SENTGES v. THE NETHERLANDS
Inadmissible
Gaukur Jörundsson
The applicant, Mr Nikky Sentges, is a Netherlands national, who was born in 1986 and lives in Maassluis. He is represented by his mother, Mrs M. Sentges, who exercises parental authority (ouderlijk gezag) over him. In the proceedings before the Court he is represented by Mr M.F. Vermaat, a lawyer practising in Hilversum. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant suffers from Duchenne Muscular Dystrophy (DMD), a disease characterised by progressive muscle degeneration, loss of the ability to walk and often the loss of lung or cardiac functions. There is currently no known cure for DMD. Most affected people survive into their twenties. The applicant is unable to stand, walk or lift his arms, and his manual and digital functions are virtually absent. He uses an electric wheelchair to move about, both outside the home and at school. He uses an adapted joystick to control the movement of the chair as he lacks the muscle strength required to operate the standard joystick. For every act he needs or wishes to perform, including eating and drinking, he is completely dependent on assistance from third persons. On 20 July 1999 the applicant’s parents requested their health insurance fund (ziekenfonds) to provide him with a “MANUS Manipulator”, a robotic arm specifically designed to be mounted on electric wheelchairs in order to give disabled people more autonomy in handling objects in their environment. This request was supported by a rehabilitation specialist (revalidatiearts) who informed the health insurance fund that when the applicant had tried out the robotic arm he had shown that he would be able to learn how to use it. Providing the applicant with the robotic arm would enable him to perform many acts unassisted, such as: – pouring drinks and drinking; – picking up various remote controls and using them; – operating audio and video players, for example inserting and removing audio and video cassettes; – switching a computer and printer on and off; – pressing lift buttons and door bells when visiting third persons; – shopping; – making telephone calls and sending faxes; – picking up items off the floor or out of cupboards; – picking up papers and/or books and turning pages; – scratching himself; and – playing games. Since the applicant was receiving the 24-hour assistance he required mainly from his parents, it was not possible to quantify in monetary terms the savings which would result from the use of the robotic arm. However, not long after being provided with the robotic arm, the applicant’s dependence on the constant presence of carers would be reduced by at least one to three hours a day. This would alleviate the task of the carers, who would thus be better able to continue fulfilling their task. In addition, the applicant would be able to continue living at home (for a longer period of time). The total cost of the robotic arm amounted to about 36,000 euros (EUR). On 10 August 1999 the health insurance fund rejected the request for the reason that the provision of a robotic arm was covered neither by the Health Insurance Act (Ziekenfondswet), the Exceptional Medical Expenses Act (Algemene Wet Bijzondere Ziektekosten) nor by any other social insurance scheme. The objection (bezwaar) which the applicant’s parents filed against this decision was rejected by the health insurance fund on 18 May 2000. The insurance fund held that since Article 15 of the Health Insurance (Treatment and Services) Decree (Verstrekkingenbesluit Ziekenfondsverzekering) stipulated that insured persons were entitled to those medical devices which had been designated by the Minister for Health, Welfare and Sport (Minister van Volksgezondheid, Welzijn en Sport; “the Minister”), it was not allowed to provide for, pay for or make a payment towards devices other than those mentioned in Article 2 of the Regulation on Medical Devices 1996 (Regeling hulpmiddelen 1996; “the Regulation”). A robotic arm was not listed in that Regulation. The appeal lodged by the applicant’s parents against this decision was upheld by the Regional Court (arrondissementsrechtbank) of Rotterdam on 12 December 2000. The Regional Court considered that the health insurance fund had given too narrow an interpretation to certain provisions of the Regulation. It therefore ordered the health insurance fund to come to a new decision on the request for the robotic arm. In view of this finding the Regional Court considered that it was not necessary to examine the arguments raised by the applicant’s parents relating to Article 8 of the Convention. The health insurance fund appealed against the judgment of the Regional Court to the Central Appeals Tribunal (Centrale Raad van Beroep). It maintained that the robotic arm was not a medical device which could be provided pursuant to the Regulation. In this connection it pointed to the fact that the Health Care Insurance Board (College voor zorgverzekeringen) had advised the Minister in September 2000 to include the robotic arm in the Regulation. However, the Minister had decided not to adopt this proposal for the time being. Obviously, if an insured person was already able to enforce a right to be provided with a robotic arm, neither the advice of the Health Care Insurance Board nor the decision of the Minister would have been necessary. The arguments presented on behalf of the applicant in the proceedings before the Central Appeals Tribunal included extensive reasoning relating to Article 8 of the Convention. On 29 January 2002 the Central Appeals Tribunal rejected the appeal. It found that the Regulation did not contain an entitlement for the applicant to be provided with a robotic arm. As to Article 8, the Central Appeals Tribunal held as follows: “The Tribunal is of the opinion that it has to be said that a direct and immediate link exists between [the applicant’s] private life and the measure demanded from [the health insurance fund], to wit the provision of a robotic arm. Taking into account the wide margin of appreciation which the State enjoys in these matters, it can nevertheless not be said that, when weighing the general interest, including the costs of health care, against the individual interest, the State could not reasonably have decided to exclude the robotic arm at issue from the package of treatment and services that persons are entitled to pursuant to the Health Insurance Act.” The above-mentioned report of the Health Care Insurance Board stated that between 150 and 400 persons a year might be eligible for the robotic arm if it were to be included in the health insurance fund package. If the lifespan of a robotic arm was set at five years, the yearly costs would amount to EUR 10,900 per arm. It was likely that the provision of a robotic arm would also entail savings, but the exact extent of these savings was difficult to estimate. Insurance under the Health Insurance Act is statutory: everyone who meets the criteria laid down in the legislation is automatically insured and consequently obliged to pay the statutory contribution. These criteria relate mainly to income; individuals whose income exceeds a certain amount are expected to take out private insurance. Children to whose maintenance an insured person contributes at least a particular amount per week are also insured. A person insured under the Health Insurance Act must register with a health insurance fund in order to obtain insurance entitlements. The nature of the care available to those covered by the Health Insurance Act is defined in the Act itself and in more detail in the Health Insurance (Treatment and Services) Decree and the associated ministerial regulations. In addition, all residents of the Netherlands are statutorily insured under the Exceptional Medical Expenses Act (Algemene Wet Bijzondere Ziektekosten) which provides cover for very severe financial burdens as a result of serious long-term illnesses or disorders.