“We asked for workers. We got people instead.” It was with this quote from Swiss writer Max Frisch that Justice Edna Arbel started the ruling that she read out Sunday at the ceremony marking her retirement from the Supreme Court, a ruling that dealt with the health rights of migrant nursing care workers who have been in Israel many years.
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The High Court of Justice thus unanimously accepted the petition of Kav LaOved – the Worker’s Hotline, and ordered the government to reduce the gap between the health insurance schemes available to Israeli residents and those of migrant workers with a strong connection to Israel, at least for those living here 10 years or more.
The ruling rests on a clause in the National Health Insurance Law that allows the health minister (with the approval of the social services and finance ministers), to apply the rights under the law to populations who are not legally defined as Israeli residents. The High Court ruled that these ministers must use their discretion in accordance with this clause to arrive at an equitable arrangement, or to amend the Migrant Workers Ordinance that deals with health insurance for migrant workers to arrive at a similar result.
Migrant nursing care workers can essentially remain in Israel indefinitely as long as they are caring for the same patient, so as to assure that these patients receive continuous care. The Foreign Workers Ordinance requires employers to take out private health insurance for these migrant workers, but this insurance is in many respects inferior to the national health insurance, in particular because under these private policies, if a worker takes ill and cannot work for more than 90 days, he loses his right to health care. This gives insurance companies – which, in contrast to the health maintenance organizations, are in business to make a profit – incentive to exaggerate in determining a worker’s disability so as not to have to finance treatments. Instead the worker is sent back to his country of origin – where it isn’t clear he will have health insurance, either, especially if he has been in Israel for a lengthy period.
The High Court ruling was especially important because of the stress it put on not treating a migrant worker as a robot or as an object that has no rights; as Arbel put it, we cannot benefit from their services and just relate to them as useful means, without taking responsibility for their rights. Although this hearing was restricted to the case of migrant workers living in Israel for lengthy periods, it would behoove the government to exploit the opportunity to assure all migrant workers and asylum seekers full access to health services.
Also important is that the court emphasized that the right to health is a human right recognized by international law and Israeli constitutional law (as part of the rights accorded one’s dignity, body, and life, that appear in the Basic Law on Human Dignity and Liberty) and described it as “one of a person’s most basic and vital rights.”
Also stressed was the importance of equitable access to medical treatment. Arbel underlined the need to broaden the recognition of the right to health and noted that medical services are to be given to every insured person in accordance with his needs, independent of his ability to pay, in accordance with the principle of mutual assistance that is the basis for the National Health Insurance Law, and that one cannot discriminate between one insured and another for budgetary reasons.
These statements resonate given the growth of private funding mechanisms for health care that already exist and that undermine equality in the health system, such as co-payments, private health services (known as "sharap") and supplemental insurance schemes. The court’s declarations should be weighed carefully by the German Committee, headed by Health Minister Yael German, which is examining some of these issues. The right to health and health equality, which the High Court has now accentuated, applies not just to migrant workers but to all Israeli residents. It would be wise for the committee to reject all proposals to “privatize” health services, such as offering private services and procedures at government hospitals or having life-saving drugs funded by supplemental insurance and not by the public health basket available to all.