The changes introduced1 with respect to title V of the second part of our Constitution directly involve social themes and, amongst these, the theme of Health; such changes are likely to significantly affect the future regulations that will review the details of Healthcare organisation, as well as the identification of the rights to benefit, more or less free of charge, of healthcare services.2 This will obviously take place gradually since, as well known, constitutional laws are not self-applicable, but are rather designed to set the criteria and the boundaries within which the ordinary legislator is to refer to and comply with, in regulating the subject matter concerned3 ; this ensures the existence of a common policy that will guarantee that all citizens receive the same healthcare treatment and access to public services under equal conditions, in line with the principle laid down in article 3 of the Constitution.
Vertical Subsidiarity.
The Constitution text which deals directly with the allocation of legislative jurisdiction is contained in article 11, which assigns legislative and regulating tasks through an opposite procedure compared to the one which was initially adopted. This represents a turning point, which takes on a rather significant meaning, since it reverses the jurisdiction allocation criteria, by granting the de residuo legislative jurisdiction to the Regional Authorities rather than to the State. As mentioned earlier, this is accomplished by analytically prearranging the subject matters which are to fall within the sole jurisdiction of the central Authority and by entrusting the Regional Authorities with the legislative jurisdiction relating to “residual” subjects, one stage of the process being that of making a list covering the so-called concurring legislation, thus introducing into our Constitution a strong provisional factor of a distinctive federalist nature. More specifically, with regards to Health, comma 2, letter m) of the above-mentioned article 117 decrees that the State has exclusive legislative power with respect to the “determination of basic performance levels regarding civil and social rights that must be guaranteed countrywide”. On the other hand, comma 3 prescribes that the “protection of health” be the subject of concurring legislation, regarding which the legislative potestas (covering the so-called detail laws), as well as that of issuing regulations, are the responsibility of the Regional Authorities, whereas the State is the sole party entitled to lay down the basic principles (the so-called outline or framework laws). The approach outlined by the new constitutional text, which will certainly result in major institutional changes, is likely to produce a significant differentiation in the actual distribution of Healthcare services throughout the country, and hence give rise to some sort of territorial inequality in the enjoyment of the National Healthcare Service by the citizen-users. In other words, this is likely to involve the risk that regional boundaries may also represent the quality-quantity standard of the Healthcare service supplied by each specific regional healthcare system, with the sad result that the so-called “hope-inspired ” migration phenomenon will increase in terms of frequency. Regional Authorities will therefore represent the reference bodies responsible for legislating in detail and consequently for rearranging the structure of their own individual healthcare systems, as well as adopting the economic measures required to ensure that the beneficiaries of their administration may “freely” enjoy social rights; among these, of course, is the right to the protection of Health. In connection with this right, the State has the authority to establish, through a framework law, the basic principles and, by exerting this exclusive authority, to lay down the essential levels4 of healthcare services to be guaranteed throughout the country. Therefore, the first step will be that of identifying “the essential levels for services” and the “basic principles” concerning the protection of Health, based on which the State will have to adjust all its legislative activity. The process of identifying such levels (LEA) and the basic principles will be complex, and will certainly not be easy, also in view of the fact that the research required for their clear identification will have to be tackled in compliance with the inalienable principles characterising and redesigning the most actual and ideal right to Health. The concept of “essentiality” in Healthcare has been clarified5 : it has to do with anything meeting the real Health needs that people express; in other words anything that is appropriate from a clinical effectiveness and supply modality point of view, and therefore guaranteed (or rather, to be guaranteed!) equally, throughout the country. Therefore, based on what the above jurisprudence emphasises, this concept does not convey the “minimum package” logic, that is the minimum acceptable level, and cannot therefore be identified with a level of activity of a residual nature. The problem of identifying and defining essential levels for services concerning social rights is in any case a problem which “troubles” all pluralist systems, since the concept of providing diversified regulations for such rights involves a different degree of protection that such rights may involve in one part of the country or the other. An interesting theory emphasises the concept that “in every constitutional system, the greater the decentralisation of authority to independent territorial areas (and there is no doubt as to the fact that the reform of title V has been a great step forward in this direction), the greater the significance and the expansive and preceptive ability of the principles and institutions which guarantee unity and solidarity among the various parts of the system”.6 The same theory includes the statement, with respect to the tangible identification of the essential levels of services, that “the definition cannot only be related to quantity” and that “owing to the very variety and questionability of this determination, this may possibly or even probably result in conflicts, with the probability increasing whenever the Stare reaches such a resolution on a unilateral and not joint basis.”7 Based on these careful introductory considerations, many authors8 have drawn the conclusions (which we share!) that essential levels cannot be identified by entrusting the central authority with the full contents of the services to be provided, because, should this be the case, the regional governing jurisdiction would have a very limited scope, and would exert its independence in the field in a very limited manner. Indeed, the purpose of entrusting the Regional Authorities with full legislative and governing power, was to “find a middle course: that is, to identify essential levels that may prove satisfactory, but at the same time be essential and not cover the whole range of services offered, whilst allowing the Regional Authorities to handle the remaining part through their own initiative and governmental ability; the essential level is the level that cannot be eroded, it is the level that ensures and guarantees rights, but the contents of the rights ensured throughout the country cannot be the full content of the rights, otherwise nothing would be left for the Regional Authorities to handle”. More specifically, on the subject of Health, the problem lies in the fact the text of the Constitution, unlike what happens for other fundamental rights (such as education, for instance), does not provide for an obligation by the State to centrally issue laws concerning assistance to be enforced throughout the country, since the State is only responsible for ensuring that the poor receive treatment free of charge, in compliance with the precept expressed in article 32. This constitutional provision and (re)identification of the right to Health will result in strongly differentiated political choices on a regional scale, including the pursuit, by some of them, of a partial privatisation of Healthcare services. In this regard the need has been stressed9 not to pursue in healthcare matters “the course of pure service nomenclators”, in order to attain the identification of their essential levels and, therefore, abandon the “contractual logic which is typical of the insurance model”; indeed, this logic is incompatible with the reasons which justify the government’s role with respect to the right to Health, which “do not simply consist in guaranteeing a compulsorily public insurance“, but “also guarantee a supply which must be able to meet requirements differing from a plain insurance coverage”.10 The identification of such essential levels in services offered will have to guarantee diversified healthcare regional models within a system which is obliged to adequately appreciate territorial differences (taking into account the significant immigration streams, including those from different ethnic/racial realities!) and guarantee the protection of the citizens’ fundamental rights. Hence the requirement to allow that the provisions which will have to lay down the essential service levels do not result from unilateral choices but from agreements previously reached with the Regional Authorities and, in any case, within a context that adequately represents territorial autonomy. All this will also allow a comparison among the Healthcare planning abilities of the Regional Authorities, which, after having systematically reviewed the existing regulations covering the whole sector, will have the opportunity and duty to issue, within the boundaries of their jurisdiction, the necessary regulatory provisions, through which to achieve an overall reorganisation of their healthcare systems, so as to adjust them to their own specific requirements and to their socio-territorial reality. The screening will not be easy, the number of legislative provisions to be “reviewed” by the Regional Authorities will be very high, starting with the ter Reform; furthermore, it will not be easy to avoid, in this regard, the possible occurrence of a constitutional litigation concerning jurisdiction conflicts which are sure to arise between the Central and Regional Authorities. The Court will therefore be entrusted with the task of defining the aspects to be reviewed and the parts to be adjusted by the peripheral governing authorities, in the light of the constitutional reform that has been made.
NOTES
1 Cf.
Constitutional Law no. 3 of 18 January 2001;
2 Cf. G.U. RESCIGNO, in “The Welfare State and the Subsidiarity Principle”,
speech held in Genoa on 25 January 2002;
3 Cf. G. CILIONE, in “Brief Comments on the Prospects of the Health Protection
Regulation Following the Constitutional Law no. 3- 2001”, from Administrative
Justice, issue no. 12-2001;
4 One of the first cases of application of article 117 can be seen in the
text of article 3 of the Decree no. 347 of 18 September 2001, enacted with
the law no. 405 of 16 November 2001. This measure adds comma 2bis to article
19 of the Decree no. 502/92 and thereby excludes from the legislative jurisdiction
of the State the subject matters covered by article 4, comma 1-bis, on the
subject of “Hospital enterprises and hospital facilities”, and of article
, comma 9-bis which deals with management experimentation. On the other hand,
regarding identification of essential levels, a combined assessment by State
and Regional Authorities will be required; this will help in identifying the
boundary beyond which healthcare services cease to be “essential”.
5 Cf. N. DIRINDIN, in “Essential Levels of Healthcare and Welfare Services”,
from the workshop-conference “Essential Assistance Levels (LEA) in the Constitution.
State’s Duties and Citizens’ Rights”, 12 March 2002, Rome;
6 Cf. S. PANUNZIO, in “Changes to Title V of the Constitution and Civil and
Social Service Levels”, from the conference mentioned under point 5; 7 Cf.
S. PANUNZIO in op. cit.
8 Cf. V. CERULLI IRELLI, in “Social Citizenship. Laws and Policy”, from the
above-mentioned conference;
9 N. DIRINDIN, in op. cit.; 10 N. DIRINDIN, op. cit.; The Author claims that
the Decree no. 229/99 may be viewed as a “framework comprising the first basic
principles for the definition of levels”. As a matter of fact, it lays down
the basic principles based on which the National Health Service is to guarantee
levels of assistance to the population: the principle of human dignity, the
need for Health, equity in having access to healthcare assistance, the principle
of the quality and suitability of treatments and the principle of resources’
cost effectiveness. This legal provision identifies the various categories
of assistance: prevention, district assistance and hospital assistance. The
Decree no.229/99 also specifies the criteria whereby services are excluded
from the assistance levels:
a) non-compliance with the basic principles, that is actual health requirements;
b) non-suitability with respect to the specific Health requirements, clinical
requirements or cost effectiveness principle;
Horizontal Subsidiarity.
The constitutional law no. 3 of 18 October 2001 has redesigned the set-up of State - society relations, by reviewing the allocation of public duties in the management of services and supplies required by citizens. Article 118 introduces into the Constitution a further, particularly important element: it grants a constitutional nature to the subsidiarity principle. This principle, which was originally derived from the European Community Treaty (article 5 of the ECT), was introduced into our legislation by article 4, comma 3, of the law no. 59/97 in connection with the assignment of administrative functions and duties by the Regional Authorities to Local Authorities: the same legislative measure also extended this principle to the relations between State and Regional Authorities, and between State and Local Authorities, again in connection with the distribution of administrative functions and duties. When carefully considered, the principle introduced by the above mentioned ordinary law, is ascribable to the so-called vertical subsidiarity, that is the principle according to which administrative functions must be verticalized as much as possible, so as to reach the Authorities which are territorially and functionally nearest to the citizens concerned. As we can see, this new principle has a “dynamic” and not “static” nature and content, in that it does not concern itself with identifying the “final” Authority responsible for carrying out the function (the so-called subsidiary authority that is to be in charge of the activities of the delegating Authority), but rather indicates the course that must be followed in order to assign the responsibilities to the authorities that have traditionally been in charge of them, or alternatively find a “subsidiary” in other authorities that are vertically subordinate and are acknowledged to be more “suitable” from a territorial point of view to carry out the delegated administrative function. The text of the first comma of article 118 of the Constitution is dedicated to vertical subsidiarity. This provision decrees the basically general administrative power of Municipal Authorities, save for the cases in which this is granted – with the only purpose of ensuring joint execution of administrative duties – to the Provincial Authorities, to Metropolitan Cities, to the Regional Authorities and to the State, based on the subsidiarity, differentiation and suitability principle. However, the great novelty relates to the introduction into the constitution of the “horizontal subsidiarity” principle. This was first brought in by the fourth comma of the same article 118, which reads: “State, Regional Authorities, Metropolitan Cities, Provincial and Municipal Authorities encourage citizens’ autonomous enterprising activity, whether individually or in partnership, aimed at carrying out activities of general interest based on the subsidiarity principle”. In practice, horizontal subsidiarity states the principle according to which the State only intervenes when the autonomy of Society becomes ineffective, thus promoting and encouraging the creativity of individuals and of social bodies, which are acknowledged to have enterprising abilities. The chief aspect of this principle is the identification, through the articles, of the parties playing the leading role; we no longer have public authorities with different and geographically separate jurisdictions, but we have two types of parties, which are genetically distinct thanks to the respective role they play in social organisation: on one side we have public parties, or rather public powers (State, Regional Authorities, Metropolitan Cities, Provincial and Municipal Authorities); on the other side we have private parties, individually or in partnership, which are more or less financially interested in the supply of services traditionally granted by a rigorously public system, and therefore the private owners/proponents of economic activities which are of common interest. It is interesting at this stage to analyse the aspect which accounts for the difference between this concept and the subsidiarity principle introduced by the first comma, that is the meaning of the word “horizontal” characterising this principle. In order to better conduct this analysis, we cannot but refer to what has been stated in this regard by the most authoritative doctrine1 : “the term horizontal is not used because these parties are on an equal level (on the contrary, by definition, they are not on equal terms), but because it is assumed that the whole social life is horizontally divided into actions performed by (fully independent) private parties and actions performed by public authorities (which obviously involve private parties), with the consequence that, if the subsidiarity principle is applied, any type of action falling within the scope of the principle, chiefly pertains to private parties, individually or in partnership, and only in subsidiary terms to public powers (whereto the vertical subsidiarity principle may eventually apply)”. According to part of this doctrine, “the subsidiarity principle, which is viewed in this broader meaning as playing a crucial role in the relationship between the public and private sectors, has therefore “regressed” to a mere clause protecting local autonomous communities and binding the State and territorial authorities to promoting and aiding their access to the accomplishment of tasks having social significance: it could be stated that a horizontal subsidiarity element is not chiefly aimed at safeguarding “private freedom” areas, but basically targeted to the construction of an administration that draws inspiration from participation and transparency principles, of a democracy developing in ways which are as close as possible to the citizens’ requirements”2 . The same authoritative doctrine, in the same paper which has already been mentioned in the footnotes, puts emphasis on the interpretation of the word “encourage”, which is in fact the real novelty conveyed into our legislation by article 118 of the Constitution. However, it would have been “odd” and pleonastic, to say the least, to introduce this fourth comma if the high-level legislator had simply used the word “encourage” to refer to the faculty that the public authority has to encourage private sectors, by allowing them to benefit from financial resources on whatever basis, or as a remuneration for activities that are regarded to be of public interest. This has always been allowed and, to be honest, it has always been a common practice on the part of public administration (suffice it to think about the countless contributions bestowed on private parties for events of a cultural, sporting and trade fair nature). Had the provision been based on this logic, the legislator introducing the change into the Constitution would really have taken much trouble for nor special purpose! The interpretation which appears interesting from a juridical point of view, in analysing this new provision that has requested the involvement of a constitutional change, would appear that of interpreting the term “encourage” as meaning that “they are to encourage”, that is public authorities are obliged – in drafting their policy deeds and in carrying out their administrative activity – to privilege the “autonomous enterprise” of private parties also for the performance of institutional activities whose functions can be “delegated”, by applying the subsidiarity principle. A “duty to privilege” private enterprise would involve burdening public administration with providing an explanation in the event of failure to encourage private parties to carry out activities of public interest (such as for instance the private party’s non-suitability, from a quality-quantity point of view, to carry out the activity itself), or else provide an explanation for legislative deeds which do not reflect favourable conditions for this “cooperation” with the private sector. All this would (and will) radically change current behaviours within public administration, and consequently the relations between the public and private sectors. Our thesis agrees with this last interpretation, almost as if the high-level legislator had used the terms in question with the intent of institutionalising (by introducing it almost at an ordinary level) the adoption of a new juridical-procedural tool that is very much in use in Healthcare organisation, since it was introduced with the legislative decree no. 502/92: accreditation. Indeed, this is viewed today as the “fundamental principle regulating public-private relations”, the tool to which the ordinary legislator operating in the organisation of the Healthcare sector has granted a crucial role for the accomplishment of the Healthcare managerialisation process, and at the same time the quality improvement of the healthcare services offered to citizens-users. Based on a coordinated analysis of the regulatory sources governing this institution,3 of constitutional case law existing on the subject4 (wherefrom a dynamic-substantial definition of it has emerged), as well as of the function which has been entrusted to such institution also in healthcare planning deeds5 , with the text of the fourth comma of article 118, accreditation proves to be the course designed for the selection or the identification of “citizens’ autonomous enterprising activity, whether individually or in partnership”, which Public Administration is to refer to and “delegate” for the accomplishment of activities of public interest, unless grounded contraindications exist. This is therefore a selecting tool which, even though through different degrees of severity6 , enables accredited citizens, whether individually or in partnership, to claim the “cooperative” and practical economic role within the Healthcare system (as far as we are concerned), which the Constitutional provision appears to grant, since it places Public Administration in a position whereby it is to encourage it. There is hardly any need to dwell on the subject of “horizontal subsidiarity and healthcare”7 . The interpretation problem arising from the text of the fourth comma of article 118 with respect to Healthcare organisation is above all that of “identifying private powers in healthcare matters”, or rather of establishing how to protect from the role played by the public sector the “autonomous enterprising activity”, whether it be profit-based or non-profit. In this case, we shall avoid dealing with the much-discussed theme8 represented by the relationship between solidarity, with its forms of genuine cooperation, and subsidiarity, since it lies outside the scope of the analysis we are conducting here; we are taking this opportunity to stress once again that private subjects, as described in article 188, also include those who very often offer their contribution to carry out, absolutely free of charge, voluntary work which certainly is of general and collective interest. This is very customary in the Healthcare “market” – so much so that it represents a positive economic component to be taken into account in drawing up budgets, owing to its absolute neutrality – for the very reason that, in this field, the role of specific voluntarism has always been very significant; and this role is gradually increasing more and more, owing to the appeals to solidarity coming from all quarters on the subject (suffice it to think about the sector covering in-home care for disabled and terminal patients). The authoritative doctrine we were referring to, and which we find it is extremely difficult to disagree with owing to the quality it generally expresses, specifies, from an interpretation point of view, that based on the new constitutional text – the provision introducing horizontal subsidiarity – a broad protection of private subjects’ healthcare activity is codified, in that “it cannot be forbidden”. This statement causes the Author9 to ask himself a number of question which we would like to fully list below, in order to offer the reader, but above all the writer, the opportunity to understand the real significance of article 118 - comma 4 on the subject of Health: - First – “Apart from treating the poor, does the Constitution intend for Healthcare to be solely managed by private subjects, or does it admit that public bodies may also carry out healthcare activities?”; - Second – “Since healthcare assistance offered by private subjects exists and is guaranteed, if a public authority wishes to offer this assistance free of charge, is it bound to refer to the market, or in any case to private subjects offering this service, or should it organise this assistance through its own facilities, or else is it free to choose between the two alternatives?”; - Third – “Is the public power entitled to replace private parties in healthcare activities in a limitless manner, or else, as provided by the subsidiarity principle, is it entitled to finance those who are in need, making the healthcare service free of charge or almost free for these people, whilst being compelled to offer such service through the activity of private parties ?”. And here Rescigno offers a solution, which we agree with also in compliance with what we have already stated in describing the features of the subsidiarity principle. The solution to the above queries is inherent in the dynamic-procedural features of the principle in question. The horizontal subsidiarity principle is not self-applicable, in that it does not directly supply an answer to problems. Rescigno simply outlines an ideal procedure through which public powers can succeed in guaranteeing to users the best achievable healthcare service, irrespective of whether it is supplied by delegated private subjects or directly by delegatable public facilities. Translated by Interpres sas
NOTES
1 G.
U. RESCIGNO, in “Welfare State and Subsidiarity Principle”, from a speech
held in Genoa on 25 January 2002;
2 Cf. P. RIDOLA, in “The Subsidiarity Principle and the Pluralistic Democracy
State Form”, from A. A. Cervati, S. P. Panunzio and P. Ridola’s “Studies on
the Constitutional Reform”, G. Giappichelli Editore Turin, 2001, pages 194-195;
3 Decree no.502/92; Decree no.517/93; Presidential Decree of 14 January 1997;
Decree no.229/99;
4 The Constitutional Court rulings which have, from one point of view or the
other, concerned themselves with the concept of accreditation were no.355/93,
which pronounced its legitimacy, and no.426/95. With the latter ruling, the
Court provided a clearer explanation of the term accreditation, by describing
it as: “an act accomplished by an authority or institution (in the case in
point the Regional Authority) whereby … by excluding a discretionary choice
by the Public Administration to start with, acknowledgement is granted to
a specific party that it meets a number of prescribed requirements (that is
minimum structural, technological and organisational prerequisites to safeguard
the quality and reliability of the service-supply, in line with uniform countrywide
principles which supplying facilities are to comply with), laid down with
a policy and coordination deed”. In other words, the Court hereby acknowledged
a right to accreditation by the facilities which met the requirements and
linked up accreditation to the existence of the minimum requirements set to
safeguard the quality and reliability of services which equally apply throughout
the country … As it can be inferred from the argument expressed by the Constitutional
Court in the above-mentioned ruling, the legislator’s intent was to include
private facilities within the NHS by putting them on the same level as the
public ones (C. ANNICCHIARICO, op. cit., page 123)
5 National Healthcare Plan for the three-year period 1994-1996;
6 Cf. M. BRUSONI-F. FROSINI, op. cit., page 139;
7 Cf. G. U. RESCIGNO, op. cit., pages 16-19;
8 Cf. I. CAVICCHI, op. cit., page 46-48;
9 Cf. G. U. RESCIGNO, op. cit., page 18;
Ettore
Jorio
Professore a contratto
Università della Calabria
