Waiting times in mental health care continue to increase. Currently, more than 60,000 people with psychological issues are waiting longer for help than the established standards allow. This is despite the clear rules: health insurers have a legal duty of care, and agreements are in place to ensure patients receive help on time. In practice, however, these agreements are often not upheld. The Recht op GGZ Foundation considers these waiting times unacceptable and has decided to hold the State liable. Martin Buijsen, Professor of Health Law at Erasmus School of Law, sees this move as understandable. In Het Financieele Dagblad, he explains that the right to care is an internationally recognised human right, and thus far more than a non-binding obligation.
The right to care is a human right
For Buijsen, it is clear: the right to care is not an ideal that can be pursued casually. "The Netherlands has recognised the right to care in international treaties as a human right", he says. This means that the government must continuously improve access to care; a principle known in legal terms as 'progressive realisation'. "Waiting lists are inevitable", Buijsen acknowledges, "but allowing the situation to worsen is prohibited." In that context, he identifies a clear minimum standard for government responsibility: compliance with the so-called Treeknormen, which define the maximum acceptable waiting times for care. These norms were established by care providers and health insurers themselves. "The government deliberately left the formulation of these agreements to the field. So, in my view, these norms represent the minimum that the government must uphold. Within these norms, continuous improvement must be pursued."
Judges intervene
When the minimum standards are consistently violated, legal action becomes possible, which is now happening. For years, the right to care was seen as a social right: important, but difficult to enforce legally. That era seems to be ending, says Buijsen. "Judges increasingly recognise that these rights come with concrete obligations, especially now that both the government and parliament are falling short." He points to the Urgenda case as a key turning point. "The government likes to present social rights as aspirational obligations." However, courts now acknowledge that citizens can derive concrete rights from such social rights. That makes the strategy of activist groups like the Recht op GGZ Foundation more viable. "Citizens need a way forward", says Buijsen.
Target norm merely a guideline?
In its correspondence with the foundation, the State argues that the Treeknorm is merely a target, and therefore not legally enforceable. However, according to Buijsen, that is not an acceptable excuse for inaction. "Just because something is not legally enforceable does not mean you do not have to do it", he says. Buijsen is clear: "We are not dealing with a natural disaster here, but with a situation where various parties are looking the other way, and the most vulnerable people are waiting the longest for help. This did not just happen to us. It was created. So it is up to the State to fix it."
A key role for the regulator
In addition to legal action and political responsibility, Buijsen also highlights the importance of effective oversight. He says the Dutch Healthcare Authority (NZa) plays a crucial role. This regulator oversees health insurers in practice and must ensure they fulfil their duty of care. "Fortunately, the NZa has become a bit more active in this regard", Buijsen explains. Nevertheless, he stresses that this body must no longer hesitate to intervene when it becomes clear that insurers are failing structurally. "Only then can the right to care truly be guaranteed."
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Read the full article in Het Financieele Dagblad here (in Dutch).
