners challenged the way in which the Committee exercised its discretion. In this context, they stressed that they were not challenging the budgetary framework determined by the Government for funding the healthcare basket. Their main argument was that the framework for funding the basket should be based on a format that provided equal funding for all life-saving or life-prolonging drugs, without preferring any particular medication at the expense of another. In this context, it was further asserted that by not including Erbitux in the health services basket, appropriate weight was not assigned to the value of saving human life, and this constituted discrimination against the petitioners in relation to other patients whose required medications were included in the basket.

A significant part of the petitioners’ claims turned on their proposals for reducing the cost of medications not included in the health services basket, in order to help patients in financing the purchase of these medications independently. In this context, the petitioners proposed a number of solutions, including: cancellation of value added tax and other indirect taxes levied on the sale of life-saving medications; the centralized purchase by the Ministry of Health and/or the Sick Funds of life-saving drugs not included in the health services basket, in a manner that would reduce the prices for those patients who required them.

6.Counsel for the State, Adv. Dana Briskman and Adv. Einav Golomb, whose responses were comprehensive and erudite, argued that the HCJ Sheiber petition should be denied. Regarding the petitioners’ claim concerning the unlawful violation of their constitutional rights, counsel for the State referred to the responding deposition filed in HCJ Louzon. According to the State, in the matter at hand, this Court should exercise judicial restraint and the utmost caution in the present context, and refrain from deriving a general constitutional right to health and medical care from the framework rights anchored in Basic Law: Human Dignity and Liberty.

As to the petitioners’ arguments concerning the manner in which the Committee exercised its discretion, the State responded that a decision on ranking new medications and technologies was a complex one, involving a broad spectrum of considerations, and that it was subject to the budgetary restrictions that were set in accordance with the Government’s overall scale of priorities. Erbitux, it was argued, is a new medication, and it is not yet known whether it improves the symptoms of colon cancer patients or prolongs their lives. Bearing this in mind, the Committee deemed that it could not be given higher priority than other medications which had been proven to be life-prolonging. The argument is therefore that the recommendation was adopted after a thorough, informed, and in-depth decision-making process, which was conducted in accordance with the law; as such there are no grounds for interfering with it.

With respect to the petitioners’ proposals to reduce the price of medications not included in the health services basket, it was argued that these proposals should be rejected in limine in view of the failure to exhaust all alternative avenues and to apply initially to the relevant authorities. The State addressed the various proposals on their substance, and presented its reasons for rejecting the petition as it related to them.

7.The four Sick Funds in Israel are also respondents to the petition. In their responses, they argued that they are not relevant respondents to the petitioners’ request to include Erbitux in the health services basket, since under the provisions of the National Health Insurance Law, it is not the Sick Funds that determine the contents of the basket, and their role consists exclusively of the provision of the services included therein. Regarding the petitioners’ proposal for the Sick Funds to carry out a centralized purchase of the medications not included in the health services basket in order to reduce the price for their members – it was argued that the National Health Insurance Law does not obligate the Sick Funds to carry out a centralized purchase. Nevertheless, some of the Sick Funds indicated in their response that they would not oppose a centralized purchase of medications not included in the health services basket, but their consent was contingent upon the prior regulation of all aspects and questions involved in the matter.

8.The petition in HCJ Sheiber therefore raises various issues pertaining to the health services basket in Israel. Our discussion of these questions will proceed as follows: first, we will consider the petitioners’ argument that non-inclusion of Erbitux in the health services basket unlawfully violates their constitutional rights. We will then discuss the petitioners’ objections to the manner in which the Committee exercised its discretion in determining the contents of the health services basket. Finally, we will address the petitioners’ various proposals for reducing the prices of the medications not included in the basket.

The constitutional status of the right to health

9.The petitioners asserted that the Committee ranked the new medications and technologies in a manner that violated their constitutional right to health, thereby contravening the conditions of the reservations clause. The petitioners conceded that the right to health is not explicitly prescribed in the basic legislation, but claimed that it derives from the right to life and bodily integrity as well as from the right to human dignity, both of which are anchored in Basic Law: Human Dignity and Liberty.

In addressing these arguments of the petitioners, we will note at the outset the difficulty involved in defining the internal scope of the right to health, since prima facie it covers an exceedingly broad domain. In principle, the right to health can be viewed as a collective term for a cluster of rights related to human health, some of which enjoy constitutional status in our legal system. For example, the right to health includes the right to preservation of the patient’s privacy and protection of his autonomy by disclosure of all medical information concerning him and obtaining his consent to any treatment administered to him. The right to health likewise includes the right not to be discriminated against with respect to access to medical treatment. It also includes additional aspects that affect people’s health, such as public awareness and access to information on health-related matters, access to acceptable food and drinking water in suitable sanitary and environmental conditions that are not harmful to human health, and other matters as well (see: Committee on Economic, Social and Cultural Rights, General Comment 14, The Right to the Highest Attainable Standard of Health, U.N. Doc. E/C.12/2000/4, at www.unhchr.ch/tbs/doc.nsf/(symbol)/E.C.12.2000.4.En (hereinafter: General Comment 14 of the U.N. Committee on Economic, Social and Cultural Rights). Considering the many aspects of the right to health, there would seem to be no basis for examining the constitutional status of the right as one composite whole; rather, the rationales for the various rights and interests protected in its framework should be considered, in accordance with their relative social importance and with the strength of their connection to the constitutional rights enumerated in Basic Law: Human Dignity and Liberty (see and compare: Justice D. Dorner on the “right to a decent environment" in Man, Nature and Law v. Prime Minister [2], para. 2).

10.This petition is concerned with the right to health-care, and more precisely with the right to receive publicly funded medical/medicinal treatment. Inarguably, the right to medical treatment is not explicitly mentioned in the framework of the basic laws concerning human rights. As is known, the attempts to enact basic legislation that would confer explicit constitutional status on social rights, including the right to health and medical treatment, have thus far failed (see e.g.: Draft Basic Law: Social Rights, HH 5754, 337; see also the proposal of Law and Constitution Committee, “Broadly-Accepted Constitution", ss. 17, 18A - www.knesset.gov.il/HUKA; see further and cf: "Constitution by Agreement", Proposal of the Israeli Democracy Institute, ss. 32, 34 - www.e-q-m.com/clients/Huka/huka_01.htm. Taking this into consideration, the question of the degree to which the right to medical treatment enjoys constitutional status in our legal system is far from simple. This is especially the case in relation to the “affirmative” aspect of the right, which imposes upon the state a positive duty to act, the essence of which is responsibility for the public funding of health services in Israel. One of the central dilemmas in this context would appear to lie in the definition of the internal-constitutional scope of the right to medical treatment in general, and the right to publicly-funded health services in particular.

This Court has already ruled that the right to inclusion in the national health insurance system, per se, does not enjoy constitutional meta-legal status (see HCJ 494/03 Society of Physicians for Human Rights v. Minister of Finance [3] (hereinafter: Physicians for Human Rights v. Minister of Finance), para. 18). Alongside the aforementioned ruling, the view has been expressed in our case-law that “a person without access to elementary medical treatment is a person whose human dignity has been violated” (per President A. Barak in LCA 4905/08 Gumzo v. Isaiah [4], para. 20). It has also been determined that “… the social right to the provision of basic health services can be anchored in the right to bodily integrity under s. 4 of the Basic Law” (per President A. Barak in Physicians for Human Rights v. Minister of Finance [3], paras. 16, 18; emphasis added – D.B.). Furthermore, the view was expressed that the right to medical treatment in a medical emergency involving immediate physical distress, being a right grounded in s. 3(b) of the Patient's Rights Law, 5756-1996, may be included in the category of protected rights in the framework of Basic Law: Human Dignity and Liberty (ibid, para. 18).

Thus, it emerges from the case-law of this Court that the constitutional rights enumerated in Basic Law: Human Dignity and Liberty are likely to include various aspects from the areas of welfare and social security, including health care. However, our case-law has yet to consider directly the question of which “basic health services” are included within the parameters of the constitutional rights enumerated in the Basic Law, and whether a constitutional right to health services that extends beyond the basic level required for human existence in society should be read into these constitutional rights. This dilemma is reflected in the pleadings of the parties in the case before us. On the one hand, the centrality of health to the maintenance of decent human existence, to the welfare of the individual and to his ability to realize all other human rights is undisputed. Where medicinal treatment with any particular potential for saving, prolonging or improving the patient’s quality of life is concerned, significant weight should be assigned to the value of the sanctity of life, the integrity of body and soul, and human dignity, all of which are central values with constitutional standing in our legal system. Regarding the receipt of publicly-funded medical treatment, the legislation of the State of Israel is characterized by a commitment to a public health system grounded in the principle of mutual responsibility and concern for the society’s indigent, as indicated by the provisions of the National Health Insurance Law, which we will address below.

On the other hand, as mentioned above, the right to public health services in the present context means imposing a positive duty on the state, the main substance of which is responsibility for public funding of medical-medicinal treatment. Naturally, the issue of the constitutional scope of that right involves general distributive questions that derive from the nature of the socio-economic regime governing a society and the scope of public resources at the state’s disposal (cf: HCJ 5578/02 Manor v. Minister of Finance [5], para. 9, per President A. Barak). Indeed, the human rights recognized in our system, which are generally referred to as “civil and political rights”, also impose upon the State “positive” duties of protecting the realization of a right, and not just “negative duties” of not violating the right. Quite often the state’s duty to protect the realization of civil and political rights also includes a “positive” duty that involves the allocation of substantial resources (see e.g. in the context of freedom of speech and demonstration: HCJ 2557/05 Mateh Harov v. Israel Police [6], per President A. Barak, at para. 14 ff.). Even so, it seems that the right to publicly funded health services, like other rights connoted as “social-economic rights”, has a dominantly "positive" character that arouses greater concern for questions of policy on social resource distribution, in accordance with the determination of a national scale of priorities (see Guy Seidman and Erez Shaham, “Introduction: Medicine and the Law and What’s Between Them,” 6 Law and Business 13, at p. 27 (2007) (hereinafter: Seidman and Shaham).

Since its earliest days, the accepted view of this Court has been that the Court should be wary of intervening in the formulation of overall economic policy and in the determination of national priorities; the general rule is that the executive and the legislative branches shoulder the public and national responsibility for the State economy (see my comments in HCJ 4769/95 Menahem v. Minister of Transport [7], para. 13, and references cited there). Bearing this in mind, and in the absence of an explicit anchoring of social rights in basic legislation, the question that arises is to what extent can judicial-interpretative tools be used to construe the rights enumerated in Basic Law: Human Dignity and Liberty as including a right with a correlative duty to provide public healthcare services on a larger scale than that of the minimum requirements for decent human existence in a society (regarding this matter, cf. the majority opinion, as per President A. Barak, with which I concurred, in HCJ 366/03 Commitment to Peace and Social Justice Amuta v. Minister of the Interior [8], paras. 14-16 - that the constitutional right to human dignity includes the protection of the “minimum” for decent human existence, as opposed to the minority view of Justice E. Levi (ibid, paras 1- 3), according to whom human dignity includes protection of “ appropriate living conditions”; for a view in favor of a broad interpretation of the constitutional right to human dignity in the realm of welfare and social security, see e.g. Yoram Rabin, The Right to Education, at p. 370 (2002) and references cited; for other views see: Ruth Gavison, “The Relations between Civil-Political Rights in Israel and Socio-Economic Rights,” Economic, Social and Cultural Rights in Israel, 25, at pp. 34-35 (eds. Yoram Rabin and Yuval Shani, 2004); Rivka Weil, “The Health of the Budget or the Health Budget – Which Takes Preference from a Constitutional Perspective?” Law and Business 6, 157, at p. 169ff (2007) (hereinafter: Weil); Yoav Dotan, “The Supreme Court as the Protector of Social Rights” Economic, Social and Cultural Rights in Israel, at p.69 (eds. Yoram Rabin and Yuval Shani)).

It will be pointed out below that recognition of a constitutional right to publicly funded health services raises the question of the degree of constitutional protection of that right. In other words, even assuming that the right is included, be what may the scope, in the framework of the constitutional rights enumerated in Basic Law: Human Dignity and Liberty, this does not mean it is absolute; like other rights, the right to publicly funded health services must be balanced against other competing rights and interests. Accordingly, if a constitutional right to public health services is established, the question to be considered is how to interpret and apply the conditions of the reservation clause under circumstances in which it is proved that there was a substantive violation of that right, and what are the appropriate tools for giving effect to those conditions. (On the distinction between the internal scope of a constitutional right and the extent of protection accorded to it, see Aharon Barak, Legal Interpretation, Vol. 3, Constitutional Interpretation (1995), at p. 371ff.

11.These dilemmas are complex, and they trigger questions relating to various aspects, which I will not discuss here. I will simply mention that the right to health has indeed gained recognition in various international conventions, and it is included in the constitutions of a number of states around the world. Nevertheless, the delineation of the internal scope of the right and the extent to which it is protected remain vague, and they are characterized by a cautious approach that considers the budgetary capabilities of each state and the principle of the progressive realization of the right. For example, in 1946 the Constitution of the World Health Organization (WHO) recognized the basic right to health, but the scope of this right is defined as “the highest attainable standard of health" [emphasis added – D.B]; (see also: Eyal Gross, “Health in Israel: Right or Commodity?” Economic, Social and Cultural Rights in Israel, 437, 442-443 (Yoram Rabin and Yuval Shani eds, 2004) (hereinafter: Gross). As for the Universal Declaration of Human Rights of 1948: this Convention entrenches a number of social human rights, including the right to a decent standard of living which includes aspects of the right to health and to medical treatment. At the same time, the Preamble to the Declaration states that these rights are to be realized by “progressive measures”.

One of the central international documents concerning the right to health is the International Covenant on Economic, Social and Cultural Rights of 1966, which was ratified by the State of Israel in 1991. Section 12 of the Covenant states that Party States to the covenant “… recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health” [emphasis not in original – D.B], and that the States must take the required steps to ensure, inter alia, “the creation of conditions which would assure to all medical service and medical attention in the event of sickness.” Section 2 of the Covenant adds that each Party State will take steps “…to the maximum of its available resources, with a view to progressively achieving the full realization of the rights” (on other international conventions and documents on the right to health, see: Gross, at pp. 443-445). Thus we see that the international conventions that recognize the right to health and medical treatment take budgetary constraints into consideration, and are cautious in determining the scope of this right and the degree of protection it is accorded.

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The court's decision, in its own words.

The ruling came on 28 July 2008.

This is how to cite the ruling.

The full text of the ruling, in the Hebrew the court gave it in.

The court gave these rulings around the same time.

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