‘Public authorities insufficiently aware of obligations arising from freedom of choice of healthcare provider’

Is the right to choose your healthcare provider protected in the Dutch Constitution? What are the consequences then for the Dutch healthcare system? PhD defence on 5 July 2022.

Bastiaan Wallage

In the Dutch healthcare system, much has been written about the ‘freedom of choice of healthcare provider’: a patient’s right to choose their own doctor. In health law, this is seen as a fundamental right of the patient, since it is important that patients trust their doctor. ‘If that trust is lacking and that is a reason for a patient not to go to the doctor in question, it might entail that the patient will remain ill,’ says PhD student Bastiaan Wallage. ‘That would have major consequences for patients themselves and also for access to healthcare at a collective level.’

Although much has been written about the right to freedom of choice of healthcare provider, there was nothing in the literature about what this right entails exactly, and what the legal basis for this right is. ‘This is something that rarely occurs in law. It intrigued me and was the main reason for me to conduct research on the topic.’

Wallage currently works as a lawyer for Van Benthem & Keulen, specialising, among other things, in administrative law for administrative authorities. In 2018, he joined the Department of Constitutional and Administrative Law as an external researcher. Wallage had previously studied in Leiden, graduating with master’s degrees in constitutional and administrative law as well as business law. ‘As a student, I’d already started to write and publish in law journals. I enjoyed – and still enjoy – thinking about legal developments and writing about such topics.’

Starting point

Wallage’s PhD research deals with the question of whether the right to choose your own doctor is constitutionally protected and therefore part of the Dutch Constitution. ‘Based on this hypothesis, the next question is what this then entails for the Dutch healthcare system. My research assumes that the Dutch healthcare system is based on four laws: the Healthcare Insurance Act, the Long-Term Care Act, the Youth Act and the Social Support Act 2015.’

The research shows that there are grounds for assuming that the right to freedom of choice of healthcare provider is constitutionally protected and is part of the right to self-determination. Wallage: ‘The right to self-determination is protected by Article 8 of the European Convention on Human Rights. Based on the jurisprudence of the European Court of Human Rights, this has major implications for the national system: a national Member State has a positive obligation to protect rights that are protected under the aforementioned article of the Convention. This protection implies, among other things, that in national regulations an assessment must be made of how a certain fundamental right is protected within the national jurisdiction’.

In his research, Wallage concludes that the right to freedom of choice of healthcare provider within the Dutch healthcare system has been fleshed out by the legislature in various ways and that often no supporting reasons are given. Wallage: ‘The national government seems to be insufficiently aware of its obligations arising from Article 8 ECHR and in particular the considerations it must make in that context. One of my recommendations, therefore, is to reconsider and, above all, harmonise the Dutch healthcare system in relation to the right to freedom of choice of healthcare provider’.

Hobby

Wallage has enjoyed working on his PhD thesis the past few years. ‘Although I’m glad to be finalising the project, I will also definitely miss it besides my work. That’s because I got on well with my supervisor and co-supervisor. The legal discussions we had about the topic helped me move forward in my thinking and writing process.’

For Wallage, writing about legal topics more of a hobby than a job: ‘I also really enjoyed writing my PhD thesis. I think that when you start out doing a PhD, you need to have a basic attitude that are always going to be setbacks. When they happen, you need to have the energy to continue. One piece of advice, therefore, is to first publish in a journal and experience what it’s like to conduct research on a legal topic before actually embarking on a PhD.’

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