2008.10.14
The Ministry for Health, Welfare and Family Affairs proposed to amend the Medical Law which allows doctors to actively advertise their clinics to foreign patients and the Commission expressed its opinion that current Medical Law should be maintained to guarantee the right of access to health service and protect the right to health under the principle of non-discrimination.
The Commission reviewed the bill based on Article 19, Item 1 of the National Human Rights Commission Act (Investigation and research with respect to status [including bills submitted to the National Assembly), legal systems, policies, and practices related to human rights and recommendation for improvement and presentation of opinions).
The Ministry for Health, Welfare and Family Affairs is aiming to enhance competitiveness of medical services and to increase foreign exchange earnings through the bill which permits advertisement to foreign patients. It also expects the income from foreign patients to be reinvested and used for the benefit of domestic patients.
Current Medical Law prohibits enticing patients of medical institutions unless patients have a pressing consideration, such as financial problems, and obtains approval from the Mayor, Governor, or district chairman. The aim of this prohibition is to control excessive competition among medical institutions, maintain medical order, and prevent discrimination among patients so that everyone is provided the same medical services.
Although the proposed bill constrains advertisement only to foreign patients, the Commission concluded that the negative impact of the bill on people's right to health would outweigh the positive impact on the domestic economy for the following reasons:
First, advertising clinics to patients will lead to provision of medical services in accordance with patients’ purchasing power, not in response to their needs from the degree of illness. If medical service is provided to foreign patients by monetary priority, socially disadvantaged groups of domestic patients will not be guaranteed necessary medical services within appropriate time-period.
Second, the Commission confirmed that advertisement would cause excessive competition among medical institutions, false/exaggerative advertisement, increased expenses directed to enterprises other than medical treatment, and general disorder in the medical service industry.
As the notion of health has widened in scope, the right to health is not to be understood as merely a right to be healthy. International human rights standards state that "the enjoyment of the highest attainable standard of physical and mental health and all medical services and medical care in case of illness is one of the fundamental rights of every human being without discrimination.” According to the Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), the State Parties to the Covenant recognize "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” Furthermore, the General Comment No. 14 of the Committee on Economic, Social and Cultural Rights (CESCR) states that "the right to health must be understood as a right to the enjoyment of a variety of facilities, goods, services and conditions necessary for the realization of the highest attainable standard of health". It emphasizes that the right to health in all its forms and at all levels contains the following interrelated and essential elements: availability, accessibility, acceptability, and quality; health services have to be accessible to everyone without discrimination (Non-Discrimination, Physical Accessibility, Economic Accessibility and Information Accessibility)
Furthermore, Article 36, Item 3 of the Constitution states that 'the health of all citizens shall be protected by the State; this can be interpreted to mean that the State shall have an active obligation to establish and implement necessary policies for its national health as well as a passive obligation to not interfere to the detriment of any citizen’s health. The Constitutional Court recognized that the State's obligation to protect all citizens' right to life and right to health is an important benefit and protection of the Constitutional law. The Court also recognized the necessity of a national policy to control for-profit medical institutions in order to ensure publicity of medical service.
The Commission confirmed that the government should review whether current health service policy corresponds with the State's responsibility for the nation's right to health and especially whether this policy guarantees accessibility to socially and economically vulnerable or marginalized groups without discrimination.
Hence, the Commission confirms that the proposed bill does not correspond with adequate protection of the right to health or with the responsibility of the State to implement and maintain measures that are enshrined in international human rights standards and the Constitution. Thus, the Ministry for Health, Welfare and Family Affairs should maintain its current Medical Law which prohibits advertisement of medical institutions to foreign patients.
