According to the Dutch Healthcare Authority (NZa for Nederlandse Zorgautoriteit in Dutch), approximately 78,000 different patients were on the waiting list for mental health services (GGZ for geestelijke gezondheidszorg in Dutch) by the end of last year. More than half of those on the waiting list must wait longer than the maximum acceptable waiting time for care. The foundation 'Recht op GGZ' ('Right to GGZ') has filed a lawsuit against the state and health insurers. The foundation believes that the government allocates too little funding for mental health services and claims that health insurers are failing their duty of care by not purchasing sufficient mental health services. Martin Buijsen, Professor of Health Law, commented on the issue and the lawsuit in the NOS news broadcast.
Buijsen states: "In healthcare, so-called Treek norms apply to waiting times." The NZa monitors the duty of care of health insurers. This duty has been concretized in NZa policy rules. For each type of care, the maximum acceptable waiting time has been established by care providers and health insurers. Buijsen continues: "For mental health services, the Treek norm for registration waiting time is four weeks, and for treatment waiting time, it is ten weeks. Suppose your general practitioner has referred you to a mental health care provider contracted by your insurer, and no intake has occurred with this provider within four weeks. In that case, the insurer is in default, just as it is in default if the treatment does not start within ten weeks after the intake." Only if the insurer can successfully claim force majeure can it escape its duty of care. However, when does a force majeure claim succeed? Buijsen explains: "Force majeure on the part of the health insurer is only accepted when it has proven to be factually impossible for the insurer to purchase sufficient care. In March, the NZa announced the results of an investigation showing that health insurers have insufficient insight into the mental health services available in their regions. Later that month, two health insurers were even subjected to measures by the NZa because they fell short in this regard." In NOS Nieuws, Buijsen indicated that it is difficult for health insurers to prove force majeure.
An obligation of results
The foundation 'Right to GGZ' believes that health insurers are failing their duty of care, as a study by the Dutch Consumers' Association revealed that health insurers do not contract thousands of psychologists and psychiatrists. Buijsen states in the NOS news broadcast that Dutch health insurers must ensure timely, accessible, and good-quality mental health services. He explains that according to the legislator, this is an obligation of results, not effort. "What result a health insurer is obliged to achieve for its insured depends on the type of health insurance agreement they have. If you have a reimbursement policy, the insurer must reimburse the costs you incurred with the care provider of your choice. However, most insured persons have a service-in-kind policy, where the insurer has contracted care for its insured. In that case, the insurer must organize timely care of good quality at a reasonable distance from the insured's residence. The insurer must guarantee this."
Access to care is a human right
Currently, the waiting lists are too long according to the foundation 'Right to GGZ'. The foundation considers the waiting list unacceptable and believes human rights are being violated. Buijsen explains: "The right to access necessary healthcare is a recognized social human right, enshrined in several treaties to which the Netherlands is a party." For example, Buijsen cites Article 12 of the International Covenant on Economic, Social and Cultural Rights. "What counts as 'necessary healthcare' falls within the 'margin of discretion' of a state party to that treaty and depends on the capabilities and preferences of that state, but mental health services included in the basic package are certainly necessary healthcare. Otherwise, we would not have wanted to finance that type of care in the Netherlands collectively." Buijsen explains that the Health Insurance Act is one of the laws through which the Netherlands has concretized this internationally recognized social right. When an insured person with a service-in-kind policy has to wait longer for the indicated form of mental health care than the applicable Treek norm prescribes, their human right is violated, Buijsen concludes. According to Buijsen, the foundation certainly has a chance in this case.
- Professor